SC2782

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA   NO. 72 OF 2024 

BETWEEN 
 KIMBE MUGUA as Caretaker Principal Education 
Advisor- Simbu Province
First Appellant 

AND
ALOIS SIUNE as the Acting Human Resources Manager of Simbu Provincial Administration
Second Appellant

AND
JOHN PUNDE as the Simbu Provincial Administrator  
Third Appellant

AND
SIMBU PROVINCIAL GOVERNMENT
Fourth Appellant

AND
KUTNA BEPWICK as Acting Principal Education Advisor 
Respondent

WAIGANI: MANUHU J, ELIAKIM J, ANDELMAN J
3 SEPTEMBER 2025

SUPREME COURT APPEAL – Interpretation of O 35.15 of the Public Service General Order – whether a charge is a decision – whether a decision was made – whether notice is required to be given to Simbu Provincial Government where the claim against it is not in monetary terms – whether a claim for costs makes a claim monetary in nature.

The appellants appealed against the decision of the National Court on the basis that the trial judge erred in both law and fact by holding that no decision had been made pursuant to Order 15.35 of the Public Service General Orders, that the appellants should have commenced judicial review and that it was necessary to give notice under section 4 of the Simbu Provincial Government Act 2001.

Held
1.	The appeal is dismissed.
2.	The Fourth Appellant shall pay the Respondents’ costs of and incidental to this appeal, to be taxed if not agreed.

Cases cited
Sisimolu v Kaia (2024) SC2525
The R L Aston (1882) 8 PD 5 (CA)

Counsel
Y Awi for first, second, third and fourth appellants
V Ngibe for the respondent

1.	BY THE COURT: The respondent was appointed as an Acting Principal Education Advisor in the Simbu Province Education Division on 30 March 2022. 

2.	On 22 February 2024 the respondent was issued with a letter of suspension from her role dated 15 February, and a notice of a charge within the meaning of s 52 of the Public Service (Management) Act 1995 dated 19 February.

3.	On 15 February 2024, after the issue of the letter of suspension from her role as Acting Principal Educator Advisor, she was appointed as a Care-taker Principal Education Advisor in the Simbu Province Education Division.

4.	The respondent responded to the charge on 23 February 2024.

5.	On 3 April 2024 the respondent filed an Originating Summons in the National Court seeking, in substance the following reliefs:

a.	A declaration that the disciplinary charges and suspension dated 15 and 19 February respectively null and void and of no effect pursuant to Order 15.35 of the General Order No 15 Officers’ Discipline (Non Contract) General Order Fourth Edition 1 January 2012 (Public Service General Orders);
b.	a declaration that the appointment of the first defendant as the Care-taker Principal Education Advisor is null and void because it was done prior to her being charged and suspended from office; 
c.	an order that she resumes duties as Acting Principal Education Advisor and the first defendant be relegated to his substantive position as Appointment and Recruitment Officer; 
d.	a further order that all parties should give priority and operation of the Education Department's Division in the province and should observe these orders promptly as school year begins and should not be disturbed; and 
e.	Costs of this proceeding. 

6.	On the same day the respondent filed a Notice of Motion that the decision that she be appointed as the Care-taker Principal Education Advisor be stayed until the completion of the substantive matter and that she resume her role as Acting Principal Education Advisor.

7.	The trial judge made an Order on 19 April 2024 granting the respondent the orders sought above.

8.	On 25 April 2024 the appellants filed a Notice of Motion that the proceedings be dismissed, in substance, on the following basis:
a.	That notice of intention to claim against Simbu Provincial Government was not given pursuant to s 4 of the Simbu Provincial Government Act 2001;
b.	The proceedings are an abuse of process on the basis that:
i.	The appellant instituted wrong mode of proceedings;
ii.	The appellant failed to exhaust the review process under s 18 of the Public Service (Management) Act 1995; and
iii.	The administrative disciplinary process had started and had not been concluded.
c.	Interim restraining orders.

9.	The trial judge heard the appellants’ Notice of Motion and the respondent’s substantive claims on 20 May 2024. 

10.	The trial judge made the following declarations and orders:
a.	The Court declares that the Disciplinary Charges and Suspension dated 15 and 19 February 2024 respectively of the Plaintiff is null and void and no effect pursuant to Order 15.35 of the Public Service General Orders;
b.	 The Court Declares that the Appointment of the First Defendant as the Caretaker Principal Education Advisor is null and void, because it was done prior to the Plaintiff being charged and suspended from office;
c.	 The Plaintiff resumes duties as Acting Principal Education Advisor and the First Defendant be relegated to his substantive position as Appointment and Recruitment Officer; 
d.	And further orders that all parties should give priority to operations of the Education Department (Division) in the province and should observe these Orders promptly as school year begins and should not be disturbed; and
e.	Costs of these proceedings

11.	It is against these Orders made in proceedings styled as OS No 38 of 2024 – Kutna Bepwick as the Acting Principal Education Advisor – Simbu Province – v Kimbe Mugua as the Caretaker Principal Education Advisor – Simbu Province & 3 Ors (the Decision) that this appeal lies.

