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Vakinap v Kambanei [2004] PNGLR 34 (11 November 2004)

NATIONAL COURT OF JUSTICE

AMBROSE VAKINAP

V

THADDEUS KAMBANEI; AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

WAIGANI: SEVUA J

16 March; 11 November 2004

ADMINISTRATIVE LAW – Judicial Review – Application for leave – Relevant considerations – Whether leave should be granted or refused – Court's discretion.

JUDICIAL REVIEW – Application for leave – Review by way of mandamus – Mandamus to compel first defendant to effect decision of Public Services Commission – Amendment to Public Services (Management) Act 1995 – New Section 18 Public Services (Management) (Amendment) Act 2002 – Power to uphold, vary or annul decision of Departmental Head – Power to make recommendation no longer exist – Whether a Departmental Head has any power to exercise after Public Services Commission has made a decision on review of a personnel matter.

PUBLIC SERVICES (MANAGEMENT)(AMENDMENT) ACT 2002 – Section 18 (3) (c) (ii) – Remedies available to complainant seeking review by the Public Services Commission – Period of 30 days in s(3) (d) (ii) – Whether a Departmental Head has any power or right to exercise within that period or after that period – Whether these issues constitute an arguable case.

RELEVANT CONSIDERATIONS ON GRANT OF LEAVE – Sufficient interest – Delay – Arguable case.

Facts

The applicant was seeking leave for judicial review pursuant to Order 16 Rule 3 of the National Court Rules and for an order in the nature of mandamus to compel the first defendant to comply with the decision of the Public Services Commission to reinstate the plaintiff to his former position in the Department of Finance within the Public Service.

The applicant was employed as Assistant Secretary Advisory and Liaison in the Department of Finance until his suspension and subsequent termination relating to two disciplinary charges under Section 52 of the Public Services (Management) Act (the Act) The first defendant proceeded to terminate the employment of the appellant against the recommendation of the Public Services Commission.

Held

1. The plaintiff has sufficient interest in the matter since the application relates to his dismissal from the Public Service. (Order 16 Rule 3 (5) of the National Court Rules applied)

2. Since the decision by the first defendant not to reinstate the plaintiff was made on 1 September 2003, and the plaintiff filed these proceedings on 12 December 2003, that does not constitute undue delay, therefore the plaintiff has also satisfied Order 16 Rule 4 (1). (Lohia Raka & 32 Ors v. Leo Toichem & Ors, N.1997, unreported, 20 October 2000 applied)

3. On the correct interpretation or construction of s.18 (3) of the Public Services (Management) (Amendment) Act 2002, and an issue of natural justice, the plaintiff has an arguable case.

Papua New Guinea cases cited

Lohia Raka & 32 Ors v. Leo Toichem & Ors (20/10/00) unreported N1997.

Counsel

Ms. A. Nambau for plaintiff.

S. Liria for defendants.

11 November 2004

Sevua j. This is an application for leave for judicial review pursuant to Order 16 Rule 3 of the National Court Rules. The plaintiff/applicant seeks an order in the nature of mandamus to compel the first defendant to comply with the decision of the Public Services Commission to reinstate the plaintiff to his former position in the Department of Finance within the Public Service.

The facts can be paraphrased as follows. Since the year 2000, the plaintiff was employed as Assistant Secretary Advisory and Liaison in the Department of Finance until his suspension on 2 December 2002 and subsequent termination on 9 January 2003. On 6 December 2002, the first defendant laid two disciplinary charges under Section 52 of the Public Services (Management) Act (the Act) against the plaintiff. On 9 December 2002, the plaintiff responded to the charge. On 9 January 2003, the first defendant found the plaintiff guilty of the charge and dismissed him from the Public Service. The notice of punishment, which is the actual termination, was served on the plaintiff on 14 January 2003. On 27 January 2003, the plaintiff complained against that decision to the Public Services Commission in pursuance of Section 18 of the Public Services (Management) Act 1995. Following a review, the Public Services Commission, on 4 August 2003, "recommended" to the first defendant that the plaintiff be reinstated. On 1 September 2003, the first defendant advised the Public Services Commission that he would not reinstate the plaintiff. On 12 December 2003, the plaintiff filed the present proceedings.

The evidence before the Court are these. On 2 December 2002, the first defendant suspended the plaintiff on serious allegations of fraud. The suspension notice states:

To: Jack Ambrose Vakinap

TAKE NOTICE that in accordance with Section 52 (2) of the Public Services (Management) Act, you are hereby suspended from duty with pay in connection with a charge to be brought against you.

........................................................................

Dated this 2nd day of December 2002.

