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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 525 OF 1997
CLEMENT K. KILEPAK
- Plaintiff
AND:
ELLISON KAIVOVO
SECRETARY DEPARTMENT OF EAST NEW BRITAIN
- First Defendant
HOSEA TURBARAT
PROVINCIAL ADMINISTRATOR EAST NEW BRITAIN PROVINCIAL ADMINISTRATION
- Third Defendant
KOKOPO: Lenalia, J.
2002, 2003: 5 Aug. 2 May
ADMINISTRATIVE LAW – Judicial review – Judicial review of administrative action – Disciplinary charges – Departmental Head – Provincial – Termination of Public Servant by Provincial Departmental Head or his delegate – Public Service (Management) Act of 1995.
JUDICIAL REVIEW – Administrative decision – Serious disciplinary charge – Duty to act fairly – Principles of natural justice – Doctrine of ultra vires – Orders made ultra vires are either void or voidable – Quasi judicial functions – Administrative powers can only be exercised within the bounds of legislation concerned.
JUDICIAL REVIEW – Determination by Provincial Disciplinary Committee resulting in termination – Duty to act fairly includes duty to give reasons – Recommendations by Public Service Commissioner – Result of – Validity of decision by Provincial Transport Committee – No recommendations by Disciplinary Committee to Provincial Transport committee – Decision to effect salary deductions was void and of no effect – Plaintiff reinstated.
CASES CITED:
The following cases are cited in the judgment.
Kekedo -v- Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122
Ridge -v- Baldwin [1963] UKHL 2; [1963] 2 All ER 66
Tandali -v- The State [1990] PNGLR 170.
Counsel:
W. Donald, for the State
No appearance for or by the Defendants
MAY, 2nd 2003
LENALIA, J. The Plaintiff was granted leave to apply for judicial review, on 18th December 1997 by the National Court in Waigani. The proceedings were transferred to Kokopo and had been adjourned for various reasons until it was eventually listed for hearing on 23rd August in 2002. The Plaintiff’s lawyer only filed their written submissions by the 3rd of December 2002 resulting in this late judgment.
Some background facts of this review should help to clarify what appears to this Court to be confusing as represented by the Plaintiff’s pleadings, both by the original Originating Summons as well as his Amended Originating Summons. The original OS was filed on the 18th of November 1997 and the Amended one was filed on the 16th of December that same year. Even the evidence filed by the Plaintiff is so confusing.
If, I understand the facts correctly, the following narration is what occurred to the Plaintiff. On 19th December, 1994 the Plaintiff was involved in a motor vehicle accident on which the Plaintiff was the driver of a Government owned vehicle Reg. No. PAB. 578. This vehicle was allocated to the Department of Health in this Province and such vehicle was badly damaged. The nature of the damage was not specified but the damage was valued at K7,500.00.
Following the accident, the Plaintiff reported the accident to the Motor Traffic Division of the Police in the Province and about the same time, he submitted an accident report to the Provincial Transport Officer of the Plant and Transport Branch of this Province. The accident report was further referred to the Provincial Transport Committee of which the Second Defendant was the Chairman. The Provincial Transport Committee after having met decided to penalise the Plaintiff by effecting deductions from his salary to meet the cost of damage caused to the vehicle.
The Chairman of the Provincial Transport committee wrote to the Personnel Officer of the Personnel Staff Development Unit of the Province on 24th January 1995 on which the Personnel Officer was authorized to effect salary deductions from the Plaintiff’s salary to recover the cost of the repair which was valued then at K7,500.00. A K50.00 deduction was authorized and was to commence from the 17th of February 1995.
The Plaintiff says in his affidavit evidence that just about the time when the first deductions were to be effected, he was served with a notice of a disciplinary charge or charges on 22nd February 1995 and on 27th of that same month, he was served with the notice of his termination by the Departmental Head whom I suppose, the First Defendant although it does not appear clearly from the Plaintiff’s evidence and pleadings.
In the Plaintiff’s reply to the notice of charge made on 1st March 1995, he replied comprehensively to all allegations levelled against him. In his explanation he partially admitted the charges giving reasons as to why he was involved in the accident. The Plaintiff and the staff of the Health Department had gone to Pigeon Island off the coast of Kokopo for their Christmas party. He explained that he had been the skipper of the banana boat that day namely the 19th of December 1994. After returning from the Christmas party, he drove all the staff to their respective destinations and on his return to his base at Warangoi Health Centre, he had the accident at Vunamami Farmers College a little distance away from Kokopo town.
The Plaintiff attributed the accident to his lack of sleep and fatigue due to him being over-worked that day.
It appears from the charge sheet laid and compiled pursuant to s. 47 of the old Public Service (Management) Act, that there were two charges laid against the Plaintiff. The wording of the two charges were as follows.