GROUNDS OF APPEAL

12.	The grounds of appeal can be summarised as follows:

1)	That the trial judge misconstrued Order 15.35 of the Public Service General Orders.
2)	That notice of intention to claim against Simbu Provincial Government was required to be given pursuant to s 4 of the Simbu Provincial Government Act 2001
3)	The appellant instituted wrong mode of proceedings

Ground 1: Order 15.35 of the Public Service General Orders

13.	Public Service (Management) Act 1995 regulates the employment of employees employed by the public service. Part XIV of the Public Service (Management) Act 1995 deals with disciplinary offences of officers.

14.	Section 52 prescribes the procedure for the framing and service of disciplinary charges and confers a right on the officer to respond to the allegation made against them and for the decision on the disciplinary charges to be made. It is in the following terms:

DEALING WITH SERIOUS DISCIPLINARY OFFENCES.
(1) Where there is reason to believe that an officer other than a Departmental Head has committed a disciplinary offence other than an offence that may be dealt with under Section 51, the provisions of this section apply.
(2) The officer may–
(a) be charged by his Departmental Head or an officer authorized by the Departmental Head to lay charges under this Division; and
(b) if it is considered that the charge is of such a serious nature that the charged officer should not continue in the performance of his duty, be suspended by–
(i) his Departmental Head; or
(ii) in case of emergency–an officer authorized by the Departmental Head to lay charges under this Division.
(3) Suspension may be effected before, at the time of or after the laying of the charge, and may be removed at any time by the Departmental Head concerned pending determination of the charge, and where the charge has not been sustained shall be lifted immediately on a finding to that effect.
(4) On a charge being laid against an officer, he shall–
(a) promptly be given a copy of the charge; and
(b) be directed–
(i) to reply promptly in writing, stating whether he admits or denies the truth of the charge; and
(ii) to give any explanation that he desires to give in regard to it,
and if a reply is not given by the officer within seven days after his receipt of the charge he may be deemed to have admitted the truth of the charge.
(5) If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report that he thinks necessary, the Departmental Head concerned is of the opinion that the charge has been sustained, he may–
(a) fine the officer a sum not exceeding 20% of the officer’s gross fortnightly pay; or
(b) reduce the officer’s pay; or
(c) reduce the officer to an office having a lower classification, and to a salary within that classification; or
(d) in addition to or instead of imposing a punishment specified in Paragraph (a), (b) or (c), transfer the officer to some other office or locality; or
(e) dismiss the officer from the Public Service.
(6) The Departmental Head shall notify an officer of a punishment imposed or recommendation made by him under Subsection (5).

15.	It was not in dispute that the respondent was issued with a charge on 19 February 2024 and was suspended from her role pursuant to s 52(2) and (3) of the Public Service (Management) Act 1995. She responded to the charge, as was her right pursuant to s 52(4)(b). Following the reply, the Department Head did not serve any decision on the respondent informing her of any action pursuant to s 52 (5).

16.	Public Service General Order is a Code of Conduct and is issued under s 70 of the Public Service (Management) Act 1995 by the Department Head. It covers disciplinary procedures and forms and rules of conduct. The General Order proscribes administrative procedures including timing requirements that are to be read together with the provisions in the Public Service (Management) Act 1995. Together, they ensure compliance with natural justice and timely resolution of disciplinary matters.

17.	Orders 15.33 to 15.35 of the Public Service General Order are under the heading of ‘Decision on Charge’. They follow on from orders 15.31 which is the nature of the charge and 15.32 which is reply to the charge. Order 15.33 sets out five types of punishment the Departmental Head can make after considering the reply to the charge or the opportunity given for the officer to reply to the charge  Order 15.34 requires the Departmental Head to notify the officer of the punishment imposed, if any on a particular form. Section 15.35 states:
The officer must be notified of the decision within 21 working days of the Departmental Head giving the officer’s reply to the charge. In circumstances where there is no decision within 21 days, the charges are deemed null and void. However, if the delay beyond 21 days is due to administrative oversight, then the Departmental Head may withdraw the original charges issue the same fresh charges to ensure that the process is complete on time.

