Joel Luma v John Kali

• Jurisdiction: Papua New Guinea
• Judge: Nablu, J
• Judgment Date: 03 June 2016
• Citation: (2016) N6337
• Court: National Court
• Year: 2016
• Judgement Number: N6337

Full : OS (JR) No 14 of 2014; Joel Luma v John Kali OBE as Secretary for the Department of Personnel Management and The National Executive Council and The Independent State of Papua New Guinea (2016) N6337

National Court: Nablu, J

Judgment Delivered: 3 June 2016

N6337

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO.14 OF 2014

BETWEEN:

JOEL LUMA

Plaintiff

AND:

JOHN KALI, OBE as SECRETARY FOR THE DEPARTMENT OF PERSONNEL MANAGEMENT

First Defendant

AND:

THE NATIONAL EXECUTIVE COUNCIL

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Nablu, J

2016:17th February,

3rd June

JUDICIAL REVIEW– Decision of the NEC to suspend the Departmental Head – Decision to revoke the Departmental Head’s appointment –Constitution ss 193 (1C) & 193(1D) – Public Services (Management) Act ss. 31(C)& 31(D) –Secretary for Works and Implementation – Suspension and revocation of a departmental head’s statutory process is mandatory – Public Service Commission must be consulted – Grant of relief discretionary – Reinstatement refused – Declarations and Certiorari appropriate – judicial review granted.

PNG Cases cited:

Alan Stevens v. Kopi Lapara (2013) N5425

Dale Christopher Smith v. Minister for Lands (2009) SC 973

IssacLupari v. Sir Michael Somare (2008) N3476

Joseph Klapatv. The NEC(2014) N5536

Luma v. Kali (2014) SC1401

MisionAsiki v. ManasupeZurenuoc (2005) SC 797

Ombudsman Commission v. Peter Yama (2004) SC 747

Overseas Cases cited:

Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233

Marginson v. Blackburn Bourough Council [1939] 2 KB 426

Counsel:

Mann-Rai R, for the Plaintiff

Mapiso W, for the First Defendant

3rd June 2016

1. NABLU, J: The plaintiff was the former Secretary for the Department of Works and Implementation who seeks to review the decision of the National Executive Council to suspend him and then revoke his appointment, effectively terminating his employment. There are two decisions subject of judicial review; the first decision is the decision to suspend him which was made by the Head of State on 21st February 2013 and published in the National Gazette No. G117 of 2013. The second decision subject of review was made on 12th November 2013 and published in the National Gazette No. G539 of 2013.

2. The plaintiff seeks to quash the decision of the National Executive Council (NEC) suspending him on 21st February 2013 and revoking his appointment as departmental head on 12th November 2013. The plaintiff also seeks various declarations that the defendant’s actions were illegal, null and void. He seeks to be reinstated as the Secretary for the Department of Works and Implementation. Alternatively he seeks damages to be assessed.

3. The facts agreed to by the parties and as set out in the statement of agreed and disputed facts is complicated by a number of court cases filed over the years. The parties agree that the plaintiff’s first term of appointment lapsed on 24th August 2011. The plaintiff was reappointed to the position of Secretary for Department of Works and Implementation pursuant to Section 193 of the Constitution and Sections 31A and 31B of the Public Services (Management) Act. He then executed a standard contract of employment of departmental heads (contract) on 2nd February 2012.

4. According to the Contract of Employment, the tenure of his employment was for a four year period which expired on 24th August 2015. The remuneration was at Executive Level 5 of the Public Services Salary Structure.

5. On 6th December 2012, the Minister for Works and Implementation, Hon. Francis Awesa suspended him and cited a number of serious allegations of misconduct. The suspension was based on allegations of incompetency, nepotism, fraud and insubordination. However, that suspension was uplifted following the first defendant’s intervention.

6. Then on 27th February 2013, the National Executive Council (NEC) suspended the plaintiff and appointed Mr David Wereh as the Acting Secretary.Then on 12th November 2013 the Head of State revoked the plaintiff’s appointment.

