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Mangulik v Torovi [2024] PGNC 18; N10657 (16 February 2024)

N10657

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 113 OF 2023


BETWEEN:
STANLEY MANGULIK
Applicant/Plaintiff

AND:
SAMSON TOROVI as the Provincial Administrator of East Sepik Province
First Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Purdon-Sully J
2023: 20th December


NATIONAL COURT – JUDICIAL REVIEW – where ultra vires, natural justice and Wednesbury principle of unreasonableness considered – decision under review quashed – Plaintiff reinstated to earlier position – costs


Cases cited:
Papua New Guinean Cases


Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39
Application by Hon Peter O'Neill MP [2023] PGSC 160; SC2506 (6 December 2023)
Koki v Inguba [2009] N3785
Nilkare v Ombudsman Commission (1996) SC498
Ombudsman Commission v Donahoe [1985] PNGLR 348
Re Mopio [1981] PNGLR 416
Ilau Karo v Ombudsman Commission of PNG [1995] N393
Kelly Yawip v The Police Commission [1995] PNGLR 122
Pierson Joe Kamagip v. Police Commission (1999) N1853
Ilau v Somare [2007] N5511
Raga v Kari [2002] PGNC 91; N9485
Air Nuigini v Doiwa [2000] PNGLR 347
Marat v Hanjung Power Ltd [2014] SC1357
Koti v Susame [2015] N5860
Rae v Matane [1979] PNGLR 239
Magiri v Papua New Guinea Forest Authority [2009] N3670
Lupari v Somare [2008] N3476


Overseas Cases


English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409
Lloyd v McMahon [1987] UKHL 5; [1987] 2 WLR 821
John v Rees (1970) Ch. 345; (1969) 2 All E.R. 274
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374


Legislation:


National Court Rules
Constitution
Public Services (Management) Act 1995


Other


Christopher Karaiye, Administrative Law and Judicial Review in Papua New Guinea, 2009, Notion Press


Counsel:


Mr. Jonathan Asupa, for the Applicant/Plaintiff
Mr. Nou Vada, for the First Defendant


DECISION


16th February 2024


  1. PURDON-SULLY J: The Plaintiff, Mr Stanley Mangulik, applies for judicial review of the decision of the First Defendant of 26 September 2023.
  2. The Plaintiff seeks a review of the decision of the First Defendant made on 26 September 2023 and published through Circular Instruction No 27/2023 dated 27 September 2023 to revoke the appointment of the Plaintiff as District Administrator of Maprik District and simultaneously appoint Mr Godfried Rasheum as caretaker administrator to replace the Plaintiff together with orders that:
    1. The Plaintiff’s termination was unlawful.
    2. The Plaintiff be reinstated to his former position as the Acting District Administrator of Maprik District.
    1. The Plaintiff’s lost salaries and entitlements be reimbursed to the Plaintiff and that such lost salaries and entitlements be calculated from the date of his unlawful termination.
    1. The Defendants to pay the Plaintiff’s costs of and incidental to these proceedings on a solicitor and client basis.
    2. Time abridgment.
  3. The First Defendant seeks the dismissal of the application and that the Plaintiff pay costs including the costs of the adjournment of 21 November 2023.

