PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Papua New Guinea
You are here:  PacLII >> Databases >> Supreme Court of Papua New Guinea >> 2022 >> [2022] PGSC 115

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Kenneth v Momis [2022] PGSC 115; SC2314 (23 November 2022)

SC2314

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NO.41 OF 2021


BETWEEN:
WESLEY KENNETH
Appellant


AND:
HON. CHIEF DR. JOHN MOMIS CGL MHR as Chair of the Bougainville Senior Appointments Committee
First Respondent


AND:
CHIEF ILA GENO, GCL, OBE, QPM, MCS as Board of Inquiry
Second Respondent


AND:
AUTONOMOUS BOUGAINVILLE GOVERNMENT
Third Respondent


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


Waigani: David J, Collier J & Toliken J
2022: 26th October, 3rd & 23rd November


ADMINISTRATIVE LAW – Judicial review of administrative action – the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion, but is concerned with the decision making process – appellant, a Departmental Head (Secretary for Community Government) within Bougainville Public Service – allegations of misbehaviour and breaches of terms and conditions of employment – petition requesting an investigation – convening of board of inquiry – conduct of investigation – recommendation by board of inquiry to Bougainville Senior Appointments Committee to remove appellant from office - dismissal from office – appellant not afforded procedural fairness by board of inquiry in conducting its investigation when not affording him the opportunity to be heard prior to its resolution that his appointment be terminated – appeal allowed – orders of the National Court appealed against quashed - matter remitted to the National Court differently constituted for determination according to law – costs of and incidental to the appeal awarded against the first and third respondents to be taxed if not otherwise agreed – on the papers hearing - Bougainville Senior Appointments Act 2014, ss.31, 33, 36, 37 and 40.


Cases Cited:


Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Coffee Industry Corporation v Arabicas Ltd [2000] PNGLR 130
Totori v Nenta, Police Commissioner [2003] N2373
Ihari v Motor Vehicles Insurance Ltd [2006] SC1317


Legislation Cited:


Bougainville Senior Appointments Act 2014


Counsel:


P. Tamutai, for the Appellant
W. Bigi, for the First and Third Respondents
K. Kipongi, for the Fourth Respondent


REASONS FOR JUDGMENT


23rd November, 2022


  1. BY THE COURT: Before the Court is an appeal from the decision of a Judge of the National Court of Justice dismissing proceeding OS (JR) No 595 of 2018 (primary proceeding) on 16 July 2021.
  2. The appellant, Mr Wesley Kenneth, commenced the primary proceeding in the National Court by Originating Summons filed on 29 August 2018 seeking leave to apply for judicial review of the decision of the first respondent to suspend him, and to appoint a Board of Inquiry under s 33(2) of the Bougainville Senior Appointments Act 2014 (BSAA) to investigate allegations of misbehaviour on the part of the appellant and breaches of his terms and conditions of appointment.
  3. The first respondent was the Chair of the Bougainville Senior Appointments Committee (BSAC).
  4. The second respondent was the Chair of the Board of Inquiry appointed under the BSAA.

