Francis Damem, Attorney General and Secretary for Justice Department v Jerry Tetaga, Chairman Public Service Commission, Public Servic Commission, Zacchery Gelu and Magaret Elias, Secretary to Department of Personnel Management (2005) N2900

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 02 September 2005
• Citation: (2005) N2900
• Docket Number: OS 724 of 2004
• Year: 2005

Full Title: OS 724 of 2004; Francis Damem, Attorney General and Secretary for Justice Department v Jerry Tetaga, Chairman Public Service Commission, Public Servic Commission, Zacchery Gelu and Magaret Elias, Secretary to Department of Personnel Management (2005) N2900

National Court: Injia DCJ

Judgment Delivered: 2 September 2005

1 Judicial Review—Review of Public Service Commission's decision to allow review of disciplinary action—Disciplinary action—Dismissal of Solicitor–General on disciplinary grounds—Application by Departmental Head (Attorney–General)—Whether Public Service Commission followed prescribed procedure—Failed to follow prescribed procedure in summonsing Attorney–General (Departmental Head) to attend "hearing", failed to give him opportunity to be heard, failed to notify Attorney–General of decision—Decision quashed—Matter remitted to Public Services Commission for re–hearing—Public Services (Management) Act 1995, s18(3).

2 Statutory interpretation—Public Services (Management) Act 1995, s18—Clause 25.1(d) of Contract of Employment of between Solicitor–General and Secretary, Department of Personnel Management and Attorney–General—Whether Clause 25.1(d) of the Contract ousts jurisdiction of Public Services Commission under s18 of the Public Services (Management) Act 1995 to conduct review of personnel matter—Clause 25.1(d) does not oust jurisdiction of the PSC—The aggrieved officer has an option of either seeking a review under s18 of the Public Services (Management) Act 1995 or seeking juridical review under O16 of the National Court Rules. Public Services (Management) Act 1995, s18, s40, s42 and s41(3) and s5 s51, s52, s53, s54; Attorney–General Act 1989, s10 and s11; National Court Rules O16.

3 Independent State of Papua New Guinea v Phillip Kapal [1987] PNGLR 417, Burns Philp (New Guinea) Ltd v Kekedo [1988–89] PNGLR 122, Allan Pinggha v PSC (2005) N2850 referred to

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Injia DCJ: The Plaintiff (Mr Damem) is the former Attorney–General of Papua New Guinea. The Third Defendant (Mr Gelu) is the former Solicitor–General of Papua New Guinea. Mr Damem applies for judicial review of the Public Service Commission's (PSC) decision to grant an application by Mr Gelu to review the Fourth Defendant's decision to dismiss him on disciplinary grounds. The application is made under O16 of the National Court Rules. Leave to apply for judicial review was granted on 7 June 2005.

The brief facts are that on 24 August 2004, Mr Gelu filed the application under s18(1) of the Public Services (Management) Act 1995 ("PSM Act"). On 23 September 2003 the PSC made its decision. The PSC decided that the Acting Secretary for Department of Personnel Management ("DPM"), should revoke her decision and re–instate Mr Gelu to his position. The PSC gave detailed reasons for its decision. The decision was communicated to the Acting Secretary, DPM. On 10 October 2004, the Acting Secretary, DPM wrote to Mr Damem requesting him to implement the PSC decision. Mr Damem refused and challenged the PSC's decision by filing these proceedings.

Mr Damem applies for an order in the nature of certiorari to quash the PSC decision on the grounds that it was made ultra vires or in breach of the procedure prescribed by s18 of the Public Services (Management) Act 1995. In the original statement in support of application for leave, the grounds of review are pleaded are:

(a) Breach of s18 of Public Services (Management) Act 1995.

The PSC breached mandatory provisions under s18(3) of the Public Services (Management) Act 1995 (as amended) in conducting its hearing in that:

(i) it did not "summon" the Plaintiff/Applicant or his delegate as required under s18(3)(a) and (b) to respond to the Third Respondent's "complaint" for review before the PSC.

(i) Despite not summoning the Plaintiff/Applicant or his delegate, the PSC proceeded to hear and determine the "complaint" of the Third Respondent.

