Henry Wavik v Martin Balthasar, Acting Commissioner, Correctional Service and Hon Peter O’Neil, Prime Minister, Chairman, National Executive Council and Papua New Guinea Correctional Service and The Independent State of Papua New Guinea (2013) N5272

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 July 2013
• Court: National Court
• Citation: (2013) N5272
• Docket Number: OS (JR) NO 244 OF 2012
• Year: 2013
• Judgement Number: N5272

Full Title: OS (JR) NO 244 OF 2012; Henry Wavik v Martin Balthasar, Acting Commissioner, Correctional Service and Hon Peter O’Neil, Prime Minister, Chairman, National Executive Council and Papua New Guinea Correctional Service and The Independent State of Papua New Guinea (2013) N5272

National Court: Cannings J

Judgment Delivered: 22 July 2013

N5272

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 244 OF 2012

HENRY WAVIK

Plaintiff

V

MARTIN BALTHASAR, ACTING COMMISSIONER, CORRECTIONAL SERVICE

First Defendant

HON PETER O’NEIL, PRIME MINISTER,

CHAIRMAN, NATIONAL EXECUTIVE COUNCIL

Second Defendant

PAPUA NEW GUINEA CORRECTIONAL SERVICE

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Cannings J

2013: 20, 29 May, 22 July

JUDICIAL REVIEW – disciplinary offences and procedures – Correctional Service – whether member of Service suspended and charged in accordance with law – whether obligation to determine disciplinary charges within reasonable time – natural justice – duty to act fairly and in principle to be seen to act fairly.

The plaintiff was Deputy Commissioner of the Correctional Service, holding office under a three-year contract of employment. He was suspended by the Acting Commissioner and charged with two disciplinary offences. He responded to the charges and according to the contract the Commissioner was obliged to submit the response together with a statement of recommended action to the National Executive Council which was required to determine whether the contract should be terminated. The contract did not expressly state any time limit for submission of the matter. Four months after the plaintiff was suspended his contract expired by which time the Acting Commissioner had not submitted his recommendation. One month after the contract expired the Acting Commissioner prepared a submission for the Minister to present to the National Executive Council. It was not clear whether the submission was ever presented but at the date of trial, 17 months after the plaintiff was suspended, the charges remained un-determined and the Acting Commissioner refused to reinstate the plaintiff, taking the view that the plaintiff was no longer a member of the Correctional Service. The plaintiff applied for judicial review of the alleged failure of the Acting Commissioner to lawfully deal with the matter, on three grounds: (1) error of law in that the plaintiff was not suspended and charged in accordance with his contract; (2) error of law in that the Commissioner breached an implied term of the contract, viz that the matter should be submitted to the NEC within a reasonable time; and (3) breach of the principles of natural justice in that the Commissioner denied the plaintiff a right to be heard.

Held:

(1) Three errors of law were committed in the suspension and charging of the plaintiff (a) he was suspended under an irrelevant term of the contract; (b) he was suspended two days before being charged; (c) he was charged with committing offences that did not apply to him.

(2) It was an implied term of the contract that the Commissioner was obliged, having received the plaintiff’s response, to submit the response and the Commissioner’s recommendation to the National Executive Council within a reasonable time (estimated by the Court to be a period of one month). The Commissioner breached that term and erred in law by not taking any action at all until five months after the plaintiff had been suspended.

(3) A member of a State Service who faces disciplinary charges is entitled to protection of the principles of natural justice, the minimum requirements of which are to be treated fairly and in principle to be seen to be treated fairly. The Acting Commissioner treated the plaintiff unfairly and was seen to treat him unfairly by not submitting the matter to the National Executive Council within a reasonable time, waiting until after the plaintiff’s contract had expired before taking any action and not taking any steps to ensure that the disciplinary charges were determined, thereby denying the plaintiff his right to be heard and causing him to be left in limbo for an indefinite period.

