Mathew Petrus Himsa and Napao Namane v Richard Sikani, Commissioner of Correctional Services and The Independent State of Papua New Guinea (2002) N2307

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2002) N2307
• Date: 08 November 2002
• Year: 2002

Full Title: Mathew Petrus Himsa and Napao Namane v Richard Sikani, Commissioner of Correctional Services and The Independent State of Papua New Guinea (2002) N2307

National Court: Kandakasi J

Judgment Delivered: 8 November 2002

1 ADMINISTRATIVE LAW—Judicial review—Review of decision terminating employment at end of written contract of employment—Written contract of employment preserves employment in public service at end of written contract without specifying the terms and conditions on which that is to happen—Lack of certainty in fundament terms of contract—Practice of keeping persons in the public service pool unattached not a practice enforceable at law—Contract unenforceable for lack of certainty—Relationship of parties governed by contract—Remedy at private law may be available but judicial review not an available remedy—Application for judicial review therefore dismissed.

2 JUDICIAL REVIEW—Review of decision by National Executive Council to terminate employment in the public service—Whether there existed other remedies—Whether such remedies were exhausted—No available remedy when the NEC makes the decision—Judicial review appropriate remedy but for contract of employment—Remedy may be available at private law only—Consequently reinstatement as a remedy is not available once a contract of employment ends at the agreed expiry date unless a statutory provision provides to the contrary.

3 EMPLOYMENT CONTRACT—Written Contract of Employment in Public Service—Contract expiry on agreed date—No renewal but contract allowing continuity of employment in Public Service—Terms and conditions on which that is to happen not certain—Contract void for uncertainty of fundamental terms and conditions of employment—Contract unenforceable.

4 John Kopil v Malcolm Culligan (1995) N1333, Sulaiman v PNG University of Technology (1987) N610, Albert Kuluah v UPNG [1993] PNGLR 494, Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106, Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, Mark Ankama v ELCOM (2002) N2303, Patterson v NCDC (2001) N2145, Teio Raka Ila v Wilson Kamit (2002) N2291, Lima Dataona v Moses Makis [1998] PNGLR 123, Leo Nuia v The Independent State of Papua New Guinea (2000) N1986 and Scammel & Nephew Ltd v Ouston [1941] AC 25 referred to

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Kandakasi J: These are two identical applications for judicial review by the applicants. The facts are the same and so are the arguments and issues for determination. The parties therefore decided to deal with the applications as one.

Proceeding on the above basis, the Chief Justice granted them leave on 10 December 2001 to review a decision of the National Executive Council (NEC) on 15 July 2001, revoking their respective appointments as Assistant Commissioner (Personnel and Management Training and Operations respectively) with the Department of Correctional Services (DCS).

The applications came before me on 16 August 2002 and I directed the parties to file written submission by 20 August 2002. This was necessitated by a lack of time for me to deal with the matter on that date after the parties had agreed to a trial by affidavit only with no requirements for cross–examination.

The parties have filed their submissions on 20 August 2002 as directed. But I was not able to get to a judgment on this matter quickly due to my time being taken up in motions and election petitions in between.

Arguments

The applicants' claims are that, when their respective written contracts of employment (the contracts) expired they remained as employees of the DCS, pending deployment elsewhere in the Department or the public service generally. Hence, they argue that they could only be terminated in accordance with the procedure for termination under the Correctional Service Act 1995 (CSA). They go on to argue that they were not terminated in accordance with the procedure under the Correctional Service Act 1995. Therefore they claim that their termination is null and void and of no effect.

The defendants on the other hand argue that, when the applicants entered into their respective written contracts, they gave up their rights or privileges under the Correctional Service Act 1995 because their terms and conditions of employment came under the governance of the contract. Hence, when the contract expired on the agreed expiry date, their employment with the DCS and therefore the public service ended.

Issues

The parties agree that this gives rise to a number of issues, which this Court must determine. The issues are as follows:

1. Whether the applicants' employment with the DCS ceased upon the expiry of their respective contracts of employment.

2. Whether there is a legal basis for a contract of employment under the Correctional Service Act?

3. Whether judicial review is available when the applicants' written contract expired?

4. If judicial review is available, did the applicants exhaust all available remedies before coming to Court?

5. Whether the State is obliged to reinstate the applicants to their original position when their position have been filled?

Facts

The facts are not disputed and I find these are the relevant facts. The applicants were Assistant Commissioners, respectively as Personnel Management and Training and Operations with the DCS until the NEC revoked their appointments to those positions on 5 July 2001. They were appointed to their respective positions by the NEC on 2 August 1996.

On 19 February 1998, the applicants signed their respective written contracts of employment with the State. They were made retrospective to 15 August 1996. The contracts were for a term of three years each. Eventually, the contract expired on 2 August 1999.

By letter dated 13 August 1999, the then Commissioner of Correctional Services wrote to the applicants saying their contacts would end on 15 August 1999 and that he (the Commissioner of Correctional Services) decided to allow their contracts to continue until the NEC make a new appointment to the applicants' positions. The applicants therefore continued to serve in their respective positions under the now expired contract until new appointments were made. Subsequently, on 5 July 2001 the applicants' appointments were revoked and two other persons were appointed by the NEC to the positions the applicants had held under their respective contracts.

The applicants claim that no grounds of the revocation by NEC were ever conveyed to them.

The relevant provisions of the contract are clauses 4, 9.7, 27.5 and 35.1 and 35.2 of the Standard Terms of Employment of Assistant Commissioners of Correctional Service (the standard contract). Clause 4 provides as to the period of the contract with its commencement date specified and that the contract may be terminated in accordance with the terms of the contract. The other provisions are quite specific on the points in issue. These provisions read as follows:

"9.7 Upon completion of the Contract, a new Contract may be offered to the Assistant Commissioner of Correctional Service in accordance with these terms and Conditions, provided that where a new contract is not offered, employment in the Correctional Service may continue."

"27.5 Subject to the Assistant Commissioner of Correctional Service securing future employment in the Correctional Service or National Public Service under s35 hereunder, termination of the Contract will other wise result in termination or...