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Arazi, Appeal pursuant to Public Service (Interim Arrangements) Act 1973 [1981] PNGLR 436 (27 October 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 436 - Re Appeal by Jovanes Arazi pursuant to Public Service (Interim Arrangements) Act 1973 

[1981] PNGLR 436

N322

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOVANES ARAZI

V

DEPARTMENT OF TRANSPORT AND CIVIL AVIATION

EX PARTE JOHN GAIUS

Waigani

Pratt J

12 October 1981

20 October 1981

27 October 1981

PREROGATIVE WRITS - Certiorari - Discretionary nature of - Delay in seeking relevant consideration - Delay by State authority - Mandamus more appropriate - Application refused.

PREROGATIVE WRITS - Appropriate remedy - Mandamus or certiorari - Discretionary nature of - Delay in seeking - English rules distinguished.

An application for an order nisi for a writ of certiorari is, under O. 90 r. 7 of the National Court Rules, required to be made within six months: there being no period specified in which an application for an order nisi for a writ of mandamus should be brought, the application should be made within a reasonable time after the demand and refusal to do the act complained of.

R. v. Inner London Crown Court, Ex parte London Borough of Greenwich [1975] 1 All E.R. 114 at p. 118 applied.

The issue of an order nisi in the nature of a writ of certiorari or mandamus being a discretionary matter, delay on the part of an applicant in seeking relief by means of the writ is an important factor to be taken into account.

Held:

Accordingly that where there had been delay of just under six months by the State in seeking an order nisi in the nature of a writ of certiorari or mandamus in respect of a decision of the Public Service Appeal Board where the status and salary entitlements of a public servant were at issue, and where there had previously been an abortive hearing of the charges, an order nisi should be refused.

Discussion of the appropriate form of application and determination of which prerogative writ appropriate.

Order Nisi for Writ of Certiorari.

This was an application for an order nisi for a writ of certiorari in respect of a decision of the Public Service Appeal Board.

Counsel:

T. Rei, for the applicant.

Cur. adv. vult.

27 October 1981

PRATT J:  This is an application by counsel for the head of the Department of Transport and Civil Aviation, Mr. John Gaius, for the issue of an order nisi for a writ of certiorari to remove into this Court a decision of the Public Service Appeal Board concerning Jovanes Arazi.

A brief history of the matter is as follows. Mr. Arazi was placed on a charge under the Public Service (Interim Arrangements) Act 1973 as a result of certain activities in relation to the inaugural flight by Air Niugini to Honolulu. A representative of the departmental head dealt with the charges and having found them proved reduced Mr. Arazi from clerk class 9 to clerk class 6 with a transfer from Jacksons Airport to Lae Airport. From this decision Mr. Arazi appealed and the appeal was apparently upheld sometime after 28th May, 1980, on the basis that the Deputy Secretary of the Department had no jurisdiction to suspend and later lower the rank of the appellant because the departmental head had not delegated that power to the Deputy Secretary under s. 79(5) of the Act. I say apparently, because counsel is unable to place before me the material put before the May tribunal or its reasons for decision. He has however submitted a summary of the case contained apparently in a report by the tribunal on the matters dealt with during the month of May 1980. The actual words used in the document are:

“We uphold the appeal and annul the findings of the Department.”

A further charge was laid by the departmental head himself in the same terms as the previous charge, following which Mr. Arazi was again demoted from grade 9 to grade 6 on 19th November, 1980. From this finding Mr. Arazi again appealed to a tribunal presided over by Kapi J., on 26th March, 1981.

In a short judgment the Board said, inter alia:

“We consider that when a person is charged with a disciplinary offence and is dealt with on the merits (whether with or without jurisdiction) he should not be dealt with twice on the same disciplinary offence. We hold this view on the comparable principles that apply to criminal offences (see ss. 16 and 17 of the Criminal Code, s. 37(8) of the Constitution).

In any case we do not think that there is any power under the Public Service (Interim Arrangements) Act for a person to be charged twice on the same offence.

In our view such an interpretation of the law is in accordance with the dispensation of justice.”

The tribunal then upheld the appeal. The merits of the appeal were not investigated as the Board made its decision on this preliminary point and consequently did not require any further material to be presented before it.

It is said by the applicant that the tribunal has misinterpreted the law. A number of cases were cited during submissions, but on reflection I do not find they have given me much assistance. For example the decision of Andrew J. in the matter of Sudi Yaku v. Commissioner of Police[dcxc]¹ and the authorities cited at the conclusion of the head-note, primarily concern cases where a person has been dealt with by one tribunal for an offence and has then been dealt with by another and completely separate tribunal for another offence arising out of the same circumstances, with two separate Acts of Parliament being involved. In the Sudi Yaku case (supra) the constable had been convicted under the Criminal Code and was then as a further punishment dismissed from the police force. It was said that this amounted to a double punishment but his Honour held that such was not the case. A similar case to which Andrew J. has drawn my attention is Bodna v. Deller and Public Service Appeals Tribunal[dcxci]². The same situation applies to two further cases cited to me by counsel, Lewis v. Mogan[dcxcii]³ and R. v. Hogan, R. v. Tompkins[dcxciii]⁴.