(4) All grounds of review having been upheld, the Court exercised its discretion in favour of the plaintiff and granted the principal relief sought, including declarations that the Acting Commissioner had acted unlawfully and breached the principles of natural justice and that the disciplinary charges were null and void and orders that no further action be taken against the plaintiff in respect of the charges, that he be reinstated as a member of the Correctional Service at the rank he held prior to his promotion to Deputy Commissioner and that he be awarded K10,000.00 damages.

Cases cited

The following cases are cited in the judgment:

Andy Sisipa v Richard Sikani (2012) N4825

Anthony John Polling v MVIT [1986] PNGLR 228

Bau Waulas v Veronica Jigede (2009) N3781

Dale Christopher Smith v Minister for Lands (2009) SC973

David Nelson v Patrick Pruaitch (2004) N2536

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

Himsa & Namane v Sikani (2002) N2307

Jomino Holee v Sem Vegeo (2013) N5101

Kopil v Culligan (1995) N1333

Lawrence Sausau v Joseph Kumgal (2006) N3253

Mathew Jaran v Pious Kerepia [1987] PNGLR 16

Michael Mondia v Richard Sikani (2007) N3256

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Niugini Mining Limited v Joe Bumbandy (2005) SC804

Paul Asakusa v Andrew Kumbakor (2009) N3303

Philip Kamo v Commissioner of Police (2001) N2084

Counsel

E Hampalekie, for the plaintiff

N Mosoro, for the defendants

22 July, 2013

1. CANNINGS J: The plaintiff Henry Wavik applies for judicial review of the decision of the Acting Commissioner of the Correctional Service, Martin Balthasar (first defendant), to suspend him as Deputy Commissioner of the Correctional Service and charge him with two disciplinary offences and the failure of Mr Balthasar to ensure that the charges were determined in a reasonable time.

2. The plaintiff became a member of the Correctional Service on 18 March 1974. On 7 April 2009 he was promoted from the rank of Chief Superintendent to the rank of Deputy Commissioner. On 5 April 2011 he executed a three-year written contract of employment, deemed to be effective from 7 April 2009. On 5 December 2011 Mr Balthasar suspended him from duty and put him on notice that he was preparing to lay disciplinary charges against him based on a National Security Advisory Committee Report on investigations into the Bomana Prison escape of William Nanua Kapris and 11 others on 12 January 2010. On 7 December 2011 Mr Balthasar laid two disciplinary charges against him. On 12 December 2011 he responded to the charges.

3. According to the contract the Commissioner was obliged to submit the disciplinary charges, the plaintiff’s response and any other relevant evidence together with his recommendation to the National Executive Council, which was required to determine whether the contract should be terminated. The contract did not expressly state any time limit for submission of the matter.

4. On 7 April 2012 the plaintiff’s contract expired, by which time Mr Balthasar had not submitted anything to the National Executive Council. On 11 May 2012 Mr Balthasar compiled the material referred to in the contract and forwarded it together with a draft statutory business paper to the then Minister for the Correctional Service Hon Sai Beseo. The business paper contained recommendations that the plaintiff be found guilty and that his employment with the Correctional Service be terminated. It is not clear whether the statutory business paper was ever presented to the National Executive Council. After preparing it, Mr Balthasar took no further steps to pursue the matter with the Minister or the National Executive Council. On 11 July 2012 he asked the Acting Assistant Commissioner, Personnel, Finance and Administration, to terminate the plaintiff from the payroll and process his final entitlements and have him paid out. By the time of the trial in May 2013 the plaintiff’s matter had still not been determined by the National Executive Council. Mr Balthasar has refused to reinstate the plaintiff, taking the view that he is no longer a member of the Correctional Service.

5. The plaintiff by notice of motion filed on 29 October 2012 seeks various relief including declarations that he has been denied natural justice and that the disciplinary charges are null and void and orders that he be reinstated without loss of entitlements. He relies on three grounds of review:

(1) error of law in that he was not suspended and charged in accordance with his contract;

(2) error of law in that the Commissioner breached an implied term of the contract, viz that the matter should be submitted to the National Executive Council within a reasonable time;

(3) breach of the principles of natural justice in that the Commissioner denied him a right to be heard.

PRELIMINARY POINT

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