N9890
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 83 OF 2022

BETWEEN:
NANCY WARKIA
Plaintiff

AND:
SHADRACH HIMATA Acting Chief Secretary, Bougainville Executive Council, Autonomous Region of Bougainville Government
First Defendant

AND:
AUTONOMOUS REGION OF BOUGAINVILLE
Second Defendant

Kokopo:   Dingake J
2022:    15th August

JUDICIAL REVIEW – application by plaintiff to review decision by the defendants to suspend and dismiss plaintiff from her employment – plaintiff employed by the office of the Bougainville Executive Council in the autonomous government of Bougainville – plaintiff relies on three grounds of review – that there was an error of law in the decision making process – that the defendants decision to dismiss the plaintiff from employment was unreasonable in the wednesbury sense – that there was a breach of natural justice in the decision making process – plaintiff was employed on contract when she was suspended and dismissed - Section 44(8) of Bougainville Public Service (Management and Administrative) Act 2014 not applicable to plaintiff - invocation of Section 44 (8) a fundamental error of law rendering the decision to suspend and dismiss plaintiff a nullity and of no force and effect – plaintiff reinstated with back pay and unpaid salaries and entitlements

Cases Cited:
Papua New Guinean Cases

Dr Rose Kekedo v Burns Philip (PNG) Ltd [1988–89] PNGLR 122
Mision Aisiki v Manasupe Zurenuoc, Morobe Provincial Administration & The State [2002] SC797
Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others [2001] N2123
Morobe Provincial Government v Minister for Village Services [1994] N1215
Peter Luga v Richard Sikani [2002] N2285
Clement Kilepak v Ellison Kaivovo (2003) N2402
John Magaidimo v Commissioner of Police (2004) N2752)

Overseas Cases

Associated Provincial Picture Houses Ltd v wednesbury Corporation 1948(1) KB 223

Counsel:

Mr. Desmond Aigilo, for the Plaintiff.
Mr. Simon Dewe, for the Defendants

15th August, 2022

1.	DINGAKE J: This is an application for judicial review.  The Plaintiff seeks to review two (2) decisions made by the First Defendant on the 8th and 19th of April, 2021 respectively.  The first decision related to the Plaintiff’s suspension and the second decision related to her dismissal from employment. 

2.	The Plaintiff was employed as a Director of Strategic Planning and Policy Co-ordination by the Second Defendant.  The contract was subject to renewal.   Her contract which was for a period of three (3) years commenced on the 30th of June, 2020.

3.	The Plaintiff relies on three (3) grounds upon which she seeks to quash the decision of the Defendants:

(a)	Error of law
(b)	Wednesbury principles of unreasonableness 
(c)	Breach of natural justice.

4.	Before considering the grounds of review, I must first deal with the preliminary issue that was raised by the Defendants in the course of the hearing.

5.	During the course of hearing the Defendants raised a preliminary issue relating to the competency of the substantive review application.  They submitted that this proceedings are an abuse of Court process because the two (2) decisions the Plaintiff intends to review, the suspension and dismissal, were subject of a separate judicial review proceedings filed in Buka styled OS (JR) No. 434 of 2021.

6.	The Defendants submitted that in the above proceedings, involving the same parties as in this matter, the Plaintiff’s application for leave was refused on the basis that the Plaintiff did not exhaust administrative remedies.  The court having refused leave, proceeded to reinstate the Plaintiff pending her appeal to Bougainville Public Service Commission.

7.	The decision to reinstate the Plaintiff was subsequently quashed by the Supreme Court on the basis that having refused leave the court could not proceed to reinstate the Plaintiff, as it lacked jurisdiction to do so.

8.	It is common cause that the proceedings where subsequently instituted in Kokopo in terms of which an application for leave was sought and granted relating to this substantive review matter. 

9.	 It is also common cause that during the leave stage the issue of the propriety or competency of seeking leave in Kokopo, to institute proceedings to review the suspension and or dismissal of the Plaintiff was raised and dismissed by my brother Kassman, J.  Leave was granted to institute review proceedings and trial date for the judicial review was set down before me on the 15 of August, 2022.

10.	I find no merit in the competency ground raised by the Defendants that these proceedings are an abuse of court process, because a court of competent jurisdiction granted leave and there is nothing on record to suggest that the Defendants at any stage sought to appeal or set aside that decision.  As matters stand leave to institute judicial review was granted and the matter has been set down to proceed to trial. It is trite law that a Court order unless set aside by a court of competent jurisdiction stands as valid and enforceable.

