Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea (2005) SC797

• Jurisdiction: Papua New Guinea
• Judge: Jalina J, Cannings J, Manuhu J
• Judgment Date: 28 October 2005
• Court: Supreme Court
• Citation: (2005) SC797
• Docket Number: SCA No 162 of 2004
• Year: 2005
• Judgement Number: SC797

Full Title: SCA No 162 of 2004; Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea (2005) SC797

Supreme Court: Jalina J, Cannings J, Manuhu J

Judgment Delivered: 28 October 2005

SC797

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 162 0F 2004

MISION ASIKI

Appellant

V

MANASUPE ZURENUOC, PROVINCIAL ADMINISTRATOR

First Respondent

MOROBE PROVINCIAL ADMINISTRATION

Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

LAE: JALINA J, CANNINGS J, MANUHU J

29 JUNE, 28 OCTOBER 2005

Administrative law – judicial review of decisions of provincial administrator to terminate employment of public official and to refuse a recommendation from the Public Services Commission for reinstatement – application for judicial review under National Court Rules, Order 16.

Supreme Court – appeals – whether Supreme Court can make orders for judicial review where error of law made by trial judge – whether matter should be remitted to National Court.

Practice and procedure – Claims By and Against the State Act, Section 5 – notice of intention to make claim – whether notice under Section 5 must be given prior to commencement of proceedings under National Court Rules, Order 16.

Constitutional Law – Public Services Commission – review of personnel matter in the Public Service – recommendation for reinstatement – refusal to comply with recommendation – status of recommendations made by Public Services Commission – duty of respondent to implement recommendation or give cogent and convincing reasons for failure to implement.

Judgments and orders – appropriate orders for judicial review – whether appropriate to order reinstatement of a person unlawfully dismissed from office – whether appropriate to order payment of entitlements lost.

The appellant was an officer of a provincial administration. He was investigated by the provincial administration for misconduct. The provincial administrator laid disciplinary charges, heard from the officer and then dismissed him, terminating his employment. The appellant sought review of that decision by the Public Services Commission, which considered the matter and having found procedural errors recommended to the provincial administrator that the appellant be reinstated. The provincial administrator did not accept the recommendation and wrote to the appellant, notifying him that his original decision remained. The appellant applied to the National Court for leave to seek judicial review of the decisions of the provincial administrator, firstly, to dismiss him and, secondly, to not act on the recommendations of the Public Services Commission. The National Court granted leave and the matter was set down for substantive review. The National Court refused judicial review on the ground that the appellant had not, prior to commencement of the proceedings in the National Court, given notice of his intention to make a claim against the State under Section 5 of the Claims By and Against the State Act. The appellant appealed against the refusal of judicial review.

Held:

(1) The notice requirements of the Claims By and Against the State Act apply only to actions that are founded on contract or tort or breaches of constitutional rights.

(2) Section 5 does not apply to actions seeking orders in the nature of prerogative writs commenced under Order 16 of the National Court Rules, as Order 16 provides a comprehensive and exclusive procedure for judicial review. Frederick Martins Punangi v Sinai Brown (2004) N2661 approved.

(3) The appellant was under no obligation to give notice under Section 5 and, having been granted leave, ought to have had the merits of his application for judicial review determined by the National Court.

(4) The Supreme Court, having found error by the trial judge, is authorised to set aside the judgment of the National Court and make all orders that could have been made by the National Court.

(5) A provincial administrator, being the equivalent of a departmental head, having received a recommendation from a constitutional institution, the Public Services Commission, to reinstate a person to his former position, has a duty to either implement the recommendation or give cogent and convincing reasons for failure to do so.

(6) The duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. If no reasons are given it is to be inferred that there were no good reasons for the decision being made. Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66 approved.

(7) In circumstances where it is clear that a duty imposed on a provincial administrator by or under a Constitutional Law has been breached and that an error has been made by the National Court, it is in the interests of justice for the Supreme Court to judicially review the administrative decisions of the provincial administrator and make orders calculated to avoid a further multiplicity of proceedings.

(8) Accordingly, the Supreme Court ordered the reinstatement of the appellant and the payment to him of the salary and emoluments lost because of his unlawful dismissal.

Cases cited

The following cases are cited in the judgment:

Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported

Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850

Aloysius Eviaisa v Sir Mekere Morauta (2001) N2744

Application of Rickobert Petau (2004) N2687

Bokin v The Independent State of Papua New Guinea (2001) N2111

Clement Kilepak v Ellison Kaivovo (2003) N2402

Daniel Hewali v Papua New Guinea Police Force and The State (2002) N2233

Frederick Martins Punangi v Sinai Brown as Minister for Public Service, Sir Michael Somare as Chairman of the National Executive Council and The State (2004) N2661

Gideon Barereba v Margaret Elias (2002) N2197

Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66

Graham Kevi v Teaching Service Commission (1997) N659

Jim Kas v The State (2000) N2010

John Kombati v Fua Singin and Others (2004) N2691

John Magaidimo v Commissioner of Police (2004) N2752

John Mua Nilkare v Ombudsman Commission (1996) SC498

Kelly Yawip v Commissioner of Police [1995] PNGLR 93

Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

Leto Darius v Commissioner of Police (2001) N2046

Martha Kokiva-Age v Lawyers Statutory Committee (2005) N2835

Mathew Totori v Bob Nenta, Police Commissioner and Department of Police (2003) N2373

Minato v Kumo and The State (1998) N1768

Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Government and The State (2004) OS No 106 of 2003, 12.10.04, unreported

Morobe Provincial Government v Minister for Village Services (1994) N1215

Ombudsman Commission v Peter Yama (2004) SC747

Paul Pora v Commissioner of Police (1997) N1569

Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital and Others (2001) N2123

Peter Luga v Richard Sikani (2002) N2285

Re Application of Louise Autsila Ainie (2004) N2533

Sam Anonga v Jack Were (2001) N2149

SCR No 1 of 1998; Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672

Tohian and The State v Tau Liu (1998) SC566

Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479

William Mel v Coleman Pakalia, Commissioner of Police and The State (2005) SC790

APPEAL

This was an appeal from a judgment of the National Court refusing an application for judicial review of two decisions of a provincial administrator which had the effect of dismissing a public servant from his employment.

Counsel

M Asiki, the appellant, in person

H Cooper for the 1st and 2nd respondents

No appearance by the 3rd respondent

BY THE COURT:

This is an appeal against a decision of Gabi AJ, as he then was, in the National Court, in which his Honour refused an application for judicial review of two decisions of a provincial administrator that had the effect of dismissing a public servant from his employment. (Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Government and The State (2004) OS No 106 of 2003, 12.10.04, unreported.)

BACKGROUND

The dismissal

The appellant, Mision Asiki, used to be a public servant. He was the Administrative Officer to the Division of Policy, Planning and Research in the Morobe Provincial Administration from 1994 to 2000.

During 2000 he faced disciplinary charges over alleged misuse of an Air Niugini airline ticket and travel allowances relating to a trip to and from Port Moresby. The charges were laid under the Public Services (Management) Act 1995. He replied to the charges, admitting what had happened but offering the explanation that he had used the ticket and the allowances for compassionate reasons and he had approval from his divisional head. The first respondent, the Morobe Provincial Administrator, considered the matter. Then he wrote to the appellant on 17 November 2000, notifying him that his services were terminated forthwith, as he had admitted committing the...