BACKGROUND


  1. The facts of this matter are confusing. It now appears to be conceded by the First Defendant that the Plaintiff was appointed to the role of Acting District Administrator of Maprik District in early February 2023. It is a finding supported not only by the First Defendant’s conduct in seeking to later revoke the appointment he had earlier put in issue by reason of the absence of a valid instrument or contract of appointment, but documentary evidence under the First Defendant’s own hand. An absence of an instrument or contract of employment did not, however, leave the Plaintiff without remedy or disentitle him to fair treatment. As part of procedural fairness, if not natural justice, the Plaintiff had a legitimate expectation that the First Defendant would treat him in a manner consistent with the expectations of his appointment, the First Defendant having represented to the Plaintiff that he had been appointed to the role of Acting District Administrator and thereafter having permitted him to undertake the functions associated with the role for a period of seven (7) months. It included ensuring that the First Defendant, as Provincial Administrator, would not only provide financial oversight, but attend to or ensure all necessary procedural requirements had been attended to whether within or outside his area of administrative responsibility, to give effect to the appointment he had made. To ignore those requirements and then raise the absence of an instrument of appointment as a basis for the dismissal of the Plaintiff’s claim in these proceedings offended not only the principles of fairness but was arguably an abuse of authority.
  2. The relevant background facts are as follows.
  3. By letter dated 10 October 2022 the Plaintiff wrote to the then newly elected Member of Maprik, Hon Gabriel Kapris MP, expressing interest in an appointment as the District Administrator or CEO of the Maprik District. At the time, the Plaintiff was a career public servant of over twenty (20) years’ experience with the Department of Finance serving as Regional Coordinator for the New Guinea Island region overseeing all Provincial and District finance operations across the region.
  4. The position of Acting District Administrator of Maprik District was then held by another person who I shall call Mr X.
  5. By letter dated 23 November 2022, Mr Kapris wrote to the First Defendant notifying him that the Plaintiff had been appointed Acting CEO/District Administrator for the Maprik District Development Authority and that he would be on secondment from the Department of Finance pending a proper job transfer. Mr Kapris noted in his communication that the Plaintiff was a Senior Officer within the Department and would bring with him a wealth of financial management experience. Mr Kapris requested the First Defendant’s prompt attention to affirm the position enclosing a resolution for his endorsement.
  6. In a further letter to the First Defendant of the same date Mr Kapris requested the revocation of Mr X’s appointment.
  7. On 12 December 2022 Ms. Taies Sansan, Secretary of the Department of Personnel Management (DPM), wrote to Mr Kapris in response to a request by him for advice on the administrative arrangements required to give effect to the Plaintiff’s appointment and transfer. Ms. Sansan detailed the urgent steps required to assist payroll and transfer requirements. The Plaintiff and First Defendant were copied in on this letter.
  8. On the same date Ms. Sansan wrote to the First Defendant She noted inter alia a lack of response by the First Defendant’s office, as administrative head, to the recommendations of Mr Kapris and requested urgent clarification as to what steps had been taken within his administrative structure to address the matter with respect to Mr X and the Plaintiff’s position to assist Mr Kapris. She sought a prompt response to her letter.
  9. By further letter dated 14 December 2022 to the First Defendant, Ms Sansan, referring to her earlier letter to the First Defendant of 12 December 2022, requested that “an Instrument of acting appointment for Mr Stanley Mangulik and revocation of appointment for (Mr X) be immediately signed by you as the Provincial Administrator in compliance with the Public Services (Management) Act 1995 as amended and released to the two officers”. It noted that the release of the Plaintiff had been endorsed by the Secretary for the Department of Finance and that the Plaintiff would hold the position “for an indefinite period until such time a permanent position is made”. The First Defendant was requested to “formalize this revocation and acting appointment as soon as possible.....”. She reiterated that the First Defendant needed to comply with the selection and recruitment process to enable the vacancies to be filled. The First Defendant was encouraged to remain neutral and as head of the public service in the province to provide assistance to all members of the province.
  10. On 1 February 2023 the First Defendant revoked, by instrument, the acting appointment of Mr X effective 2 February 2023. By letter to Mr X of the same date he instructed him to 'participate in the official handover takeover session with (the Plaintiff) the incumbent Acting District Administrator’ and do so within five (5) days.
  11. By letter dated 1 February 2023 to the Plaintiff, the First Defendant appointed the Plaintiff ‘Acting District Administrator for Maprik District pertaining to the endorsement by the Secretary Department of Personnel Management dated 14 December 2022’ effective 2 February 2023, congratulating him on the appointment. The letter was copied to Mr Kapris, the Governor of the Province, the Secretary for the DPM, the Secretary of the Department of Finance, the Provincial Finance Manager and the Executive Director of the Human Resource Management.
  12. The Plaintiff’s appointment was publicly announced in The National newspaper and the Loop.
  13. The Plaintiff thereafter assumed the role of Acting Administrator with no evidence led by the First Defendant to suggest that any other person was Acting Administrator or performing the duties associated with the role.
  14. On 13 August 2023 Mr Kapris died unexpectedly.
  15. Between mid-August and September 2023, the First Defendant commissioned and received a report on the spending activities of the Maprik District Development Authority. On his evidence, he asked his officers (whom he had earlier tasked to do a discrete investigative review of the Plaintiff’s activities prior to his appointment on 2 February 2023) to undertake the report. Their findings were presented to the First Defendant in the form of a PowerPoint presentation. The report marked Annexure ‘ST 9’ to the affidavit of the First Defendant and titled ‘Maprik DAA Suspicious Expenditure August-September 2023’ is not authored or signed. The names of the officers or the professional qualifications of those who prepared the report are not in the evidence. None gave evidence in these proceedings. The report recommended the immediate suspension of the Plaintiff and one other person.
  16. On the evidence of the First Defendant, the report was alarming and, having formed the view that significant funds had been dispersed without authorization and/or public tender contrary to correct procedure, he revoked the Plaintiff’s appointment. It is unchallenged that he did so without seeking an explanation from the Plaintiff for what the report variously and broadly described inter alia as ‘suspicious road maintenance payments’, ‘dubious payments’, ‘reckless payments’ and ‘major issues’.
  17. By letter dated 25 September 2023 titled ‘Urgent Freeze of Maprik District Operating Accounts Due to Massive Suspicious Payments’ the First Defendant wrote to the CEO of the Bank of South Pacific requesting a freeze on a number of Maprik District operating accounts, pending a full investigation and disciplinary action with respect to the officers involved. The letter was copied into the Governor of East Sepik, Acting Secretary, Provincial Administrator, the Chief Ombudsman, Chief Secretary to Government, Secretary Department of National Planning and Secretary of Department of Treasury.
  18. By ‘Instrument of Revocation of Acting Appointment’ dated 26 September 2023 the First Defendant revoked the Plaintiff’s appointment in the following terms:

I, Samson Torovi, Provincial Administrator for East Sepik Provincial Administration, by virtue of the Powers conferred by Section 39 of the Public Service (Management) Act 1995 and all other powers me enabling, hereby “Revoke Mr. Stanley Mangulik to act in the Position No. ESPM 001 – District Administrator for Maprik, Grade 17”. All Section 32 Powers are also withdrawn concurrently.