11.	Having dismissed the preliminary point raised by the Defendants, I turn now to the grounds of review. 

12.	It is convenient to deal with the two grounds of wednesbury unreasonableness and natural justice first.  On the papers and during the cause of argument it appeared to me that the argument that the decision of the Defendants were unreasonable in the wednesbury sense overlapped with the first ground that the Defendants committed an error of law. On this ground, of “wednesbury unreasonableness” the Plaintiff contended that no reasonable tribunal/administrative body knowing that the Plaintiff was employed under contract could have suspended and or dismissed her in violation of Section 33 (1) and (2) of the Bougainville Public Services (Management and Administration) Act 2014.

13.	It is trite law that a decision of a public body that misconceives the law or otherwise makes errors of law may be reviewed and quashed by a Court of law (Dr Rose Kekedo v Burns Philip (PNG) Ltd [1988–89] PNGLR 122; SC373).

14.	The law on “wednesbury unreasonableness” was set out in the famous case of Associated Provincial Picture Houses Ltd v wednesbury Corporation 1948(1) KB 223.  In this case the Court established and re-affirmed the basic principles of unreasonableness. Lord Green, explained the principle of unreasonableness in the following terms:

“The exercise of a discretion must be real, matters which ought to be considered must be; conversely irrelevant collateral matters must be disregarded.  Where the discretion is exercised within the ambit of considering what is relevant the court cannot intervene, except where the conclusion nevertheless reached is so unreasonable, “… in the sense that the court considers it to be a decision that no reasonable body could have come to.  It is not what the court considers unreasonable, a different thing altogether”.

15.	Having regard to the above, I do not find that there is enough evidence to support the conclusion that the decision of the First Defendant was unreasonable in the wednesbury sense. 

16.	With respect to the alleged violation of the principle of natural justice the Plaintiff argued that the principles of natural justice were violated because the First Defendant who was at the  material time (according to the Plaintiff) the Head of Department recommended the dismissal to himself when he was acting as Acting Chief Secretary and Head of Public Service, suggesting that the First Defendant was both a judge, jury and an executioner of his decision.  It seems to me that if it were established by evidence that the First Defendant was both a judge, jury and an executioner, the principles of natural justice would have been breached.

17.	On the evidence there is nothing that proves that at the material time the First Defendant was both the Head of Department and the Head of the Public Service.  This much, Mr. Aigilo, learned counsel for the Plaintiff, conceded in argument, but asked the court to draw an inference that this was so from the notice of dismissal appearing at page 154 and 155 of the Review Book.  Having read the said letter, dated the 19th of April 2021, I am clear in my mind that no such inference can be drawn.  It follows that this ground too has no merit and is liable to be dismissed as I hereby do.

18.	I turn now to consider the only ground that remains, namely, that the decision of the First Defendant was erroneous in law as it offended Sections 33(1) and (2) referred to earlier.

19.	Section 33 (1) and (2) of the Bougainville Public Service (Management and Administrative Act provides as follows:

(1)	 An officer appointed to a senior management office designated under Section 32 must be employed under, and holds office in accordance with, the terms and conditions of a senior officer contract. 

(2)	The provision of part 10 do not apply to a senior officer contract and the remaining provisions of this Act apply only in so far as they are not inconsistent with the terms and conditions of the senior officer contract.

20.	In response to the argument that the Defendants made an error of law, the Defendants contend that the First Defendant did not commit any error of law because at the time of suspension and termination the Plaintiff’s position as Director was abolished or declared redundant pursuant to a resolution of Bougainville Executive Council passed on the 17th of November, 2020. (BEC No: 15 OF 2020).

21.	According to Mr. Dewe, learned counsel for the Defendants, it was as a consequence of the restructuring necessitated by the above decision that the Plaintiff was transferred to the office of Chief Secretary, to work under Chief Secretary, Operations.

22.	It was submitted by Mr. Dewe that it was because of the BEC decision referred to earlier and the circulars issued on the 12th, and 15th February, 2021, that made the substantive decision of the Plaintiff redundant, the effect of which was to change her status from a contract officer to a normal public officer.  It is on account of this reason, that the Defendants argue that the Plaintiff as a non-contract officer was properly dismissed in terms of Section 44(8) of the Public Service Management and Administration Act, that deals with non-contract officers, and that no error of law was committed.

23.	Section 44(8) of the Act that the Defendants place reliance on forms part of Part 10 of the above-mentioned Act.  It permits the Head of the Public Service to dismiss an officer after considering a Report by the Department Head of the Department of Administrative Services.

24.	On the evidence there is nothing to suggest that the Plaintiff’s position as Director was abolished or declared redundant.  On the evidence the First Defendant on the 8th April, 2021, suspended the Plaintiff.  This was followed by her dismissal on the 19th of April, 2021.  There is evidence that the BEC decision was taken in November 2020 and notices on restructuring issued on the 12th and 15th February 2021. This was done before the Plaintiff was suspended and dismissed.  Naturally and logically the question arises, as learned counsel for the Plaintiff submitted in the course of his submissions, why would the First Defendant dismiss the Plaintiff who was then redundant?  This does not seem to make sense.