18.	The Public Service General Order must be read together with the Public Service (Management) Act 1995. The reference to the ‘charge’ in the Public Service General Order has the same meaning as the term ‘charge’ in s 52 of the Public Service (Management) Act 1995.

19.	The appellants during the hearing variously submitted that the term ‘charge’ was the same as the term ‘decision’ in O 35.15 of the Public Service General Order, that there was an attempt to serve the appellant with a decision, which was denied by the appellant.

20.	The respondent pointed to transcript where counsel for the appellants submitted to the primary judge that no decision had been made as there were other disciplinary issues being considered.

21.	The trial judge found that the appellant was not provided with a decision within 21 days and therefore the charge was null and void.

22.	We reject the appellant’s submission that the reference to ‘charges’ and ‘decision’ in s 52 of the Public Service (Management) Act 1995 and O 35.15 of the Public Service General Order have the same meaning. This would create an absurdity and confusion would result. A charge is different and distinct from a decision which is made after the person has an opportunity to reply to the charge.
 
23.	The ‘decision’ referred to in O 15.35 is a reference to the ‘decision on charge’ in O 15.33 and 15.34 of the Public Service General Order and s 52(5) of the Public Service (Management) Act 1995.

24.	Statutes are to be constructed in accordance with certain ‘presumptions’, one of which is to avoid unreasonable consequences. This a long standing principle; starting with, for example The R L Aston (1882) 8 PD 5 (CA). It is presumed that Parliament does not intend to enact legislation with consequences that can be described as ‘absurd’, anomalous’, ‘capricious’, ‘extraordinary’, ‘impossible’, ‘impracticable’, ‘improbable’, ‘inconvenient’, ‘irrational’, ‘obscure’, ‘unjust’, ‘unlikely’ or ‘unreasonable’. If two constructions of a provision are open, the court will prefer the one that avoids such consequences.
25.	We see no error in the trial judge’s approach to interpreting s 15.35 of the Public Service General Order and we dismiss this ground of appeal.

Ground 2: Proceedings were of ‘wrong mode’ and should have been commenced as a judicial review

26.	The proper mode of commencing proceedings depends on the nature of the relief sought.  Pursuant to Order 4 Rule 3 of the National Court Rules, the Originating Summons is generally used where:

(a)         No serious disputes of fact arise, and 
(b)         The relief is purely declaratory or interpretive (e.g., interpretation of a statute or document).

27.	The trial judge held that the appellant had correctly elected to proceed by way of an originating summons seeking declaratory relief. The court was satisfied that declaratory orders were the appropriate remedy in circumstances where no decision had been conveyed to the appellant, by the Departmental Head on the disciplinary charges. 

28.	We agree with the trial judge that until such a decision was made, the respondent could not pursue the statutory right of appeal to the Public Service Commission. It follows that the appellant was not in a position to exhaust the appeal mechanism provided under s.18 of the Public Service Management Act 1995.

29.	We agree with the trial judge’s finding at paragraph 13 of the Decision that there was no decision, as the charges became null and void. As such there was no decision that could be judicially reviewed.

30.	The absence of an enforceable decision meant that there was nothing upon which the statutory appeal process to the Public Service Commission could be triggered. Judicial review under Order 16 of the National Court Rules was therefore not competent, and the appellant was correct to proceed by way of Originating Summons seeking declaratory relief.

Ground 3: That notice of intention to claim against Simbu Provincial Government was required to be given pursuant to s 4 of the Simbu Provincial Government Act 2001
31.	The trial judge found that s 4 of the Simbu Provincial Government Act 2001 is in similar terms to s 5 of the Claims by and Against the State Act 1996 and should be given the same meaning.

32.	Based on authority in Sisimolu v Kaia (2024) SC 2525, the trial judge found that the requirement to give notice of a claim against the State does not apply to declarations and injunctions which are not in the nature of monetary claims.

33.	The appellants’ submissions that the trial judge erred in this finding were unsupported by authority.

34.	The appellants’ argument that the proceedings took on a nature of a monetary claim because costs were sought were without merit. An order for costs is discretionary. It is not a claim for damages and is consequential to any proceeding before a court.

35.	This ground of appeal is dismissed.

ORDERS

36.	     We make the following orders:

a.	The appeal is dismissed.
b.	The Fourth Appellant shall pay the costs of the proceedings.
________________________________________________________________
Lawyers for the appellants: Awi Lawyers
Lawyers for the respondent: Public Solicitor