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Wingi v Pomaleu [2025] PGNC 310; N11449 (1 July 2025)

N11449

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 135 OF 2023

BETWEEN:
TESS WINGI
Plaintiff

AND:
IVAN POMALEU in his capacity as the Chief Secretary to the Government and Departmental Head of the Department of Prime Minister and National Executive Council
First Defendant

AND:
PUBLIC SERVICES COMMISSION
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
JOSHUA UVAU
Fourth Defendant

WAIGANI: PURDON-SULLY J
1 APRIL, 1 JULY 2025

JUDICIAL REVIEW – Plaintiff a senior public servant employed under Performance Based Contract of Employment – Plaintiff’s employment terminated on discplinary grounds– Public Service Commission orders his reinstatement to a different Department and forfeiture of salaries and entitlements – Plaintiff challenges decision save for reinstatement - At the time Commission handed down its decision Plaintiff’s contract of employment had expired - Plaintiff seeks judicial review based on error of law, breach of natural justice and unreasonableness (Wednesbury) –Grounds of review not made out – Proceedings dismissed

Cases cited
Adventure Kokoda PNG Ltd v Kilepa [2023] PGNC 488; N10630
Air Niugini Ltd v Doiwa [2000] PNGLR 347
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Bailasi v Lua [2013] N5145
Dale Christopher Smith v Minister for Lands (2009) SC973
District Land Court, Kimbe; Ex Parte Nuli v The State
Eremuge & Ors v Apa & Ors [2023] N10572
Gima v Culligan [2015] N5989
Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400
Isaac Lupari v Sir Michael Somare (2008) N3476
Kalinoe v Kereme & Ors [2018] N7383
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Kiap v Kaspar [2023] PGSC 95; SC2435
Kim Food & Sons Pty Ltd v Minister for Finance & Planning [1996] N1464
Marat v Hanjung Power Ltd [2014] SC1357
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Nining v Mann [2013] N5338
Ombudsman Commission v Yama [2004] PGSC 30; SC747
Papua New Guinea Banking Corporation (PNGBC) v Jeff Tole [2002] SC694
Paul Asakusa v Andrew Kumbakor (2009) N3303
R v Barnsley Metropolitan Borough Council ex p Hook ([1976] 1 WLR 1052; [1976] 3 All ER 452
R v Home Secretary; Ex parte Daly [2001] 1 AC 532
Reg v Chief Constable of North Wales Police, ex p Evans [1982] UKHL 10; [1982] WLR 1155
Yakananda Business Group Inc. V Minister for Lands & Physical Planning [2001] N2159
Young Wadau v PNG Harbours Board [1995] SC489

Counsel
A Waira for the plaintiff
H Wangi for first and third defendants
R Simbil for the second defendant
No appearance for fourth defendant

1. PURDON-SULLY J: On 14 December 2023 the Plaintiff was granted leave to judicially review the following decisions:
   1. The second part of decision 1.2 made by the Second Defendant on 13 September 2023 that is in bold print and underlined from the entire decision and quoted here:

“1.2 That Mr Wingi be reinstated to the Department of Prime Minister & NEC on the same level and salary classification that he had prior to his termination and that he be transferred to another division in which he will not be vested with section 32 powers, and” (decision 1)

2. Decision 1.3 made by the Second Defendant on 13 September 2023 that all the lost salaries, contractual allowances and entitlements (if any) be forfeited to the State. (decision 2)

2. This is the Court’s ruling on his substantive application pursuant to his Amended Notice of Motion under Order 16 rule 5(1) of the National Court Rules (NCR) filed 12 November 2024, the Plaintiff seeking a range of orders by way of relief including certiorari, declarations, damages and the payment of retirement benefits as follows:
3. The Plaintiff relies on several grounds of review which I shall come to later in these reasons.