BACKGROUND


  1. The appellant commenced employment as the Secretary for Community Government, classified as a Departmental Head, within the Bougainville Public Service on 10 October 2016. After commencing his employment, the appellant states that he became aware of outstanding debts owed to service providers in the Autonomous Bougainville Government (ABG) of approximately 4.2 million Kina from 1993 onwards.
  2. In an email dated 5 October 2017, the appellant wrote to all Departmental heads within the ABG stating that he intended to seek funds from the National Government to settle the outstanding debts. Consequently, on 8 December 2017 a cheque for K2.7 million was paid to Bougainville Disaster Management. During this time, internal auditors and the Chief Secretary of the ABG sought further details from the appellant as to how the sum of K2.7 million was “facilitated and utilized”.
  3. Following correspondence between the Chief Secretary and the appellant from 2 March to 26 March 2018, the Chief Secretary filed a petition pursuant to s 31 of the BSAA on 18 May 2018 with the BSAC alleging misbehaviour and breaches of the appellant’s terms of employment. In doing so, the Chief Secretary requested an investigation into these allegations.
  4. Subsequently, the first respondent wrote to the appellant on 22 May 2018 requesting he show cause why a Board of Inquiry should not be established pursuant to s 33 of the BSAA. On 30 May 2018 the appellant responded to the allegations against him while also giving notice of his resignation under s 40 of the BSAA.
  5. On 14 June 2018, the first respondent wrote to the appellant on behalf of the BSAC informing him that a Board of Inquiry, chaired by the second respondent, had been established by resolution of the BSAC on 13 June 2018 to investigate the allegations against him under s 33(2) of the BSAA.
  6. The Board of Inquiry met on 4 July 2018 to address the appellant’s response to the allegations against him before adjourning indefinitely. On 21 September 2018, the appellant received correspondence from the President of the ABG dated 20 September 2018 informing him that the BSAC had resolved on 19 September 2018, to dismiss him from office on the basis of the findings of the Board of Inquiry made on 16 September 2018.
  7. The appellant sought review in the primary proceeding before the primary Judge of the three relevant decisions, namely:
  8. The appellant also sought the following relief before the primary Judge:


DECISION OF THE PRIMARY JUDGE


  1. The primary Judge commenced his reasons by noting what his Honour described as:
2. ...A total of almost three and half years without moving an action that is drawing blood every minute, so much so that life is no longer...

  1. His Honour was very critical of the “unexplained delay” in commencing the judicial review proceedings. His Honour at [5] queried the utility in the challenge of the process in this case, given that delay.
  2. At [7] his Honour said:
... The question posed is, did the defendants follow a process set out by law so that the plaintiff’s removal was a culmination of that process? And therefore, according to law. The relevant law given here would be the Bougainville Constitution, Bougainville Public Service and Management Act 2014 and the Bougainville Senior Appointments Committee (Appointments and Disciplinary Procedures of Bougainville Constitutional and Senior Office Holders) Act 2011.

  1. His Honour continued:
8. What is evident is that he has tendered his resignation by letter dated the 30th May 2018 annexure “S2” to his affidavit of the 28th February 2018. He writes that under section 40 of the Senior Appointments Act 2014 he was tendering his resignation for the approval of the President of AROB & the Chairman of the Bougainville Senior Appointments Committee. And he requested that the resignation takes effect after the end of his second term ending on the 10th October 2018. The letter continues, “I personally thank you for your confidence in recruiting me. While I have been capable of leading the Department, I regret that the process involved in obtaining and executing the Disaster Outstanding Funds have been questionable. Please accept my apology, as I prepare to exit the Bougainville Public Service. I have learnt from this experience and I will NOT make the same mistakes again. Signed Wesley Kenneth Secretary CG. Copies to Hon Jacob Tooke Minster for Community Government, Hon Robert Hamal Sawa Minister for Public Service, Col Thomas Raivet Acting Chief Secretary.”

9. The fact of the matter is that the resignation does not take effect immediately by the date of the letter of 30th May 2018. He is still covered by the ambit of the section 33 (2) of the Bougainville Senior Appointments Act 2014 (BSAA) to be investigated for the allegations raised against him in the petition of the 18th May 2018. He is still a Departmental head within the meaning of the BSAA and therefore what has taken place is by law and it follows throughout to the end of that process. The disciplinary process begins with the investigative phase leading to the next by that law. There is no error demonstrated in the process of law taken by the defendants here. This ground is without merit and fails.