(i) The PSC then proceeded to make a decision on 23 August 2004 which was after lapse of more than 9 months and contrary to s18(3)(d)(i).

(i) The PSC, despite not summoning the Plaintiff/Applicant and making its decision after 9 months, then further failed to "notify" the Plaintiff/Applicant as is required under s18(3)(c)(ii)."

In his amended statement in support, Mr Damem pleads an additional ground. That is, the PSC lacked jurisdiction to hear and determine Mr Gelu's complaint, on the basis that:

"Clause 25.1(d) of the Third Defendant's Contract of Employment does not give any jurisdiction to the PSC to hear Mr Gelu's complaint."

Mr Damem relies on his affidavit sworn on 24 November 2004.

The respondents rely on various affidavits. The PSC relies on the affidavit of Michael Koimo sworn on 28 June 2005. Mr Gelu relies on his affidavit sworn on 29 April 2005.

The parties agreed to seven (7) issues which are before me for determination and made submissions on them. These are:

"1. Does clause 25(1)(d) of Gelu's Contract of Employment prohibit Mr Gelu from invoking the jurisdiction of the Public Services Commission?

2. If the answer to Issue 1 is YES, does the Public Service Commission (PSC) have jurisdiction under s18 of the Public Services (Management) Act 1995 to review the decision of the Secretary for Personnel Management in terminating Mr Gelu's Contract of Employment regardless of Clause 25 of the Contract of Employment?

3. If the answer to Issue 1 is YES, is clause 25(1)(d) inconsistent with s18(1) of the Public Services (Management) Act 1995, null and void and of no effect?

4. Does the failure by the PSC to strictly follow the procedures under s18 of the Public Services (Management) Act 1995 makes the subsequent decision arrived at null and void and of no effect?

5. Does the Attorney–General have a discretion to refuse to implement the decision of the PSC after the Secretary for the Department of Personnel Management has decided to give effect to the decision of the PSC by directing that Mr Gelu be reinstated to his position as Solicitor–General?

6. Does the Attorney–General have the right to challenge a decision of the Public Service Commission dated 23 August 2004 and the decision of the Secretary for the Department of Personnel Management to give effect to the decision of the PSC dated 23 August 2004 and reinstate Mr Gelu to his substantive position as Solicitor–General and Public Servant on 10 September 2004.

7. What is the effect of a decision of the PSC after the thirty days period under s18(3)(d)(ii) of the Public Services (Management) Act 1995 has lapsed."

These issues involve interpretation of s18, s41(3) and (5) of the Public Services (Management) Act 1995 and Clause 25.1.d of the Contract of Employment ("the Contract") entered into between the Mr Gelu on one part and Mr Damem and the Fourth Defendant for the State. They also require consideration of relevant provisions of the Attorney–General Act 1989 ("AG Act") under which office of the Attorney–General and the Solicitor–General are established.

Employment of officers in the National Public Service is governed by the Public Services (Management) Act 1995. The Department responsible for Public Service is the Department of Personnel Management (DPM) which is established under the Public Services (Management) Act 1995. DPM is headed by a Secretary who is the departmental head. The Public Services (Management) Act 1995 provides for the recruitment and discipline of officers of the Public Service: Part XIV (s50–s54).

The PSC is established under the Constitution and it is vested within certain powers and functions, inter alia, the power under s18 of the Public Services (Management) Act 1995, to review disciplinary actions taken by departments under Part XIV.

The employment of senior officers on contract in the Public Service is governed by Part XI (Contract Employment) of the Public Services (Management) Act 1995. S40–s42 are relevant and they provide:

"40. Designation of senior management offices.

(1) The Minister may, pursuant to a directive of the National Executive Council, by notice in the National Gazette, designate an office, other than an office of Departmental Head created under s22, as a senior management office and the provisions of this Part shall apply to an office so designated.

(2) A notice under Subsection (1) shall specify, in relation to each senior management office, whether a person is to be appointed to that office by—

(a) the Head of State, acting on advice; or

(b) the Departmental Head of the Department of Personnel Management, and an appointment shall be made in accordance with this Act.

(3) A person to be appointed to a senior management office shall—

(a) be an officer of the Public Service; or

(b) subject to Subsection (4), by virtue of...