"That you have on the 16th November 1994;
Facts: 1. taken the vehicle Reg. PAB 578 from the Health
Yard without your superior’s authorization while you were under heavy influence of intoxicating liquor.
The Plaintiff alleges that despite the Provincial Disciplinary Committee’s decision to terminate him being made on 8th of March 1995, he was only informed about the decision on 22nd of that month. After having been served with his notice of termination, the Plaintiff lodged an appeal to the Public Service Commission on 29th of March that same year.
By 31st May 1995, the Public Service Commission gave acknowledgement of receipt of the Plaintiff’s appeal. On that acknowledgement the Plaintiff was advised that the Commission was on the process of reviewing his termination and requested that if the Plaintiff had any further information or evidences about the charges should be relayed to the Commission for their perusal.
The Public Service Commission took the matter up with the Provincial Administrator of the Department of East New Britain on a letter dated 10th October 1996. In that letter the Commission made a two page recommendations suggesting that it was of the view that the Provincial Disciplinary Committee had not complied with certain procedural aspect of the proceedings against the Plaintiff. The recommendations suggested the Plaintiff should have been reinstated.
On 12th November, 1996 the Provincial Administrator wrote back to the Chairman of the Public Service Commission advising that the Provincial administration had carefully analysed the Commissions recommendations but that due to the serious nature of the two disciplinary offences committed by the Plaintiff, the Provincial Disciplinary Committee upheld their decision to terminate the Plaintiff.
From there, the Plaintiff says that he never received any further notice nor advice both from the Public Service Commission nor the Provincial Administration until he himself went to Moresby at the end of July in 1997. By the 13th of August that year, the Plaintiff engaged LATU Lawyers through their Moresby office to follow up his appeal with the Public Service Commission.
On 26th August 1997 a Mr. Apeo Sione for the Public Service Commission apologised for the long delay the Commission caused following which the then Chairman of the Public Service Commission wrote to the Plaintiff advising that the Commission had exhausted all means to try to reinstate him and the only option available to the Plaintiff was to apply for judicial review.
Soon after the Plaintiff received the reply from the Commission he gave notice of his intention to apply for judicial review to the Secretary to the Department of Attorney General. He filed that application on 18th November 1997 within the time required by s.5(1)(2) of the Claims By And Against The State Act 1996. On that same date they filed a Notice of Application for Leave to apply for judicial review.
The Plaintiff now alleges that, his termination was wrong in law as it was an abuse of the process and breach of the principles of natural justice and says he was punished twice for the same offence or offences or breaches under the Public Service (Management) Act. Secondly the Plaintiff says, the First Defendant failed to notify him about the decision to terminate him before imposing the penalty and thirdly, that he was not given any reasons for the decision to terminate him. Further the Plaintiff says, the decision by the Provincial Disciplinary Committee was wrong in law since the First Defendant being the Secretary of the Department charged the Plaintiff without specifying the nature of breaches pursuant to s.45 of the Public Service (Management) Act.
LAW
The power of this Court to review a decision of a judicial authority or a quasi-judicial body stems from s. 155 (3) of the Constitution which provides:-
"(3) The National Court –
(a) has an inherent power to review any exercise of judicial authority; and
(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any lawyer;..."
Section 155 (4) of the Constitution vests on both the Supreme Court and National Court "inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case".
The National Court has discretion to either grant or refuse relief at the two stages of a judicial review pursuant to Order 16 of the National Court Rules 1983 (Ch. No. 38). First on the application for leave then on the substantive hearing, see Order 16 rr. 3,4 and 5 of the Rules. At both stages the principles relating to conduct of the application, considerations such as locus standi, whether there is an arguable case or whether other alternative administrative remedies have been exhausted and the question of delay are appropriate issues arising at the leave stages as well as at the substantive hearing.
In all case involving judicial review, the Court’s discretion ought to be exercise judicially and in accordance with the rules laid down by Order 16 of the Rules and precedence set by decided cases. On 16th of September 1975, Papua New Guinea adopted the common law principles of natural justice via Schedule 2.2 of the Constitution. Further s. 59 (1)(2) of the Constitution specifically provides:
"59 Principles of natural justice.
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly".
The principles enunciated in relation to judicial review and the purposes for which judicial review can be granted have been succinctly stated in this jurisdiction. In the case of Kekedo -v- Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122, the Supreme Court there said at 124,
"4. The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses it’s powers.
Another elaborate statement about this Court’s power to review was made in Tandali -v- The Independent State of Papua New Guinea [1990] PNGLR 170 where the National Court there said that the Court’s power of review would only be available to exercise in consideration of the validity of a decision of a tribunal or authority and to interfere with that decision only if it can be shown that such decision was made unlawful or was unfair or made contrary to the principles of natural justice.
