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Kambual v Secretary, National Judicial Staff Service [2025] PGNC 2; N11124 (3 January 2025)

N11124

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 117 OF 2024

ISRAEL KAMBUAL
Plaintiff

V

SECRETARY, NATIONAL JUDICIAL STAFF SERVICE
First Defendant

POLI IFINA, PRINCIPAL LEGAL OFFICER,
NATIONAL JUDICIAL STAFF SERVICE
Second Defendant

HER WORSHIP JOSEPHINE NIDUE, NJSS APPEAL TRIBUNAL
Third Defendant

NATIONAL JUDICIAL STAFF SERVICE
Fourth Defendant

WAIGANI: CANNINGS J
23, 27 DECEMBER 2024; 3 JANUARY 2025

HUMAN RIGHTS – right to the full protection of the law, Constitution, s 37(1) – plaintiff officer of National Judicial Staff Service – decision of NJSS Appeal Tribunal to annul decision of Secretary, NJSS to recommend officer’s dismissal from NJSS – failure to implement decision of Appeal Tribunal – absence of written decision – whether reasonable excuse for failure to implement decision – whether denial of right to full protection of the law.

The plaintiff is an officer of the National Judicial Staff Service (NJSS) who was charged with a disciplinary offence and found guilty and recommended for dismissal from the Service. He appealed against that decision to the NJSS Appeal Tribunal, which upheld the appeal, annulled the disciplinary charge and the decision to find him guilty and the recommendation for dismissal and ordered his reinstatement and payment of loss of salaries from the date of his suspension without pay to the date of the Tribunal decision. The Tribunal decision, however, was not put in writing. This led to a failure by the NJSS to pay to the plaintiff the amount of lost salaries (which was agreed to be the sum of K19,589.06). Frustrated by the failure to pay what was due to him, the plaintiff left work and filed an application for enforcement of human rights.

Held:

(1) The NJSS was obliged to implement the decision of the Appeal Tribunal within a reasonable time as it was clear and unambiguous, albeit not reduced to writing.

(2) The absence of a written decision or order of the Appeal Tribunal was not a reasonable excuse for failure to implement the decision of the Tribunal.

(3) The failure to implement the decision of the Appeal Tribunal within a reasonable time constituted a breach of the plaintiff’s right to the full protection of the law under s 37(1) of the Constitution, entitling him to reasonable damages, which were assessed in the sum of K5,410.94.

(4) Ordered: that NJSS shall pay to the plaintiff within 28 days the total sum of K25,000.00 (comprising K19,589.06 lost salaries and K5,410.94 damages) and that the plaintiff shall within seven days after payment to him of that sum, resume duty and file a duty resumption form, upon receipt of which, he shall be restored to the regular fortnightly payroll.

Cases cited

None.

Counsel

I Kambual, the plaintiff, in person
N Aiwara for the defendants

1. CANNINGS J: The plaintiff, Israel Kambual, is an officer of the National Judicial Staff Service (NJSS) based in the Tari Registry. In May 2023 he was charged with a disciplinary offence for being absent without leave for an extended period. He responded to the charge but was found guilty by the then NJSS Secretary, Jack Kariko, who recommended to the Judicial Council that he be dismissed from the Service.
   
2. The plaintiff exercised his right under the National Judicial Staff Service Act 1987 to appeal against that decision to the NJSS Appeal Tribunal.
   
3. The Tribunal, which was constituted by Senior Magistrate, her Worship Josephine Nidue, heard the appeal at the Mt Hagen courthouse on 11 October 2023. Present at the hearing were the plaintiff and the NJSS’s Principal Legal Officer, Poli Ifina, who represented the NJSS Secretary. The tribunal heard submissions and reserved its decision to the next day.
   
4. On 12 October 2023, her Worship upheld the appeal, annulled the disciplinary charge and the decision to find the plaintiff guilty and the recommendation for his dismissal and ordered his reinstatement and payment of loss of salaries from the date of his suspension without pay, 1 May 2023, to the date of the Tribunal decision. The Tribunal decision was not put in writing. Despite several attempts to secure a written decision or order from the Tribunal, the decision remains oral in character.
   
5. This has led to a failure by the NJSS to pay to the plaintiff the amount of lost salaries. That amount has, however, been calculated and it has been agreed that it is K19,589.06.
   
6. The plaintiff apparently resumed duty several months after the Tribunal decision and was restored to the payroll but became frustrated by the failure to pay what was due to him, and left work and filed an application for enforcement of human rights. He has again been removed from the payroll.
   
7. A trial of his human rights application has been conducted, the evidence has been received and submissions have been made.
   

FINDINGS

8. I find as follows:
   

• The NJSS was obliged to implement the decision of the Appeal Tribunal within a reasonable time as the decision was clear and unambiguous, albeit not reduced to writing.
  
• The absence of a written decision or order of the Appeal Tribunal is not a reasonable excuse for failure to implement the decision of the Tribunal within a reasonable time.
  
• The failure to implement the decision of the Appeal Tribunal within a reasonable time constitutes a breach of the plaintiff’s right to the full protection of the law under s 37(1) of the Constitution, entitling him to reasonable damages under s 58(2) of the Constitution.
  
• I assess damages in the sum of K5,410.94. I have made that assessment so that NJSS will be obliged to pay the plaintiff a flat sum of K25,000.00 in a short space of time.
  

CONCLUSION

9. The plaintiff has proven a breach of his human rights and is entitled to damages of K5,410.94. He is also entitled to the sum of K19,589.06, which should have been paid to him a long time ago. I will order that he be paid the total sum of K25,000.00 within 28 days and that he return to his workplace and resume duty within seven days after receipt of that amount. If he wants to return to work sooner than that, he is welcome to do so. I will order that he file a duty resumption form and that he be restored to the payroll.
   

ORDER

1. The fourth defendant shall pay to the plaintiff within 28 days after the date of this order, the total sum of K25,000.00 (comprising K19,589.06 lost salaries and K5,410.94 damages) by deposit of that total sum into his nominated bank account.
   
2. The plaintiff shall within seven days after payment to him of that sum, resume duty and file a duty resumption form, upon receipt of which, he shall be restored to the regular fortnightly payroll.
   
3. The parties will bear their own costs of these proceedings.
   

Lawyer for the defendants: Principal Legal Officer, NJSS