Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission and Christopher Kabaru and The Independent State of Papua New Guinea (2009) N3720

• Jurisdiction: Papua New Guinea
• Judge: J Cannings
• Judgment Date: 20 August 2009
• Court: National Court
• Citation: (2009) N3720
• Docket Number: OS (JR) NO 67 OF 2007
• Year: 2009
• Judgement Number: N3720

Full Title: OS (JR) NO 67 OF 2007; Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission and Christopher Kabaru and The Independent State of Papua New Guinea (2009) N3720

National Court: J Cannings

Judgment Delivered: 20 August 2009

N3720

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 67 OF 2007

PAUL DOPSIE

Plaintiff

V

JERRY TETAGA, CHAIRMAN, PUBLIC SERVICES COMMISSION

First Defendant

CHRISTOPHER KABARU

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2009: 17 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.

The chief executive officer of a public hospital charged an officer of the hospital with two disciplinary charges, found him guilty and terminated his employment. The officer complained to the Public Services Commission, which reviewed the chief executive officer’s decision and found that the guilty findings were correct but the penalty of termination was too harsh. It annulled the termination and decided that the officer should be reinstated. Its reasons were that the chief executive officer had failed to take account of a number of relevant considerations and failed to give the officer a right to be heard on the question of penalty. 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 not satisfied in this case as: the PSC articulated in a logical and coherent manner the considerations that it considered the CEO had failed to consider, including its view that the officer found guilty had a right to be heard on penalty; the PSC’s decision was neither irrational nor absurd and it could not be said that no reasonable decision-maker in its position could not have formed the view that it did.

(3) The relief sought by the plaintiff was accordingly refused and the PSC’s decision affirmed.

Cases cited

Papua New Guinea Case

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094

Jeffery Afozah v Commissioner of Police (2008) N3300

John Unido v Commissioner of Police (2008) N3369

Paul Saboko v Commissioner of Police (2006) N2975

Overseas Cases:

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

Abbreviations

The following abbreviations appear in the judgment:

Counsel

P Harricknen, for the plaintiff

O Avorosi, for the second defendant

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 to uphold a complaint by the hospital’s former Director of Finance and Administration, Christopher Kabaru, the second defendant.

2. Mr Dopsie’s predecessor, Mr Mark Mauludu, laid two disciplinary charges against Mr Kabaru in 2004. One alleged insubordination and the other, misappropriation of hospital funds. He was found guilty and terminated from employment at the hospital. Aggrieved by both the decision that he was guilty and the decision to impose the penalty of termination, Mr Kabaru complained to the PSC which conducted a review of Mr Mauludu’s decisions under Section 18 (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act 1995.

3. The PSC found that the guilty findings were correct but the penalty of termination was too harsh. It annulled the termination and decided that Mr Kabaru should be reinstated. Its reasons were that Mr Mauludu had erred in his decision making by failing to take account of a number of relevant considerations:

· that this was the first time that Mr Kabaru had faced disciplinary action in his short stint at the hospital;

· that he had been recruited from the private sector and is a very qualified and experienced officer who the hospital cannot afford to lose;

· Mr Kabaru’s track record.

4. Also, the PSC said that Mr Kabaru was not given a right to be heard on penalty, which he was entitled to.

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, that 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 its 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.

Specific arguments raised in Order 16, Rule 3(2)(a) statement

11. The plaintiff argues that the test of unreasonableness is satisfied in that the PSC failed to consider two matters:

· the fact that Mr Kabaru had committed two serious disciplinary offences; and

· the matters set out in Section 18(2)(c)(i) of the Public Services (Management) Act 1995.

Did PSC ignore the seriousness of the offences?

12. I am unable to accept the first submission as the PSC clearly appreciated the seriousness of the offences. It rejected Mr Kabaru’s views that the charges against him were motivated by retaliation. This matter has a long history. Mr Kabaru had earlier prepared a report making allegations against Mr Mauludu that resulted in Mr Mauludu being suspended as CEO. The PSC considered the history of the matter, rejected Mr Kabaru’s argument and sustained the guilty findings. The PSC did not fail to consider the seriousness of the matter.

Section 18(2)(c)(i)

13. As to Section 18(2)(c)(i) of the Act, it is a key provision that the PSC is obliged to apply in all reviews of personnel matters. It states:

The Commission shall … consider all the facts relative to the matter, including—

(A) the views of the persons summonsed under Paragraph (a); and

(B) the personnel management policies of the National Public Service; and

(C) the cost implications of any decision which it may make.

14. There are two observations to make concerning this provision. First, it is mandatory for the PSC to consider “all the facts relative to the matter”, which must include the matters (A), (B) and (C). Secondly, while I think it is desirable for the record of the PSC’s decision to include a part that expressly identifies those matters, it is not necessary that its decision be set out that way. The Act is silent on the format of a decision. It follows that provided the record of the decision demonstrates that the PSC has in fact (even if only impliedly or tacitly) considered the prescribed matters, the requirements of Section 18(2)(c)(i) will have been complied with.

15. In this case I am satisfied, having examined the record of the decision, that all of the prescribed matters were in fact considered.

16. I therefore reject the two specific arguments that were relied on by the plaintiff to support the unreasonableness ground of review.

General arguments

17. In addition to those specific arguments there were more general arguments raised by the plaintiff’s counsel, Mr Harricknen, in the course of the hearing:

· that the PSC was wrong in saying that Mr Kabaru was entitled to a hearing on the question of penalty;

· that the PSC was wrong in questioning the severity of the penalty;

· that the PSC failed to consider internal reports and the record of proceedings of the hospital disciplinary committee and other information made available to it;

· that the PSC had ignored the serious breach of trust committed by Mr Kabaru,...