SC2331

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 33 OF 2018

BETWEEN:
MARY MARTIN
Appellant

AND:
DR KEN NGANGAN in his capacity as SECRETARY FOR THE DEPARTMENT OF FINANCE
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Logan, Polume-Kiele & Dowa JJ 
2022: 23rd August & 16th December 

STATUTORY INTERPRETATION – construction of ss 18 of the Public Services (Management) Act 1995 – whether 90-day period in s 18(3)(d)(i) of the Public Services (Management) Act 1995 is mandatory – where Public Service Commission delivered decision one year after application for review sought – where Secretary of Finance declined to enact Public Service Commission’s decision – where conflict of authorities in National Court – Held: s 18(3)(d)(i) is directory, not mandatory

EVIDENCE – onus of proof – onus of proof in relation to validity of official acts – where appellant did not adduce evidence of obtaining an extension of the 90-day period under s 18(3)(d)(i) of the Public Services (Management) Act 1995 – where Public Service Commission issued decision after effluxion of 90-day period – where Public Service Commission’s decision presumed to be regular – where respondents failed to adduce evidence rebutting presumption of regularity – held: respondents bore the burden of proving that a prima facie regular official act was irregular 

PUBLIC SERVICE COMMISSION –whether Public Services (Management) Act 1995 excludes review of a dismissal decision made under a contract of employment – where the relevant contract of employment included specific provision for discipline – held: the Public Services Commission retains jurisdiction to review the disciplinary process under s 18 of the Public Services (Management) Act 1995

Facts:

The appellant was employed as an Assistant Secretary, Accounts Payable Branch of the Department of Finance (Department). Her employment was governed by a contract made under s 41 of the Public Services (Management) Act 1995 (PSM Act). The contract’s term was for a period of three years. 

On 18 June 2013, the appellant was charged with facilitating four payments to a law firm. She denied those charges. On 15 July 2013, the Acting Secretary of the Department determined to terminate the appellant’s employment. Notice of that decision was served on the appellant on 18 July 2013. 

The appellant sought a review of the Acting Secretary’s decision by the Public Service Commission (Commission) pursuant to s 18 of the PSM Act. The appellant’s application was lodged with the Commission on 13 July 2013. 

Over one year later, on 16 July 2014, the Commission made a decision on the appellant’s application for review under the PSM Act. That decision annulled the decision of the Acting Secretary and required immediate reinstatement of the appellant and the payment of salaries she would have otherwise been entitled to for the period in which she had been dismissed. 

The Acting Secretary refused to comply with the Commission’s decision. The appellant commenced proceedings in the National Court seeking to compel the Department to implement the Commission’s decision. In response, the Department contended that the Commission had failed to consider the appellant’s application for review within the 90-day period stipulated under s 18(3)(d)(i) of the PSM Act. That period was contended by the Department to be mandatory unless expressly extended by the Commission – which the Department alleged had not occurred here. 

The National Court held that the 90-day period was mandatory and that there was no evidence that the Commission had determined to extend the time within which the review was to be completed. The National Court was also of the view that the appellant’s remedy lay in an action for damages for breach of contract, and not under the PSM Act. Accordingly, the National Court dismissed the proceeding. 

The appellant appealed the National Court’s decision to the Supreme Court. 

Held:

1.	When a provision of a statute relates to the performance of a public duty and the case is such that to hold null and void acts done in neglect of that public duty would cause serious general inconvenience, or injustice to persons that have no control over those entrusted with the duty, and at the same time would not promote the main object of Parliament, such statutory provisions will usually be held to be directory only: Montreal Street Railway Company v Normandin [1917] AC 170 and Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 applied. 
2.	Section 18(3)(d)(i) of the PSM Act, while couched in mandatory or imperative terms, does not render a decision of the Commission invalid in circumstances where the decision is not made in the 90-day period stipulated in that section: Palaso v Kereme [2016] PGNC 381; N6638 considered; Bailasi v Lua [2013] PGNC 304; N5145, Amuna v Manase [2015] PGNC 163; N6065, Begilale v Moutu [2018] PGNC 440; N7549 and Andrias v Kereme [2020] PGNC 21; N8190 overruled. 
3.	The Commission’s review of the decision by the Department to terminate the appellant was an official act. Accordingly, that decision was subject to the presumption of regularity. It was therefore incumbent on the respondents, and not the appellant, to adduce evidence that the Commission did not grant an extension to the period stipulated under s 18(3)(d)(i) of the PSM Act. 
4.	A public servant whose employment is governed by a contract made under the PSM Act may still invoke the Commission’s review jurisdiction under s18 of the PSM Act: Pohei v Sione [2022] SC2330 and Vanuga v Dopsie [2022] PGSC 117; SC2317 applied.