7. The disputed facts are, that the plaintiff is the Secretary of Department of Works and Implementation who was a public servant for 38 years. He applied for leave for judicial review of the decision to suspend him in February 2013. Leave was refused by the National Court. Upon appeal to the Supreme Court, leave was granted on 14th November 2014. The plaintiff challenges his suspension and removal on the basis that the process of suspension was not followed. Therefore the subsequent decision to revoke his appointment was unlawful. The matter was referred back to the National Court for determination of the judicial review application. The main issue is the construction of Sections 193 (1C) and 193 (1D) of the Constitution, Sections 31C and 31D of the Public Services (Management) Act 1995 and section 26 of the Standard Terms and Conditions of Employment of Departmental Heads.

8. The parties agreed that the legal issues for hearing are;

i. Whether or not the defendants followed the disciplinary process or suspension and termination procedure set out under the Constitution, the Public Services (Management) Act 1995 and the Employment Contract concerning Departmental Heads?

ii. Whether or not the defendants failed to comply with the requirements of Sections 193(1C) and 193(1D) of the Constitution, Section 31C and 31D of the Public Services (Management) Act 1995 and section 26 of the Standard Terms and Conditions of the Employmentof Departmental Heads of the Contract of Employment?

iii. Whether an order in the nature of Certiorari can be made to remove into this court and quash the decision made by the NEC on 21st February 2013 and on 12th November 2013 on the advice of the NEC to suspend and terminate the plaintiff as the Secretary for the Department of Works and Implementation?

iv. Whether the plaintiff should be reinstated and ordered to resume his position as the Secretary for the Department of Works and Implementation?

v. Alternatively, whether the plaintiff should be awarded damages for breach of the employment contract or damages for unlawful termination; as a consequence of the termination dated 12th November 2013, to be assessed?

9. The plaintiff relied on the following affidavits for the substantive judicial review application which were contained in the Review Book. The affidavit of Joel Luma sworn and filed on 24th January 2014.The affidavit of Rex Mann-Rai filed on 29th May 2015. And the further affidavit of Joel Luma filed on 29th May 2015.

10. In response, the defendants filed the affidavit of John Kali, sworn on 5th August 2015 and filed on 6th August 2015. The affidavits of Hon. Francis Awesa, MP and David Wereh which were filed on 14th August 2015 and filed on 12th August 2015 respectively.

11. The plaintiff responded to the defendants by filing affidavits in response to each of the defendant’s affidavit. He filed affidavits in response to David Wereh and the first defendant which were filed on 28th August 2015 and contained in the Review Book as Document No. 22 and 23. His response to the affidavit of Hon. Francis Awesa MP was filed on 30th October 2015 and was marked document No.24 in the Review Book.

12. According to the Originating Summons and the further amended Statement under Order 16 filed on 15th June 2015. The decision is set out in the Statement;

“ Judgements, order or decision under which relief is sought is the decision of the Second Defendant to suspend the Applicant as the Secretary for the Department of Works and Implementation dated the 21st February 2013 and eventually termination on the 12th November 2013;

(a) which purported to suspend the Applicant indefinitely as the Secretary for the Department of Works and Implementation; and

(b) which purported to appoint Mr. David Wereh as the Acting Secretary for the Department of Works and Implementation and subsequently as Secretary for the Department of Works and Implementation;

(c) terminating the plaintiff’s contract of employment dated 12th November 2013;

(d) taking further steps to advertise the plaintiff’s position dated 22nd January 2013;

(e) which purported to terminate the contract of employment between the Plaintiff and the Third Defendant dated the 24th August 2011 (“the contract of employment”) which was due to expire on 24th August 2015 resulting in damages suffered by the plaintiff.”

13. I have summarised the grounds of review as contained in the Further Statement under Order 16 (which was filed on 15th June 2015) as follows;

1) The defendants breached the mandatory statutory process and committed serious errors of law by failing to comply with Sections 193 (1C) and 193 (1D) of the Constitution, Section 8 of the Regulatory Statutory Authorities (Appointment to certain offices) Act 2004, Sections 31C and 31D of the Public Services (Management) Act 1995 and section 26 of the Standard Terms and Conditions of Employment of Departmental Heads of Central Agencies (2003);

2) the plaintiff was denied Natural Justice;

3) the decision to revoke the...