  1. His Honour found:
12. Secondly the decision of the second defendant made the 16th September 2018 to recommend to the First Defendant to remove the Plaintiff from the office pursuant to section 36 (7) (b) (iv) of the Bougainville Senior Appointments Act 2014 is within the dictate of that law and is not an error of law. It is a process that is part of the disciplinary process by that law and satisfies without any error demonstrated. That is the requirement exerted by the authorities designated under that law and complied leading to his removal. It follows from the above process and compliments because he was lawfully executed by it. There is no merit in this ground and it too fails.

13. Fourthly, the declaration seeks for the dismissal of the Second defendant on the 19th September 2018 to be declared illegal, null and void and cannot stand in view of all made out above. This is yet another ground without any merit in law or fact and stands dismissed.

14. Fifthly, there cannot be any order in the nature of Mandamus requiring the First Defendant to acknowledge and accept the resignation of the Plaintiff dated 30th May 2018 forthwith to authorize the payment of all contract entitlements due to the Plaintiff under the terms and conditions of appointment entered into on the 10th October 2016. Because the reasons are very clear process and procedure has been followed to the letter of the law by the defendants and there is no merit to grant mandamus to compel as contended. This is a remedy that is without the basis in law to set in his way. He will not be accorded.

15. It would be the same for any damages if any at all for mental anguish and anxiety and public Humiliation suffered by the Plaintiff and his family. This would be so in the case of cost but would be on an indemnity basis for the reasons I set out above including costs of the application which in my view considering all set out above will be on an indemnity basis to follow the event.

16. It is undoubtedly clear he is subjected to the process of law because he has not officially left the chair of Secretary for Community Government until the 10th October 2018. Whatever comes as a result of the process of law that the defendants are required to heed leading up from May 2018 to 19th September 2018 is within the confines and jurisdiction of the laws set out above. He is covered squarely within and the process leading is not erroneous, but confinement compliance and therefore the result attained stands in law. He was processed via that process there is nothing to argue nor move to review as he has contended. His action is without merit given and must suffer what it is due it. Judicial review does not lie given and is refused on all fours as pleaded.
...
  1. Rights flow but must be pursued with a sense of justice and fairness to the other side and to the court. Convoluted actions must be avoided, but there ought to be a sense of balance drawn so that equity meets equity. Finality in litigation must be envisaged and pursued not in pockets or piecemeal to finally drive here. A man who must be charged with break enter and stealing ought to be charged as such and not done on piecemeal basis, firstly with being unlawfully on premises, then with wilful damage and stealing. It does not serve justice. The road to justice is with fairness and equity. Is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. Or is this a case where there is blameworthiness and therefore indemnity follows in costs. Given all set out above this is a case for indemnity of cost to follow the event. Costs will therefore be on indemnity basis to follow the event.
  2. The law here is extrinsic and bold that it is the process properly pleaded out rather than what is the substance: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008) and that is the fate of the actions by the plaintiff. Procedurally he would have to show defiance to dictate that the defendants by the Bougainville Constitution and related Acts of the Bougainville House of Representatives have not acceded eventually to his demise: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). He has not done so his action for judicial review does not lie forthwith and fails in its entirety.
  3. The primary Judge refused the appellant’s application for judicial review and dismissed the primary proceeding as being without merit. His Honour also ordered costs against the appellant on an indemnity basis.


APPEAL


  1. The appellant relied on five grounds in support of his appeal, in summary, as follows:
  2. The appellant contended that these five grounds of appeal raised three questions for determination by this Court, namely:


Appellant’s submissions


  1. In the context of the dismissal question the appellant submitted, in summary, as follows:
  2. Referable to the delay question, the appellant submitted that the primary Judge did not afford any party the opportunity to make submissions as to the delay in the appellant prosecuting his application for judicial review. In this sense the appellant contends the primary Judge erred in the context of the delay question.
  3. In terms of the costs question, the appellant submitted that the primary Judge misapplied the relevant principles derived from case law given that the respondents did not request indemnity costs be awarded against the appellant, and there was no evidence that the appellant had conducted himself in such a way as to justify an award of indemnity costs against him.