The notice was signed by the Departmental Head. It was served on the plaintiff on 3rd December 2002.

Then on 6 December 2002, the first defendant charged the plaintiff with the following charges. I have omitted some parts of Form 15.6 which is the actual notice of charge.

To: Ambrose Vakinap

TAKE NOTICE that you are hereby charged with committing an offence within the meaning of Section 50 (e) of the Public Services (Management) Act namely,

Is guilty of disgraceful or improper conduct in his official capacity or otherwise.

Is negligent or careless in the discharge of his duties.

Facts:

(a) That you knowingly and by false pretence and with intent to defraud the State signed as Section 32 Officer for the following claims which were considered to be improper and fraudulent, whilst you were an unattached officer and also not an appointed Section 32 Officer for Trust Account claims:

Date FF3 signed O/R No Supplier Amount

20.06.02 CZ No 61744 Augustine Pauwia K48,500.00

20.06.02 CZ No 61745 Vagi Philips K42,600.00

20.06.02 CZ No 61730 Hellen Watson K45,000.00

(b) And you also failed to exercise due care and diligence in ensuring that the official receipts and the Certificate to Judgments (sic) were genuine supporting documents for the above claims.

Your actions not only caused serious breach of the Public Finances (Management) Act and the financial procedures, but tantamount to breach of trust and confidence. As well, in the discharge of your official duties as a public servant, which constitute serious offence under the Public Services (Management) Act, 1995.

AND TAKE FURTHER NOTICE that in accordance with Section 52 (4) of the Act, I hereby call upon you to state in writing, whether you admit or reject the truth of such charge, and give any explanation in writing you may think fit as such offence for my consideration.

AND TAKE FURTHER NOTICE that if no reply is received from you within 7 days after the receipt of the charge, you may be deemed to have admitted the truth of the charge.

Dated this 6th day of Dec. (sic) 2002.

The charge was signed by the Departmental Head and served on the plaintiff on 6 December 2002. On 9 December 2002, the plaintiff responded to the charges, and in essence, he denied the allegations made by the first defendant. However, on 9 January 2003, the first defendant dismissed the plaintiff from the Public Service. Subsequently, on 22nd January 2003, the plaintiff sought a review from the Public Services Commission in pursuance of Section 18 of the Public Services (Management) Act 1995.

On 4 August 2003, the Chairman of the Public Services Commission, Mr. Jerry Tetaga, wrote to the first defendant and made the following "recommendations":-

1. That the Secretary revoke his decision of 9 January 2003 in convicting and dismissing Mr. Jack Ambrose Vakinap and have him immediately reinstated to his substantive position of Assistant Secretary Advisory Grade 16.

2. That the Secretary effect payment to Mr. Vakinap, all salaries and allowances, if any, he has lost as a direct result of his dismissal.

3. That the notice of suspension, notice of charge, notice of punishment and all documents or papers relating to Mr. Vakinap's dismissal, be removed from Mr. Vakinap's personnel and staff files and destroyed in the presence of Mr. Vakinap.

The Commission gave four reasons for its decision in making those "recommendations". Those reasons are:-

1. That the Secretary failed to disclose to Mr. Vakinap the evidence and materials he relied on in convicting him on the charge (sic).

2. That the Secretary failed to invite Mr. Vakinap to be heard on penalty before he imposed the extreme punishment of dismissal.

3. That the Secretary failed to give reasons for his decision in finding Mr. Vakinap guilty and in dismissing him.

4. In relation to Mr. Vakinap's stated ground that the Secretary failed to determine the charge within 21 days, it is clear from the dates of the notice of charge and notice of punishment that the Secretary failed to determine the charge and to advise the applicant of his (Secretary) decision within 21 days of receipt of his reply.

On 1 September 2003, the first defendant responded to the Commission's letter of 4 August 2003 and advised that he had considered the "recommendations" and the reasons thereto and decided to maintain his decision to dismiss the plaintiff. His principal reason for that decision was that the Public Services Commission had not given him the opportunity to appear in the review as required by Section 18 of the Act.

The plaintiff has raised the issue of natural justice in this case and natural justice being one of the fundamental tenets of our constitutional law cannot be ignored by the Court. The Commission has also referred to certain decisions of the National Court on the issues raised in the review. These issues are well known and have been addressed in several National Court cases.

The Courts have, in many cases, set out the principles relevant in the grant of leave. But first, let us go to Order 16 of the National Court Rules and see what the Rules of Court say about judicial review. An application for leave is governed by Order 16 Rule 3 (5) of the National Court Rules. Leave is not granted to an applicant, unless he has a sufficient interest. If the applicant is seeking an order for certiorari, he must make his application within 4 months after the date of the proceeding giving rise to the application for judicial review. There must be no undue delay in making the application. See Order 16 Rule 4 (1) and (2).

