Pombros Maliu v Samuel K Geno

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 April 2013
• Citation: (2013) N5144
• Court: National Court
• Year: 2013
• Judgement Number: N5144

Full : OS (JR) NO 387 of 1999; Pombros Maliu v Samuel K Geno, Director-General of Civil Aviation and The Independent State of Papua New Guinea,Second Defendant (2013) N5144

National Court: Cannings J

Judgment Delivered: 15 April 2013

N5144

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 387 OF 1999

POMBROS MALIU

Plaintiff

V

SAMUEL K GENO, DIRECTOR-GENERAL OF CIVIL AVIATION

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2013: 19 March, 15 April

JUDICIAL REVIEW – failure to comply with recommendation of Public Services Commission as to review of personnel matter – Public Services (Management) Act – remedies – when appropriate to award damages in judicial review proceedings.

The plaintiff was an officer of a government office. The head of the office retrenched the plaintiff upon receiving a notice of resignation signed by the plaintiff, who later claimed that he had been tricked into signing it. The office head refused to change his decision so the plaintiff complained to the Public Services Commission, which inquired into the matter and recommended to the office head that the decision to retrench the plaintiff be revoked and that the plaintiff be reinstated and paid back-pay. The office head rejected the recommendation on the grounds that the office had not been given a fair hearing and that the plaintiff had intended to resign. The plaintiff applied for judicial review of the decisions of the office head to retrench him and to reject the recommendation of the Public Services Commission, seeking orders for payment of lost salary and entitlements and damages.

Held:

(1) No proper grounds were argued for reviewing the decision to retrench the plaintiff, so that part of the application for judicial review was refused.

(2) As to the decision to reject the recommendation of the Public Services Commission, it was made prior to the 2003 amendments to the Public Services (Management) Act under which decisions of the Public Services Commission, upon review of personnel matters, are binding.

(3) Though the Public Services Commission made a recommendation as distinct from a decision it was nevertheless the duty of the office head to either adopt the recommendation or provide cogent and convincing reasons for rejecting it (Mision Asiki v Manasupe Zurenuoc (2005) SC797 applied).

(4) The office head failed to comply with his duty as he rejected the recommendation and failed to provide cogent and convincing reasons for doing so. Error of law was established and the decision was susceptible to judicial review.

(5) All remedies in judicial review proceedings are discretionary and here the Court exercised its discretion to refuse the primary relief (back-pay) sought by the plaintiff because of the extraordinary delay in bringing the matter to trial which was not adequately explained by the plaintiff and the unjustified windfall gain that would result from back-payment of 25 years of salary and entitlements. However, an award of damages was appropriate, which was assessed in the sum of K10,000.00.

Cases cited

The following cases are cited in the judgment:

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094

Anthony John Polling v MVIT [1986] PNGLR 228

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

Bau Waulas v Veronica Jigede (2009) N3781

Dale Christopher Smith v Minister for Lands (2009) SC973

John Mark v National Housing Corporation (1999) N1924

Lawrence Sausau v Joseph Kumgal (2006) N3253

Mathew Mononga v The Secretary for Health (2002) N2407

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Niugini Mining Limited v Joe Bumbandy (2005) SC804

Paul Asakusa v Andrew Kumbakor (2009) N3303

Tau Kamuta v David Sode (2006) N3067

Counsel

L Mamu, for the plaintiff

E Geita, for the second defendant

15th April, 2013

1. CANNINGS J: This is a very old judicial review case. The plaintiff Pombros Maliu, who is now aged 58, joined the Department of Civil Aviation at the age of 19 in 1974. He held a Labourer position. He was in 1981 promoted to the position of Linesman Assistant at Jackson’s Airport, Port Moresby. He held that position, an office in the National Public Service, until 11 December 1987 when he was retrenched by the Director-General of Civil Aviation (the first defendant) who acted on a notice of resignation that was signed by the plaintiff. The plaintiff disagreed with his retrenchment, claiming that he had been tricked into signing the resignation notice and did not know what he was signing. The Director-General rejected the plaintiff’s plea for reinstatement and the plaintiff complained to the Public Services Commission, which inquired into the matter and recommended on 18 October 1993 to the Director-General that his decision to retrench the plaintiff be revoked and that the plaintiff be reinstated and paid back-pay. The Director-General on 28 May 1996 rejected the recommendation on the grounds that the Department had not been given a fair hearing and that the plaintiff had intended to resign. On 28 July 1999 the plaintiff commenced the present proceedings in the National Court. On 19 August 1999 the Court granted him leave to seek judicial review. His application for review was heard on 19 March 2013. How the case managed to survive for more than 13 years without being dismissed or determined is a mystery but survive it has, as well as the plaintiff. I am determining an application for judicial review of two decisions of the Director-General:

· the decision of 11 December 1987 to retrench the plaintiff; and

· the decision of 28 May 1996 to reject the recommendation of the Public Services Commission.

2. The plaintiff does not seek reinstatement but wants the Court to order payment of the salary and entitlements he has lost since the date of his retrenchment – about 25 years worth of benefits. He also seeks damages. I will review the two decisions separately before considering what orders the court should make.

THE FIRST DECISION: 11 DECEMBER 1987

3. I reject the application for review of this decision as there are no proper grounds of review set out in the statement under Order 16, Rule 3(2)(a) of the National Court Rules. The Order 16 statement is a critical document in any judicial review. It must set out precisely the grounds of review relied on to vitiate the decision being challenged. The grounds must be recognised by law as proper grounds upon which judicial review is available and refer to the statutory provision or common law duty alleged to have been breached (Paul Asakusa v Andrew Kumbakor (2009) N3303). Here the ground relied on to challenge the decision to retrench the plaintiff was that the Director-General did not determine the ‘veracity’ of the resignation notice and that this amounted to negligence. It was not claimed that the Director-General erred in law or took into account irrelevant considerations or acted unreasonably or breached any statutory or common law duty or exceeded his jurisdiction or acted in any other way falling within any established ground of judicial review. The Order 16 statement is just an invitation to the Court to revisit the merits of the decision, which is not permissible. Hence the application for judicial review in respect of the first decision is refused.

THE SECOND DECISION: 28 MAY 1996

4. The Order 16 statement (which was not drafted by the plaintiff’s present lawyer, the Public Solicitor) is in respect of the second decision adequately drafted. The ground of review that can be discerned is that the decision to reject the PSC recommendation was harsh, oppressive and unwarranted, in other words it was so unreasonable no reasonable decision-maker in the position of the Director-General could have rejected the PSC recommendation. This can be regarded as an unreasonableness argument in terms of the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Does the argument have merit?

5. It must be borne in mind that when the Director-General made his decision the Public Services Commission did not make binding decisions on review of personnel matters. It now makes binding decisions by virtue of amendments in 2003 to the Public Services (Management) Act) but prior to those amendments the Public Services Commission only made recommendations (Ambrose Vakinap v Thaddeus Kambanei (2004) N3094). It is evident that in the 1990s many recipients of Public Services Commission recommendations, such as the Director-General in this case, took the view that a recommendation was just a suggestion and as...