Tom B Gesa v Bernard Kipit City Manager National Capital District Commission and National Capital District Commission (2003) N2457

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 06 August 2003
• Court: National Court
• Citation: [2003] PNGLR 68
• Year: 2003
• Judgement Number: N2457

Full Title: Tom B Gesa v Bernard Kipit City Manager National Capital District Commission and National Capital District Commission (2003) N2457

National Court: Kandakasi J

Judgment Delivered: 6 August 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 257 OF 2003

TOM B. GESA

Plaintiff/Applicant

AND:

BERNARD KIPIT

CITY MANAGER

NATIONAL CAPITAL DISTRICT COMMISSION

First Defendant/Respondent

AND:

NATIONAL CAPITAL DISTRICT COMMISSION

Second Defendant/Respondent

WAIGANI: KANDAKASI, J.

2003: 26th May

6th August

JUDICIAL REVIEW - Application for leave for judicial review – Termination of a written employment contract – Whether normal disciplinary process of the National Capital District Commission and the Public Service applies? – Effect of written contract – Contract speaks for itself – No provision made for application of National Capital District Commission and or Public Service disciplinary process to apply – Such process does not apply – Judicial review is not available – Leave for judicial denied.

CONTRACT - Written contract of employment – Termination of - Whether pubic service disciplinary process a term and part of the contract? – Answer dependent on the terms of the contract – No extrinsic evidence can be allowed to add to or subtract from what is provided for in the written contract – Public Service disciplinary process not part of the contract.

EVIDENCE - Written Contract of employment - No extrinsic evidence can be allowed to add or subtract from the terms of a written contract – Effect of – Conduct contrary to terms of contract does not amount to variation of contract by conduct.

Cases Cited:

Mathew Himsa & Napao Namane v. Richard Sikani & Ors (08/11/02) N2307.

Ku Kalopei v Assistant Commissioner of Police & Ors (22/10/02) N2342.

John Kopil v. Malcolm Culligan & The State (28/06/95) N1333.

Sulaiman v. PNG University of Technology Unreported National Court (20/08/87).

Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494.

Leo Nuia v. The State (29/08/00) N1986.

Legu Vagi v. NCDC (23/08/02) N2280.

Counsel:

Mr. P. Mawa for the Plaintiff/Applicant.

Mr. J. Aisa Jnr. for the Defendant/Respondents.

6th August 2003

KANDAKASI, J: This is an application for leave for judicial review by Mr. Tom B. Gesa. His application came before me on the 26th of May 2003 after a number of mentions earlier during motions. At that time, I informed the parties that I was going to be away on circuit the following month and did not know where I would be in July. I therefore, asked the parties to go before the motions judge in June. They however preferred and agreed that I should deal with the matter in terms of a trial by affidavit and written submissions. These would then be considered after which a decision could be delivered when I am able to.

On account of my being away on circuit in June and being committed to trial matters in July 2003, I was not able to give any consideration to this matter until late last month. Hence the timing of this judgement.

Background and the Parties Arguments

Mr. Gesa was employed as the Deputy City Manager, Community and Social Services of the National Capital District Commission (NCDC). He was suspended from duties for alleged mismanagement, charged and eventually a decision was taken to terminate him. Mr. Gesa claims however, that following an appeal against that decision to the Full Board of the NCDC, the first defendant, Mr. Kipit was directed on the 25th of February 2003 to reinstate him but that has not happened. Instead, on the 24th of April 2003, Mr. Kipit decided not to give effect to the Full Board’s decision. Mr. Gesa is therefore seeking a review of Mr. Kipit’s failure to reinstate him.

The defendants did not take issue on nearly all of the requirements that must be met before leave for judicial review can be granted. The main argument for the defendants is that, this is not an appropriate case for judicial review. This is so they say because Mr. Gesa was employed under a written contract of employment. That they argue effectively removed Mr. Gesa’s case out of the public administrative law domain and rendered his employment with the NCDC, a private contractual matter. Consequently, they argue that judicial review is not available as a remedy. Instead, he is entitled to sue for damages for breach of contract, if he can prove unlawful termination of his employment contract. They refer to and rely on my own judgement in Mathew Himsa & Napao Namane v. Richard Sikani & Ors (08/11/02) N2307, where I held, that was the case in a similar contractual situation for two written employment contracts of in the public service.