Cases Cited
Papua New Guinea Cases

Amuna v Manase [2015] PGNC 163; N6065
Andrias v Kereme [2020] PGNC 21; N8190
Bailasi v Lua [2013] PGNC 304; N5145
Begilale v Moutu [2018] PGNC 440; N7549
Daba Hisiuna Pty Ltd v Turner & Davey Electrical Pty Ltd [1974] PNGLR 164
Paikara v Nau [1971] PNGLR 354
Palaso v Kereme [2016] PGNC 381; N6638
Pohei v Sione [2022] SC2330
Rahonamo v Enai; re Hitau [1971-72] PNGLR 58
Vanuga v Dopsie [2022] PGSC 117; SC2317

Overseas Cases

Clayton v Heffron (1960) 105 CLR 214
Montreal Street Railway Company v Normandin [1917] AC 170
S S Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22

Legislation
Papua New Guinea Legislation

Claims By and Against the State Act 1996
Constitution of the Independent State of Papua New Guinea
Public Services (Management) Act 1995

Counsel:

Mr, L Giyomwanauri,  for the Appellant
Ms. B Kulumbu, for the Respondents
 
16th December, 2022

1.	BY THE COURT: Until 15 July 2013, Mrs Mary Martin was employed within the public service as Assistant Secretary, Accounts Payable Branch within the Department of Finance. She was employed for a term of three years which commenced on the 19 February 2013, pursuant to a contract of employment made under s 41 of the Public Services (Management) Act 1995 (PSM Act). That acting appointment was the culmination of a career in the public service which extended over 30 years.

2.	On 15 July 2013, the then Acting Secretary for Finance, Sir Manasupe Zurenuoc, having considered charges laid against Mrs Martin under the PSM Act and her response to the charges, by notice to her dated 15 July 2013, terminated Mrs Martin’s employment contract. She was served with that notice, and related detailed reasons for the decision, on 18 July 2013.

3.	The following account of the foundation for the charge and what transpired after the Acting Secretary’s termination decision is based on that offered by the learned primary judge in her reasons for judgment. That account is not factually controversial but the conclusions of law of the primary judge based on those facts are most certainly controversial.
4.	Mrs Martin was charged with disciplinary offences pursuant to cl 25 of her contract. That contract was in the form of the Standard National Contract. The disciplinary charges related to her alleged facilitation of four payments made to Paul Paraka Lawyers. These charges were served on her on 18 June 2013. She responded to them on 24 June 2013.

5.	After the termination notice was served on her, Mrs Martin sought a review of that decision by the Public Services Commission (Commission), pursuant to s 18 of the PSM Act. That application was lodged on 31 July 2013. She also gave notice pursuant to s 5 of the Claims By and Against the State Act 1996 to the Solicitor General on 19 August 2013.

6.	It was not until 16 July 2014 that the Commission made a decision with respect to Mrs Martin’s application for review. The Commission decided to annul the Acting Secretary's decision to terminate her contract of employment. More particularly, the Commission decided:

"That the Commission annuls the decision of the Chief Secretary and then Acting Finance Secretary, Sir Manasupe Zurenuoc to dismiss the applicant Mrs Mary Martin from the Public Service.

That Mrs Martin be immediately reinstated to substantive Position No. DFCSA 001 - Assistant Secretary, Grade 17 and her contract of employment be renewed forthwith; and,

That Mrs Martin's lost salaries and contractual entitlements be back dated and paid in retrospective (sic) to the date of which she was dismissed from the Public Service. "
7.	Perhaps surprisingly, the Acting Secretary refused to comply with the Commission’s decision. He did so because it had not been made within, so he considered, the time ordained by s 18 of the PSM Act. As will be seen, there was a basis upon which the Acting Secretary might, in good faith, have considered that the Commission’s decision was for this reason invalid. That is because the meaning and effect of s 18 of the PSM Act has been the subject of disparate views in the National Court. Some of those views support the Acting Secretary’s position that the Commission’s decision was invalid.

8.	This invalidity argument was repeated by the Acting Secretary’s successor and the State (the present respondents) in the National Court in opposing the application for review. In short, they submitted that the Commission failed to consider the plaintiff's application for review within the statutory time limit. That time limit, they contended was mandatory, subject only to extension by a deliberate decision of the Commission. 

9.	The primary judge upheld the construction of s 18 of the PSM Act promoted by the respondents. She also held that there was no evidence of a determination by the Commission that, due to circumstances beyond its control, it had not been possible to complete the review within 90 days.

10.	The learned primary judge also opined that, in any event, as an officer engaged under contract, Mrs Martin’s remedy for wrongful dismissal was an action for breach of contract. 