First and third respondents’ submissions


  1. In written submissions, the first and third respondents predominantly addressed the conduct of the appellant that gave rise to the establishment of the BOI, the appellant’s referral to the BOI, and the subsequent termination of his employment. Those submissions were as follows:
    1. There is no dispute that the Appellant was the Secretary of the Department of Community Government of ABG.
    2. The Second Respondent was duly appointed as the BOI to investigate a petition by the acting Chief Secretary of ABG.
    3. Section 30(5) of the BSAA provides that a person appointed to act (temporary appointment) has, for the duration of the appointment, all the functions of the substantive holder of the office and is taken to be the substantive holder of the office.
    4. The acting Chief Secretary was therefore authorized to perform the functions of the Chief Secretary. Those functions included petitioning the Bougainville Senior Appointments Committee to investigate a senior-office holder pursuant to section 31(2) (a) (iv).
    5. The Appellant has not come to this Court with clean hands in that he admitted paying other persons for assisting to obtain the funds. These other persons were not service providers of the Disaster and Emergency Services (DES). These other persons included the Plaintiff's brother and the Plaintiff's own company. The payments were not proper.
40. The Appellant admitted paying for "Cost of Negotiations".
  1. The Board of Inquiry (Second Respondent) was legally set up to investigate allegations of misbehavior and breach of the senior officeholder's conditions of employment. It did in fact conducted its inquiry contrary to the Appellant's claim that it did not.
  2. Under the Terms and Conditions of Appointment Bougainville Public Service Departmental Head (the Contract of Employment) in particular clause 4.2 "A Departmental Head may resign at any time by complying with the requirements of Section 40 of the Senior Appointment Act. The Senior Appointment Act is the BSAA.
  3. Section 40 of the BSAA reads:-
40 Resignation
(1) A senior office-holder may resign by giving 3 months written notice to the Committee.
(2) The Committee may, on receipt of a written request from a senior office-holder, waive or reduce the period of notice under Subsection (1).
(3) The resignation of a senior office-holder may be withdrawn at any time before the date on which it takes effect.
  1. The Appellant tendered his notice of resignation on 30 May 2018 requesting that it be effective on 10 October 2018.
  2. The First and Third Respondent' submit that since the Appellant's notice of resignation clearly stated that he wanted his resignation to be effective 10 October 2018, the Appellant was still a senior-officer at the time the BOI was appointed and therefore, he was still subject to the BSAA.
  3. Moreover, under section 40 (1) BSAA, the Appellant still remains a senior officer for a further three (3) months from the date of giving his resignation before his employment ceases.
  4. The admission by the Appellant of "paying negotiation fees" to Politicians and senior public servants from the K2.7 million amounts to misappropriation. The money was for the payment of outstanding service providers to DES and "negotiation fees" are not part of outstanding service providers.
  5. The actions of the Appellant in paying the negotiators and in refusing to name the perpetrators amounted to corruption.
  6. The BOI was appointed legally and therefore mandated to conduct its investigation in accordance with section 36 of the BSAA.
  7. The Plaintiff was terminated prior to the due date of his intended resignation on 10 October 2018 according his notice. The Appellant's notice to resign was designed to avoid being investigated.
  8. If there was an effective resignation in place, the Appellant would have been asked to leave and his entitlements would have been calculated to the effective date of his resignation.

Consideration of the dismissal question


  1. In the context of judicial review referable to a subordinate authority, the Supreme Court found in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124 (per Kapi DCJ) that:
The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.

  1. In Coffee Industry Corporation v Arabicas Ltd [2000] PNGLR 130, the Supreme Court observed as follows:
It is trite law that, in a judicial review, the trial Judge must look at the decision-making process. In the present matter, the trial Judge failed to look properly at the decision making process thereby falling into error.