This Instrument is effective as of 25th September 2023 and shall remain until Investigation of miss-conduct (sic) in Office are fully completed and or, the position is filled by a permanent incumbent.


Dated this Tuesday, 26th day of September 2023,


..................................

Samson Torovi

Provincial Administrator


  1. Section 39 of the Public Service (Management) Act 1995 provides as follows:

ACTING APPOINTMENTS.

Where an officer other than a Departmental Head is absent from his office or unable to perform the duties of his office for purposes specified in Section 36(4) or when there is a vacancy in an office other than an office of Departmental Head, the Departmental Head concerned may, if he thinks fit, appoint another officer to act in the place of the officer during his absence for inability, or may appoint an officer to fill the vacancy temporarily.


  1. Section 32 of the Public Service (Management) Act 1995, on its plain reading, relates to the reporting requirements of Departmental Heads. It is the evidence of the First Defendant that a section 32 Officer or the Financial Delegate is the authorised person under the Public Service (Management) Act to request, authorise and release payment of public service funds from a Government organisation, here the Maprik District Authority, and that a District Administrator becomes a section 32 Officer when the Department of Finance takes note of their instrument of appointment or contract of appointment and issues them an Instrument of Delegation to become a Financial Delegate for the Government agency they work for. How the Plaintiff obtained this status cannot be answered on the evidence. He did so, if the evidence of the First Defendant is accepted, without the involvement or knowledge of the First Defendant or an instrument of appointment, and notwithstanding the First Defendant’s governance and financial oversight functions as detailed at 2 of his affidavit filed 12 December 2023.
  2. By Circular Instruction No 27/2023 dated 27 September 2023 the First Defendant revoked the Plaintiff’s appointment as Maprik District Administrator effective 26 September 2023 on the grounds of gross abuse of public funds and non-performance of administrative duties. The Circular was in the following terms:

CIRCULAR INSTRUCTION NO. 27/2023


TO: Maprik District Administration

LLG Presidents & Members of Maprik DDA

All Business Houses & Stakeholders

All Public & Private Agencies

All Public Servants


DATE: Wednesday 27th September, 2023

PA – AG 11 – 1 – 5


SUBJECT: REVOCATION OF STANLEY MANGULIK AS MAPRIK

DISTRICT ADMINISTRATOR AND APPOINTMENT OF GODFRED RAUSHEM AS CARETAKER


As of Tuesday 26th September, 2023, I have revoked the appointment of Mr. Stanley Mangulik as District Administrator, Maprik, on allegations of gross abuse of public funds and non-performance of administrative duties as District Administrator amongst other reasons.


Mr. Godfrey Raushem, acting Deputy Provincial Administrator, D&LLG Services has been appointed as caretaker and will now take charge and exercise full management and authority on all matters for the Maprik District Administration until further notice.


I appeal for all to remain calm and allow for proper investigations and actions to be effected. I urged (sic) your full cooperation and support during this time.


For your adherence and compliance.


SAMSON TOROVI

Provincial Administrator


  1. The plaintiff was replaced by Mr Godfreid Raushem as caretaker administrator by instrument of appointment dated the 26 September 2023 in the following terms:

I, Samson Torovi, Provincial Administrator for East Sepik Provincial Administration, by virtue of the Powers conferred Section 39 of the Public Service (Management) Act 1995 and all other powers me enabling, hereby "Appoint Mr Godfried Raushem to act in the Position No. ESPM 001- District Administrator for Maprik, Grade 17". All Section 32 Powers are also delegated concurrently.


This Instrument is effective as of 26 September 2023 and shall remain until Investigation of Miss (sic) Conduct In Office are fully completed and or, the position is filled by a permanent incumbent.


  1. By letter dated 27 September 2023 the First Defendant notified the Plaintiff of the revocation of this appointment as follows:

Mr. Stanley Mangulik

Maprik District Administrator

C/East Sepik Provincial Administration

BMS-Free Mail Bag

Wewak, East Sepik Province


Dear Mr. Mangulik,


SUBJECT: REVOCATION OF ACTING APPOINTMENT TO THE POSITION

NO. ESPMN 001 – DISTRICT ADMINISTATOR FOR MAPRIK,

GRADE 17


This letter serves to advise you that, as the Provincial Administrator for East Sepik Provincial Administration, by virtue of the Powers conferred by Section 39 of the Public Service (Management) Act 1995 and all other powers me enabling, hereby Revoke your Acting Appointment to the Position No. ESPM 001 – District Administrator for Maprik, Grade 17”. All Section 32 Powers are also withdrawn concurrently.