SALIENT FACTS

4. The Plaintiff was a career public servant who commenced employment in the Public Service on 20 November 2000, thereafter holding a senior position with the Department of Prime Minister & National Executive Council (the Department) as a Deputy Secretary – Operations, Grade 20 under a Performance Based Contract of Employment effective on and from 13 June 2019 for a period of three (3) years (the contract).
5. On 22 November 2021 he was issued disciplinary charges by the First Defendant under Schedule 3, Clause 14 and 15 of the Terms & Conditions of the contract for committing offences that amounted to serious misconduct in office and in particular approving claims as the financial delegate under s 32 of the Public Finance (Management) Act 1995 (as amended) (the PFM Act) in his capacity as the Deputy Secretary-Operations.
6. On 3 December 2021 the Plaintiff replied to the disciplinary charges.
7. On 22 June 2022, the First Defendant issued to the Plaintiff the penalty of dismissal from employment with the Department and the National Public service.
8. On 28 August 2022, the Plaintiff lodged a complaint with the Second Defendant under s 18 of the Public Services (Management) Act 1995 (as amended) (the PSM Act) challenging the decision of the First Defendant dated 20 June 2022 to dismiss him from employment.
9. On 20 September 2022 the Second Defendant conducted an oral hearing into the Plaintiff’s complaint at which time the Plaintiff appeared and made submissions.
10. On 13 September 2023, the Second Defendant annulled the decision of the First Defendant of 20 June 2022 to terminate the Plaintiff’s service from the Department of Prime Minister and NEC and the National Public Service and ordered that the Plaintiff be reinstated to the Department on the same level and salary classification which he held prior to his termination and that he be transferred to another division in which he would not be vested with s 32 powers. Further the decision provided that all lost salaries, contractual allowances and entitlements (if any) be forfeited to the State as a result of strong evidence against the Plaintiff as to the offence committed (Annexure ‘D’ to the affidavit of Apel Sione filed 19 March 2025).
11. The Second Defendant had concluded that the termination of the Plaintiff was flawed and was thus null and void. This was because Plaintiff had been denied natural justice in not being afforded an opportunity to respond to an Auditor General’s investigative report and allegations and further that the Notice of Charge was also flawed and defective. The Second Defendant found however that the procurement of the services of RAMS Hair Saloon and RAMS Catering Services was illegal, the Second of Defendant critical of the Plaintiff’s role in the procurement. It concluded that while the Plaintiff had “committed very serious offences with strong evidence against him” the disciplinary process had not been complied with and that the investigation into the allegations should been conducted prior to the charges being laid to accord the Plaintiff natural justice.
12. Aggrieved by the decision, on 20 November 2023 the Plaintiff commenced these proceedings.
13. On 14 December 2023 he was granted leave to proceed with his application for judicial review.

LEGAL PRINCIPLES

14. Judicial review 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 its’ powers (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at [4]).
15. Judicial review is concerned with the integrity of the decision-making process and not (with one exception) the merits of the decision made (Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400; Gima v Culligan [2015] N5989 citing with approval Hailsham LJ in Reg v Chief Constable of North Wales Police, ex p Evans [1982] UKHL 10; [1982] WLR 1155 at 1160).
16. Judicial review is concerned with public not private law rights (Ragi v Maingu [1994] SC459; Luma v Kali [2014] SC1401).
17. If the plaintiff establishes one or more grounds of judicial review, the Court must then be persuaded that a remedy should be granted (Mision Asiki v Manasupe Zurenuoc (2005) SC797, Dale Christopher Smith v Minister for Lands (2009) SC973).
18. Deciding on what remedies, if any, should be granted is a matter of discretion (Isaac Lupari v Sir Michael Somare (2008) N3476).