25.	Before me there is no evidence of any legislative amendments that grounded or justified the Plaintiff's dismissal from her employment or any evidence that the Plaintiff was at anyone stage employed as a temporary officer. 

26.	On the evidence, I am satisfied that the Plaintiff was at all material times hereto, when she was suspended and eventually dismissed, a contract employee (see page 23 – 60 of the Review Book). In terms of the law her disciplinary process was governed by Section 33(1) and 33(2) of the Public Service Management Act and not Section 44(8) as argued by the Defendants.

27.	Given that the Plaintiff was a contract employee the provisions of Section 44(8) were not applicable to her.  The invocation of Section 44 (8) was a fundamental error of law rendering the decision to suspend and dismiss her a nullity and of no force and effect.

28.	It follows from the above that the decision of the First Defendant was unlawful and liable to be quashed and set aside. 

29.	The Plaintiff has succeeded in proving that the Defendants committed an error of law. The next question is what remedies should the court grant?  In the case of Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and the State (2002) SC797, the Supreme Court addressed the issue of a remedy after a party has succeeded to review and set aside the decision in the following terms.

“It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for remedy. In judicial review proceedings the remedies to be granted are at the discretion of the Court…”

30.	The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified. In this case the Defendant made a patent error of Law.

31.	In the case of Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123 the court ordered the reinstatement of a hospital pharmacist who had been unlawfully dismissed even though he had not asked to be reinstated.

32.	In this case, I consider that it is in the interest of justice that the Plaintiff be reinstated to her former position or to an equivalent position and I will make an order accordingly in due course.

33.	The final issue is back-pay.  The question that arises is whether the Plaintiff should be compensated for the loss of salary and other entitlements she incurred from the date of her dismissal to the date of her reinstatement? In mind the fact that the Plaintiff’s dismissal was unlawful entitles her to backpay. 

32.  	The jurisdictional basis for making such an order lies in Section 155(4) of the Constitution which states:

“Both the Supreme Court and the National Court have in inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case”.

32.	There are many cases where the court has held that because the dismissal was unlawful, then the Plaintiff is entitled to back-pay. (Morobe Provincial Government v Minister for Village Services (1994) N1215, National Court, Salika J; Peter Luga v Richard Sikani (2002) N2285, National Court, Sakora J; Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; and John Magaidimo v Commissioner of Police (2004) N2752).

33.  	In the result I grant the following Orders:

(1)	Pursuant to Order 16 Rule 5 (1) of the National Court Rules judicial review of the decisions of the First Defendant made on 8 April 2021 and 19 April 2021 to suspend and dismiss the Plaintiff from the Bougainville Public Service be granted.

(2)	Pursuant to Order 16 Rule 1 (1) and (2) of the National Court Rules a declaration that the decisions of the First Defendant made on 8 April 2021 and 19 April 2021 to suspend and dismiss the Plaintiff from the Bougainville Public Service are unlawful and therefore null and void;

(3)	Pursuant to Order 16 Rule 1 (1) and (2) of the National Court Rules an Order in the nature of certiorari pursuant to Order 16 Rule 1 (1) of the National Court Rules to bring up into this Honourable Court and quash the decisions of the First Defendant made on 8 April 2021 and 19 April 2021to suspend and dismiss the Plaintiff from the Bougainville Public Service.

(4)	Pursuant to Order 16 Rule 1 (1) and (2) of the National Court Rules an order in the nature of mandamus pursuant to Order 16 Rule 1(1) of the National Court Rules to direct, compel and require the First Defendant to:

i.	Reinstate the Plaintiff to the Bougainville Public Service and to her substantive position or a position similar in function, role, grade, pay and benefits.

ii.	Reinstate the Plaintiff on the Bougainville Public Service payroll; and

iii.	Back-pay the Plaintiff all unpaid salaries and entitlements and benefits lost as a result of the dismissal, from the date of separation to date of these Orders of the Court.

(5) 	Pursuant to Order 16 Rule 7 (1) (a) of the National Court Rules and Order for damages for:

i.  	Stress, anxiety, hardship and embarrassment to be assessed; and 

ii. 	An order for damages for fundamental breach of Contract to be assessed.

(6)	Costs of and incidental to these proceedings are to be determined after damages in paragraph 33 (5) hereof have been determined.
________________________________________________________________
Jaminan & Partners Lawyers: Lawyers for the Plaintiff
Jema Lawyers: Lawyers for the Defendants