The Revocation of your Acting Appointment is effective as of 26th September 2023 and shall remain until Investigation of Possible miss-conduct (sic) in Office are fully completed and or, the position is filled by a permanent incumbent.


On this note, I am now further instructing you, that within Seven (7) Working Days from the date of this Notice to Prepare Report and Facilitate Handover Takeover on the 5th of October 2023. Your Handover Takeover Reports MUST include;


1. Performance Report with Major Issues and Achievements;


2. Full District Asset and Manpower Report;


3. Full Revenue and Expenditure Report;


  1. Full Report on the K1.6 million spend of Late Hon. Gabriel Kapris Repatriation, Tomb Construction and Burial Costs;
  2. Full Report on the 76 Cheques at a total value of K5, 240, 811.85 that were printed in Waigani, Department of Finance on the dates at 28th and 31st August and 1st September 2023;
  3. Full Report to Justify Road Maintenance at K2,268,182.04 from Kombikum Junction to Roma Junction;
  4. Full Report to justify reimbursement of Cash Borrowed for personal use at K484,790.94.
  5. Full Report to justify from January to September 2023 that amounted to K2.7 million on Hire Cars and Cash Reimbursement for your personal use paid out from Maprik District Infrastructure Development Funding.

For your adherence and compliance.


Yours Sincerely,


.................................
Samson Torovi
Provincial Administrator


  1. By letters dated 27 September 2023 the First Defendant also wrote to:
    1. the Commissioner of Police seeking his investigation into the Maprik Administration and Finance Office for the period January to September 2023
    2. The Acting Secretary of Department of Finance
    1. Chief Ombudsman
  2. The letter to the Commissioner of Police was copied into the same six individuals as the letter of 25 September 2023, along with the Secretary of Personnel Management.
  3. The Plaintiff asserts that the revocation of his appointment was unlawful, that it involved a denial of procedural fairness and was otherwise in breach of the principles of natural justice.
  4. On 10 October 2023, the Plaintiff initiated proceedings seeking leave to apply for judicial review.
  5. On 19 October 2023 the First Defendant wrote to Detective Superintendent Robert Volo, Director of the Office of National Fraud and Anti-Corruption Directorate, naming the Plaintiff and bringing to his attention allegations of financial misconduct between August and September 2023. In a thirteen (13) page letter he detailed the issues as viewed by him. By letter dated 31 October 2023 the Director responded notifying the First Defendant that whilst some of the issues raised were administrative in nature, the criminal allegations would be investigated.
  6. By Order of 25 October 2023, the Plaintiff was granted leave for judicial review by a Judge of this Court.
  7. On 27 October 2023, the Plaintiff filed a Notion of Motion seeking inter alia a stay of the decision to revoke pending the substantive hearing for judicial review. On 1 December 2023 the application for a stay was dismissed and the matter listed for an expedited trial on 20 December 2023 within an agreed short time frame for the filing of material.

LEGAL PRINCIPLES


  1. Order 16 of the National Court Rules (NCR) is concerned with reviews by the National Court of decisions of an administrative or quasi-judicial nature.
  2. Order 16 Rule 1 of the NCR provides:

(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo

warranto shall be made by way of an application for judicial review in accordance with this Order.


(2) An application for a declaration or an injunction may be made by way of an application

for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to –


(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.


  1. Judicial review is a process that is available to hold public officials accountable for the correct use of their powers. It is not concerned with the decision itself but with the integrity of the decision-making process.[1] It is available where the decision-making authority exceeds it powers or lacks jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable authority would have reached (Wednesbury principles) or abuses it powers.[2]

GROUNDS OF REVIEW


  1. The Plaintiff relies upon three grounds to review the decision to revoke:
    1. Breach of procedures prescribed by statute or subordinate legislation designed to ensure procedural fairness in decision-making
    2. Breach of natural justice
    1. ‘Wednesbury’ principles of unreasonableness
  2. In reaching a decision on these grounds I have considered the material relied upon by the parties together with their written and oral submissions. I do not propose to respond to each and every submission made, however in reaching a decision on the issues I have considered all submissions. [3]

Breach of procedure


  1. With respect to the ground of breach of procedure the difficulty for the Plaintiff is that the ground pleaded in the Plaintiff’s Statement does not contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached.[4] The Plaintiff concedes that there are no express procedures for the termination of the position of Acting District Administrator however submits there are other procedures which were not followed and to which the Court should have regard.
  2. In the circumstances, and absent any authority to assist the Court, the Court is not persuaded by the submission advanced on behalf of the Plaintiff who carries the onus, that it is open to the Court to adopt the procedure for termination of the appointment as provided for a District Administrator under the provisions of the Public Services (Management) Act 1995 and s 7 of the Public Services General Order 1. The Court is reinforced in that conclusion by the existence of specific procedures for appointment to fill a vacancy in the Office of District Administrator in s 61 of the Public Services (Management) Act 1995 and for Acting Appointments of District Administrators in s 8 of the Public Services General Order 1.
  3. However, in the case of the appointment of Mr Raushem as an Acting Appointment there is no evidence that the First Defendant followed the procedure required in s 8 of the Public Services General Order 1. That section provides:

SECTION 8: ACTING APPOINTMENTS OF DISTRICT ADMINISTRATORS


1.57 In the event that an Office of District Administrator becomes vacant for a short period of time due to the absence of the substantive job holder or due to permanent vacation of the Office by a substantive job holder, then the Provincial Administrator shall appoint a suitable person to act in the Office in accordance with General Order 3.

