Clement K Kilepak v Ellison Kaivovo Secretary Department of East New Britain and Hosea Turbarat Provincial Administrator East New Britain Provincial Administration (2003) N2402

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2003) N2402
• Date: 02 May 2003
• Year: 2003

Full Title: Clement K Kilepak v Ellison Kaivovo Secretary Department of East New Britain and Hosea Turbarat Provincial Administrator East New Britain Provincial Administration (2003) N2402

National Court: Lenalia J

Judgment Delivered: 2 May 2003

1 Administrative Law—Judicial review—Judicial review of administrative action—Disciplinary charges—Departmental Head—Provincial—Termination of Public Servant by Provincial Departmental Head or his delegate—Public Services (Management) Act 1995.

2 Judicial review—Administrative decision—Serious disciplinary charge—Duty to act fairly—Principles of natural justice—Doctrine of ultra vires—Orders made ultra vires are either void or voidable—Quasi judicial functions—Administrative powers can only be exercised within the bounds of legislation concerned.

3 Judicial review—Determination by Provincial Disciplinary Committee resulting in termination—Duty to act fairly includes duty to give reasons—Recommendations by Public Service Commissioner—Result of—Validity of decision by Provincial Transport Committee—No recommendations by Disciplinary Committee to Provincial Transport committee—Decision to effect salary deductions was void and of no effect—Plaintiff reinstated.

4 Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Ridge v Baldwin [1963] 2 All ER 66, Ombudsman Commission v Donohoe [1985] PNGLR 348, Sudi Yaku v Commissioner of Police; Ex Parte The Independent State of Papua New Guinea [1980] PNGLR 27, Iambakey Okuk v Fallscheer [1980] PNGLR 274, Jacob Tuma v The Commissioner of Police [1996] PNGLR 430, Selly Farapo v The Commissioner of Police [1996] PNGLR 17, Kuya Kehi v Kelu Theodore [1978] PNGLR 217 and Tandali v The Independent State of Papua New Guinea [1990] PNGLR 170 referred to

___________________________

Lenalia J: The Plaintiff was granted leave to apply for judicial review, on 18 December 1997 by the National Court in Waigani. The proceedings were transferred to Kokopo and had been adjourned for various reasons until it was eventually listed for hearing on 23 August 2002. The Plaintiff's lawyer only filed their written submissions by 3 December 2002 resulting in this late judgment.

Some background facts of this review should help to clarify what appears to this Court to be confusing as represented by the Plaintiff's pleadings, both by the original Originating Summons as well as his Amended Originating Summons. The original OS was filed on the 18 November 1997 and the Amended one was filed on the 16 December that same year. Even the evidence filed by the Plaintiff is so confusing.

If, I understand the facts correctly, the following narration is what occurred to the Plaintiff. On 19 December 1994 the Plaintiff was involved in a motor vehicle accident on which the Plaintiff was the driver of a Government owned vehicle Reg No PAB 578. This vehicle was allocated to the Department of Health in this Province and such vehicle was badly damaged. The nature of the damage was not specified but the damage was valued at K7,500.00.

Following the accident, the Plaintiff reported the accident to the Motor Traffic Division of the Police in the Province and about the same time, he submitted an accident report to the Provincial Transport Officer of the Plant and Transport Branch of this Province. The accident report was further referred to the Provincial Transport Committee of which the Second Defendant was the Chairman. The Provincial Transport Committee after having met decided to penalise the Plaintiff by effecting deductions from his salary to meet the cost of damage caused to the vehicle.

The Chairman of the Provincial Transport committee wrote to the Personnel Officer of the Personnel Staff Development Unit of the Province on 24 January 1995 on which the Personnel Officer was authorised to effect salary deductions from the Plaintiff's salary to recover the cost of the repair which was valued then at K7,500.00. A K50.00 deduction was authorised and was to commence from 17 February 1995,

The Plaintiff says in his affidavit evidence that just about the time when the first deductions were to be effected, he was served with a notice of a disciplinary charge or charges on 22 February 1995 and on 27th of that same month, he was served with the notice of his termination by the Departmental Head whom I suppose, the First Defendant although it does not appear clearly from the Plaintiff's evidence and pleadings.

In the Plaintiff's reply to the notice of charge made on 1 March 1995, he replied comprehensively to all allegations levelled against him. In his explanation he partially admitted the charges giving reasons as to why he was involved in the accident. The Plaintiff and the staff of the Health Department had gone to Pigeon Island off the coast of Kokopo for their Christmas party. He...