11.	On these bases, the learned primary judge dismissed Mrs Martin’s application for the review of the decision by the Acting Secretary not to implement the Commission’s decision.

12.	Mrs Martin has now appealed against that order of dismissal. In essence, the basis of her challenge is that, on its true construction, s18 did not render the Commission’s decision invalid. She also contends that, in any event, it was for the respondents to prove that there had been no extension by the Commission. Yet further, she submits that her status as an officer employed under contract did not mean that the Commission lacked jurisdiction to conduct a review of the decision to terminate her.

13.	It is now necessary to set out s 18 of the PSM Act:

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.
14.	The principle point at issue between the parties concerns the true construction of s 18(3)(d)(i) of the PSM Act. There is no prior judgment of this Court where the construction of that provision has arisen directly for consideration. There are, as mentioned, conflicting authorities in the National Court as to the construction of the provision. As might be expected, each party adopted such of those authorities as supported the construction of the provision which they promoted. The nature of their respective submissions therefore sufficiently emerges from our summary of those authorities to all of which we were helpfully taken by counsel in submissions.

15.	Earliest in time is Bailasi v Lua [2013] PGNC 304; N5145 (Bailasi v Lua) in which, at [6] to [8], and without elaboration, Cannings J held that a decision of the Commission made 194 days after it had received a complaint and in circumstances where there was no evidence that it had extended the 90-day time limit was invalid. The court held that the non-observance of the time limit went to the Commission’s jurisdiction. 

16.	Next in time is Amuna v Manase [2015] PGNC 163; N6065 (Amuna v Manase), a judgment given by the primary judge (Nablu J) when an Acting Judge. In that case also, the Commission’s decision was made more than 90 days after it received the relevant officer’s complaint. It is not apparent from her Honour’s reasons for judgment that she was referred to Bailasi v Lua. In any event, she regarded the Commission’s decision as invalid. Her Honour stated, at [23] to [27]:

23.	In my view, Section 18(3)(d), must be read in whole. Before the decision is binding, there are conditions which must be satisfied. The first, is that the decision of the PSC must be made within 90 days of the date the complaint was lodged.
24.	This is a mandatory requirement of law. However, Section 18(3)(d)(i) of the Public Services (Management) Act provides an exception where the delay is inevitable and beyond the control of the PSC. There must, in my view, evidence provided by the PSC as to the reason the decision could not been made within 90 days. In order for the decision to be binding within 30 days, the PSC is obliged by law, to carry out the review and give a decision within 90 days. If they are not able to comply and make a decision within 90 days, there must be evidence before this Court, why they did not comply. This reason should also be stated in the PSC decision.
25.	Parliament's intent in my view, was for these matters be reviewed in a timely manner. The aggrieved officer must have closure of the issues and the departmental head should rectify his decision promptly, if there is a fundamental error of law or breach of procedure identified.
26.	Furthermore, if the PSC annuls the decision and directs the departmental head to reinstate the aggrieved officer. Such orders should be made promptly so as to reduce the costs to the department and State in terms of the payment of lost salaries and entitlements.
27.	I am of the view, that the legislation intended these decisions to be made within 90 days, in order for the decision to be binding. The decision was made three (3) years later. In this case, I am of the view the decision is not binding because of the failure of the PSC to make the decision within 90 days.
17.	Next in time and to the contrary of these two earlier judgment in the National Court is Palaso v Kereme [2016] PGNC 381; N6638 (Palaso v Kereme). In that case the Commission made its decision some 20 months after the receipt by it of the complaint. It is not apparent that the court was taken in this case either to Bailasi v Lua or to Amuna v Manase. However, the reasons offered in Palaso v Kereme by Gavara-Nanu J for his conclusion that, on the true construction of s18(3)(d)(i) of the PSM Act, a challenge by a permanent head to the validity of the Commission’s decision on the basis of delay failed are most elaborate. It would, with respect, do that judicial scholarship less than justice not to set out the relevant part of those reasons ([12] to [28]) in full. So doing also has the advantage of describing in detail the contention of Mrs Martin, because that embraced his Honour’s reasoning. His Honour stated:
12.	As it can be seen from the terms of s. 18 (3) (d) (i), the plaintiff’s argument is based only on the first part of this provision, it ignores the second part, which reads:

“...but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission...”