1.58 The acting appointment to District Administrator shall be made by the Provincial Administrator in consultation with the Secretary for Provincial & Local Level Government Affairs and the Secretary, Department of Personnel Management.

1.59 Such an acting appointment shall not be made for a period in excess of 90 days, and shall not be subject to the contract terms and conditions made under Section 41 of the Act.

1.60 The acting appointee shall enjoy the following allowances and benefits as provided under the General Orders:

(a) where a substantive job holder is in office, Higher Duties Allowance plus contract allowances related to office functions only, including telephone and entertainment allowances, and use of a vehicle; or

(b) where no substantive job holder is in office, Higher Duties Allowance and all contractual allowances, other than Contract gratuity.

(Underling mine)


  1. There is no evidence that Mr Raushem’s appointment as caretaker was made by the First Defendant in consultation with the Secretary for Provincial & Local Level Government Affairs and the Secretary, Department of Personnel Management as required.
  2. In response, it is submitted on behalf of the First Defendant that there is no clear direction on what shape or form a consultation should take and that consultation is therefore an applicable but inconsequential part of the appointment process of the Acting District Administrator. To that end, Counsel for the First Defendant relies upon the decision of Application by Hon Peter O'Neill MP [2023] PGSC 160; SC2506 (6 December 2023) whereby it is submitted that four out of a five person bench of the Supreme Court unanimously held that where the breach of a rule that sets out no consequences of its breach and results in no prejudice suffered by anyone then the breach is inconsequential.
  3. The First Defendant further submits that if consultation was required in the manner contended, then the Plaintiff’s own appointment was nullified as there was no consultation with the Department of Provincial and Local Government Affairs.
  4. Both submissions are, respectfully, rejected for the following reasons.
  5. The first submission is a proposition at odds with the First Defendant’s evidence at [12] and [13] of his affidavit filed 12 December 2023 that the process of appointing an Acting Administrator ‘requires consultation that can take some time’ and that he had an understanding of the requirement to consult.
  6. Further, if the legislature viewed the inclusion of the word ‘consultation’ as inconsequential it begs the question why it was included at all. Similarly, if the consultation requirement was merely to ‘communicate’ a decision made, it begs the question why that word was not used.
  7. Order 1.58 starts with the word “shall’ which prima facie means that all the steps as outlined therein are mandatory.
  8. The term ‘consultation’ according to the Cambridge online dictionary means ‘the act of exchanging information and opinions about something in order to reach a better understanding of it or to make a decision, or a meeting for this purpose’.
  9. When read in its proper context, and when given its ordinary meaning, it is plain that what is required is that before an Acting appointment is made, here a vacancy occasioned by the effective dismissal of the Plaintiff, there must be a discussion between the persons detailed for the purpose of a consideration of the appointment, a process, for example, which on the evidence relating to the appointment of Plaintiff, had included the Secretary of the PSM.
  10. Nor is it open to the Court to conclude that there are no consequences of any breach. The prejudice is to the Plaintiff, and potentially Mr Raushem.
  11. With respect to the second submission on behalf of the First Defendant, it is accepted that whilst there is no evidence before the Court of any consultation occurring with the Secretary for Provincial & Local Level Government Affairs at the time of the Plaintiff’s appointment, however the First Defendant conceded in the course of oral submissions that the Plaintiff was appointed to the Acting position. There is no evidence that he raised formal objection to the appointment of the Plaintiff with the Secretary of the DPM, a course open to him as Provincial Administrator, if he was of the view proper procedures had not been followed. He may have felt under pressure at the time (on his evidence), however it is difficult for him to complain now about a lack of proper process when as Provincial Administrator he took no meaningful steps at the time to ensure it occurred and thereafter took positive steps to further the appointment made.
  12. The arguments with respect to the Plaintiff’s appointment lapsing after 90 days are not inconsistent with such a finding. Putting to one side that the First Defendant’s written communication to the Plaintiff on 1 February 2023 was without a 90 day time limit, the Plaintiff informed that his appointment would continue ‘until the position is substantively filled’ (see also [48] of the First Defendant’s affidavit), the First Defendant’s arguments fall away in circumstances where no formal instrument of appointment is produced from which, by operation of the law, the appointment period could run.
  13. The Court accordingly rejects the submissions advanced on behalf of the First Defendant with respect to the appointment of Mr Raushem.
  14. In summary, the Court is unable to conclude that the First Defendant exceeded his powers by breaching the procedures for revocation of the Plaintiff’s appointment because there were no procedures legislatively mandated that he was required to follow. However, the appointment of Mr Raushem was ultra vires being beyond the power of the First Defendant to make as he failed to follow the mandated procedures required for appointment as outlined. This ground is upheld in the circumstances as outlined.
  15. Even however if the Court is wrong in so concluding the grounds of breach of natural justice and reasonableness are upheld for the following reasons.