Issues

From these arguments and the background, there is only one main issue for me to resolve. The issue is, having regard to the written contract of employment between the parties, whether judicial review is available as a remedy to Mr. Gesa?

Evidence

The relevant evidences in this matter are set out in a number of affidavits. For Mr. Gesa are the affidavits of:

1. Himself sworn and filed on the 21st and 29th May 2003.

2. Jack Pidik sworn on the 15th and filed on the 21st of May 2003.

3. Susan Setae sworn on the 15th and filed on the 21st of May 2003.

4. Michael Malabag sworn on 15th and filed on 21st May 2003.

5. James Wasilolo sworn on the 15th and filed on the 21st of May 2003.

As for the NCDC are the affidavits of:

1. Bernard Kipit sworn on the 25th and filed on the 26th of May 2003, which annexes an affidavit deposed to by the deponent on the 9th of May 2003, under OS 226 of 2003 between the same parties; and

2. Rarua Gamu sworn and filed on the 28th of May 2003.

From these affidavits, it is clear to me that Mr. Kipit is the City Manager and is responsible by reason of that for the administration and management of the NCDC. He is the authorised custodian of all documents and information regarding the administration and management of the NCDC. This also includes the employment of its officers and employees.

Mr. Gesa was initially employed on the 18th of October 2001 under a written contract dated the same day. It was for a period of three years commencing 18th of October 2001 and ending on the 18th of October 2004. That contract was superseded by another written contract dated the 7th of March 2002 for a period of three years, commencing 7th of March 2002 and ending on the 7th of March 2005. In both instances, Mr. Kipit signed the contracts for and on behalf of the NCDC under the seal of the NCDC and Mr. Gesa in the witness of another person. A O. Teko signed on his own behalf.

By a memo dated 9th September 2002, Mr. Kipit suspended Mr. Gesa and required Mr. Gesa to show cause as to why he should not be terminated on a number of grounds or allegations. A period of 7 days was given to Mr. Gesa to respond and he did on the 11th of September 2002. On the 11th of December 2002, the matter went before the Finance and Executive Committee of the NCDC. That committee recommended a termination of the contract of employment and referred it to the Full Board of the NCDC to deliberate on and make a decision.

The Full Board met on the 17th December 2002 and resolved to terminate the services of the plaintiff. Acting on that decision, Mr. Kipit forwarded a letter dated 30th December 2002 to Mr. Gesa, terminating his employment with the NCDC. On the 7th of January 2003, Mr. Gesa appealed to the Full Board of the NCDC against the decision to terminate him. The Full Board met on 18th January 2003 and decided that a review committee be established to review the decision of the Full Board’s decision of the 17th December 2002 to terminate his services. The relevant part of the resolution of that meeting reads:

“On the motion of Mr. Malabag and seconded by Mr. Pidik, the full Commission agreed and resolved:

1. that the Previous Resolution No. FB04-08-02- Termination of Mr. Tom Gesa, is reviewed; and

2. that the Committee of Commissioners and other NCDC Committee members are appointed by the Chairman to review Resolution No. FBO4-08-02”

It is not clear who was appointed by the Chairman to review the Full Board’s decision of the 17th of December 2002. However, going by a letter dated 13th March 2003 to Mr. Kipit jointly signed by the Chairman and Susan Setae, Deputy Chairperson; Michael Malabag, Commissioner; and James Waselolo, these persons appear to have been appointed as the Review Committee. This Committee met on the 25th of February 2003 and decided to reinstate Mr. Gesa. There are no minutes of the committee’s meeting, which is at odds with the affidavit of Mr. Rarua Gamu, Manager, Assembly Services of the NCDC. The decision was communicated to Mr. Kipit...