The situation here however is that the man was charged before a member of the department on one occasion and now has been charged again before the same department with the same offence. The real question at issue in my view is not whether it is a matter of double jeopardy but what in fact was the legal situation surrounding the status of this man at the time the second charge was laid. From such material as I am presently able to obtain, it is certainly arguable that the first tribunal sitting in May 1980 found that no charge had effectively been laid at all, that the entire proceedings were void ab initio, and that the man should be reinstated with full restoration of all entitlements lost. Thus as at May 1980 it might well be said that no charge had been properly laid, no proceeding had been properly taken, and the man had not suffered any detriment other than the anguish of the various proceedings. It was as if the original proceedings had never taken place. If that were so, it is difficult to see how he can be equated with a person who is being “dealt with” twice for the same offence (assuming that ss. 16 and 17 of the Code are concerned with a person who has been merely “dealt with” simpliciter).

The situation is somewhat similar in my view to a person who is convicted of an offence and who on appeal convinces the appeal court that the magistrate was in error but nevertheless is sent back to the magistrate’s court for the case to be “dealt with” properly. If, for example, the appeal was upheld because of a defective complaint then provided the statutory limitation for laying a fresh complaint had not expired, any argument that he cannot be made the subject of a fresh complaint and dealt with again merely because he had been dealt with on a previous occasion, which had been declared a nullity, would seem to face considerable difficulty.

In the ultimate however, it is not necessary for me to decide whether or not there is an arguable case here. The issue of an order nisi or more properly an order “in the nature of” a writ of certiorari or mandamus is a purely discretionary matter. As part of the underlying law in deciding how to exercise that discretion, I accept that a delay on the part of an applicant coming to court for relief under the writ is an important factor to be taken into account. So far as concerns the application for an order nisi for a writ of certiorari, there is a particular period stated in the rules, namely six months. In the case of mandamus there is no specific period laid down, but as the authorities cited in Halsbury, 3rd ed., vol. 11, par. 133 make clear, such applications should be made “within a reasonable time after the demand and refusal to do the act”. Lord Widgery in R. v. Inner London Crown Court, Ex parte London Borough of Greenwich[dcxciv]⁵, when discussing the period of six months then stipulated in the Rules of the Supreme Court in the United Kingdom, had this to say:

“... But the contention is that though six months is there expressed as the maximum period within which the application can be made, yet a shorter period may suffice in many cases because in the exercise of this court’s discretion it may refuse to allow an order of certiorari to go even though the time lapse has been less than six months.

For my part I have no doubt that that six months’ time limit, which has been in the rules for nearly 100 years, is generally regarded throughout the country as being a limit within which an applicant can safely act. I think that for those who are concerned with this branch of the law to be told this afternoon that the six months’ limit was merely a maximum, and that in any large number or variety of cases a shorter limit had been imposed, they would be surprised, and indeed I think that one must hesitate to drive anything in the nature of a serious wedge into the limits of R.S.C. Ord. 53, r. 2, which has stood for so long and been given that accepted meaning for so long.

But I am bound to say on the authorities which have been cited to us that there is a great deal to be said for the proposition that, since the remedy is discretionary, the court can, and sometimes should, impose a tighter limitation than six months.”

In the context of the present case I consider that his Lordship’s closing words are of special significance. They were agreed to by Bridge J. in the same case where his Honour says at p. 119:

“Like Lord Widgery C.J., I approach this matter on the basis that delay in applying for an order of certiorari within the period of six months prescribed under R.S.C. Ord. 53 r. 2(2), may, as a matter of theory, certainly if coupled with other factors, provide a basis for a discretionary withholding of an order which it would otherwise be proper to make.” (Emphasis mine)

In the instant case the tribunal handed down its decision on 26th March, 1981, and the summons for application to issue the order nisi was dated and filed 25th September, 1981, that is on the second last day of the six months. In my view such a delay in circumstances such as the present where a public servant’s status and salary entitlements are at issue, particularly after there has been an abortive first hearing of the Public Service charges which resulted in a second series of hearings, is most reprehensible. Just as there are compelling reasons for the State to deal expeditiously with certain appeals by it against sentence in criminal matters, I consider it similarly undesirable for the State to delay in taking action to proceed by way of prerogative writ when a public servant’s status and remuneration are at stake. If the matter is important enough to pursue at all, then it should be done with the absolute minimum of delay—as a matter indeed of first priority. For six months Mr. Arazi may well have thought that the issue was dead. He may have been well fortified in this belief by the wording of s. 82(3) of the Public Service (Interim Arrangements) Act which stipulates that there is no appeal from the decision of a tribunal unless a dismissal is involved.