13.	Thus the second part of the provision allows and empowers the PSC to extend the statutory period if the reason or reasons for the delay were beyond its control. It is a firmly established principle of cardinal significance regarding statutory interpretation that when interpreting a statutory provision, it should be interpreted as a whole to see the provision in its true context and to appreciate its tenor. Applying the principle to this case, s. 18 (3) (d) (i) cannot be considered in a piece meal manner which in effect was the argument by the plaintiff. The argument goes against this cardinal principle, accepting it will result in the provision being misinterpreted and read out of context: The State v. Downer Construction (PNG) Ltd (2009), SC929. This principle was reiterated by Hartshorn J, in a more recent case of Rural Development Bank Ltd v. James Kond (2010) N5876, the decision was subsequently approved by the Supreme Court in James Kond v. National Development Bank Ltd (2015) SC1432. See also, Salamo Elema, Insurance Commissioner v. Pacific MMI Insurance Limited (2011) SC1114 and Gari Baki v. Allan Kopi (2008) N4023.

14.	When s. 18 (3) (d) (i) is interpreted as a whole, it becomes clear that notwithstanding the word “shall” in its first part, the legislative intent derived from the language of the whole provision is that the requirement in the first part of the provision should be interpreted as directory. The threshold question for the Court is; what is the legislative intent for the provision viz; whether the provision is intended by the legislation to be interpreted as mandatory or directory. This exercise requires the Court to closely examine the scheme of the Public Services Management Act. This approach gives a clear guidance to the Court in determining this key issue: Safe Lavao v. The Independent State of Papua New Guinea [1978] PNGLR 15.

15.	When s. 18 (3) (d) (i) is given proper interpretation, three key features which render it directory, emerge. First, the first part of the provision creates a public duty for the PSC to give its decisions within the statutory period. Second, no penalty is prescribed in the event of a failure by the PSC to perform the duty within the statutory period. Third, the second part of the provision allows the PSC to perform the duty outside the statutory period by empowering the PSC to extend the statutory period, if reasons for the delay were beyond its control. This allowance effectively renders the word “shall” in the first part of the provision to be interpreted as directory rather than mandatory. These features have a general application and in my view they constitute the relevant tests to be applied when deciding whether a certain statutory provision is mandatory or directory. The tests have been adopted by the courts in a long line of cases in this jurisdiction when deciding this pivotal issue. For example see NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139; Reference by the East Sepik Provincial Executive (2011) SC1154; Rural Development Bank Ltd v. James Kond (supra); James Kond v. Nationall Development Bank Ltd (supra). I must say I find the observations made by Gillard J, in S S Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229, more appealing because in my view, they fully embrace these tests, his Honour at 237 said:

"In order to decide whether legislative provisions are mandatory or directory it would appear there are certain guides to indicate, but there is no conclusive test to decide into which category legislation may fall. The scope and object of the statute, it is said in the cases, are of primary and possibly of vital importance. Secondly, provisions creating public duties and those conferring private rights or granting powers must be distinguished. The former generally are regarded as directory, whereas the latter are generally accepted as mandatory, particularly where conditions are attached to the exercise of the duty or the power, as the case may be. Thirdly, in the absence of an express provision, the intention of the legislature has to be ascertained by weighing the consequences of holding a statute to be directory or imperative. 'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at that same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done': per Privy Council in Montreal Street Railway Co v Normandin [1917] UKPC 2; [1917] AC 170 at 175. See also Caldow v Pixell [1877] UKLawRpCP 29; (1877) 2 CPD 562; R v Lincolnshire Appeal Tribunal; ex parte Stubbins [1917] 1 KB 1 at 9; Pope v Clarke [1953] 2 All ER 704; Edward Ramia v African Woods [1960] 1 WLR 86 at 99; [1960] 1 All ER 627; Cullimore v Lymne Regis Corporation [1962] 1 QB 718; [1961] 3 All ER 1008; McCrudden v Borough of Horsham Waterworks Trust [1895] VicLawRp 66; (1895) 21 VLR 504 at 514; Tilbury & Lewis v Marzorini [1940] VicLawRp 10; [1940] VLR 245; Greenwood v Camberwell (City of) [1922] ArgusLawRp 5; [1922] VLR 177 at 185".

16.	Under the terms of the second part of s. 18 (3) (d) (i), it is clear that for the PSC to validly exercise its power to extend the statutory period, there must first be an application for such an extension. The application should be accompanied by supporting evidence warranting the extension, viz; evidence showing that the matters or reasons causing the delay were beyond the control of the PSC. The PSC should be satisfied of these requirements before extending the statutory period. The exercise of the power to extend is therefore subjective. The application to extend the statutory period should be made by the officer of the PSC who is in-charge of the case. The officer can make the application either on his own initiative or at the prompting of the PSC. The application for an extension of the statutory period is therefore a condition precedent to a valid exercise of power by the PSC to extend the statutory period and the validity of the subsequent decisions of the PSC. This view is in harmony with the view expressed by Doherty J in The State v. Naptali Tulong [1995] PNGLR 329, where her Honour said:

“...Where the Act or thing required by statute is a condition precedent to the jurisdiction of a tribunal, compliance cannot be dispensed with and if it is not completed or is impossible to comply with the jurisdiction fails”.

