Jomino Holee v Sem Vegogo

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 March 2013
• Citation: (2013) N5101
• Court: National Court
• Year: 2013
• Judgement Number: N5101

Full : OS (JR) NOS 543, 544 & 545 OF 2012; Jomino Holee, Paula Vuvu & Gauealele Samuel v Sem Vegogo, Chief Executive Officer, Port Moresby General Hospital and Pascoe Kase, Secretary, Department of Health and The Independent State of Papua New Guinea (2013) N5101

National Court: Cannings J

Judgment Delivered: 15 March 2013

N5101

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NOS 543, 544 & 545 OF 2012

JOMINO HOLEE, PAULA VUVU & GAUEALELE SAMUEL

Plaintiffs

V

SEM VEGOGO, CHIEF EXECUTIVE OFFICER,

PORT MORESBY GENERAL HOSPITAL

First Defendant

PASCOE KASE, SECRETARY, DEPARTMENT OF HEALTH

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2013: 11, 15 March

JUDICIAL REVIEW – failure to comply with decision of Public Services Commission as to review of personnel matters – Public Services (Management) Act, Section 18 – remedies – when appropriate to award damages in judicial review proceedings.

The plaintiffs are three former nurses who were required to retire from the Public Service after more than 40 years of service each, upon reaching the retirement age. They disputed the amount of their retirement benefits and being unable to resolve the dispute complained to the Public Services Commission, which inquired into their complaints and made decisions in their favour that required the Chief Executive Officer of the public hospital at which they had been employed to include three additional categories of benefits in their final entitlements. The Chief Executive Officer failed to comply with the decisions so the plaintiffs brought judicial review proceedings seeking a declaration that the decisions of the Public Services Commission were binding, an order in the nature of mandamus compelling the defendants to comply with the PSC decisions and damages.

Held:

(1) A decision of the Public Services Commission under Section 18(3)(c)(ii) of the Public Services (Management) Act becomes "binding" after a period of 30 days from the date of the decision. Unless the decision is set aside or amended or quashed by some lawful means it must be complied with. It is a self-executing decision, tantamount to a court order.

(2) The first defendant's failure to comply with the PSC's decisions was unlawful, being in direct contravention of the duty of compliance imposed by the Act, and was contrary to the principles of natural justice as no reasons were given for failing to comply, and was unreasonable as no reasonable public official could have ignored or refused to comply with the decision in the manner that the first defendant did.

(3) The degree of unlawfulness and the breach of natural justice and unreasonableness were manifestly severe and have resulted in a grave injustice to the plaintiffs and all relief sought by the plaintiffs was granted including an order for damages.

Cases cited

The following cases are cited in the judgment:

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094

Anthony John Polling v MVIT [1986] PNGLR 228

Bau Waulas v Veronica Jigede (2009) N3781

Francis Damem v Jerry Tetaga (2005) N2900

Lawrence Sausau v Joseph Kumgal (2006) N3253

Niugini Mining Limited v Joe Bumbandy (2005) SC804

Ombudsman Commission v Peter Yama (2004) SC747

Paul Dopsie v Jerry Tetaga (2009) N3722

Paul Saboko v Commissioner of Police (2006) N2975

Robin Sam v Peter Tsiamalili (2006) N3072

Counsel

J Napu, for the plaintiffs

T Kamuta, for the defendants

15 March, 2013

1. CANNINGS J: The plaintiffs are applying for judicial review of the failure of the first and second defendants, the Chief Executive Officer of Port Moresby General Hospital and the Secretary for Health, to comply with decisions of the Public Services Commission that they be paid three categories of retirement benefits following their retirement from the Public Service. The plaintiffs are women now aged in their sixties. They were employed as nurses at Port Moresby General Hospital for more than 40 years each before being required to retire in 2009. They took the view that they should be paid retrenchment benefits in addition to normal retirement benefits but the CEO of the Hospital disagreed, and they left employment without being paid those additional benefits. Being unable to resolve the dispute, they complained to the

Public Services Commission which inquired into their complaints and on 28 March 2012 made decisions in their favour in the following terms:

That the calculation of [the plaintiff's] retirement benefits be amended to include the following:

(a) 50% ex gratia component as provided by clause 19.1(i) of the memorandum of agreement on salaries and other terms and conditions of employment in the Public Service 2007 to 2010 (""the MOA"") and under Circular Instruction No 31 of 2007, dated 3 December 2007, by the Secretary for Department of Personnel Management ("the Circular); and

(b) 8 weeks salary as money in lieu of notice as provided by clause 17.3.3 of the MOA and the Circular; and

(c) lost salary (as a result of being put off payroll) effective from 24 August 2010 to date.

2. The Chief Executive Officer failed to comply with the PSC's decisions so the plaintiffs have applied for judicial review of his failure to comply seeking a declaration that the decisions of the Public Services Commission were binding, an order in the nature of mandamus compelling the defendants to comply with the PSC decisions and damages.

GROUNDS OF REVIEW

3. The plaintiffs argue that the failure of the chief executive officer and the Secretary for Health to comply with the decisions is:

· unlawful;

· contrary to the principles of natural justice; and

· unreasonable.

4. The defendants agree. Mr Kamuta of the Office of Solicitor-General who appeared for the defendants sensibly conceded the case.

THIS IS A STRAIGHTFORWARD CASE

5. Once the Public Services Commission inquires into complaints of this nature and makes a decision on the matter its decision becomes binding after 30 days. Section 18 (review of personnel matters connected with the National Public Service) sets out the powers and procedures of the PSC and states in Section 18(3)(c)(ii) that after considering all the facts relative to the matter it shall "make a decision to uphold, vary or annul the decision the subject of the complaint" and in Section 18(3)(d)(ii) that the decision "shall become binding after a period of 30 days from the date of the decision".

6. A binding decision is one that must be complied with. It imposes a statutory duty on the person to whom it is directed to comply with it. This...