  1. In Totori v Nenta, Police Commissioner [2003] N2373, Lenalia J stated:
In this jurisdiction the volume of determinations on the issue is quite substantial. In the case of Kekedo -v- Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122, the Supreme Court said that, the purpose of judicial review is not to examine the subordinate authority’s decision with the view to substituting its own decision or opinion. It is not concerned with the decision but with the decision-making process. It has also been said that the Court’s powers of review is only available to consider the validity of a decision of a tribunal and to interfere with that decision only if it can be shown from the records that such decision was made unlawful or was unfair or made contrary to the principles of natural justice: Tandali -v- The State [1990] PNGLR 170.
Judicial review guards against the doctrine of "ultra vires" or acting outside the limits and bounds of a given set of rules or principles. By the principles of natural justice it is thought that where a tribunal or authority exceeds its powers or where there was an error on the face of the records or where there has been a breach of the rules of natural justice it is said that it amounts to substantial miscarriage of justice. In brief, the principles enunciated over the past years can be summarised into the following categories.

(1) A tribunal must have exceeded its powers; or
(2) Where there is an error on the face of the records; or
(3) Where there has been breach of the rules of natural justice.


Relevant statute


  1. Sections of the BSAA relevant to determination of the dismissal question are as follows.
31 Petition
...
(2) A petition to the Committee—
(a) may only be made by—
(i) the President; or
(ii) a Minister; or
(iii) the Bougainville Executive Council; or
(iv) the Head of the Bougainville Public Service; and
(b) must—
(i) be in writing; and
(ii) include a statement of the reasons for the petitioner’s opinion as to the need for an investigation.

33 Convening board of inquiry
...
(2) A board of inquiry comprises at least 1 person, but not more than 3 persons, appointed by the Committee.
...
(4) The Committee must refer the matters requiring investigation to the board of inquiry, together with a copy of—
(a) the petition; and
(b) any response received from the senior office-holder under Section 32.

36 Conduct of the investigation
...
(5) In conducting the investigation, the board of inquiry—
...
(c) must observe the rules of procedural fairness; and
...
(7) The board of inquiry may recommend to the Committee—
...
(b) if the investigation concerned an allegation against a senior office-holder of misbehaviour or breach of the office-holder’s conditions of employment – that the Committee—
...
(iv) remove the office-holder from office; or

37 Removal from office

(1) The Committee must remove a senior office-holder from office if it receives a recommendation that the office-holder be removed from office, made by—
(a) a board of inquiry, following an investigation conducted under Section 33; or
40 Resignation

(1) A senior office-holder may resign by giving 3 months’ written notice to the Committee.
(2) The Committee may, on receipt of a written request from a senior office-holder, waive or reduce the period of notice under Subsection (1).
(3) The resignation of a senior office-holder may be withdrawn at any time before the date on which it takes effect.


Events at the hearing of the appeal


  1. At the hearing of the appeal the Supreme Court Bench noted that no submissions had been filed by the first and third respondents. At that time, the Bench also raised with Counsel the question, whether the appeal primarily turned on the issue of procedural fairness, particularly given that there was evidence raised before the primary Judge suggesting an absence of procedural fairness in the original decision-making process by the Board of Inquiry. Neither Counsel disputed the proposition that procedural fairness was the key issue for consideration by the Court, nor that the appellant was owed procedural fairness by the Board of Inquiry pursuant to the provisions of the BSAA.
  2. The Court also noted that, at the time of the oral hearing of the appeal, the first and third respondents had not filed submissions in accordance with timetabling directions. Given the comments of members of the Bench concerning the importance of the ground of appeal referable to procedural fairness in the context of the appeal, the Court ordered that the respondents file and serve submissions by midday 2 November 2022, that those submissions particularly address the issue of procedural fairness, and that the balance of the appeal be decided on the papers. The appellant did not oppose this course of action or seek the opportunity to file and serve additional submissions. The first and third respondents filed their written submissions by midday on 2 November 2022. The appellant and the fourth respondent did not file any additional submissions and relied on those filed on 6 and 17 October 2022 respectively.
  3. In light of these events, we turn first to the issue of procedural fairness as a ground of appeal in this case.

