Mathew Petrus Himsa and Napao Namane v Richard Sikani, Commissioner of Correctional Services and The Independent State of Papua New Guinea (2002) N2307

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 08 November 2002
• Court: National Court
• Citation: (2002) N2307
• Year: 2002
• Judgement Number: N2307

Full Title: Mathew Petrus Himsa and Napao Namane v Richard Sikani, Commissioner of Correctional Services and The Independent State of Papua New Guinea (2002) N2307

National Court: Kandakasi J

Judgment Delivered: 8 November 2002

1 ADMINISTRATIVE LAW—Judicial review—Review of decision terminating employment at end of written contract of employment—Written contract of employment preserves employment in public service at end of written contract without specifying the terms and conditions on which that is to happen—Lack of certainty in fundament terms of contract—Practice of keeping persons in the public service pool unattached not a practice enforceable at law—Contract unenforceable for lack of certainty—Relationship of parties governed by contract—Remedy at private law may be available but judicial review not an available remedy—Application for judicial review therefore dismissed.

2 JUDICIAL REVIEW—Review of decision by National Executive Council to terminate employment in the public service—Whether there existed other remedies—Whether such remedies were exhausted—No available remedy when the NEC makes the decision—Judicial review appropriate remedy but for contract of employment—Remedy may be available at private law only—Consequently reinstatement as a remedy is not available once a contract of employment ends at the agreed expiry date unless a statutory provision provides to the contrary.

3 EMPLOYMENT CONTRACT—Written Contract of Employment in Public Service—Contract expiry on agreed date—No renewal but contract allowing continuity of employment in Public Service—Terms and conditions on which that is to happen not certain—Contract void for uncertainty of fundamental terms and conditions of employment—Contract unenforceable.

4 John Kopil v Malcolm Culligan (1995) N1333, Sulaiman v PNG University of Technology (1987) N610, Albert Kuluah v UPNG [1993] PNGLR 494, Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106, Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, Mark Ankama v ELCOM (2002) N23033, Patterson v NCDC (2001) N2145, Teio Raka Ila v Wilson Kamit (2002) N2291, Lima Dataona v Moses Makis (1998) N1797, Leo Nuia v The Independent State of Papua New Guinea (2000) N1968 and Scammel & Nephew Ltd v Ouston [1941] AC 25 referred to

___________________________

N2307

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 641 & 642 OF 2001

BETWEEN:

MATHEW PETRUS HIMSA and NAPAO NAMANE

Plaintiffs

AND:

RICHARD SIKANI

COMMISSIONER OF CORRECTIONAL SERVICES

First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

KANDAKASI, J.

2002: 16th August

8th November

ADMINISTRATIVE LAW – Judicial review – Review of decision terminating employment at end of written contract of employment – Written contract of employment preserves employment in public service at end of written contract without specifying the terms and conditions on which that is to happen – Lack of certainty in fundament terms of contract – Practice of keeping persons in the public service pool unattached not a practice enforceable at law – Contract unenforceable for lack of certainty – Relationship of parties governed by contract – Remedy at private law may be available but judicial review not an available remedy – Application for judicial review therefore dismissed.

JUDICIAL REVIEW – Review of decision by National Executive Council to terminate employment in the public service – Whether there existed other remedies – Whether such remedies were exhausted – No available remedy when the NEC makes the decision – Judicial review appropriate remedy but for contract of employment – Remedy may be available at private law only – Consequently reinstatement as a remedy is not available once a contract of employment ends at the agreed expiry date unless a statutory provision provides to the contrary.

EMPLOYMENT CONTRACT – Written Contract of Employment in Public Service – Contract expiry on agreed date – No renewal but contract allowing continuity of employment in Public Service – Terms and conditions on which that is to happen not certain – Contract void for uncertainty of fundamental terms and conditions of employment - Contract unenforceable.

Papua New Guinea Cases Cited:

John Kopil v. Malcolm Culligan and The State Unreported National Court Judgement (Unreported judgement delivered 28/06/95) N1333.

Sulaiman v. PNG University of Technology Unreported National Court (Unreported judgement 20/08/87) N610.

Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494.

Odata Ltd v. Ambusa Copra Oil Mill Ltd (Unreported judgement delivered 06/07/01) N2106.

Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v. The Independent State of Papua New Guinea [1993] PNGLR 285.

Mark Ankama v. Electricity Commission of Papua New Guinea (Unreported judgement delivered /10/02) N2303 .

Jack Livinai Patterson v. National Capital District Commission (Unreported judgement delivered on 05/10/01) N2145.

Teio Raka Ila v. Wilson Kamit & The Bank of Papua New Guinea (Unreported judgement delivered on 11/10/02) N2291.

Lima Dotaona & Paul Tohian v. Moses Makis & The State (Unreported judgement delivered on 17/12/98) N1797.

Leo Niua v. The State (Unreported judgement delivered on 29/08/00) N1986.

Overseas Cases Cited:

Scammel & Nephew Ltd v. Ouston [1941] AC 25.

Text Cited:

Chitty on Contracts (24th edn.) pp. 700- 70.

Counsel:

Mr. D. Dotaona for the Plaintiff

Mr. Kua for the Defendants

8th November 2002

KANDAKASI, J: These are two identical applications for judicial review by the applicants. The facts are the same and so are the arguments and issues for determination. The parties therefore decided to deal with the applications as one.

Proceeding on the above basis, the Chief Justice granted them leave on 10th December 2001 to review a decision of the National Executive Council (NEC) on 15th July 2001, revoking their respective appointments as Assistant Commissioner (Personnel and Management Training and Operations respectively) with the Department of Correctional Services (DCS).

The applications came before me on 16th August 2002 and I directed the parties to file written submission by 20th August 2002. This was necessitated by a lack of time for me to deal with the matter on that date after the parties had agreed to a trial by affidavit only with no requirements for cross-examination.

The parties have filed their submissions on 20th August 2002 as directed. But I was not able to get to a judgement on this matter quickly due to my time being taken up in motions and election petitions in between.

Arguments

The applicants’ claims are that, when their respective written contracts of employment (the contracts) expired they remained as employees of the DCS, pending deployment elsewhere in the Department or the public service generally. Hence, they argue that they could only be terminated in accordance with the procedure for termination under the Correctional Services Act 1995 (CSA). They go on to argue that they were not terminated in accordance with the procedure under the CSA. Therefore they claim that their termination is null and void and of no effect.

The defendants on the other hand argue that, when the applicants entered into their respective written contracts, they gave up their rights or privileges under the CSA because their terms and conditions of employment came under the governance of the contract. Hence, when the contract expired on the agreed expiry date, their employment with the DCS and therefore the public service ended.

Issues

The parties agree that this gives rise to a number of issues, which this Court must determine. The issues are as follows:

1. Whether the applicants’ employment with the DCS ceased upon the expiry of their respective contracts of employment.

2. Whether there is a legal basis for a contract of employment under the Correctional Service Act?

3. Whether judicial review is available when the applicants’ written contract expired?

4. If judicial review is available, did the applicants exhaust all available remedies before coming to Court?

5. Whether the State is obliged to reinstate the applicants to their original position when their position have been filled?

Facts

The facts are not disputed and I find these are the relevant facts. The applicants were Assistant Commissioners, respectively as Personnel Management and Training and Operations with the DCS until the NEC revoked their appointments to those positions on 5th July 2001. They...