The common law case of Ridge -v- Baldwin [1963] UKHL 2; [1964] A.C. 40 decided prior to Independence (16.9.75) comprehensively sets out the principles of natural justice. In that case, the House of Lords held inter alia that whenever there is a "legal authority to determine a question affecting the rights of a subject" there is "a duty to act judicially" and thus the requirement of natural justice must be satisfied. This common law case has been referred to in almost every judicial review case in this country.
Thus any administrative action or order, which is made ultra vires meaning outside jurisdiction is either void or voidable. This is because in order for an order to be valid, it requires statutory authorisation and if it is not within the powers and specifications given by the Act under which an order is made has no legal legs to stand on. Under such circumstances the Courts will declare such orders unlawful and prohibit any action to enforce it.
In this jurisdiction there is a great volume of authorities which establish the position that where an administrative body exercises judicial powers the rules of natural justice require impartiality and absence of bias known by the maxim "nemo judex in sua causa" and the right to notice and a hearing under the rule of "audi alteram partem" must be observe. see Yaku -v- Commissioner of Police [1980] PNGLR 27, Okuk -v- Fallscheer [1980] PNGLR 274, Jacob Tuma -v- Commissioner of Police [1996] PNGLR 430, Farapo -v- Commissioner of Police [1996] PNGLR 17, Kereyal -v- Police Commissioner [1996] PNGLR 439, Tandali -v- The State (supra).
The first argument raised in submission is that the First Defendant being the Chairman of the Provincial Transport Committee had sat on the matter when such Committee decided to deduct from the Plaintiff’s salary a sum of K50.00 to go toward payment of the repair costs, was the same person who laid the charges against the Plaintiff was an abuse of the process.
With respect, there is no evidence to suggest that the First Defendant was the Chairman of the Provincial Transport Committee. Instead, the Second Defendant was and is the Chairman of that body. That is evident from the letter dated 24th January 1995 from the Chairman of the Provincial Transport Committee, who is the Second Defendant. I shall pick up the agreement on abuse of the process later when I discuss the breach of the principles of natural justice.
The argument raised that the Plaintiff had been penalised twice because first, the Provincial Transport committee had authorised deductions be effected from the Plaintiff’s salary followed by the decision to terminate the officer was double jeopardy. Under the Public Service (Management) Act 1995, there is no authority vested on such committee to impose a penalty affecting the right of a subject save the Departmental Head or an "officer authorized by the Departmental Head" to lay charges either for minor or serious charges as provided for under ss. 51 and 52 of the Public Service (Management) Act.
The Public Service (Management) Act is silent on the issue of payment of costs or compensation as was the case of the Plaintiff. One factor was the Provincial Transport Committee determined to effect deductions from the Plaintiff’s salary. Another thing is where did the Committee get its authorization to do the deductions as they did. Nobody nor the Court can question the Committee’s administration so long as it was done according to authority and I would have thought that, the Provincial Transport Committee or even the Departmental Head or an officer authorized by him did have the power to authorize deductions from the Plaintiff’s salary.
In ordinary cause of business in every day life when a person causes harm to the person of another or damage to the property of the other, compensation would follow. In the circumstances of the Plaintiff’s case, he had caused substantial damage to a Government vehicle, he should be made to bare the costs. In criminal cases the Criminal Law (Compensation) Act of 1991 authorises payment of compensation pursuant to s. 2 (1) of the Act to an injured party or damage of property.
Other legislations also provide for payment of compensation. The Adultery and Enticement Act 1988, see s8. 11-18, s.623A of the Criminal Code also provide for compensation in the field of civil law compensation is common place.
Still on the question of whether, the Provincial Transport Committee was a properly constituted body to determine the issues of payment of costs toward the damage of the vehicle. This question can be seen from two perspective. First, the decision made by the Transport committee was made prior to the charges being laid and served on the Plaintiff. The decision to make salary deductions was made by the Provincial Transport Committee on 24th January 1995. While the charge sheet containing the two allegations were instituted later in February that year. From this perspective, it can be argued that first, it was just a decision of that administrative body charged with the duty to properly monitor the Provincial Administration vehicle or Provincial Government vehicles for that matter and as such the Provincial Transport Committee had the power too order compensation.
The second proposition is if one looks at the argument from the point of view as argued by the Plaintiff in evidence and his counsel submissions that, the decision by the Transport Committee came from a properly constituted committee and that this Court should take that decision as a valid one meaning that the second decision to terminate the Plaintiff was a double jeopardy cannot be sustained because under the Public Service (Management) Act nobody else save the two officers mentioned in ss.51 and 52 can lay charges and impose a penalty or penalties under s.52 (5)(a) – (e) of the Act.