From all the evidence before me, I am satisfied that firstly, the plaintiff has sufficient interest in this matter. This application relates to his dismissal from the Public Service, therefore there is no way one can say he has no interest. He has satisfied Order 16 Rule 3 (5). Secondly, the decision by the first defendant not to reinstate the plaintiff was made on 1st September 2003. The plaintiff filed these proceedings on 12 December 2003. In my view, that does not constitute undue delay, therefore the plaintiff has also satisfied Order 16 Rule 4 (1).

I consider that in this case, there are other good reasons to grant leave. On the requirements of leave, my learned brother, Justice Sakora, has alluded to these requirements in Lohia Raka & 32 Ors v. Leo Toichem & Ors, N.1997, unreported, 20 October 2000. One need only read that judgment to appraise himself of those requirements. It is therefore unnecessary to enter into any discussions here. Suffice it to say, I agree with His Honour.

The issue for substantive determination is whether the "recommendations" by the Public Services Commission are binding on the first defendant. Collateral to this is the interpretation of Section 18 (3) (d) (ii) of the Public Services (Management) (Amendment) Act 2002 (hereafter the Amendment), in relation to the 30 days period.

The defendants' submissions raised two issues. The defendants say that firstly, the plaintiff does not have an arguable case because he has misconceived the interpretation of the Public Services Commission (Management) Act, and secondly, that the plaintiff was accorded natural justice. The plaintiff's submissions raised the issue of the 30 days period in s.18 (3) (d) (ii) of the Amendment.

In determining the first issue, it will be necessary to refer to the whole of s.18 of the Public Services (Management) (Amendment) Act 2002, because it is the central point of the dispute in this case. However, this is an issue, which will be addressed in the substantive review application. Therefore, it is not appropriate to canvas the issue here.

Having heard the oral submissions, and read the written submissions of the parties, it is my opinion that the proper interpretation of s.18 (3) of the Amendment gives rise to a legal issue that cannot be addressed in the leave application.

The essence of the plaintiff's submissions is that the first defendant acted contrary to s.18 (3) (d) (ii) of the Amendment. On the contrary, the defendants submitted that the plaintiff has misconceived that provision. This is an issue that should be addressed in the review proper.

Whilst, I do not wish to pre-empt the Court's decision in relation to the substantive application for review, I consider that the plaintiff's arguments have some merits, and therefore, in respect of whether or not he has an arguable case, I consider that he does have an arguable case. But whether or not he succeeds in the end is a matter for substantive determination.

On the correct interpretation or construction of s.18 (3) of the Amendment, I consider that the plaintiff has an arguable case. An arguable case being a precondition of granting leave, I am of the view that leave should be granted to the plaintiff to review the decision of the first defendant in refusing to comply with the decision of the Public Services Commission to reinstate the plaintiff.

The evidence and submissions also raised two other issues. The first is that the first defendant did not invite the plaintiff to address on the question of penalty. Put it in another way, when the first defendant decided that he would terminate the plaintiff, he (first defendant) failed to give an opportunity to the plaintiff to address the question of penalty. This issue raises breach of natural justice, and since the plaintiff argues that he was not accorded natural justice, it is appropriate to the question of whether or not the plaintiff has an arguable case.

Secondly, the question of whether the first defendant gave reasons for dismissing the plaintiff is a natural justice issue. This issue is also relevant in determining whether or not the plaintiff has an arguable case.

For these reasons, I am of the opinion that the plaintiff has an arguable case. He has therefore satisfied that requirements or conditions for granting leave.

I consider that the plaintiff having satisfied all the preconditions for granting leave, he is entitled to leave. I therefore grant his application and order that leave be granted.

In passing, I note that the plaintiff has asked for an interim order that pending the final determination of this matter, he be put back on the payroll and be allowed to receive his wages retrospective to 14th January 2003. With respect, I consider that as pre-empting the decision of the Court in the substantive application. That motion is accordingly declined.

However, the Court is concerned about this matter getting further dragged on through the system thereby further delaying the final disposition of the case. In fairness to the parties, the Court is prepared to hear the parties on the substantive application now, instead of remitting the matter to the Registry. If parties are not ready now, I will hear counsel on how long it will take them to file any further material if need be.

I order that the defendants pay the plaintiff's costs of the leave application, to be taxed if not agreed.

Lawyer for plaintiff: Murray & Associates.

Lawyer for defendant: Paraka Lawyers.