Procedural fairness


  1. As the Court has already noted, it is uncontroversial that a Board of Inquiry convened under the BSAA must afford the individual it is investigating procedural fairness in conducting that investigation pursuant to s 36(5)(c) of the BSAA. The appellant, having been investigated under the BSAA, was required to be afforded procedural fairness by the Board of Inquiry in accordance with this provision. A finding that the appellant was not afforded procedural fairness would render his appeal successful.
  2. In the context of affording parties natural justice in Court, Inijia DCJ, Batari and Cannings JJ noted in Ihari v Motor Vehicles Insurance Ltd [2006] SC1317 at [15]:
There are two aspects of natural justice: the Judge must give a right to be heard to the parties before making a decision that affects their interests and the Judge must not be biased or seen to be biased. These principles apply not only to the major decision that the Judge makes at the end of a case as to who wins and who loses but also to judicial decisions made during the course of a case, eg whether to admit evidence, whether to allow an objection to a question asked during examination of a witness and whether to grant a party an adjournment. An adjournment might be sought for good reason or bad. Whatever the case it is the Judge's duty to give the party seeking it the right to be heard on the question of whether it is to be granted and to listen to what is said in support of the application.

  1. The terms procedural fairness and natural justice are often used interchangeably, reflective of the principle that procedural fairness is a core tenet of natural justice. Central to both procedural fairness and natural justice is the opportunity to be heard, referable to a decision that will affect an individual’s rights or interests.
  2. It would appear that the appellant was not afforded procedural fairness by the second respondent in conducting its investigation under the BSAA. Specifically, we are of the opinion that this lack of procedural fairness was evidenced as follows:
  3. As is plain from this summary of evidence, which is not disputed by the respondents, the appellant was not afforded the opportunity to be properly heard by the Board of Inquiry prior to its resolution that his appointment should be terminated. The appellant was only afforded 20 minutes, throughout the duration of the Board of Inquiry’s investigation, to present his case to the Board of Inquiry.
  4. The appellant was not informed of any subsequent Board of Inquiry hearing after 4 July 2018, despite an undertaking that this would occur. The appellant was similarly not afforded the opportunity to be represented by a legal practitioner at a subsequent Board of Inquiry hearing despite indicating his intention to do so.
  5. This series of events demonstrates a denial of procedural fairness referable to the appellant. It cannot be said that the appellant’s right to be heard was respected by the Board of Inquiry. It follows that the appellant was denied procedural fairness by the second respondent.
  6. We cannot identify any consideration by the primary Judge of the issue of procedural fairness, or engagement by his Honour with the evidence relied on by the appellant in this respect. Accordingly, we find that his Honour erred in dismissing the application for judicial review in the National Court, and that the appeal must be allowed.
  7. Given this finding in the context of procedural fairness, it is unnecessary to determine the other grounds of appeal pleaded by the appellant.


CONCLUSION


  1. For the reasons we have outlined, the appeal should be allowed.
  2. The appellant has sought various orders of this Court. In our view, the appropriate orders are to quash the decision of the National Court and remit the matter to the National Court constituted by a different Judge.
  3. Costs follow the event, to be taxed if not otherwise agreed.

THE COURT ORDERS THAT:


  1. The appeal be allowed.
  2. The Orders of the National Court in proceeding OS (JR) No 595 of 2018, dated 16 July 2021, be quashed.
  3. This proceeding be remitted to the National Court, differently constituted, for determination according to law.
  4. The first and third respondents pay the appellant’s costs of and incidental to this appeal, such costs to be taxed if not otherwise agreed.

________________________________________________________________

Tamutai: Lawyers for the Appellant
Henaos: Lawyers for the First & Third Respondents
Solicitor-General: Lawyer for the Fourth Respondent

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2022/115.html