Jacob Yafai v Dr Philip Kereme, Chairman, Public Services Commission and Public Services Commission and Sir Manasupe Zurenuoc, Chief Secretary, Acting Secretary, Department of Finance and Dr Ken Ngangan, Acting Secretary, Department of Finance and the Independent State of Papua New Guinea (2016) SC1513

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Cannings & Neill JJ.
• Judgment Date: 01 September 2016
• Court: Supreme Court
• Citation: (2016) SC1513
• Docket Number: SCM No 16 of 2015
• Year: 2016
• Judgement Number: SC1531

Full Title: SCM No 16 of 2015; Jacob Yafai v Dr Philip Kereme, Chairman, Public Services Commission and Public Services Commission and Sir Manasupe Zurenuoc, Chief Secretary, Acting Secretary, Department of Finance and Dr Ken Ngangan, Acting Secretary, Department of Finance and the Independent State of Papua New Guinea (2016) SC1513

Supreme Court: Kirriwom J, Cannings & Neill JJ.

Judgment Delivered: 1 September 2016

SC1531

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM No. 16 OF 2015

BETWEEN

JACOB YAFAI

Appellant

AND

DR PHILIP KEREME, CHAIRMAN, PUBLIC SERVICES COMMISSION

First Respondent

AND

PUBLIC SERVICES COMMISSION

Second Respondent

AND

SIR MANASUPE ZURENUOC, CHIEF SECRETARY,

ACTING SECRETARY, DEPARTMENT OF FINANCE

Third Respondent

AND

DR KEN NGANGAN,

ACTING SECRETARY, DEPARTMENT OF FINANCE

Fourth Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

Waigani: Kirriwom J, Cannings &Neill JJ.

2016: 29th August &1st September

JUDICIAL REVIEW – LEAVE REQUIREMENTS – Whether applicant raised an arguable case for judicial review – whether a contract officer of the National Public Service is eligible for judicial review – whether a contract officer aggrieved by dismissal from Public Service is restricted to private law remedies – whether undue delay in making application for leave.

The appellant was Deputy Secretary of a Department of the National Public Service. He was dismissed for disciplinary reasons and sought review of his dismissal by the Public Services Commission, which refused the review and upheld the decision to dismiss him. He then applied to the National Court for leave to seek judicial review of the decision to dismiss him and the decision of the Public Services Commission to uphold his dismissal. The National Court refused leave for two reasons: (a) the appellant was a contract officer, therefore a challenge to the legality of his dismissal could not be made by judicial review, he had to bring a private law claim seeking damages; (b) undue delay, without reasonable explanation, in applying for leave. The appellant appealed against the refusal of leave on two material grounds. It was argued that the primary Judge erred in law, by: (1) finding that because the appellant was a contract officer he was ineligible to apply for judicial review of the decisions pertaining to his dismissal; and (2) miscalculating and not properly considering the apparent delay in making the application for leave.

Held:

(1) The proposition that a contract officer of the National Public Service who is dismissed from office cannot challenge their dismissal by the judicial review procedure is flawed. Judicial review is a proper mode of challenge in such situations. Ground (1) of the appeal was upheld.

(2) To the extent that there was any delay in making the leave application, it was adequately explained by the circumstances of the case. Ground (2) of the appeal was upheld.

(3) As both grounds of appeal were upheld, the appeal was allowed, the decision of the National Court was quashed. The Supreme Court substituted for the decision of the National Court, its decision, granting leave to the appellant to review the decision of the Public Services Commission. Costs of the appeal were awarded to the appellant.

Cases cited:

The following cases are cited in the judgment:

Isaac Lupari v Sir Michael Somare (2008) N3476

Joel Luma v John Kali (2014) SC1401

Leto Darius v Commissioner of Police (2001) N2046

Louis Medaing v Minister for Lands and Physical Planning (2010) N3917

NTN Pty Ltd v PTC [1987] PNGLR 70

APPEAL

This was an appeal against a decision of the National Court, refusing an application for leave to seek judicial review of decisions of a Departmental Head and the Public Services Commission regarding the dismissal from the National Public Service of a contract officer.

