Michael Waipo v Jimmy Simitab

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 05 May 2016
• Citation: (2016) N6266
• Court: National Court
• Year: 2016
• Judgement Number: N6266

Full : OS (JR) NO 52 OF 2016; Michael Waipo as the Commissioner, PNG Correctional Service v Hon. Jimmy Simitab, as the Minister for PNG Correctional Service and John Kali, as the Chairman, Ministerial Executive Appointments Committee and Hon. Peter O’Neil, as the Chairman, National Executive Council and Chief Inspector Bernard Nepo and The Independent State of Papua New Guinea (2016) N6266

National Court: Makail, J

Judgment Delivered: 5 May 2016

N6266

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 52 OF 2016

BETWEEN

MICHAEL WAIPO as the COMMISSIONER, PNG CORRECTIONAL SERVICE

Plaintiff

AND

HON. JIMMY SIMITAB, as the MINISTER FOR PNG CORRECTIONAL SERVICE

First Defendant

AND

JOHN KALI, as the CHAIRMAN, MINISTERIAL EXECUTIVE APPOINTMENTS COMMITTEE

Second Defendant

AND

HON. PETER O’NEIL, as the CHAIRMAN, NATIONAL EXECUTIVE COUNCIL

Third Defendant

AND

CHIEF INSPECTOR BERNARD NEPO

Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Makail, J

2016: 4th & 5th May

JUDICIAL REVIEW – Review of revocation of appointment – Departmental Head – Commissioner of Correctional Services – Public Services (Management) Act, 2014 – Sections 27 (1) & 28 (6) (d) – Public Services (Management) (Employment of Departmental Heads) Regulation, 2014 – Section 28 (3) (i) – (iii)

JUDICIAL REVIEW – Grounds of review – Breach of procedure – Denial of right to be heard – Allegation of poor performance by Commissioner

JUDICIAL REVIEW – PRACTICE & PROCEDURE – Objection to competency – Failure to plead relief – Certiorari – Pleading substantive relief in Originating Summons – Whether proceeding abuse of process – Order 16, rules 3 (2) (a) & 9

Cases cited:

Isaac Lupari v. Sir Michael Somare, NEC & The State (2010) SC1071

Joel Luma v. John Kali, NEC & The State (2014) SC1401

Joseph Klapat v. NEC & Ors (2014) N5536

Peter Peipul v. The Leadership Tribunal (2002) SC706

Simon Kauba v. NEC & The State: OS (JR) No 477 of 2014 (Unnumbered & Unreported Judgment of 13th November 2015)

Counsel:

Mr. M. Koimo, for Plaintiff

Mr. P. Mawa, for First, Second & Third Defendants

Mr. J. Abone, for Fourth Defendant

Ms. J. Topo, for Fifth Defendant

JUDGMENT

5th May, 2016

1. MAKAIL, J: On 9th February 2016 in its Decision No. 15/2016 the National Executive Council (“NEC”) approved to advise the Head of State to revoke the appointment of the Plaintiff as Commissioner for Correctional Service and in his place, appoint the Fourth Defendant as Acting Commissioner for Correctional Service. The decision was based on a recommendation by the portfolio Minister the First Defendant in this proceeding pursuant to Section 28 (6) (d) of the Public Services (Management) Act, 2014. The ground for revocation was breach of contract of employment, namely poor performance. The decision was conveyed to the Plaintiff in a letter by the First Defendant dated 11th February 2016.

Grounds of Review

2. The Plaintiff seeks review of that decision. According to the Amended Statement made pursuant to Order 16, rule 3 (2) (a) of the National Court Rules (“NCR”) filed on 15th February 2016, he relies on two grounds, breach of procedure and denial of right to be heard. These grounds are based on Section 28 (3) of the Public Services (Management) (Employment of Departmental Heads) Regulation, 2014 which provide for “The grounds, criteria and the procedure for termination prescribed by a contract of employment.....”

3. He relies on a further ground. It is based on the absence of a contract of employment between him and the Defendants. He says that as there is no contract of employment, the decision was made in a “vacuum”.

Preliminaries

4. Pursuant to the Notice of Motion filed on 23rd February 2016 following grant of leave, the Plaintiff seeks a declaration that the subject decision is of no legal effect and be quashed. At trial counsel who appeared for the First, Second and Third Defendants informed the Court that he was not served with affidavits of the Plaintiff and requested a brief adjournment to enable the Plaintiff’s lawyers to serve the affidavits on him.

