Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea (2005) SC797

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 28 October 2005
• Citation: (2005) SC797
• Docket Number: SCA No 162 of 2004
• Year: 2005

Full Title: SCA No 162 of 2004; Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea (2005) SC797

Supreme Court: Jalina J, Cannings J, Manuhu J

Judgment Delivered: 28 October 2005

1

Administrative law—judicial review of decisions of provincial administrator to terminate employment of public official and to refuse a recommendation from the Public Services Commission for reinstatement—application for judicial review under National Court Rules, O16.

Supreme Court—appeals—whether Supreme Court can make orders for judicial review where error of law made by trial judge—whether matter should be remitted to National Court.

Practice and procedure—Claims By and Against the State Act 1996, s5—notice of intention to make claim—whether notice under s5 must be given prior to commencement of proceedings under National Court Rules, O16.

Constitutional Law—Public Services Commission—review of personnel matter in the Public Service—recommendation for reinstatement—refusal to comply with recommendation—status of recommendations made by Public Services Commission—duty of respondent to implement recommendation or give cogent and convincing reasons for failure to implement.

Judgments and orders—appropriate orders for judicial review—whether appropriate to order reinstatement of a person unlawfully dismissed from office—whether appropriate to order payment of entitlements lost.

The appellant was an officer of a provincial administration. He was investigated by the provincial administration for misconduct. The provincial administrator laid disciplinary charges, heard from the officer and then dismissed him, terminating his employment. The appellant sought review of that decision by the Public Services Commission, which considered the matter and having found procedural errors recommended to the provincial administrator that the appellant be reinstated. The provincial administrator did not accept the recommendation and wrote to the appellant, notifying him that his original decision remained. The appellant applied to the National Court for leave to seek judicial review of the decisions of the provincial administrator, firstly, to dismiss him and, secondly, to not act on the recommendations of the Public Services Commission. The National Court granted leave and the matter was set down for substantive review. The National Court refused judicial review on the ground that the appellant had not, prior to commencement of the proceedings in the National Court, given notice of his intention to make a claim against the State under s5 of the Claims By and Against the State Act 1996. The appellant appealed against the refusal of judicial review.

Held:

(1) The notice requirements of the Claims By and Against the State Act 1996 apply only to actions that are founded on contract or tort or breaches of constitutional rights.

(2) S5 does not apply to actions seeking orders in the nature of prerogative writs commenced under O16 of the National Court Rules, as O16 provides a comprehensive and exclusive procedure for judicial review. Frederick Martins Punangi v Sinai Brown (2004) N2661 approved.

(3) The appellant was under no obligation to give notice under s5 and, having been granted leave, ought to have had the merits of his application for judicial review determined by the National Court.

(4) The Supreme Court, having found error by the trial judge, is authorised to set aside the judgment of the National Court and make all orders that could have been made by the National Court.

(5) A provincial administrator, being the equivalent of a departmental head, having received a recommendation from a constitutional institution, the Public Services Commission, to reinstate a person to his former position, has a duty to either implement the recommendation or give cogent and convincing reasons for failure to do so.

(6) The duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. If no reasons are given it is to be inferred that there were no good reasons for the decision being made. Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66 approved.

(7) In circumstances where it is clear that a duty imposed on a provincial administrator by or under a Constitutional Law has been breached and that an error has been made by the National Court, it is in the interests of justice for the Supreme Court to judicially review the administrative decisions of the provincial administrator and make orders calculated to avoid a further multiplicity of proceedings.

(8) Accordingly, the Supreme Court ordered the reinstatement of the appellant and the payment to him of the salary and emoluments lost because of his unlawful dismissal.

Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, Aloysius Eviaisa v Sir Mekere Morauta (2001) N2744, Application of Rickobert Petau (2004) N2687, John Bokin v The State (2001) N2111, Clement Kilepak v Ellison Kaivovo (2003) N2402, Daniel Hewali v PNG Police Force [2002] PNGLR 146, Frederick Martins Punangi v Sinai Brown as Minister for Public Service, Sir Michael Somare as Chairman of the National Executive Council and The State (2004) N2661, Gideon Barereba v Margaret Elias (2002) N2197, Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66, Graham Kevi v Teaching Service Commission (1997) N659, Jim Kas v The State (2000) N2010, John Kombati v Fua Singin and Others (2004) N2691, Attorney–General Michael Gene v Pirouz Hamidian–Rad [1999] PNGLR 444, John Magaidimo v Commissioner of Police (2004) N2752, John Mua Nilkare v Ombudsman Commission [1996] PNGLR 333, Kelly Yawip v Commissioner of Police [1995] PNGLR 93, Lae Rental Homes Ltd v Viviso Seravo (2003) N2483, Leto Darius v Commissioner of Police (2001) N2046, Martha Kokiva–Age v Lawyers Statutory Committee (2005) N2835, Mathew Totori v Bob Nenta, Police Commissioner and Department of Police (2003) N2373, Minato v Kumo and The State (1998) N1768, Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Government and The State (2004) OS No 106 of 2003, 12.10.04, unreported, Morobe Provincial Government v Minister for Village Services (1994) N1215, Ombudsman Commission v Peter Yama (2004) SC747, Paul Pora v Commissioner of Police (1997) N1569, Peter Bon v Mark Nakgai (2001) PNGLR 18, Peter Luga v Richard Sikani (2002) N2285, Re Application of Louise Autsila Ainie (2004) N2533, Sam Anonga v Jack Were (2001) N2149, SCR No 1 of 1998; Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672, Paul Tohian v Tau Liu (1998) SC566, Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, William Mel v Coleman Pakalia, Commissioner of Police and The State (2005) SC790 referred to

APPEAL

This was an appeal from a judgment of the National Court refusing an application for judicial review of two decisions of a provincial administrator which had the effect of dismissing a public servant from his employment.

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By the Court: This is an appeal against a decision of Gabi AJ, as he then was, in the National Court, in which his Honour refused an application for judicial review of two decisions of a provincial administrator that had the effect of dismissing a public servant from his employment. (Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Government and The State (2004) OS No 106 of 2003, 12.10.04, unreported.)

BACKGROUND

The dismissal

The appellant, Mision Asiki, used to be a public servant. He was the Administrative Officer to the Division of Policy, Planning and Research in the Morobe Provincial Administration from 1994 to 2000.

During 2000 he faced disciplinary charges over alleged misuse of an Air Niugini airline ticket and travel allowances relating to a trip to and from Port Moresby. The charges were laid under the Public Services (Management) Act 1995. He replied to the charges, admitting what had happened but offering the explanation that he had used the ticket and the allowances for compassionate reasons and he had approval from his divisional head. The first respondent, the Morobe Provincial Administrator, considered the matter. Then he wrote to the appellant on 17 November 2000, notifying him that his services were terminated forthwith, as he had admitted committing the offence and his performance over the years has been below the required standard.

Review by Public Services Commission

On 29 November 2000 the appellant sought review by the Public Services Commission of the decision to dismiss him.

On 31 December 2001 the Public Services Commission wrote to the first respondent and recommended that he revoke his decision to dismiss the appellant and reinstate him. Reasons for the recommendation were: the charge was not determined within the time limit of 21 days permitted by the Public Service General Orders; the appellant was not given a right to be heard on the penalty to be imposed on him; and the first respondent did not give sufficient reasons for his...