Betty Palaso v Dr Phillip Kereme

• Jurisdiction: Papua New Guinea
• Judge: Gavara -Nanu J
• Judgment Date: 19 August 2016
• Citation: (2016) N6638
• Court: National Court
• Year: 2016
• Judgement Number: N6638

Full : OS No 412 of 2014; Betty Palaso, as Commissioner General of Internal Revenue Commission v Dr Phillip Kereme as Chairman of Public Services Commission and Public Services Commission and Ben Garry and the Independent State of Papua New Guinea (2016) N6638

National Court: Gavara -Nanu J

Judgment Delivered: 19 August 2016

N6638

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 412 of 2014

BETWEEN:

BETTY PALASO, AS COMMISSIONER GENERAL OF INTERNAL REVENUE COMMISSION

Plaintiff

AND:

DR PHILLIP KEREME AS CHAIRMAN of

PUBLIC SERVICES COMMISSION

First Defendant

AND:

PUBLIC SERVICES COMMISSION

Second Defendant

AND:

BEN GARRY

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Gavara-Nanu J

2015: 25th September

2016: 19th August

JUDICIAL REVIEW – Termination of employment – Application to the Public Services Commission to review termination – Personnel matters – Power of the Public Services Commission to review personnel matters – Public Services Management Act, 1995, s.18 (3) (a), (c) (ii) and (iii), (d) (i) – Requirement for the PSC to give its decisions within 90 days from the date of its receipt of complaints - Requirement directory not mandatory.

JUDICIAL REVIEW –Personnel matters – Review of personnel matters by the Public Services Commission a special constitutional function conferred by Constitution; s. 191 (1) - Public Services Management Act 1995; s.18 regulates the function – Constitution; s. 192 granting independence to the Public Services Commission a body comprised of three constitutional office holders – Spirit of Constitution ss. 191 and 192 - Public Services Commission a constitutional Office – Public Services Management Act, 1995; s. 18 (3) (d) (i) - Exercise of power by the Public Services Commission to extend the statutory period subjective not absolute - Extension of the statutory period made outside the statutory period not ultra vires.

JUDICIAL REVIEW – Public Services Commission decisions having the authority and the force of the Constitution – Such decisions should be respected and treated seriously and given due regard – Refusal to comply with the decisions by public bodies or authorities should be based on proper and valid grounds.

JUDICIAL REVIEW – Challenges to the validity of the Public Services Commission decisions – Such challenges should be based on grounds disclosing serious issues.

JUDICIAL REVIEW – Appropriate standard of proof in proceedings before both public bodies or authorities and the Public Services Commission – Standard of proof should be lower than the criminal standard but higher than the civil standard – Proof of a matter, including disciplinary charges laid against a person should be by cogent and convincing evidence.

Cases cited:

Eddie Gabir v. Richard Koronai [1988-89] PNGLR 406

Gari Baki v. Allan Kopi (2008) N4023

Henry Wavik v. Martin Balthasar, Acting Commissioner, Correctional Service & Ors N5272

Inakambi Singorom v. John Kalaut [1985] PNGLR 238

James Kond v. National Development Bank Ltd (2015) SC1432

Kuber Epi v. Tony Farapo (1983) SC247

NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139

Peter Bon v. Mark Nagai (2001) PNGLR 18; N2123

Reference by the East Sepik Provincial Executive (2011) SC1154

Rural Development Bank Ltd v. James Kond (2010) N5876

Safe Lavao v. The Independent State of Papua New Guinea [1978] PNGLR 15

Salamo Elema, Insurance Commissioner v. Pacific MMI Insurance Limited (2011) SC1114

The State v. Downer Construction (PNG) Ltd (2009) SC979

The State v. Independent Tribunal; Ex Parte Sasakila [1976] PNGLR 491

The State v. Natpalau Tulong [1995] PNGLR 329

Other cases cited

SS Constructions Pty Ltd v. Ventura Motors Pty Ltd [1964] VR 229

PNG Legislations; Sub-ordinate legislations and Other laws referred to

The Constitution of the Independent State of Papua New Guinea

Public Services Management Act, 1995

Public Service General Orders

Counsel:

S. Sinen, for the Plaintiff

Y. Kapili, for the first and second Defendants

B. Kulumbu, for the fourth Defendant

19th August, 2016

1. GAVARA-NANU J: This is an application by the plaintiff seeking review of the second defendant’s decision given on 15th May, 2014, to annul the termination of the third defendant from his employment as an auditor with the Internal Revenue Commission (IRC), and to order his reinstatement. The third defendant was terminated on serious disciplinary grounds.

