Prai Ipandi v Robin Guria, Director, Magisterial Service and The Independent State Of Papua New Guinea (2010) N3830

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 January 2010
• Court: National Court
• Citation: (2010) N3830
• Docket Number: OS (JR) NO 571 OF 2007
• Year: 2010
• Judgement Number: N3830

Full Title: OS (JR) NO 571 OF 2007; Prai Ipandi v Robin Guria, Director, Magisterial Service and The Independent State Of Papua New Guinea (2010) N3830

National Court: Cannings J

Judgment Delivered: 22 January 2010

N3830

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 571 OF 2007

PRAI IPANDI

Plaintiff

V

ROBIN GURIA,

DIRECTOR, MAGISTERIAL SERVICE

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2009: 19 June,

2010: 22 January

ADMINISTRATIVE LAW – disciplinary procedures for officers of National Judicial Staff Service and Magisterial Service – whether an officer employed by Magisterial Service can be charged by Director of Magisterial Service and dealt with under Public Services (Management) Act – whether notice of charge is so confusing or vague as to amount to a denial of natural justice.

The plaintiff was in 1992 employed by the National Judicial Staff Service as a security guard. At that time the NJSS was responsible under the National Judicial Staff Service Act 1988 for providing administrative support for the Supreme Court, the National Court and the District Courts. In 2003 the administrative support system for the District Courts was separated from the Supreme Court and the National Court and transferred to the Magisterial Service. The plaintiff was transferred to the Magisterial Service. In 2005 he was charged by the Director of the Magisterial Service with a disciplinary offence. He responded to the charge but was found guilty and dismissed from the Magisterial Service. He sought judicial review of the decision to dismiss him on two grounds: (1) the Director had no power to charge or punish him, as he was still an officer of the NJSS and could only be charged and punished by the Secretary of the NJSS; and (2) the notice of charge was so vague and confusing that he was denied natural justice.

Held:

(1) There have been no changes to the legislation regarding the NJSS or the Magisterial Service to reflect the administrative separation of the two Services in 2003. Officers such as the plaintiff who are in fact employed by the Magisterial Service remain as a matter of law officers of the NJSS. Any disciplinary charges against them must be laid and determined under the NJSS Act.

(2) A disciplinary charge must be framed in terms of the provision creating the disciplinary offence and the notice of charge must give sufficient details of the allegations to enable the person charged to know what the allegations are.

(3) The Director of the Magisterial Service had no power to lay a disciplinary charge against the plaintiff. Such a charge could only be laid by the Secretary of the NJSS and determined under the NJSS Act. The entire disciplinary process in this case was defective.

(4) The notice of charge was defective in that it was headed “notice of punishment” and it failed to include sufficient details of the allegations. It was an unintelligible document, drafted in such a manner that the plaintiff was denied natural justice.

(5) The court ordered that the plaintiff be reinstated and paid back-pay to the date of commencement of the proceedings.

Cases cited

The following cases are cited in the judgment:

Bakani and OPIC v Daipo (2001) SC659

Clement Kilepak v Ellison Kaivovo (2003) N2402

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

Gideon Barereba v Margaret Elias (2002) N2197

John Magaidimo v Commissioner of Police (2004) N2752

Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Morobe Provincial Government v Minister for Village Services (1994) N1215

Paul Pora v Commissioner of Police (1997) N1569

Peter Luga v Richard Sikani (2002) N2285

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

The State v James Yali (2006) N2989

Winmarang v Ericho and The State (2006) N3040

Counsel

W Hagahuno, for the plaintiff

G Emang, for the defendants

22 January, 2010

1. CANNINGS J: Prai Ipandi, the plaintiff, was employed by the National Judicial Staff Service as a security guard in February 1992. He was made a ‘permanent’ officer of the NJSS in June 1999. At that time the NJSS was responsible under the National Judicial Staff Service Act 1988 for providing administrative support for the Supreme Court, the National Court and the District Courts. In 2003 the administrative support system for the District Courts was separated from the Supreme Court and the National Court and transferred to the Magisterial Service. The plaintiff was transferred to the Magisterial Service. In 2005 he was charged by the Director of the Magisterial Service with a disciplinary offence. He responded to the charge but was found guilty and dismissed from the Magisterial Service.

2. Aggrieved by his dismissal the plaintiff applied for and was granted leave to seek judicial review of the Director’s decision to dismiss him. This is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

3. The plaintiff set out nine grounds of review in his supporting statement but they can be boiled down to two. He is arguing that his dismissal was defective in two respects:

· the Director had no power to charge or punish him, as he was still an officer of the NJSS and could only be charged and punished by the Secretary of the NJSS; and

· the notice of charge was so vague and confusing that he was denied natural justice.

4. They are the two grounds of review. If either or both are upheld the plaintiff wants the Court to declare that his dismissal was unlawful and null and void and to order that it be quashed and that he be reinstated and paid back-pay.

ISSUES

5. There are three issues before the Court:

1 Did the Director lack power to charge and punish the plaintiff?

2 Was the plaintiff denied natural justice?

3 What declarations or orders should the Court make?

1 DID THE DIRECTOR LACK POWER TO CHARGE AND PUNISH THE PLAINTIFF?

6. The plaintiff’s argument is straightforward. He says that though the administrative arrangements for the NJSS and the Magisterial Service were altered radically in 2003, nothing was done to change the law. He remained an officer of the NJSS and he could only be charged with a disciplinary offence under the NJSS Act. To test this proposition it is necessary to examine the NJSS Act.

7. Section 2 of the Act established the NJSS, which consists of the Secretary, the Register and Deputy Registrars and other employees and officers of the Service. Its functions, spelt out in Section 3, are to provide:

(a) legal, secretarial and clerical staff to enable the Courts to operate efficiently; and

(b) research, legal and other services for the Courts; and

(c) an efficient Court reporting service; and

(d) adequate library services for the Courts; and

(e) attendants, interpreters and other staff to ensure the efficient functioning of the Courts.

The term “the Courts” is defined by Section 1 to mean the Supreme Court, the National Court and the District Courts.

8. The Office of the Secretary of the NJSS is established by Section 4. Officers and employees are appointed by the Secretary under Sections 12 and 13. Disciplinary matters concerning officers of the NJSS are dealt with in Part III (Sections 14 to 26). Disciplinary offences are created by Section 14. The Secretary is responsible for laying and determining disciplinary charges. He has the discretion to deal with a matter as a minor disciplinary offence under Section 15 or a serious disciplinary offence under Section 16. If the Secretary is of the opinion that a serious disciplinary offence has been sustained he may impose a fine, reduce the officer’s pay, demote or transfer the officer or recommend to the Judicial Council (established by Section 3A) that the officer be dismissed from the NJSS.

9. An officer aggrieved by the Secretary’s determination of a disciplinary matter has under Sections 16(7) and 19 a right of appeal to the Appeal Tribunal, which is constituted under Section 18 by a Judge or Principal Magistrate. Except where the Tribunal recommends that the officer be dismissed, its decision is final. If the Tribunal recommends dismissal its recommendation goes to the Judicial Council, which is required to consider the matters prescribed by Section 19(6) before imposing a punishment.

10. The Secretary may under Section 9 delegate any of his powers or functions under the Act to another person, including any or all of his disciplinary powers and functions under Part III. The present Secretary, Mr Ronald Silovo, has given evidence that he has not delegated any of those powers or functions to any person within the Magisterial Service.

11. The question therefore arises whether there has been any change in the law to reflect the administrative reorganisation of the Courts that took place in 2003. Mr Emang, for the defendants, conceded that the law had not been changed but submitted that that was...