Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission and Douglas Apeng and The Independent State of Papua New Guinea (2009) N3722

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 August 2009
• Court: National Court
• Citation: (2009) N3722
• Docket Number: OS (JR) NO 66 OF 2007
• Year: 2009
• Judgement Number: N3722

Full Title: OS (JR) NO 66 OF 2007; Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission and Douglas Apeng and The Independent State of Papua New Guinea (2009) N3722

National Court: Cannings J

Judgment Delivered: 20 August 2009

N3722

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 66 OF 2007

PAUL DOPSIE

Plaintiff

V

JERRY TETAGA, CHAIRMAN, PUBLIC SERVICES COMMISSION

First Defendant

DOUGLAS APENG

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2009: 12 June, 20 August

JUDICIAL REVIEW – unreasonableness – whether the decision of the Public Services Commission on a review of a personnel matter was so unreasonable or absurd no reasonable decision-maker could have made it – remedies – whether appropriate to quash a decision of the Public Services Commission found to be unreasonable.

An officer of a public hospital took unapproved leave without pay for a period of 19 months. He returned to the hospital at the end of that period but the chief executive officer refused to reinstate him. The officer complained to the Public Services Commission, which reviewed the chief executive officer’s decision and found in favour of the officer and decided that he should be reinstated. Its reasons were that the chief executive officer had terminated the officer without following the disciplinary procedures in the Public Service General Orders. The chief executive officer sought judicial review of the PSC’s decision on the ground of unreasonableness.

Held:

(1) The test to apply for the purposes of determining whether an administrative decision has been made unreasonably is to ask whether the decision is so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker would have made the decision.

(2) The test was satisfied in this case as: the officer had been absent without leave for a considerable period and could have had no reasonable expectation that he would be reinstated upon returning from leave; an officer who is absent without leave for an extended period can properly be regarded as having resigned, making it unnecessary to lay disciplinary charges against him; the chief executive officer acted reasonably by recruiting a replacement officer; and, generally, the PSC’s decision was irrational as it had the effect of rewarding an officer who had acted improperly and unlawfully and penalising the chief executive officer, who had acted reasonably, and the hospital he was responsible for running.

(3) The decision of the PSC was accordingly declared null and void and quashed.

Cases cited

Papua New Guinea Cases:

Aegaiya v Baki and The State (2009) N3693

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094

Dale Christopher Smith v Minister for Lands (2009) SC973

Isaac Lupari v Sir Michael Somare (2008) N3476

Paul Saboko v Commissioner of Police (2006) N2975

Overseas cases:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Counsel

P Harricknen, for the plaintiff

G Emang, for the first and third defendants

20 August, 2009

1. CANNINGS J: The plaintiff, Paul Dopsie, is the Chief Executive Officer of Vanimo General Hospital. He is applying for judicial review of a decision of the Public Services Commission. The decision was to uphold a complaint by a former health extension officer at the hospital, Douglas Apeng, the second defendant.

2. Mr Apeng took leave without pay in May 2003 to take up a position with a health project in Madang. The hospital’s Director of Medical Services strongly advised him not to take leave as his absence would disrupt the hospital’s operations. He was told that his position would be advertised and that he would probably lose it. Mr Apeng, however, took leave without pay, which was not approved, and then the hospital recruited a replacement. Mr Apeng returned to Vanimo in January 2005 and asked to be reinstated to his former position. The then chief executive of the hospital, Mark Mauludu, told him that that was not possible as someone else was occupying the position and that there was no other position for him. He refused to reinstate Mr Apeng. Aggrieved by that decision, Mr Apeng complained to the PSC which conducted a review of Mr Mauludu’s decision under Section 18 (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act 1995.

3. The PSC annulled Mr Mauludu’s decision. It was decided that:

· the implied termination of Mr Apeng was of no effect;

· he was to remain an officer of Vanimo General Hospital on his substantive position;

· all salaries and entitlements lost as a result of the implied termination were to be reimbursed to him;

· an additional position was to be created equal in classification to Mr Apeng’s position to be filled by the officer who had been recruited in Mr Apeng’s absence.

4. Its’ reasons were that the CEO had terminated the officer without following the disciplinary procedures in the Public Service General Orders.

5. Section 18(3)(d)(ii) of the Public Services (Management) Act states that decisions of the PSC become binding after 30 days. That does not, however, prevent a person with a sufficient interest in the matter seeking judicial review of a PSC decision (Ambrose Vakinap v Thaddeus Kambanei (2004) N3094), which is what has happened here.

6. Mr Mauludu’s successor, Mr Dopsie, applied for leave to seek judicial review of the PSC’s decision. Leave was granted and this is a trial of the substantive application for judicial review.

THE GROUND OF REVIEW AND THE RELIEF SOUGHT

7. One ground of judicial review is relied on: the decision of the PSC was unreasonable under the Wednesbury principles. If it is upheld the plaintiff wants the PSC’s decision declared null and void and quashed.

ISSUES

8. There are two issues before the Court:

1 Was the decision of the PSC unreasonable?

2 If yes, what declarations or orders should the Court make?

1 WAS THE DECISION OF THE PSC UNREASONABLE?

9. The argument that an administrative decision is unreasonable under the Wednesbury principles is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The test to apply is:

· is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision? (Paul Saboko v Commissioner of Police (2006) N2975.)

10. If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded his jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure.

11. I consider that the test is satisfied in this case. Mr Apeng was told before he left Vanimo that he was taking leave without approval and that his job would probably be filled in his absence. He was absent for 19 months and could have had no reasonable expectation that he would be reinstated upon returning from leave.

12. An officer who is absent without leave for an extended period can properly be regarded as having resigned. This makes it unnecessary to lay disciplinary charges. The CEO, Mr Mauludu, could have laid disciplinary charges and with the benefit of hindsight might have made...