GROUNDS OF REVIEW

19. A consideration of the grounds of review as pleaded in the Plaintiff’s Amended Statement under O 16 Rule 3 of NCR filed on 12 November 2024, was hampered by the Plaintiff’s formatting, including a lack of indentation, important in assisting with not only the readability of the document but the identification of the issues.
20. The Court ran into a similar problem in trying to marry the Plaintiff’s written submissions with the Statement in Support. For example, the Plaintiff raised in written submissions at [20] two issues for the Court’s consideration, namely whether the Second Defendant breached or undermined the provisions of s 18(3)(c)(i) of the PSM Act by failing to consider the relevant facts in making decisions 1 and 2 and whether the Fourth Defendant’s appointment was appropriate and lawful and if not whether the appointment could stand in law. However at [96] of Part F titled CONCLUSION, it was submitted that “one of the main reasons that the decision 1 and 2 cannot stand in law is that the Department of Personal Management was not involved in the decision making process that is provided under s 3(a)(i),(ii),(iii),(b) and (c)(i) (sic) of the Act”, a ground not pleaded as an error of law in the Statement in Support.
21. Further, the grounds of review relied upon should not only be succinctly stated but recognised by law as proper grounds upon which judicial review is available (Paul Asakusa v Andrew Kumbakor (2009) N3303).
22. At trial, the Plaintiff abandoned his claim for defamation as pleaded, appropriately, as it is not a recognised ground of judicial review.
23. Further, and with respect to the Plaintiff’s assertion that the First Defendant breached s 41 of the Constitution in that its actions were harsh and oppressive, as I said in Adventure Kokoda PNG Ltd v Kilepa [2023] PGNC 488; N10630 at [107], whilst the Courts in England have adopted proportionality as an independent ground of review and have found that the Court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion (R v Home Secretary; Ex parte Daly [2001] 1 AC 532; R v Barnsley Metropolitan Borough Council ex p Hook ([1976] 1 WLR 1052; [1976] 3 All ER 452 in this jurisdiction there is a controversy on the authorities as to whether proportionality is an independent ground of judicial review and whether s 41 only affects private rights and not public rights and interests (Marat v Hanjung Power Ltd [2014] SC 1357; Air Niugini Ltd v Doiwa [2000] PNGLR 347; Eremuge & Ors v Apa & Ors [2023] N10572). Whilst the law continues to develop, the Court would have benefited from more fulsome submissions on the matter with reference to the applicable authorities before called upon to express a concluded view on the topic. For reasons that will become clear in my consideration of the issues below, the evidence does not permit a conclusion that the decisions were harsh or oppressive.
24. Nor is breach of the provisions of s 48 of the Constitution which guarantees the right to freedom of choice of employment in any calling for which a person has the qualifications, a recognised ground of judicial review. No authorities were advanced on behalf of the Plaintiff in support of a proposition to the contrary. In any event, and as the evidence reveals, the Plaintiff was offered continued employment in the public service however exercised his right to refuse it. It is trite to observe that employment in the public service, as in any workplace, is not a guarantee of a job for life or an entitlement to remain in a position of the employee’s choosing. Over the course of a working life, employment circumstances may change for a variety of reasons that have little to do with, for example, an employee’s performance, capability and skill set (Young Wadau v PNG Harbours Board [1995] SC489 cited with approval in Kiap v Kaspar [2023] PGSC 95; SC2435 at [26] (per Kandakasi DCJ).
25. With the above observations in mind and doing the best I can on the material before me, in my view, the main grounds of review that arise on the Plaintiff’s pleadings and the material relied upon that can be said to relate to public law issues, can be conveniently grouped and summarised as follows:
    1. Error of Law
    2. Unreasonableness (Wednesbury)
    100. Breach of natural justice
26. I now turn to a consideration of each of the grounds of review as identified.