17.	Based on these observations, in my view any challenge to the decision of the PSC given outside the statutory period should be focused on the extension of the statutory period by the PSC and delay, if delay was inordinate. Such a challenge should aim at showing that the reasons for the delay for which the statutory period was extended, were not beyond the control of the PSC and that the delay was inordinate. The ultimate relief is a declaration that the extension of the statutory period had no basis and that the PSC lacked power to extend the statutory period, hence the subsequent decision of the PSC was ultra vires and null and void.

18.	Whether the reasons for the delay were beyond the control of the PSC or not and whether the delay was inordinate are questions of fact which have to be decided on the merits of each individual case. The determination of these issues is entirely up to the discretion of the Court.

19.	I should at this juncture stress that any challenge to a PSC decision should be based on the materials already provided by the PSC in its decision.

20.	In this case, the third defendant’s application for review or complaint was received by the PSC on 26th September, 2012. The PSC officer who was in-charge of the case applied for an extension of the statutory period on 18th October, 2013. The application was granted by the PSC on the same day. The PSC gave its decision on 15th April, 2014. The PSC told the Court that, although the application for the extension of the statutory period and the decision to grant the extension were made outside the statutory period, it had complied with the requirements of s. 18 (3) (d) (i) because the reasons for the delay were beyond its control, and that the delay was not inordinate. These claims have not really been contested by the plaintiff and there is material before the Court supporting these claims.

21.	It is important to note that the PSC is a body duly established by the Constitution under s. 190, thus it is a constitutional body with special powers and functions conferred by the Constitution. It has a special review jurisdiction specifically conferred by the Constitution under s. 191 (1) to review personnel matters arising from actions taken by the public bodies or authorities in respect of matters that are connected with the National Public Service. Thus review of personnel matters is a constitutional function of the PSC, which is regulated by s. 18 of the Public Services Management Act. Section 18 therefore has to be read together with s. 191 (1) of the Constitution to appreciate its context and tenor: The State v. The Independent Tribunal: Ex Parte Sasakila [1976] PNGLR 492 at 506 to 597.

22.	Section 192 of the Constitution gives independence to the PSC, thus the PSC is not subject to direction or control by anyone in carrying out its functions. These functions include those regulated by s.18 of the Public Services Management Act, including the exercise of power to extend the statutory period under s. 18 (3) (d) (i). These special powers and functions especially its review jurisdiction place the PSC at a higher level of authority than those public bodies or authorities such as the Heads of Departments and statutory bodies. This means these public bodies or authorities are bound to respect the PSC for its work. Such respect can be appropriately shown by these public bodies or authorities taking the decisions of the PSC seriously and refraining from launching unmeritorious and unnecessary challenges against the decisions or simply not complying with the decisions without any proper and valid reasons or without any reasons at all. Such attitude belittles and trivializes the work of the PSC and unnecessarily hinders and interferes with the PSC in carrying out its functions. Any legal challenge to the validity of the PSC decisions should be based on grounds disclosing serious issues.

23.	An added point of significance to note is that the decisions of the PSC are in effect collective decisions of the three constitutional office holders who make up the PSC, headed by its Chairman, thus they carry lot of force and weight. It is important to note that, these decisions are given after due consideration of the evidence the PSC collects in the course of its investigations into complaints it receives from aggrieved public servants. These investigations sometime take months, even years to complete as in this case, and are mostly, if not, all complex and laborious. Therefore a greater responsibility falls on those public bodies or authorities whose decisions are reviewed by the PSC to treat the PSC decisions seriously and consider them carefully and thoroughly and if they decide to challenge the decisions, they should do so only if there are serious issues arising. An important part of this responsibility is for such public bodies or authorities to appreciate that the decisions are of a body established by the Constitution, thus by law, they should not be treated lightly and regarded with disdain, or dismissed in the wayside without any serious consideration and attention being given to them. In Peter Bon v. Mark Nakgai (2001) PNGLR 18, in stressing this point, I said:

“On this point, I feel compelled to offer some comments regarding the weight and the significance of the recommendations by the Commission under s.18 (2)(c) in judicial review matters. The Commission's recommendations are based on its investigations and reviews of personnel matters under ss.13 and 18 (2)(b) of the Act as sanctioned by s. 191 (a) of the Constitution, therefore although not binding, such recommendations carry the force and the weight of the Constitution, thus they must be given proper considerations by the Departmental Heads and if they are rejected, there must be valid reasons for such rejections because if the recommendations are simply rejected or dismissed in the way side without any valid reasons, or without any reasons at all, such decisions would be rendered arbitrary and be open for judicial review. Another reason why there must be valid reasons to reject the Commission's recommendations is that the power exercised by the Departmental Heads when terminating officers under the Act, is a public function, having public character by reason of the fact that the Departmental Heads hold public offices, which makes them accountable to the public and to the Public Service of which they are a part”.

