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Vanuga v Dopsie [2022] PGSC 117; SC2317 (25 November 2022)

SC2317

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 62 OF 2021

PALA VANUGA, ACTING EXECUTIVE MANAGER,
NATIONAL DEPARTMENT OF HEALTH
First Appellant

DR OSBORNE LIKO, SECRETARY,
NATIONAL DEPARTMENT OF HEALTH
Second Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

V

PAUL DOPSIE
Respondent

Waigani: Cannings J, Liosi J, Dowa J
2022: 22^nd, 25^th November

STATE SERVICES – PUBLIC SERVICES COMMISSION (PSC) – review of personnel matters connected with National Public Service – decision of PSC to reinstate suspended officer – whether Departmental Head has discretion not to implement decision – whether alleged failure of PSC to comply with time limits in Public Services (Management) Act is good reason for not complying with decision – whether PSC has jurisdiction to review personnel decisions regarding contract officers.

The respondent was a member of the National Public Service, employed in the Department of Health under a three-year contract of employment. He was suspended by the Departmental Head (second appellant) for disciplinary reasons and sought review of his suspension by the Public Services Commission (PSC), which upheld the review and annulled the decision to suspend him and decided that he be reinstated and paid any entitlements lost. The Departmental Head failed to reinstate him. The respondent then applied to the National Court for judicial review of the decision of the Departmental Head not to comply with the PSC decision. The National Court granted judicial review and made an order in mandamus, compelling the Departmental Head to implement the PSC decision, by reinstating the respondent to his substantive position and paying him any salary and benefits lost. The Departmental Head and executive manager of the Department and the State appealed to the Supreme Court, arguing that the trial judge erred in law by: (1) failing to find that the PSC decision was erroneous as the respondent lodged his complaint with the PSC after the 60 days allowed by the Public Services (Management) Act; (2) failing to find that the PSC decision was erroneous as its decision was made after the 90 days allowed by the Public Services (Management) Act; (3) failing to find that the PSC lacked jurisdiction to review the suspension of the respondent as he was a contract officer, and his grievances could only be resolved through private law processes and remedies, not by judicial review; (4) not considering that the respondent was subject to a criminal investigation that had not concluded.

Held:

(1) The arguments underpinning the first three grounds of appeal were not raised in the National Court, and leave to rely on them was not sought or granted, so those grounds were summarily dismissed.

(2) Further, the first three grounds of appeal are without merit as (a) the 60-day time limit for lodgement of the complaint was waived by the Chairman of PSC; (b) the 90-day time limit for the PSC to make its decision was extended by the PSC; (c) the PSC had jurisdiction to review the respondent’s suspension as it was a personnel matter connected with the National Public Service and it was inconsequential that he was a contract officer.

(3) The fourth ground of appeal was properly before the Court, but is without substance as the primary Judge took into consideration the criminal allegation against the respondent and noted that the complainant had withdrawn the allegation. In any event the Departmental Head had no discretion regarding implementation of the decision. He could have sought judicial review of the PSC decision, but unless and until he did so and obtained a court order setting aside or staying it, he was obliged to implement the PSC decision.

(4) All grounds of appeal were dismissed and the appeal was dismissed.

(5) As to costs, this was an appropriate case for the award of costs against the appellants on a solicitor-client basis due to the serious disregard of the PSC decision and the frivolousness of the appeal and the failure to comply with the order of the National Court.

Cases Cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855
Bailasi v Lua (2013) N5145
Dopsie v Tetaga (2009) N3722
Fairweather v Singirok [2013] 2 PNGLR 95
Holland v Nauga (2015) N6116
The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Van Der Kreek v Van Der Kreek [1979] PNGLR 185
Yafai v Kereme (2016) SC1531

Counsel:

D Levi, for the Appellants
J Napu, for the Respondent

25^th November, 2022

1. BY THE COURT: Dr Osborne Liko, the Secretary of the Department of Health, has with two other appellants appealed against the decision of the National Court to grant an application for judicial review by a contract officer of that Department, the respondent, Paul Dopsie.
   
2. Dr Liko suspended Mr Dopsie for disciplinary reasons. Mr Dopsie sought review of his suspension by the Public Services Commission (PSC), which upheld the review and annulled the decision to suspend him and decided that he be reinstated and paid any entitlements lost. Dr Liko failed to reinstate him. Mr Dopsie then applied to the National Court for judicial review of the decision of Dr Liko not to comply with the PSC decision. The National Court, constituted by Justice Miviri, granted judicial review and made an order in mandamus, compelling Dr Liko to implement the PSC decision, by reinstating Mr Dopsie to his substantive position and paying him any salary and benefits lost (Dopsie v Vanuga, Liko & The State (2021) N9207).
   
3. The appellants argue that the trial judge erred in law by:
   

(1) failing to find that the PSC decision was erroneous as the respondent lodged his complaint with the PSC after the 60 days allowed by the Public Services (Management) Act;

(2) failing to find that the PSC decision was erroneous as its decision was made after the 90 days allowed by the Public Services (Management) Act;

(3) failing to find that the PSC lacked jurisdiction to review the suspension of the respondent as he was a contract officer, and his grievances could only be resolved through private law processes and remedies, not by judicial review; and

(4) not considering that the respondent was subject to a criminal investigation that had not concluded.