CONSIDERATION

27. The first ground of review is error of law.
28. Order 16 rule 13 of the NCR prescribes specific grounds of judicial review to include error of law on the face of the record.
29. It refers to a situation where on perusal of the record it is clear that the decision-maker misapplied the law in exercising its decision-making authority (District Land Court, Kimbe; Ex Parte Nuli v The State [1981] PNGLR 192; or acted in ignorance of a relevant statutory provision (Yakananda Business Group Inc. v Minister for Lands & Physical Planning [2001] N2159; or acted in disregard of a relevant statutory provision or where the conclusion of law was expressly founded on reasons which were wrong in law (Nining v Mann [2013] N5338).
30. In short, it is an error that is apparent by merely examining the record without recourse to other evidence. The Plaintiff’s main complaints under this ground of review centre on whether or not the Second Defendant exceeded or breached its powers under s 18(3) of the PSM Act.
31. It is submitted on behalf of the Plaintiff that the Second Defendant failed to consider relevant facts in making the decisions sought to be reviewed and when these are considered the decision would not have been made or made in a different manner on three bases.
32. Firstly, it is submitted that the Plaintiff denied having a family relationship with the owner of two companies, an allegation based on a “biased, vague and false” report by the Auditor General, upon which the First Defendant then acted in dismissing the Plaintiff. It is submitted that in determining the complaint under s 18 of the PSM Act there was no evidence before the Second Defendant, including the Auditor General’s report, that proved that the Plaintiff had a relationship as alleged and thus a conflict of interest. Because the Second Defendant did not know the allegation was false it was unfair to punish the Plaintiff.
33. Secondly, it is submitted that the charge was not based on the provisions of the employment contract and was thus flawed, defective and void.
34. Thirdly, it is contended on behalf of the Plaintiff that the decisions are inconsistent and vague.
35. The first point that must be made is that judicial review is limited to cases involving errors of law, not errors of fact by the decision-maker. The Court does not review the decision itself. The task of the Court is to review the decision-making process to ensure that the decision maker did not exceed the bounds of its authority. Factual errors go to the merits of the decision under review, not to its legality (Bailasi v Lua [2013] N5145).
36. The second point to observe at the outset is that Second Defendant is an independent constitutional office empowered to decide on how to conduct its hearings of the complaints it receives from aggrieved public servants. It is a merit review body that reviews personnel matters of officers of the public service to ensure compliance with legal and procedural norms, as well as considering the merits of the allegations through a structured hearing process. It has the power to make decisions which the original decision-maker made (Kalinoe v Kereme & Ors [2018] N7383; Ombudsman Commission v Yama [2004] PGSC 30; SC 747 (Yama)).
37. In performing its statutory role and in determining the Plaintiff’s complaint against dismissal the Second Defendant was required to follow the process outlined at s 18 of PSM Act which provides:

18. REVIEW OF PERSONNEL MATTERS CONNECTED WITH THE NATIONAL PUBLIC SERVICE.

(1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.

(2) A complaint referred to in Subsection (1) shall be –

(a) in writing; and

(b) made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the compliant; and

(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the compliant.

(3) The procedure to be followed in a review under this section is as follows: –

(a) the Commission shall summons –

(i) the Departmental Head of the Department of Personnel Management or his delegate; and

(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and

(iii) the officer making the compliant, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;

(b) the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons;

(c) the Commission shall –

(i) consider all the facts relative to the matter, including –

(A) the views of the persons summonsed under Paragraph (a); and

(B) the personnel management policies of the National Public Service; and

(C) the cost implications of any decision which it may make; and

(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and

(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);

(d) the decision of the Commission under Paragraph (c)(ii) –

(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and

(ii) shall become binding after a period of 30 days from the date of the decision.

[Underlining added for discussion purposes]