24.	Of course at the time Peter Bon was decided, the PSC’s powers did not go beyond merely making commendations. That has changed under this Act, in that the PSC decisions are now legally binding and enforceable in a court of law after 30 days from the dates the decisions are given as provided under s.18 (3) (d) (ii). The binding nature of the PSC decisions places greater burden on the public bodies or authorities, including the Heads of Departments and statutory bodies affected by the decisions to be responsible and professional in their approach and be guided by law when challenging the decisions. The responsibility placed on those public bodies or authorities is greater and onerous. It behoves them to ensure that their decisions are based on matters raising serious issues and not just based on trivial administrative errors or omissions.

25.	It is of course of equally paramount importance for the PSC to also appreciate that as a high Office, it has an equally higher responsibility to ensure that it performed its powers and functions properly and diligently according to law. Failure to do so will render its decisions unlawful thus leaving the decisions open to challenge by the public bodies or authorities affected by those decisions. Constant or regular challenges to bad and ill considered PSC decisions can affect the smooth and effective operations of the Public Service machinery, as that will create uncertainty among public servants and cause instability and unnecessary disruptions in the overall administration of the Public Service. To prevent unnecessary challenges to its decisions, the PSC must also, as required by law ensure that its decisions are above board and are properly and firmly based on law and evidence.

26.	It is convenient that I express my view on what I consider is the appropriate standard of proof in proceedings before the public bodies or authorities and the PSC. The standard of proof should of course be lower than the criminal standard but higher than the civil standard. The appropriate standard of proof should therefore be proof by cogent and convincing evidence. This standard of proof is commensurate to the penalties that may be imposed, irrespective of whether the offences charged are criminal or disciplinary in nature, and whether they are serious or minor. What is of essence is that the person charged with a disciplinary offence will, if found guilty, suffer some form of penalty. The purpose and the object of the proposed standard of proof is to ensure that the person charged is not unfairly penalized. This standard of proof would also reflect and resonate with the principle that such proceedings are not before a court of law and the technical rules of evidence do not apply: Eddie Gabir v. Richard Koronai [1988-89] PNGLR 406. The standard of proof adopted here will in my view provide the balance required to account for this principle and to ensure and guarantee that the person charged with a disciplinary offence(s) is given a fair hearing and more importantly is accorded the full protection of the law: Henry Wavik v. Martin Balthasar, Acting Commissioner Correctional Service & Ors N5272.

27.	In this case, there are two cogent reasons given by the PSC for giving its decision outside the statutory period, or for the delay. First, its officer who was looking after this case was overloaded with work after assuming extra work from another officer of the Commission who was suspended after being charged with disciplinary offences. The officer therefore could not fully attend to this case. Second, the term of its Chairman, Mr. Rigo Lua expired, thus causing serious disruptions to its work at the critical time.

28.	It is also significant to note that in regard to the extension of the statutory period under s.18 (3) (d) (i), there is no requirement in the provision that the extension be given within the statutory period. The provision merely states that the period may be extended by the PSC, thus I am firmly of the view that the extension can be validly given outside the statutory period as happened in this case, as long as the PSC proved that the reasons for the delay were beyond its control. In this case, I am satisfied from the materials before the Court that the reasons for the delay were beyond the control of the PSC and that the delay has been sufficiently explained by the PSC. In any event the delay was not inordinate or undue.

(Underlining in original).
18.	Next in time are two judgements of Thomson J, Begilale v Moutu [2018] PGNC 440; N7549 and Andrias v Kereme [2020] PGNC 21; N8190 in which, without elaboration or apparently being referred to any of the foregoing cases, her Honour concluded that, absent evidence of an extension by the Commission, a decision by the Commission beyond the 90 days specified in s 18(3)(d)(i) of the PSM Act was invalid.

19.	There is no denying that, as a matter of immediate impression, the use by parliament of the verb, “shall” in s 18(3)(d)(i) of the PSM Act is apt to engender a view that what follows is mandatory or imperative. However, as Gavara-Nanu J appreciated in Palaso v Kereme, any such impression is immediately challenged by the presence of a discretion to extend time. The construction of a statute must commence with the text of the relevant provision, read as a whole and in the context in which it appears, having due regard to the evident purpose of the provision and the statute in which it appears.