There is an important distinction between the United Kingdom Rules and those applicable in Papua New Guinea. I extract the United Kingdom rule as cited at p. 118 of the judgment of Lord Widgery[dcxcv]⁶:

“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made within six months after the date of the proceeding ...”

Our own rule however says as follows:

Order 81 r. 7  “An order nisi for a writ of certiorari ... shall not be granted unless it is made within six months after the date of such judgment, order, or other proceeding ...”

It seems unarguable to me that the English rule lays down a six months period in which to make application whereas our own rule stipulates in imperative terms that the order must be made within the six months, that is the application dealt with and the order nisi issued by the court. That is certainly not the case at present. The matter was originally set down in the summons filed on 25th September for hearing on 9th October, the date on which it came before me originally. As a result of the heavy list it was stood over until the afternoon of 12th October. Further submissions were requested by me and these could not be heard until 20th October.

The six months period of course may, in special circumstances, be extended and has certainly been so extended in this jurisdiction (see O. 90 r. 6). However, for reasons which I have already explained a little earlier in the judgment, I do not think that this is a proper case for exercising a discretion to extend time. Indeed my own view is that the delay which already occurred, even if it had been within time, would have been unacceptable. I am not unmindful of the fact that a person occupying a position of clerk class 9 must be in a position of some responsibility and consequently it is important that any alleged act of misconduct on his part should be dealt with on its merits—but within a reasonable time. The offence was apparently quite a serious one, although not warranting dismissal, and the person occupied a position of responsibility which, inter alia, means that more junior public servants may well be influenced by his conduct.

If the application before me had been by way of order nisi in mandamus, I would consider the delay quite unacceptable. One would have expected in such circumstances that the application would have been made within a matter of weeks at the very most and had this been an application for mandamus, I would have ruled out the application even though the period of six months had not expired.

In conclusion I wish to say something on the form of application made before me. I appreciate that on occasions it is sometimes difficult to determine which of the forms of prerogative writ one should use. In such circumstances however, I feel that the practitioner cannot do better than refer to Halsbury, 3rd ed., vol. 11 at par. 107, in order to ascertain the basic rules:

“An order of mandamus is, in form, a command directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his duty or their office or is in the nature of a public duty. An order of prohibition is an order, directed to an ecclesiastical court or inferior temporal tribunal, forbidding such court or inferior tribunal to continue proceedings. An order of certiorari is an order, directed to an inferior tribunal, requiring the record of the proceedings in some cause or matter to be transmitted into the High Court to be dealt with there.”

(Reference may also be made to Halsbury, 4th ed. vol. 11 at par. 1521 but other areas under the various subject headings are not so clearly dealt with.)

In the present case the tribunal had made a finding in law as a result of which it refused to hear the appeal further. The applicant says that the ruling in law was misconceived and there is much force in the application. However the proper means of proceeding in such a case would be to make an application which could succeed in obtaining a direction from the Supreme Court to direct the tribunal to deal with the matter according to law—that is by making absolute an order of mandamus. The case would certainly be one for consideration by the Supreme Court rather than a single judge, as the chairman of the tribunal was himself a judge of the National Court. To be technically and legally correct, it would also be necessary to obtain a quashing of the ruling and the only way that could be achieved is by an order for certiorari. Hence this application should have proceeded by way of a joint application, requesting an order both in the nature of certiorari and mandamus. There are a number of examples throughout the law where such course has been followed (see R. v. Glamorgan Appeal Tribunal; Ex parte Fricker[dcxcvi]⁷).

A failure to observe the correct procedure is therefore obviously not without some significance. In the present case, if the application by way of certiorari were the only mode of proceeding, the court is bound by its own rules to take cognisance of the six months period. In the case of the mandamus however, the period may well be much shorter although it is not impossible to imagine circumstances in which it could perhaps be longer. In the present case my own view is that a delay of six months in making application for mandamus would certainly be fatal to the application. The point is that one cannot avoid the consequences of a long delay by choosing one part of a two part form of application and simply disregarding the other. Indeed if any choice were to be made between the two forms of application here, the most obvious form to choose as a first course would be that of an application for mandamus. The tribunal had not even commenced to hear any evidence, let alone make any decision based on the evidence. Their decision was a preliminary point only and affords the classic example of a proper application for mandamus.

Application refused.

Solicitor for the applicant: B. Emos, State Solicitor.