Breach of natural justice


  1. The Plaintiff next contends breach of natural justice inter alia that his appointment was revoked on allegations of gross abuse of public funds and non-performance of administrative duties and other reasons without the allegations being put to him, without his right to be heard and to respond. Further, on his evidence he was not served with his notice of revocation only finding out about it through a WhatsApp group. He further contends that he only became aware of the appointment of Mr Raushem during the course of these proceedings.
  2. On behalf of the First Defendant it is submitted inter alia that:
    1. It is settled law that the right to be heard does not apply to an investigation process.
    2. The position of Acting District Administrator is precluded by law from having public service contract rights.
    1. It is settled law that the Plaintiff will have a right to be heard once charges are laid against him.
  3. Turning to the relevant legal principles, breach of natural justice is a common law ground as well as a constitutional law requirement.
  4. Section 59 of the Constitution provides:

PRINCIPLES OF NATURAL JUSTICE.


(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.


(Underlining mine)


  1. The obligation to observe the minimum standard of the principles of natural justice is an onerous one,[5] the scope and ambit of the principles never limited.[6]
  2. The duty to act fairly and be seen to act fairly requires the decision-making process to be procedurally fair to the person whose rights, interests and legitimate expectations are affected by its decision.[7] What constitutes a person’s ‘interests’ is a broad one. It can include legal status, business and personal reputation, confidentiality, livelihood and financial interests.[8]
  3. Each case must turn on its own set of circumstances. As Lord Bridge of Harwich said in Lloyd v McMahon [1987] UKHL 5; [1987] 2 WLR 821 at [878 H] “....the so called rules of justice are not engraved on tablets of stone”.
  4. With these principles in mind, where as was the case here, the First Defendant was empowered to investigate and make decisions or reports on questions affecting the Plaintiff’s rights and duties, the procedures adopted by him were required to be fair and the principles of natural justice applied unless there were compelling circumstances to deny the applicability of those principles.[9]
  5. It is trite to observe that any decision by a public authority to terminate the employment of an individual, with the potential to affect that person’s livelihood, is a most serious one.[10] Other than a few exceptions, fairness will require a party who stands to be disadvantaged by a decision to be heard. The more consequential the disadvantage to the individual, the greater the individual’s claim to the procedural protection, the requirement to observe fair process heightened in the circumstances of this particular case by the potential damage to the professional and personal reputation of the Plaintiff by reason of the nature of the allegations of financial malfeasance.
  6. While, no criticism can be levelled at the First Defendant in taking action to respond to the findings of the report he commissioned, the First Defendant breached the principles of natural justice in his dealings with the Plaintiff by:
    1. failing to accord him the right to be heard before revocation of his appointment for asserted gross abuse of public funds and non-performance of administrative duties ‘amongst other reasons’, the ‘other reasons’ not particularized, a right that should have been accorded to him before, not after, revocation; and
    2. failing to serve him with the notice of his revocation.
  7. The right to be heard is part of procedural fairness. The contents of the report did not disentitle the Plaintiff to that right, one which had it been exercised, may have influenced the course taken by the First Defendant in circumstances where a recommendation of the report was suspension.[11] In that sense the denial of the Plaintiff’s right to address the First Defendant as decision-maker on what action should be taken by him represented a further breach of the principles of natural justice.[12]
  8. The overall evidence suggests pre-judgment and haste on the part of the First Defendant, and to that end, a failure to consider what procedural safeguards were open to him to ensure the protection of the public on the one hand and fairness and observance of the principles of natural justice to the Plaintiff on the other.
  9. As Megarry J said in John v Rees (1970) Ch. 345; (1969) 2 All E.R. 274 at [402]:

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everybody to go through the tiresome waste of time involved in .... giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges, which in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.