20.	In the case of the Commission, and as Gavara-Nanu J also highlighted in Palaso v Kereme, it is also necessary to remember that it is a body established by the Constitution of the Independent State of Papua New Guinea (Constitution) (s 190) with the function, amongst others, of “the review of personnel matters connected with the National Public Service” (s 191(1)(a) of the Constitution). “Personnel matters” is also a constitutionally defined term (s 194) and includes matters concerning the disciplining of an individual. The Commission is an independent body, which serves the high public purpose of, amongst other things, ensuring independence in the public service and protecting public servants from arbitrary behaviours (or worse) by Ministers or permanent heads of departments or agencies. 

21.	It may be accepted that one evident purpose of specification of 90 days in s18(3)(d)(i) of the PSM Act is to achieve reasonable expedition in the resolution of a public service personnel matter the subject of a complaint to the Commission. In terms of good public administration, there is a public interest in a timely resolution of, materially, whether or not an officer’s termination stands. The conduct of executive government is facilitated by certainty as to who holds a particular office and may exercise the powers conferred on that office. No less important, especially given its constitutional foundation, is the scope for independent review on the merits by the Commission on complaint in respect of a personnel matter. An obvious reason why parliament cannot have intended the 90-day period to be mandatory or imperative is the presence of an ability to extend that period if a review cannot be completed for reasons outside of the Commission’s control. Parliament must be taken to have appreciated that the resources of the Commission are finite and that the extent of its workload is unpredictable. 

22.	This analysis alone would lead us to a conclusion that the 90-day period in s18(3)(d)(i) of the PSM Act is not mandatory or imperative.

23.	Regard to authority serves to underscore this conclusion. As is evident in the reasons of Gavara-Nanu J in Palaso v Kereme, influential in his conclusion concerning the meaning of s 18(3)(d)(i) of the PSM Act were observations made in S S Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 concerning the generally directory quality of provisions providing for public duties. Further consideration of that subject shows that the proposition is sourced in high authority. In Montreal Street Railway Company v Normandin [1917] AC 170, the issue before the Judicial Committee of the Privy Council was whether the verdict of a civil jury was to be set aside on account of non-compliance by a designated court officer with a statutory duty annually to revise a list of jurors, the Judicial Committee stated, at 175:
“When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.”
24.	This statement of principle has continuing authority. It was cited with approval by Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 (Wei), at [27]. 

25.	Looking to the facts of the present case, to hold that the time limit in s18(3)(d)(i) of the PSM Act was mandatory or imperative would work serious injustice on Mrs Martin. Axiomatically, she never had any control over the expedition with which the Commission dealt with her case. To conclude that the time limit was mandatory visiting invalidity on a decision made beyond it would also be subversive of the constitutionally entrenched functions of the Commission. Especially that is so in a developing country such as Papua New Guinea where public revenue is much more limited than in developed countries and where, correspondingly, the opportunity cost of conferring additional resources on the Commission may be an unacceptable diminution in basic public services such as health, education, road and other public infrastructure maintenance and improvement and community policing and defence and foreign affairs. 

26.	Regard to Wei is also useful for the point made by Gageler and Keane JJ as to an enduring utility in statutory construction of characterising provisions as mandatory (or imperative) or directory. Their Honours stated, Wei, at [27]:

“…notwithstanding the note of caution sounded in Project Blue Sky Inc v Australian Broadcasting Authority, there remains utility in maintaining the traditional terminological distinction between an "imperative" (or "mandatory") duty on the one hand, and a "directory" duty on the other hand, for the purpose of describing whether or not a material breach of an antecedent statutory duty results in an invalid exercise of a decision-making power.”
Their Honours drew attention to the rationale for this distinction offered by the High Court of Australia in Clayton v Heffron (1960) 105 CLR 214 at 24:
“Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void.”
27.	We see continuing utility in maintaining the terminological distinction between mandatory (or imperative) and directory for just this reason.
28.	As we have indicated, and with all respect to those in the National Court who have concluded otherwise, it is an unlikely construction of s 18(3)(d)(i) of the PSM Act to characterise the 90-day period as mandatory (or imperative), visiting invalidity upon a decision outside this period. In truth, it is but an aspirational statement, reflecting parliament’s recognition of the desirability of reasonably expeditious resolution of personnel matters within the public service. Read as a whole, in s 18(3)(d)(i) parliament has tempered that recognition with the no less powerful recognition that matters beyond the control of the Commission may prevent the achievement of that aspiration. Once this is appreciated, and the inability of an individual public servant who has made a complaint to the Commission to influence events bearing upon the expedition with which it deals with that complaint, the whole of s 18(3)(d)(i) of the PSM Act, not just the 90-day period, can be seen to be but directory. It would be a perverse construction of the provision to visit invalidity upon a favourable outcome on review the timeliness of which a complainant could never hope to control. It would constitute a subversion of a constitutionally important function of independent merits review of personnel matters within the National Public Service.