5. The request was declined on the ground that although Mawa Lawyers had filed a Notice of Appearance on 15th March 2016, they did not serve a copy on the lawyers for the Plaintiff. As a result, the Plaintiff’s lawyers were not informed of Mawa Lawyer’s engagement in this matter and did not serve them. The Plaintiff’s lawyers only served the documents on the Solicitor-General and there was appearance by counsel from the Office of the Solicitor-General on behalf of the Fifth Defendant at trial.

6. The position the Plaintiff took was proper and in accordance with Order 4, rule 11 (Time for giving notice of intention to defend) and Order 16, rule 12 (Service on the Secretary for Justice). The confusion as to legal representation of the First, Second and Third Defendants and lack of service of the documents on them are not reasonable and justified an adjournment.

7. Secondly, counsel for the Fourth Defendant attempted to object to the competency of the proceeding on the ground that the issue of revocation of appointment of the Plaintiff as Commissioner was before the Supreme Court in proceeding SCM No 2 of 2016 and further the determination of this issue has been stayed. An order of the Supreme Court was produced to confirm this. The attempt failed because that order relates to a different matter – issue of a stay of the NEC decision, which in effect restored the Plaintiff as Commissioner pending the appeal. The order did not stay this proceeding and the Plaintiff is perfectly entitled to prosecute it.

Objection to Competency

8. The Fourth Defendant objects to the competency of the proceeding on the ground that the proceeding is an abuse of process pursuant to Order 16, rule 40 of the NCR. First, the Plaintiff has pleaded and sought substantive relief in the Originating Summons. This is contrary to and in breach of Order 16, rule 3 (2) (a) of the NCR, which states that the sole relief to be pleaded in the Originating Summons is leave to apply for judicial review.

9. It is clear at paragraph 1 of the Amended Originating Summons filed on 15th February 2016 that the Plaintiff pleads and seeks leave for judicial review. It is not a case where he failed to plead the relief of leave in the Originating Summons. And while the pleading of the substantive relief are not necessary, the Defendants do not show how they are being prejudiced by their inclusion. To my mind, the Originating Summons is compliant of rule 3 (2) (a). This ground is dismissed as being misconceived.

10. Secondly, the Fourth Defendant supports the First, Second and Third Defendants’ submission that Order 16, rule 9 (2) states that an Applicant must plead and claim certiorari in the Amended Notice of Motion. They submit that the Plaintiff failed to do that. He only pleads and seeks a declaration. A declaration is not sufficient as it is a relief that only declares the legal position of a conflict. There must be a coercive order such as a certiorari to bring the subject decision into Court and have it quashed.

11. This submission is incorrect. While the Plaintiff may have not clearly expressed the claim for relief of certiorari in the Amended Notice of Motion, it has been pleaded at paragraph 1 (a) that the subject decision “should be quashed”. To my mind, this is sufficient. It takes the form of a coercive order and puts the Defendants on notice that he seeks an order to have the subject decision quashed. This ground is dismissed.

Uncontested Facts

12. As to the merits of the Plaintiff’s complaint, I note the First, Second and Third Defendants did not rely on any affidavits at trial. Counsel for the Fourth Defendant informed the Court that the Fourth Defendant did not file any affidavit in response. As for the Fifth Defendant, it did not indicate whether it relies on any affidavit in response but informed the Court that it takes a neutral position.

13. That being the case the evidence of the Plaintiff as set out in his affidavits filed on 12th February, 13th February and 30th March this year is uncontested. The Plaintiff is a career rank and file officer of the PNG Correctional Service, having served for 40 years. On 7th October 2014 he was appointed as Commissioner for a term of four years. The term will expire on 25th September 2018. The notice of his appointment was published in the National Gazette on 7th October 2014.

14. Around the first week of February of this year there were rumours of a change of management by the First Defendant. The First Defendant as the Minister responsible for the affairs of the Correctional Service and the immediate person to who the Plaintiff reports to never informed the Plaintiff of the change and reasons for the change of the Head of the Correctional Service. The move to change the Plaintiff was in essence a secret one until the Plaintiff was served the letter of 11th February 2016.

Breach of Procedure & Denial of Right to be Heard

15. The Defendants do not contest the Plaintiff’s submission that the grounds and procedure for revocation of...