2. In 2008, the IRC conducted an investigation into the work of its auditors, with special focus on those who audited businesses outside the National Capital District. In the investigation, searches were conducted at the Boroko Post Office to see if any of those auditors were receiving any suspicious cash payments from the businesses they audited, through the ‘Salim Moni Kwik’ (SMK) scheme. The investigation took 3 months from July to September, 2008.

3. The investigation revealed that the third defendant had received some cash payments from certain tax payers living in Lae and Alotau. The payments appeared suspicious, therefore to establish the true nature of those payments the tax payers and some Post PNG employees working at the Boroko Post Office, and the third defendant were interviewed by the IRC investigators. After considering a report from the IRC investigators and the recommendations of the IRC Internal Disciplinary Committee which also conducted its own hearing on the matter, the plaintiff on 18th July, 2012, charged the third defendant with eight serious disciplinary offences. The charges were laid under s. 50 (h) of the Public Services Management Act, 1995, for soliciting and accepting rewards and receiving gratuity benefits or gifts in connection with the discharge of his official duties.

4. On 25 July, 2012, the third defendant responded to all the charges in which he admitted all the charges however; he gave a number of reasons for accepting money from the tax payers, viz; he was going to repay the money, he intended using the money to pay for a passport for a tax payer, he also accepted the money on behalf of some people, and besides he needed the money to pay for his children’s school fees.

5. The plaintiff was not convinced by these explanations and charged the third defendant with the disciplinary offences and eventually terminated him on 20th August, 2012.

6. On 26th September, 2012, the third defendant applied to the Public Services Commission (PSC) to review his termination (complaint). On 15th May, 2014, the PSC informed the plaintiff of its decision pursuant to s. 18 (3) (c) (iii) of the Public Services Management Act.

7. The PSC gave following reasons for its decision. First, the plaintiff took too long in charging the third defendant for incidents which occurred between 2001 and 2007. Second, the charges were stale because they were not laid speedily. Third, the charges were defective and bad for duplicity. It should however be noted that at the trial, the PSC conceded that it erred in making this finding. Fourth, the plaintiff obtained the SMK receipts and records regarding cash payments the third defendant received from the tax payers from the Boroko Post Office, in breach of the Telecommunication Act. Fifth, the termination was harsh.

8. The plaintiff’s first ground of review against the PSC decision is that the decision is ultra vires because it was given outside the statutory period stated under s. 18 (3) (d) (i) of the Public Services Management Act, viz; 90 days from the date it received the third defendant’s application for review or complaint. The second ground of review is that the PSC erred in its finding that the charges were stale because they were not laid speedily, as there is no time limit given under the Public Services Management Act, within which such charges should be laid. The third ground of review is that the PSC erred in finding that the charges were defective and bad for duplicity. However, no issues arise under this ground because the PSC conceded that it erred in its finding. The fourth ground of review is that the PSC erred in finding that the SMK receipts and records of the money the third defendant received from the tax payers were illegally obtained because the IRC investigators obtained those receipts and records with a search warrant. The fifth ground of review is that the PSC ignored the fact that the plaintiff followed all the relevant processes and procedures set out under the Public Services Management Act, and the General Orders, in charging and terminating the third defendant. Furthermore, termination was warranted because the third defendant was found guilty of serious disciplinary offences.

9. The defendants having conceded the third ground of review, the Court only has to determine the remaining four grounds which are first, second, fourth and fifth.

10. The plaintiff’s first ground of review is based on her interpretation of s.18 (3) (d) (i) of the Public Services Management Act, which among other things states that the PSC “shall” make its decision within 90 days from the date it received a complaint. The plaintiff argued that this is a mandatory...