  1. That observation is as pertinent today as it was when made 55 years ago.
  2. There were no compelling circumstances on the facts of this case to deny the Plaintiff the opportunity to read the report and speak to it before the decision to revoke was taken by the First Defendant.
  3. There was no evidence arising on the report, nor from the external investigators, nor evidence on which a reasonable inference could be drawn, to suggest that any ongoing investigations by the police or others that may lead to disciplinary action being taken or criminal charges laid, were likely to be compromised if the Plaintiff was afforded an opportunity to be heard before any external investigation was completed. The contents of the First Defendant’s letter to the Plaintiff of 27 September 2023 seeking a response from him to justify financial dispersal, support such a conclusion.
  4. The submission on behalf of the First Defendant that the Plaintiff would be accorded the right to be heard during the investigative process by the police or once charges were laid, respectfully, is not persuasive. It assumes the inevitability of that particular outcome. There is no evidence that the laying of charges was imminent. At trial neither the police or the National Fraud & Anti-Corruption Directorate had sought to interview the Plaintiff notwithstanding the First Defendant’s complaint to the police three months earlier and the latter’s establishment of an investigative team in October 2023. Unlike the decision in Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39 (Asakusa) relied upon by the First Defendant, there is no evidence from the Police Commissioner that his investigation was being conducted with a view to laying criminal charges or that the actions taken by the First Defendant in revoking the Plaintiff’s appointment (in the case of Asakusa, suspension), was to facilitate the police and an ongoing disciplinary investigation.
  5. As observed earlier, each case will turn on its own facts. It is acknowledged that there will be cases where it is not appropriate for a public official being investigated for a disciplinary or criminal offence to be given a right to be heard because of the nature of the investigation, including by use of covert means. This is not such a case. The circumstances here do not present a compelling reason to ignore a fundamental right of fair process, that is, the right to be heard.
  6. As Cannings J said in Ilau v Somare [2007] N5511 at [66]:

The right to be heard of any person is special – something to be cherished in a society built on the principles of fairness, decency and natural justice. This is the sort of society PNG is supposed to be. That is what the National Goals and Directive Principles are all about.


  1. The facts and circumstances of this case required the Plaintiff to be heard before revocation was imposed. Fairness required the plaintiff an opportunity to consider and respond to the report that accused him of financial misconduct, administrative failures and to be informed of the other unparticularised reasons that gave rise to the decision to revoke.
  2. The First Defendant should have known that the Plaintiff’s ‘rights, interests and legitimate expectations’ would be affected by a decision to revoke without notice. He was aware that the Plaintiff was a senior career civil servant who had spent his working life in the Department of Finance, with no evidence of a blemished career before he assumed his role as Acting Administrator. It called for a procedural response by the First Defendant, as decision-maker, that was measured and proportionate.[13] Whilst the jurisprudence on proportionality as a separate ground of review is a developing one in this jurisdiction,[14] in the context of natural justice and fairness considerations, the manner of the Plaintiff’s removal involving, as it did a public outing, without notice, without being heard, without the First Defendant considering all procedural options open to him other than revocation, including suspension, pending the outcome of the investigative process and any disciplinary action that may arise from it, was disproportionate and unreasonable.
  3. The First Defendant also breached the principles of natural justice by failing to serve the Plaintiff with the notice of revocation. I accept the evidence of the Plaintiff that he was not served, the First Defendant failing to produce evidence of such service.
  4. This ground is upheld.

‘Wednesbury’ principles of unreasonableness


  1. I am further satisfied that the decision offended the Wednesbury principle of unreasonableness, the submissions on behalf of the First Defendant failing to materially address this ground. Unlike illegality or procedural impropriety, the Court is able to look at the merits of the decision under consideration to assess whether it was rational.[15]
  2. The decision of the First Defendant of the 26 September 2023 was one which no sensible authority acting with due appreciation of its responsibilities should have decided to adopt[16] because:
    1. In the formal process to revoke, the First Defendant ascribed two different appointments to the Plaintiff, often used interchangeably in the same document, namely Acting District Administrator and District Administrator, the Plaintiff holding the former position, but not the latter. The Court is unable to accept the submission on behalf of the First Defendant that any inconsistencies were cosmetic and superficial.
    2. Mr Raushem was appointed as a caretaker when there is no evidence that the position exists at law.
    1. The cumulative seriousness of the breaches of natural justice.
  3. This ground is upheld.