THE FIRST THREE GROUNDS OF APPEAL

4. The first three grounds of appeal are not properly before the Court. The arguments underpinning them were not argued in the National Court, so they cannot be raised before the Supreme Court unless leave to argue them as been sought and granted (Van Der Kreek v Van Der Kreek [1979] PNGLR 185, The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812, Application by Herman Joseph Leahy (2006) SC855, Fairweather v Singirok [2013] 2 PNGLR 95). Leave has not been sought and we see no good reason to grant leave.
   
5. These three grounds are summarily dismissed. However, as we have heard argument on them, we briefly address them.
   
6. Grounds 1 and 2 are closely related and can be dealt with together as they concern the time limits set out in s 18 (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act which govern the review of a personnel matter by the PSC. Section 18 states:
   

(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 complaint; and

(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.

(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 complaint, 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.

7. The evidence before the National Court showed clearly that the 60-day time limit for lodgement of a complaint was waived by the Chairman of the PSC in accordance with s 18(2)(b) of the Public Services (Management) Act. The 90-day time limit for the PSC to make its decision was extended by the PSC in accordance with s 18(3)(d)(i) of the Public Services (Management) Act. Both these issues were squarely addressed and resolved in the written decision of the PSC. The learned trial judge did not err in any of the ways contended for in grounds 1 and 2 of the appeal.
   
8. The argument raised in ground 3 of the appeal – that the PSC lacked jurisdiction to review the suspension of Mr Dopsie as he was a contract officer, and his grievances could only be resolved through private law processes and remedies, not by judicial review – is without substance. This issue was resolved by the Supreme Court in Yafai v Kereme (2016) SC1531, in the following way:
   

The proposition that a contract officer of the National Public Service who is dismissed from office cannot challenge their dismissal by the judicial review procedure is flawed. Judicial review is a proper mode of challenge in such situations.

9. The PSC had jurisdiction to review Mr Dopsie’s suspension as it was a personnel matter connected with the National Public Service. It is inconsequential that he was a contract officer. The learned trial judge did not err in any way contended for in ground 3 of the appeal.
   
10. To sum up our determination of grounds 1, 2 and 3 of the appeal: they are summarily dismissed but if we were to consider them on their merits, they are all without merit.
    

GROUND 4 OF THE APPEAL

11. It is argued that the trial judge erred by not considering the “overwhelming evidence before him which showed that criminal investigations into the allegations of fraud against the respondent were not concluded and was still ongoing and therefore prematurely granting review”. We reject this argument for two reasons.
    
12. First, the learned trial judge considered the allegations of fraud against Mr Dopsie and noted that they dated back to 2015 and had not been resolved by 2021. That was due, according to the evidence before the National Court, to the allegations being withdrawn by the complainant. There was no overwhelming evidence that the criminal investigations were not concluded and were ongoing. On the contrary, the evidence showed that the investigations had stalled and were unlikely to result in any charges being laid against Mr Dopsie.
    
13. Secondly, even if there was credible evidence that the criminal investigations would soon result in a charge being laid against Mr Dopsie, this would not have provided Dr Liko with a good reason for not complying with the PSC decision. We endorse the dicta of Cannings J in Holland v Nauga (2015) N6116 as to the legal status of a decision of the PSC under s 18 of the Public Services (Management) Act:
    

A “decision” of the Public Services Commission, following a complaint on a personnel matter, becomes, by virtue of Section 18(3)(d)(ii) of the Public Services (Management) Act 1995, “binding”, 30 days after the date of the decision. The binding status of a decision of the Public Services Commission has the following consequences:

(a) it is not a mere recommendation;

(b) the decision must be immediately implemented by the person to whom it is directed;

(c) the decision is similar to a Court order, in that it is the duty of the person to whom it is directed to comply with it, even if it is genuinely thought that the decision is wrong in law or fact or made without jurisdiction, unless and until the decision is stayed or set aside or otherwise rendered ineffective by an order of a Court or some other body authorised by law to do so.

14. It was the duty of Dr Liko to implement the PSC decision by immediately reinstating Mr Dopsie even though he disagreed with the decision or thought it would be impractical or thought that it was better that the criminal investigations be completed.
    
15. If he didn’t want to implement the decision his only option was to apply to the National Court, using the judicial review procedure, and challenge the PSC decision and obtain an order quashing or at least staying the decision, as was done, for example, in Dopsie v Tetaga (2009) N3722 and Bailasi v Lua (2013) N5145.
    
16. There was no court order quashing or staying the PSC decision, so Dr Liko’s duty was to implement the decision immediately. He did not do that, so the trial judge properly granted an order in the nature of mandamus compelling him to perform his duty. Ground 4 of the appeal is dismissed.
    

CONCLUSION

17. All grounds of appeal are dismissed, so the appeal must be dismissed. Costs will be awarded against the appellants on a solicitor-client basis due to the serious disobedience of the PSC decision that has occurred and the frivolousness of the appeal. We are also concerned that the order of the National Court has not been complied with, 14 months after it was made.
    

ORDER

(1) The appeal is dismissed.

(2) The order of the National Court in OS (JR) No 77 of 2021 is affirmed.

(3) The appellants shall pay the respondent’s costs of the appeal on a solicitor-client basis, which shall, if not agreed, be taxed.

Judgment accordingly.

__________________________________________________________________
Manase & Co Lawyers: Lawyers for the Appellants
Napu & Company Lawyers: Lawyers for the Respondent