38. There is no persuasive evidence to conclude that the process as outlined, specifically at s 18(3) was not followed by the Second Defendant in making the decisions.
39. In following the statutory process, the Second Defendant considered all of the facts placed before it relative to the matter. Having done so and having afforded the Plaintiff an oral hearing the Commission made its decision. Reaching a different conclusion to the one the Plaintiff sought to put forward does not mean that the Second Defendant was in breach of its statutory powers in arriving at the decisions it did.
40. While it is submitted at [96] of the Plaintiff’s written submissions that the Second Defendant breached the provisions of s 18(3)(a)(i),(ii),(iii),(b) and (c)(i) of the Act in that the Department of Personal Management was not involved in the decision-making process, that ground was not pleaded in the Plaintiff’s Statement in Support. It was a submission, if accepted, that presented an obvious difficulty for the Plaintiff, ignoring the logical inconsistency in the Plaintiff seeking to set aside or quash the decisions the subject of review on the basis of error of law in failing to follow statutory procedure while at the same time seeking to uphold part of the decision of the Second Defendant to reinstate the Plaintiff, the product of the same process the Plaintiff seeks to impugn.
41. The law on pleadings in this jurisdiction is settled (Papua New Guinea Banking Corporation (PNGBC) v Jeff Tole [2002] SC694). Pleadings define the issues for decision in the litigation. Our system of justice is not one of surprise. The Defendants are entitled to know the case they are required to meet and have a fair opportunity to meet it. In the present case having failed to plead breach of s 18(3)(c) by reason of the Departmental Head of the Department of Personnel Management or his delegate not being present when his complaint was being heard, the Plaintiff cannot do so now.
42. Nor does the evidence permit a conclusion that the Second Defendant did not have the power, per se, to make a decision to “annul or vary” under s 18(3)(c)(ii of the PSM Act, including by way of the imposition of consequential remedies based on the merits of the matter after conducting a hearing de novo. This included a transfer of the Plaintiff to a non-financial role.
43. Pursuant to s 18(1) of PSM Act, and having received a complaint by the Plaintiff, an officer of the National Public Service, to "review a decision on a personnel matter relating to appointment ... connected with the National Public Service", the Second Defendant had the power to conduct a review. It also had consequential power under Section 18(3)(c)(ii), having conducted a review, to "make a decision to uphold, vary or annul the decision the subject of the complaint". It exercised that power by annulling the First Defendant’s decision of 20 June 2022 which the Plaintiff does not seek to challenge. It then varied the decision the subject of the complaint by a decision that the Plaintiff be transferred to another division in which he would not have been vested with particular powers. The forfeiture of the Plaintiff’s entitlements fell within the provisions of s 18(3)(c)(i)(B) of the PSM Act given that the Plaintiff’s contract of employment had expired at the time of his dismissal by the First Defendant.
44. With respect to the latter, it should be observed that neither the Plaintiff nor the Defendants meaningfully addressed the fact of expiry of the contract in their written submissions. Any decision to reinstate and reassign the Plaintiff within the relevant Department could only have been effected by the employer, given that the relationship between the parties was governed by a contract of employment which had expired and specific agreement of the parties would have been required to allow for the Plaintiff to continue to remain as an employee of the First Defendant in any capacity. Without such agreement of the parties, any direction by the Second Defendant would, in my respectful view, have had no effect unless a new contract was entered into to allow for a continuation of a contractual relationship that had expired and indeed, where as was the case here, there was a further potentially complicating factor in that the trust between employer/employee had clearly broken down (Kiap v Kasper [2023] PGSC 95; SC2435 at [43]).
45. Absent submissions to assist the Court on the effect of the expired contract on the review process as undertaken by the Second Defendant and its decision and given how the Plaintiff chose to plead and run his case, with those caveats, the Court accepts that the two decisions which the Plaintiff did challenge were decisions were decisions incidental to the Second Defendant’s power to annul the decision to dismiss, and within its power to make.
46. As Cannings J said in Bailasi v Lua (supra) at [17]

17. There is an argument that having decided to annul the selection decisions, the Commission could not go further and decide, as it did, that the positions had to be readvertised, the selection panel had to be reconstituted, acting appointments had to be made and future selections must be made in strict compliance with the procedures. However I consider that those sorts of decisions are incidental to the power to annul the selection decisions. They are so much part and parcel of the power of annulment to make it unnecessary for the Act to expressly state that the Commission is empowered to make them. Acts of Parliament should be interpreted in such a way as to make them workable in practice. The powers of the Commission were substantially expanded by the 2003 amendments to the Public Services (Management) Act). Prior to those amendments the Commission only made recommendations following a review of a personnel matter, not binding decisions (Ambrose Vakinap v Thaddeus Kambanei (2004) N3094). A "decision" connotes a self-executing resolution of a complaint, which implies that the Commission will be able through its decision to resolve the complaint and show the way forward to those affected by the review, by deciding, not just recommending, what has to be done to correct the decision that has been reviewed.

