Ambrose Vakinap v Thaddeus Kambanei and The Independent State of Papua New Guinea (2004) N3094

• Jurisdiction: Papua New Guinea
• Judge: Sevua, J
• Judgment Date: 29 November 2004
• Court: National Court
• Citation: (2004) N3094
• Docket Number: OS 738 OF 2003
• Year: 2004
• Judgement Number: N3094

Full Title: OS 738 OF 2003; Ambrose Vakinap v Thaddeus Kambanei and The Independent State of Papua New Guinea (2004) N3094

National Court: Sevua, J

Judgment Delivered: 29 November 2004

N3094

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 738 OF 2003

BETWEEN

AMBROSE VAKINAP

Plaintiff

AND

THADDEUS KAMBANEI

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Sevua, J

2004: 26 & 29 November

ADMINISTRATIVE LAW – Judicial Review – Application for – Review by way of mandamus – Mandamus to compel first defendant to effect decision of Public Services Commission.

JUDICIAL REVIEW – Natural Justice – Breach of – Failure to invite plaintiff to address on penalty – Failure to give reasons for dismissal – Whether failure amount to breach of natural justice.

JUDICIAL REVIEW - Amendment to Public Service (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) – Public Service Commission no power to recommend, but power to uphold, vary or annul – Judicial Review – Natural Justice – Breach of – Failure to invite plaintiff to address on penalty – Failure to give reasons for dismissal – Whether failure amount to breach of natural justice – Remedies available to complainant seeking review by Public Services Commission – Period of 30 days in ss (3) (d) (ii) – Whether a Departmental Head has any power or right to exercise within or after that period.

Held:

1. Where in a disciplinary process in the Public Service, a Departmental Head is considering dismissal of an officer, and where the penalty of dismissal is not automatic, but discretionary, the Departmental Head is required to invite the officer to address on penalty and furthermore, the Departmental Head is required to provide adequate reasons for his decision in dismissing the officer. Failure to observe these requirements amounts to a breach of natural justice.

2. Because the Constitution is supreme, a legislation which does not adopt the common law principles of natural justice, which is entrusted in s.59 of the Constitution, must observe the rules of natural justice, the minimum requirement of which, is to act fairly or be seen to act fairly.

3. The first defendant in failing to invite the plaintiff to address on penalty and in failing to provide adequate reasons for dismissing the plaintiff had breached the principles of natural justice therefore his decision must be quashed.

4. Section 18 of the Public Services (Management) Act 1985, which empowers the Public Services Commission to make a recommendation no longer exists therefore the Public Services Commission has no power to make any recommendation, following a review of a personal matter.

5. Pursuant to s.18 (3) (c) (ii) of the Public Services (Management) (Amendment) Act 2002, the Public Services Commission has mandatory power to uphold, vary or annul the decision of a Departmental Head. That power is not a power to make any recommendation.

6. Section 18 (3) (d) (ii) of the Public Services (Management) (Amendment) Act 2002, gives no power or right to a Departmental Head to refuse to implement the decision of the Public Services Commission following the review of a personnel matter.

7. The first defendant’s decision in refusing to give effect to the decision of the Public Services Commission is without any legal foundation, it being an exercise in excess of jurisdiction thereby amounting to an error of law.

Cases cited in this judgment.

Banabas Isoro v. The Commissioner of Police and The State; (OS 341 of 1995) unnumbered and unreported.

Toll v. Kibi Kara & Ors [1990] PNGLR 71

Sioni Butler v. The Commissioner of Police; (OS 649 of 1995) unnumbered and unreported, 4th April 1996.

Pearson Joe Kamgip and Bernard Orim v. Commissioner of Police and The State; N.1695, unreported, 26th March 1995.

Godfrey Niggints v. Henry Tokam and The Independent State of Papua New Guinea [1993] PNGLR 66.

Kelly Yawip v. Commissioner of Police and The State [1995] PNGLR 393.

In The Matter of Benson Gegeyo & Ors v. The Minister for Lands and Physical Planning [1987] PNGLR 331.

Legislations cited:

National Court Rules, Order 16 Rule 3 and 4

Public Services (Management) Act 1995, ss

Public Services (Management) (Amendment) Act 2002, s.18 (3)

Constitution, s.59

Other references:

Hotop, Principles of Australian Administrative Law, 6th ed., 1985 pp199 – 200

Counsel:

A. Nambau, for Plaintiff

S. Liria, for Defendants

29 November, 2004

1. SEVUA, J: This is an application for judicial review, leave having been granted on 11 November, 2004. 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.

2. The facts of this case have already been fully stated in the judgment on the leave application. However, since the facts and the evidence are not in dispute, they can be summarized as follows.

3. On 2 December 2002, the first defendant suspended the plaintiff on serious allegations of fraud. On 6 December 2002, the first defendant charged the plaintiff with the two charges. Form 15.6 which is the actual notice of charge is as follows.

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 admit 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.

4. On 9 December 2002, the plaintiff responded to the charges. 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. Consequently, on 22 January 2003, the plaintiff sought a review from the Public Services Commission pursuant to Section 18 of the Public Services (Management) Act 1995.

5. Following a review by the Public Services Commission, the Chairman, Mr. Jerry Tetaga, wrote to the first defendant on 4 August 2003, and advised the first defendant of the following “recommendations” made by the Commission.

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.

6. The Commission advanced four reasons for its decision in making those “recommendations”. They are:-

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

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 and advise the charged officer of his decision within 21 days of receiving the reply to the charge, and that failure with the requirement will render the decision null and void.

7. On 1 September 2003, the first defendant responded to the Commission’s letter of 4 August 2003 and advised that he had...