29.	Even assuming, however, that there was to be read in to s 18(3)(d)(i) of the PSM Act a need for an extension (and, as just indicated, we do not accept that), it was then put for the respondents that the conclusion of the primary judge that it was for Mrs Martin to prove that the Commission had extended the time, and she had not evidenced this. This submission cannot be accepted.

30.	The Commission’s decision on the review was an official act. That being so, a presumption of regularity, expressed in the Latin maxim, omnia praesumuntur rite esse acta. operated in Mrs Martin’s favour. On the basis of that presumption, it was to be presumed, until the contrary was proved, that the act of the Commission “complied with any necessary formalities”. There is longstanding authority in this jurisdiction about the operation of the presumption of regularity. 

31.	In Paikara v Nau [1971] PNGLR 354, the Court stated:

“The presumption of regularity as it is sometimes called is a rebuttable presumption of law drawn by the Court and is chiefly applied to judicial and official acts. If applied, it is, in the absence of opposing evidence, conclusive for the party in whose favour it operates. We take these statements from Phipson on Evidence (10th ed.) pars 2016 and 2027. Expressed as a presumption arising from the ordinary course of business it was discussed by Griffith C.J. in McLean Bros. & Rigg Ltd. v. Grice. The Chief Justice quoted with approval an observation by Brewer J. which reads: “It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.”

(Footnote references omitted).
See also as to the recognition and operation of the presumption of regularity: Rahonamo v Enai; re Hitau [1971-72] PNGLR 58 and Daba Hisiuna Pty Ltd v Turner & Davey Electrical Pty Ltd [1974] PNGLR 164.
32.	In effect, by ignoring the presumption of regularity, the learned primary judge inverted the onus of proof. Mrs Martin engaged the presumption of regularity by her tender of the Commission’s decision. In the face of the presumption of regularity, it was always for the respondents to introduce evidence that the Commission had never extended time or had done so for reasons within its control. Indeed, the very fact that the Commission had chosen to decide the case after the 90-day period carried with it by necessary implication that it considered the case one where, for reasons beyond its control, it was unable to meet the aspirational 90-day period. 

33.	The respondents failed to introduce any evidence which would rebut the presumption of regularity.

34.	As to her Honour’s conception that Mrs Martin’s remedies lay in any event only in an action for breach of her contract of employment, all that need to be said is that this conception is contrary to later Supreme Court authority: see, for example, Pohei v Sione [2022] SC2330 and Vanuga v Dopsie [2022] PGSC 117; SC2317. Contract officer though she was, Mrs Martin was a public servant, able by complaint made under s 18 of the PSM Act to invoke the Commission’s review jurisdiction.

35.	What follows from the foregoing is that there was never a basis upon which the first respondent (or his predecessor), as permanent head, could disregard the Commission’s decision on the review. To the contrary, it was binding upon him and should have been implemented without delay. 

36.	The appeal must therefore be allowed. The parties were agreed that, in that circumstance, the matter should be remitted to the National Court for assessment of damages. As to that assessment, we would merely observe that it could hardly be said that Mrs Martin had rested on her rights. To the contrary, with the benefit of assistance from the Public Solicitor, she has pursued her case with due expedition. It is to be hoped that a formal assessment will not prove necessary, because the parties will agree the amount of compensation for wrongful dismissal, measured by reference to when Mrs Martin would have retired from the public service for reasons of age in any event and allowance for interest.

37.	Costs must follow the event in this Court and in the National Court.

Orders

1.)	The orders of the National Court made on 23 November 2018 be set aside.
2.)	In lieu thereof, it be ordered that:
a.	The decision of the first respondent to refuse to implement the decision of the Public Services Commission dated 15 July 2014 (Commission’s decision) be called up by writ of certiorari into the National Court and quashed.
b.	The defendants (present respondents) pay the plaintiff’s (present appellant) costs of and incidental to the application for review, to be taxed by a registrar if not agreed.
3.)	The proceedings be remitted to the National Court for the assessment of damages flowing from the Commission’s decision and the failure of the first respondent to implement that decision.
4.)	The respondents pay the appellant’s costs of and incidental to the appeal, to be taxed by a registrar if not agreed.
__________________________________________________________________
Office of the Public Solicitor:  Lawyers for the Appellant	
Office of the Solicitor General: Lawyers for the Respondents