CONCLUSION


  1. In the result the grounds of review, as particularised, are upheld and the decision of the First Defendant of 26 September 2023 and published through Circular Instruction No 27/2023 dated 27 September 2023 to revoke the Plaintiff’s appointment as Acting Administrator and appoint Mr Raushem is quashed.
  2. The Plaintiff seeks reinstatement. A finding in favour of the Plaintiff does not however automatically entitle the Plaintiff to the relief sought. The grant of relief is discretionary.
  3. The First Defendant submits that in the event the Court does not dismiss the application then damages would be the appropriate remedy, however that concession does not overcome a circumstance where the relief was not specifically pleaded in the Plaintiff’s judicial review application.[17]
  4. It is acknowledged that the allegations against the Plaintiff are serious. However, they are allegations, unproven at trial. The Plaintiff’s right to due process by way of response is an important right. Having considered the relevant considerations as authoritatively pronounced,[18] I propose to order the Plaintiff’s reinstatement.
  5. It is a reasonable inference to draw on the evidence that a resumed working relationship between the parties will likely be an uncomfortable one. That in itself however, is not a reason not to reinstate. Uncomfortable, even difficult relationships, can exist in a workplace without material impact on the work of an organisation. Relevantly, the First Defendant adduces no evidence that his working relationship with the Plaintiff has broken down to the point where it could be said that reinstatement would be antithetical to good government and the furtherance of the public interest. In some eighty-eight (88) paragraphs of evidence in his affidavit filed 12 December 2023, the First Defendant, while expressing disappointment in the Plaintiff, does not depose to being unable to work with him in the event of his reinstatement. It is reasonable to assume if that had been the case, he would have led some positive evidence to that effect.
  6. Nor does the First Defendant’s assertion that the Plaintiff’s maladministration has caused embarrassment, impacted confidence and brought the province into disrepute materially impact the Court’s discretion to reinstate, absent supportive evidence to that effect or evidence of an inability to take remedial action in mitigation if reinstatement occurred.
  7. Nor should reinstatement impede consultation with any incoming member of Parliament with respect to the appointment of a permanent District Administrator for a 3 year term. The Plaintiff’s appointment is an acting appointment only.
  8. On balance the Court is unable to conclude on the evidence that the Plaintiff’s reinstatement would hamper the capacity of the First Defendant as Provincial Administrator to ensure financial oversight, probity, good governance and the implementation of administrative practices to meet the public interest.
  9. Mr Raushem currently holds the position previously held by the Plaintiff. He would be directly affected by a decision to reinstate. However he is aware of these proceedings having filed an affidavit in support of the First Defendant, and the potential for reinstatement. He did not choose to be separately represented at the hearing. He deposes to his interests being adversely affected by reinstatement but does not particularise how that would be the case, nor provide persuasive supportive evidence of what is mere assertion. His current appointment is for a fixed term. There is no evidence he would not have employment nor be unable to return to his previous position. Whilst his present incumbency is a factor it is not one that suggests, in the balance, that the Court’s discretion should not be exercised in favour of the Plaintiff to reinstate. Further, the evidence of the First Defendant at [86] of his affidavit suggests that he does no envisage that only Mr Raushem can hold the position.

ORDERS


  1. The Court orders as follows:
    1. An order pursuant to Order 16 Rule 1(1) of NCR in the nature of Certiorari to bring to this Court and quash the decision of the First Defendant made on 26 September 2023 and published through Circular Instruction No 27/2023 dated 27 September 2023 to revoke the appointment of the Plaintiff as District Administrator of Maprik District and appoint Godfried Raushem as caretaker administrator to replace the Plaintiff.
    2. A declaration pursuant to Order 16 Rule 1(2) of NCR that the decision of the First Defendant on 26 September 2023 to revoke the Plaintiff’s appointment as Acting District Administrator of Maprik District and to replace the Plaintiff with Mr Godfried Rasheum was unlawful.
    1. An order that the Plaintiff be reinstated to his earlier position as Acting District Administrator of Maprik District with the Plaintiff’s lost salaries and entitlements to be reimbursed to the Plaintiff and that such lost salaries and entitlements be calculated from the date of revocation.
    1. Costs of adjournment of 21 November 2023 to be paid by the First Defendant to the Plaintiff on a solicitor and client basis.
    2. The First Defendant otherwise pay the Plaintiff’s costs on a party and party basis, if not agreed to be taxed.
    3. Time to abridge.
  2. The costs of the adjournment of this matter on 21 November 2023 should be paid by the First Respondent on a solicitor and own client basis. The adjournment arose by reason of the First Defendant putting into issue the Plaintiff’s appointment, one that he did not ultimately pursue, the documents produced by the Plaintiff not only relevant to the issues, but documents either in the possession of the First Defendant or the contents known to him. There could be no suggestion of surprise.

________________________________________________________________
Mr. Johnathan Asupa: Lawyer for the Plaintiff
Mr Nou Vada: Lawyer for the First Defendant


[1] Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400
[2] Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at [4]
[3] English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409
[4] Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39 at [19]


[5] Koki v Inguba [2009] N3785
[6] Nilkare v Ombudsman Commission (1996) SC498; Lloyd v McMahon [1987] 2 WLR 821
[7] Ombudsman Commission v Donahoe [1985] PNGLR 348; Re Mopio [1981] PNGLR 416
[8] See Christopher Karaiye, Administrative Law and Judicial Review in Papua New Guinea, 2009, Notion Press at p131
[9] Ombudsman Commission v Donahoe [[1985] PNGLR 348; Ilau Karo v Ombudsman Commission of PNG [1995] N393
[10] Raga v Kari [2022] PGNC 91; N9485 (Raga)
[11] Page 13 of report
[12] Kelly Yawip v The Police Commission [1995] PNGLR 122; Pierson Joe Kamagip v. Police Commission (1999) N1853
[13] See Raga at [51] – [54]
[14] Air Nuigini v Doiwa [2000] PNGLR 347; Marat v Hanjung Power Ltd [2014] SC1357)
[15] Koti v Susame [2015] N5860 at [25] – [26]
[16] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; Rae v Matane [1979] PNGLR 239
[17] Magiri v Papua New Guinea Forest Authority [2009] N3670
[18] Lupari v Somare [2008] N3476

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