Michael Anis Winmarang v David Ericho

• Jurisdiction: Papua New Guinea
• Judge: Cannings
• Judgment Date: 31 March 2006
• Citation: (2006) N3040
• Court: National Court
• Year: 2006
• Judgement Number: N3040

Full : OS NO 373 of 2001; Michael Anis Winmarang v David Ericho, Director National Narcotics Bureau and The Independent State of Papua New Guinea (2006) N3040

National Court: Cannings

Judgment Delivered: 31 March 2006

N3040

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 373 OF 2001

MICHAEL ANIS WINMARANG

Plaintiff

V

DAVID ERICHO, DIRECTOR

NATIONAL NARCOTICS BUREAU

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2004: 9, 10 December,

2006: 1, 31 March

ADMINISTRATIVE LAW – judicial review of decisions of Director of National Narcotics Bureau to terminate employment of public official and ignore a recommendation from the Public Services Commission for reinstatement – application for judicial review under National Court Rules, Order 16.

CONSTITUTIONAL LAW – Public Services Commission – review of personnel matter in the Public Service – recommendation for reinstatement – refusal to comply with recommendation – status of recommendations made by Public Services Commission – duty of respondent to implement recommendations or give cogent and convincing reasons for failure to implement.

The plaintiff was an officer of the National Narcotics Bureau employed under a contract of employment. The Director of the Bureau laid disciplinary charges against him, heard from him, then dismissed him, terminating his employment. The plaintiff sought review of that decision by the Public Services Commission, which considered the matter and having found procedural errors recommended to the Director that the plaintiff be reinstated. The Director did not comply with the recommendation. The plaintiff sought and was granted leave to seek judicial review. This was the hearing of the substantive application for review.

Held:

(1) It is part of the principles of natural justice – and part of a person’s right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence.

(2) The duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. If no reasons are given it is to be inferred that there were no good reasons for the decision being made. (Mision Asiki v Manasupe Zurenuoc (2005) SC797 applied.)

(3) An applicant is confined at the hearing of an application for judicial review, unless the court grants leave for amendment, to the grounds of review set out in the Order 16, Rule 3(2)(a) statement filed in support of the application for leave. It is sufficient if a ground of review is raised by necessary implication. It is not necessary that it be expressly stated. Constitution, Section 158(2) applied.

(4) The head of a governmental body, having received a recommendation from a constitutional institution, the Public Services Commission, to reinstate a person to his former position, has a duty to either implement the recommendation or give cogent and convincing reasons for failure to do so.

(5) The present proceedings were properly regarded as being a review of both (a) the first defendant’s decision to dismiss the plaintiff and (b) the first defendant’s decision not to implement the recommendations of the Public Services Commission.

(6) The first defendant’s decision to dismiss the plaintiff involved errors of law as he charged and dismissed the plaintiff under a repealed law, failed to lay the charges in the express words of any law and failed to give reasons for his decisions to find the plaintiff guilty and dismiss him.

(7) The first defendant neither implemented the recommendations of the PSC nor gave cogent and convincing reasons for failing to do so. His decision not to follow the PSC recommendations was bad in law.

(8) As the plaintiff was employed under a contract of employment the period of which had expired by the time of the trial and the terms of which did not guarantee future employment, it was not appropriate to order reinstatement.

(9) Remedies in judicial review proceedings are at the discretion of the court and in the circumstances it was in the interests of justice to award damages under Order 16, Rule 7 of the National Court Rules.

(10) Accordingly, the Court entered judgment on liability for the plaintiff with damages to be assessed.

Cases cited

The following cases are cited in the judgment:

Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850

Felix Bakani and OPIC v Rodney Daipo (2001) SC659

Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66

Ibrahim Sulaiman v University of Technology (1987) N620

Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, unreported

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Ombudsman Commission v Peter Yama (2004) SC747

Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123

Robinson v National Airlines Commission [1983] PNGLR 476

Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00

The State v James Yali (2006) N2989

JUDICIAL REVIEW

This was an action in which the plaintiff sought judicial review of his dismissal as an officer of a governmental body.

Counsel

R Uware, for the plaintiff

H Polume-Kiele, for the defendants

31st March, 2006

1. CANNINGS J: This is a judgment on an application for judicial review. The plaintiff is seeking review of his dismissal as an officer of the National Narcotics Bureau. The facts are not in dispute. The plaintiff was employed by various governmental bodies from 1974 until he joined the National Narcotics Bureau (“the Bureau”) in 1993. At all times he was employed by the Bureau the plaintiff held the position of Director of Research, Policy and Planning.

2. The Bureau is a governmental body established by the National Narcotics Control Board Act 1992. Its functions are prescribed by Section 13. Amongst other things it makes recommendations to the National Narcotics Control Board on policies, measures, plans, matters or projects relating to the abuse of drugs. The Board is a separate body established by the same Act. Its functions include initiating and implementing policies on drug abuse. The Director of the Bureau is appointed under Section 14 and is responsible amongst other things for the proper administration of the Act and the general working and efficient conduct of the Bureau. It has become conventional to call the Director the “Director-General”. The latter term is a colloquialism, indicative of tardy nomenclature, and is avoided in this judgment unless reference is made to a document in which it is used. The Director and such other staff as are considered necessary by the Director constitute the staff of the Bureau whose terms and conditions are determined under the Public Services (Management) Act 1995.

3. In 1998, after five years as a non-contract officer, the plaintiff entered into a three-year written contract of employment with the State. It provided that he would be employed as Director, Research, Policy and Planning in the National Narcotics Bureau (the position he had occupied since 1993). The period of the contract was from 30 June 1998 to 29 June 2001. The contract provided for termination of employment (clause 19) and for disciplinary procedures for serious disciplinary matters (clause 25). Employment in the Public Service after expiry of the contract was dealt with in clause 27. Provision was made for further employment but it was not guaranteed.

4. On 9 May 2000 the plaintiff was served with a document containing three disciplinary charges, which stated:

SUBJECT: NOTICE OF CHARGE UNDER SECTION 47 OF THE PUBLIC SERVICE (MANAGEMENT) ACT [sic]

Take Notice that you are hereby charged with committing an offence within the meaning of Section 45 of the Public Service (Management) Act, [sic] and the facts are as follows:

(a) You have continuously absented yourself from duties without any good explanation as of the 17th April 2000 to the date of this notice.

(b) That you have failed to perform your duties by delaying a UNDCP project (the RAPID SITUATION ASSESSMENT) for more than 21 (twenty one) months.

(c) That you have shown insubordination since I resumed duties as the Director General of the Bureau.

Take further notice that, in accordance with Section 47(4) of the Act, I hereby call you to state in writing, whether you admit the truth of the above charges and give your written explanation for my consideration.

You are to reply to the above charges within 7 (seven) days, and take note that, if there is no reply within the given time frame, you may be deemed to have admitted the truth of the charge.

5. The plaintiff responded to the charges in writing on 18 May 2000, denying all of them.

6. On 18 August 2000 the first defendant wrote a letter to the plaintiff headed “Note of Termination”, which...