John Joe Nemambo v Peter Peipul and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Andrew J, Sakora J
• Judgment Date: 21 December 1994
• Citation: (1994) SC475
• Court: Supreme Court
• Year: 1994
• Judgement Number: SC475

Supreme Court: Kapi DCJ, Andrew J, Sakora J

Judgment Delivered: 21 December 1994

SC475

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA NO. 106 OF 1993

BETWEEN:

JOHN JOE NEMAMBO

Appellant

AND:

PETER PEIPUL

First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani : Kapi DCJ, Andrew J, Sakora J

25th & 27th October, 21st December 1994

Practice — National Court — Appropriateness of applying by way of Judicial

Review — Where an administrative decision is challenged — Scope of judicial review.

Practice — Disciplinary Action — Where a person refuses to accept service

documents — Whether this is effective service.

L. Gavara-Nanu for the Appellant

P. Ame for First and Second Respondents

21 December 1994

BY THE COURT: This is an appeal from a decision of the National Court which dismissed the Appellant/Plaintiff's claim for orders and declarations in relation to his suspension and dismissal from his employment with the Department of Defence.

The background to this appeal is as follows. The appellant was a Senior Contracts Officer in the Department of Defence in 1990 and in 1991. The Auditor-General's Report for the Department of Defence for the financial year 1991 reported some gross irregularities and errors in management practices by the Department in respect of its financial management. This included the expenditure of K800,000 for the purchase of 20 houses. A subsequent Department of Finance report recommended that disciplinary charges be laid against senior officers in relation to this transaction. The appellant was charged under s 47 of the Public Service (Management) Act. The details of these charges were:

"Take note that you are hereby charged with committing serious offences within the meaning of Section 45, Clause (1) of the Public Service (Management) Act, in that you breached the Public Finance (Management) Act and the Regulations thereto, contained in the Finance Manual of the Department of Finance and Planning".

The charge then set out some 8 factual grounds in support. Notice of the charges was attempted to be given to the appellant by an officer of the Department of Defence but he refused to accept them. Subsequently, pursuant to s 47 (5) of the Public services (Management) Act, he was issued with a termination notice dated 2nd June 1992 advising that he had been dismissed in default of reply to the charges. The notice of dismissal also advised of his right to seek review of that decision by the Public Services Commission pursuant to s 17 of the Act. The appellant applied for review by the Public services Commission on the 17th June 1992. On the 7th September 1992 the Commission advised that it had completed its review and recommended that the first respondent vary his decision to dismiss the appellant and that he revoke the decision and reinstate the appellant into a lower classification and to repay or reimburse his salary entitlements as of the date of dismissal, at the lower classification that he was recommended to be reinstated into. The first respondent replied to the Public Services Commission's recommendation on the 17th September 1992 rejecting the recommendations as unwarranted and unacceptable. From all of these decisions the appellant proceeded by way of originating summons seeking orders and declarations that the charges and facts disclosed no cause of action; that that first respondent had acted ultra vires in dismissing him; that the dismissal was unlawful; that he be reinstated with full benefits and that he be reimbursed all his entitlements and salary.

It is not clear as to the process by which the appellant commenced his proceedings in the National Court. He sought orders and declarations by way of originating summons which were commenced by way of Notice of Motion. That would seem to show that he was seeking an application for a declaration by way of an application for judicial review of an administrative decision under O 16 of the National Court Rules and the National Court in its judgment referred to the appellant as seeking declarations by way of review. If that is so then it appears that the proceedings were flawed from the outset as there had never been an application for leave to apply for judicial review as...