[Underlining added]

47. The Court accepts the submission on behalf of the Second Defendant that on the evidence the decision to transfer the Plaintiff could not be viewed as a punitive response to a flawed process but a proportionate response that fell within the statutory powers of the Second Defendant.
48. The Plaintiff’s complaint that the Second Defendant contradicted its own findings by making the second part of the decision (at [19[] of the Amended Statement in Support), respectfully, misunderstands the role of the Second Defendant. The provisions of s 18(3)(c)(i)(B) of the PSM Act require the Second Defendant in the exercise of its statutory power to consider “the cost implications of any decision which it may make”. Further, there is no statutory requirement that if the Second Defendant concluded that the Plaintiff should be reinstated that he must be reinstated to his earlier position and have all his benefits refunded to him, including salaries and benefits to which he had no entitlement to receive after 16 June 2022 when his contract had expired.
49. Further, the review process of the Second Defendant did not stay the decision of the First Defendant to terminate the employment of the Plaintiff. There being a vacancy in the Plaintiff’s former position, no persuasive argument could be raised on behalf of the Plaintiff to suggest that the First Defendant as Department Head did not have the authority to appoint the Fourth Defendant to that position (s 39 of the PSM Act).
50. With respect to the submission that the Second Defendant committed an error of law by failing to consider relevant facts at 2.3 of its findings and analysis by concluding that the Plaintiff had a conflict of interest with Rams Catering Services thus breaching s 18(3)(c)(i) and (ii) of the PSM Act, this must also be rejected. The analysis and findings were not only detailed but made in the context of the Plaintiff being afforded an opportunity at the hearing before the Commission to fully put his case, including with respect to the findings of the Auditor General’s report, an opportunity the Second Defendant found had earlier been denied the Plaintiff. The Auditor General was also present at the oral hearing conducted by the Second Defendant.
51. In short, the Court is comfortably satisfied that the Second Defendant considered the allegations at the oral hearing conducted on 8 November 2022 at which time the Plaintiff was given the opportunity to address them, the issue of conflict of interest presenting on the evidence as an important one for the Plaintiff. The Second Defendant assessed the evidence presented and concluded that the Plaintiff had not sufficiently rebutted the allegations, the Second Defendant critical of the Plaintiff’s role in the procurement of the services.
52. In consequence, I am unable to conclude that the Second Defendant did not have sufficient evidence before it to make the findings it did, summarised at [24] of its letter to the First Defendant or failed to consider the facts. The standard of proof required at hearings before the Second Defendant is proof “upon evidence that is credible” (Palaso v Kereme & Ors [2017] PGNC 231; N6816 at [23]).
53. I am unable to conclude that the evidence relied upon by the Second Defendant in reaching its decision fell short of the required standard of proof.
54. The Plaintiff’s further submissions that the charge was not based on the provisions of his employment contract and thus flawed, defective and void ignores the findings of the Second Defendant in his favour on this point.
55. The Plaintiff’s further contention that the decisions were inconsistent and vague is similarly unpersuasive.
56. This ground of judicial review fails.

UNREASONABLENESS (WEDNESBURY)

57. To succeed on this ground the Plaintiff must show that the decisions under review were so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker would have made the decision (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).
58. The test of unreasonableness, based on the Wednesbury principles, is a high one. The Supreme Court in Yama (supra) (Injia Dep CJ (as he then was), Sakora & Sawong JJ) at [7] endorsed the tests or categories for determining unreasonableness outlined in Kim Food & Sons Pty Ltd v Minister for Finance & Planning [1996] N1464 as follows:

The Wednesbury principle of "unreasonableness" is described by Lord Green MR as a decision that is "so absurd that no sensible person could dream that it lay within the powers of the authority -- a decision that no reasonable body, could have come to." It is embodied in the principle of "irrationality" that we referred earlier. We prefer a simplified break-up of this principle into six (6) categories by Doherty J in Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996) as follows:

(a) It must be a real exercise of the discretion;
(b) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(c) It must ignore irrelevant considerations.
(d) It must not operate on the basis of bad faith or dishonesty;
(e) It must direct itself properly in law; and
(f) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

[Highlighting in decision]

59. Applying the principles as outlined I am unable to conclude that the test has been met on the facts of this case. Neither decision 1 nor decision 2 could be viewed as “absurd” in the sense of irrational or otherwise not wholly open to the Second Defendant to make on the evidence. I am comfortably satisfied on the evidence that the Second Defendant considered the serious nature of the allegations and the material in support of the allegations. I am satisfied that the Second Defendant considered the Plaintiff’s complaint, had regard to the matters which it was required to consider by implication, did not operate on the basis of bad faith or dishonesty, did not take into account irrelevant considerations, directed itself properly, produced a detailed and reasoned decision in writing and otherwise did not evidence irrationality in reaching the decisions it did.
60. The allegation that the Auditor General was bias lacked any persuasive evidentiary support. It is a serious allegation, one that should only be made on clear evidence.
61. I otherwise repeat and rely upon my earlier discussion relevant this consideration.
62. This ground fails.

NATURAL JUSTICE

63. Interwoven throughout the Statement in Support, the Plaintiff’s evidence and the submissions on behalf of the Plaintiff is the notion that the Plaintiff was treated unfairly and that such unfairness impregnated the decisions under review. The Plaintiff also makes specific mention of this ground at [75] of his Statement in Support and briefly under the heading Breach of Constitutional Rights at [69] and [70] of written submissions.
64. It is submitted on behalf of the Plaintiff that s 59(2) of the Constitution provides that the minimum requirement of natural justice is the duty to act fairly and be seen to act fairly. It is submitted that this section was breached inter alia by reason of a failure to look for means to employ the Plaintiff in the public service and the First Defendant’s conduct was harsh and oppressive.
65. The submissions on breach of natural justice are, respectfully, difficult to follow and, in the end, rejected.
66. The first and obvious point to make is that the decision under challenge was a decision to reinstate the Plaintiff to the same Department at the same level and salary classification as the Plaintiff had had prior to his termination. He chose to challenge that decision as was his right. There was, however, no legislative mandate that required the Second Defendant, in considering his complaint, to reinstate the Plaintiff to his previous position.
67. Further, and in the context of a broader consideration of the Plaintiff’s constitutional right to be treated fairly and be seen to be treated fairly and the pleading at [18] of the Statement in Support with respect to breach of natural justice, I repeat and rely upon my early discussion and findings which touch on this. By the time of the oral hearing before the Second Defendant, the Plaintiff was aware of the allegations against him, including the contents of the Auditor General’s report. He was given a fair opportunity to respond to the allegations. He exercised his right to challenge his dismissal. He was accorded an oral hearing and an opportunity to be heard at that hearing. The decision of the Second Defendant was handed down in writing and its findings outlined on a reasoned basis. While there was a delay of 11 months between the oral hearing and the handing down of that decision - the Second Defendant required by virtue of s 18(3) of the PSM Act to hand down a decision within 90 days of receipt of the complaint, albeit a period which “may be extended by the Commission where the reason for the delay is beyond the control of the Commission” - the Plaintiff does not plead this delay as a breach of his rights of natural justice. This is possibly understandable given that he is seeking to strike down only part of the Second Defendant’s decision, a tightrope he was required to walk in the presentation of his case generally.
68. I am satisfied that the Plaintiff was treated fairly and his right to natural justice observed.
69. This ground fails.

CONCLUSION

70. For the reasons given the grounds for judicial review are not made out. The Plaintiff’s application fails. It should be dismissed. Costs should follow the event.

ORDERS

71. The orders will be:
    1. The Plaintiff’s application for judicial review is dismissed.
    2. The Plaintiff pay the Defendants costs on a party and party basis to be agreed or taxed.
    3. Time to abridge
       

Lawyers for the plaintiff: Waira Lawyers
Lawyers for the first and third defendants: Solicitor General
Lawyer for the second defendant: Public Service Commission Inhouse Counsel