Counsel:

I Molloy & M Kombri, for the Appellant

I Mugugia, for the Third, Fourth & Fifth Respondents

1st September, 2016

1. BY THE COURT: Jacob Yafai, the appellant, appeals against the decision of the National Court to refuse his application for leave to seek judicial review of two decisions regarding his employment in the National Public Service:

· the decision of the third respondent, the Acting Secretary of the Department of Finance, of 15 July 2013, to dismiss Mr Yafai from the Public Service, upon finding him guilty of disciplinary offences; and

· the decision of the second respondent, the Public Services Commission, of 9 September 2014, to refuse Mr Yafai’s application for review of the decision to dismiss him and to uphold the decision to dismiss him.

BACKGROUND

2. In 2013 Mr Yafai held the position of Deputy Secretary (Operations) in the Department of Finance. On 17 May 2013 he was suspended and charged with serious disciplinary offences relating to alleged improper payments of public money to Paul Paraka Lawyers. He responded to the charges. On 15 July 2013 he was found guilty and the decision was made that the penalty was dismissal from the Public Service.

3. Mr Yafai applied to the Public Services Commission for review of the decisions finding him guilty and dismissing him. On 9 September 2014 the Public Services Commission refused Mr Yafai’s application for review of the decision to dismiss him and upheld the decision to dismiss him. On 23 September 2014 the decision of the Public Services Commission was conveyed to Mr Yafai.

4. On 19 November 2014 Mr Yafai filed, in the National Court, OS (JR) No 806 of 2014, an application for leave to seek judicial review of the decision to dismiss him and the decision of the Public Services Commission to refuse his review and to uphold the decision to dismiss him. The proposed grounds of review included allegations of denial of natural justice and of failure by the Acting Secretary for Finance to adhere to the disciplinary procedure in clause 25 of the Standard Terms and Conditions of Employment of Senior Officers in the National Public Service.

5. On 12 May 2015 the National Court, constituted by Justice Gavara-Nanu, heard the application for leave. On 12 June 2015 his Honour delivered an oral judgment, refusing leave, for two reasons:

(a) the appellant was a contract officer, therefore a challenge to the legality of his dismissal could not be made by judicial review, he had to bring a private law claim seeking damages;

(b) undue delay, without reasonable explanation, in applying for leave.

The appellant filed an appeal against the refusal of leave for judicial review. That is the matter we are now determining. There are two material grounds of appeal. It is argued that the primary Judge erred in law, by:

(1) finding that because the appellant was a contract officer he was ineligible to apply for judicial review of the decisions pertaining to his dismissal; and

(2) miscalculating and not properly considering the apparent delay in making the application for leave.

6. The appellant seeks an order quashing the decision of the National Court and granting him leave to apply for judicial review.

7. We now address the two grounds of appeal.

1 ERROR OF LAW BY FINDING THAT CONTRACT OFFICERS CANNOT BE GRANTED JUDICIAL REVIEW

8. It is agreed that Mr Yafai was a contract officer, employed under a three-year contract entered into under Section 41 (contracts of employment) of the Public Services (Management) Act 1995. The primary Judge took the view that Mr Yafai’s status as a contract officer made it inappropriate for him to be granted leave to seek judicial review. His Honour stated:

It is clear that the plaintiff [the appellant] was, for all practical purposes, a contract officer. He was treated as such by his employer, namely the Department of Finance and therefore his case, in my view, must be treated as such. ...If the plaintiff wants to challenge the legality of his termination, he should ...issue proceedings for [a] claim for damages. ... As I said in that regard, he was properly charged under clause 25. I am therefore of the view that the plaintiff’s remedy lies in damages. As I said, he should issue proceedings, if he wants to, for damages for unlawful termination. On these bases, I would refuse leave.

9. We uphold the submissions of Mr Molloy, for the appellant, that in taking such an approach, and ruling that because he was a contract officer the appellant was not eligible for judicial review, the learned primary Judge erred in law. The proposition that a contract officer of the National Public Service who is dismissed from office cannot challenge their dismissal by the judicial review procedure is flawed. Judicial review is a proper mode of challenge in such situations.

10. That principle was confirmed by the Supreme Court in Joel Luma v John Kali (2014) SC1401. The Court (Mogish J, Makail J, Yagi J) upheld an appeal against the refusal by the National Court to grant leave to a Departmental Head whose appointment had been revoked by the National Executive Council. The National Court had refused leave, as in the present case, on the ground that the applicant was employed under a...