Clement K Kilepak v Ellison Kaivovo Secretary Department of East New Britain and Hosea Turbarat Provincial Administrator East New Britain Provincial Administration (2003) N2402

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 02 May 2003
• Court: National Court
• Citation: (2003) N2402
• Year: 2003
• Judgement Number: N2402

Full Title: Clement K Kilepak v Ellison Kaivovo Secretary Department of East New Britain and Hosea Turbarat Provincial Administrator East New Britain Provincial Administration (2003) N2402

National Court: Lenalia J

Judgment Delivered: 2 May 2003

N2402

PAPUA NEW GUINEA

[In the National Court of Justice]

OS. NO. 525 OF 1997

BETWEEN: CLEMENT K. KILEPAK

- Plaintiff

AND: ELLISON KAIVOVO

SECRETARY DEPARTMENT

OF EAST NEW BRITAIN

- First Defendant

AND: 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] 2 All ER. 66

Tandali -v- The State [1990] PNGLR. 170.

W. Donald, for the State

No appearance for or by the Defendants

MAY, 2nd

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.

2. On the night of the 16th November 1994 you involved in an accident causing extensive damage to the same vehicle Reg. PAB 578”.

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...