A few collateral issues arise from the two propositions above. First is that by the wording of the two charges it appears to me that the Plaintiff was charged with two motor traffic offences for which the Departmental Head nor an officer authorized by him could have laid. Under s. 53 of the Public Service (Management) Act where an officer is charge with a criminal offence although motor traffic breaches are not criminal in nature, only the Police can lay charges. The two most appropriate sections to have been charged by police had they taken the initiative to charge were ss.17 and 18 of the Motor Traffic Act (Ch. No. 243).
I recite the two allegations again. They were worded in the following words –
"That you have on the 16th November 1994;
Facts: 1. taken the vehicle Reg. PAB 578 from the Health Yard without your superior’s authorization while you were under heavy influence of intoxicating liquor.
Comparing the above two disciplinary charges with disciplinary offences defined by s.50 of the Public Service (Management) Act, I am of the view that the above two disciplinary charges did not come within those offences specified and defined in s.50 (a) – (1). This section says:
An officer who—
(a) commits a breach of this Act; or
(b) except as authorized in the course of official duty, does or divulges, directly or indirectly, any confidential information concerning public business or any matters of which he has official knowledge; or
(c) except with the consent of the Head of State, acting on advice, or of an officer authorized for the purpose by the Head of State, acting on advice, publicly comments on administrative action or the administration of a Department; or
(d) wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it; or
(e) is negligent or careless in the discharge of his duties; or
(f) is inefficient or incompetent from causes within his own control; or
(g) uses intoxicating liquors or drugs to excess; or
(h) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties,
is guilty of a disciplinary offence and is liable to be dealt with and punished –
(m) n the case of a Departmental Head—under Part VI; and
(n) in the case of an officer other than a Departmental Head—under this Part.
The argument raised in submission as well as by the Plaintiff’s evidence that the First Defendant failed to specify in the charge sheet the relevant and appropriate section which the First Defendant or Second Defendant for that matter chose to proceed under or with was contrary to the combined effect of ss,45 (a) to (n) and 47 of the old Act. This argument ought to be sustained as can be seen from the notice of charges that no reference was made to any specific subsections of s. 45 (a) to (n) which is now s.50 of the 1995 Act.
It is submitted by counsel that the power to institute proceedings under the Public Service (Management) Act can only be had once and in the circumstances of the Plaintiff’s case the First Defendant was already influenced by the decision made by the Provincial Transport Committee. It would have been entirely dependent on whether the First Defendant was a member of that Committee. From the records and correspondences filed, it does not seem to be so clearly revealed whether the First Defendant sat with the Committee. In any event, if the First Defendant was a committee member of the Transport committee there was and were grounds for being influenced when he finally laid the two charges.
Administrative agencies exercising quasi-judicial powers are creatures of statute. The parliament through the enabling legislations set the limits of the agency’s powers. It directs the method of their operations and determine the focus of their attention and determinations. The most important aspect of judicial control of administrative action is to ensure that the powers delegated to administrative authorities is exercised in accordance with the limits, bounds and provisions of the enabling legislations.
Not only as I find there was substantive ultra vires but there was also procedural ultra vires. On substantive ultra vires, there was no evidence before the Departmental Head to bring the Plaintiff’s reputation and behaviour within definition of s.50 (g) in relation to using intoxicating liquors or drugs too excess. The Plaintiff had admitted only one act of having drunk the night of the accident. It is my view that the wording of subsection (s.50 (g) ) "uses intoxicating liquors or drugs to excess" would mean a frequent drinker. There was no such evidence to prove that. In both charges laid against the plaintiff, I find they were defined in the old Public Service (Management) Act and the First and Second Defendants acted ultra vires their powers given them under the enabling legislation: Kuya Keti -v- Kelu Theodore [1978] PNGLR 217, see also Ombudsman Commission of Papua New Guinea -v- Denis Donohoe [1985] PNGLR 348.
As I find from the file, there is no evidence to show that he Plaintiff was given any reasons for his termination. It is an essential element of the procedure that where an officer is found guilty of a disciplinary charge laid against him and imposing a penalty that the Secretary or Departmental Head is duly bound to advise the affected officer and give the reasons for the decision reached.
The principles of natural justice require that there must be a fair hearing meaning that the person affected must be given notice of the charge laid against him and he must be given reasonable opportunity to reply to the charge and be able to defend himself by calling evidences. Where there is breach of the principle of "audi alteram partem" rule and as in this case where there were no reasons given for the Plaintiff’s dismissal coupled with acting outside their powers enables this Court to order that the records of the Departmental Head in relation to this proceedings be removed to this Court and quashed and order that the Plaintiff be reinstated with all of his lost entitlements from the date he was terminated.
Costs shall follow the event.
__________________________________________________________________
Lawyer for the Plaintiff : NAMALIU Lawyers
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