Stanley Mangulik v Samson Torovi as the Provincial Administrator of East Sepik Province and Others

• Jurisdiction: Papua New Guinea
• Judge: Purdon-Sully J
• Judgment Date: 16 February 2024
• Neutral Citation: N10657
• Citation: N10657, 2024-02-16
• Counsel: Mr. Jonathan Asupa, for the Applicant/Plaintiff,Mr. Nou Vada, for the First Defendant
• Docket Number: OS (JR) NO. 113 OF 2023
• Hearing Date: 20 December 2023
• Court: National Court

N10657

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 113 OF 2023

Between:

Stanley Mangulik

Applicant/Plaintiff

v.

Samson Torovi as the Provincial Administrator of East Sepik Province

First Defendant

and

The Independent State of Papua New Guinea

Second Defendant

Waigani: Purdon-Sully J

2023: 20^th December

NATIONAL COURT — JUDICIAL REVIEW — where ultra vires, natural justice and Wednesbury principle of unreasonableness considered — decision under review quashed — Plaintiff reinstated to earlier position — costs

Cases cited:

Papua New Guinean Cases

Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400

Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122

Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39

Application by Hon Peter O'Neill MP [2023] PGSC 160; SC2506 (6 December 2023)

Koki v Inguba [2009] N3785

Nilkare v Ombudsman Commission (1996) SC498

Ombudsman Commission v Donahoe [1985] PNGLR 348

Re Mopio [1981] PNGLR 416

Ilau Karo v Ombudsman Commission of PNG [1995] N393

Kelly Yawip v The Police Commission [1995] PNGLR 122

Pierson Joe Kamagip v. Police Commission (1999) N1853

Ilau v Somare [2007] N5511

Raga v Kari [2002] PGNC 91; N9485

Air Nuigini v Doiwa [2000] PNGLR 347

Marat v Hanjung Power Ltd [2014] SC1357

Koti v Susame [2015] N5860

Rae v Matane [1979] PNGLR 239

Magiri v Papua New Guinea Forest Authority [2009] N3670

Lupari v Somare [2008] N3476

Overseas Cases

English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409

Lloyd v McMahon [1987] 2 WLR 821

John v Rees (1970) Ch. 345; (1969) 2 All E.R. 274

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Legislation:

National Court Rules

Constitution

Public Services (Management) Act 1995

Other

Christopher Karaiye, Administrative Law and Judicial Review in Papua New Guinea, 2009, Notion Press

Counsel:

Mr. Jonathan Asupa, for the Applicant/Plaintiff

Mr. Nou Vada, for the First Defendant

Mr. Johnathan Asupa: Lawyer for the Plaintiff

Mr Nou Vada: Lawyer for the First Defendant

DECISION

16^th February 2024

1. Purdon-Sully J: The Plaintiff, Mr Stanley Mangulik, applies for judicial review of the decision of the First Defendant of 26 September 2023.

2. The Plaintiff seeks a review of the decision of the First Defendant made on 26 September 2023 and published through Circular Instruction No 27/2023 dated 27 September 2023 to revoke the appointment of the Plaintiff as District Administrator of Maprik District and simultaneously appoint Mr Godfried Rasheum as caretaker administrator to replace the Plaintiff together with orders that:

a. The Plaintiff's termination was unlawful.

b. The Plaintiff be reinstated to his former position as the Acting District Administrator of Maprik District.

c. The Plaintiff's lost salaries and entitlements be reimbursed to the Plaintiff and that such lost salaries and entitlements be calculated from the date of his unlawful termination.

d. The Defendants to pay the Plaintiff's costs of and incidental to these proceedings on a solicitor and client basis.

e. Time abridgment.

3. The First Defendant seeks the dismissal of the application and that the Plaintiff pay costs including the costs of the adjournment of 21 November 2023.

BACKGROUND

4. The facts of this matter are confusing. It now appears to be conceded by the First Defendant that the Plaintiff was appointed to the role of Acting District Administrator of Maprik District in early February 2023. It is a finding supported not only by the First Defendant's conduct in seeking to later revoke the appointment he had earlier put in issue by reason of the absence of a valid instrument or contract of appointment, but documentary evidence under the First Defendant's own hand. An absence of an instrument or contract of employment did not, however, leave the Plaintiff without remedy or disentitle him to fair treatment. As part of procedural fairness, if not natural justice, the Plaintiff had a legitimate expectation that the First Defendant would treat him in a manner consistent with the expectations of his appointment, the First Defendant having represented to the Plaintiff that he had been appointed to the role of Acting District Administrator and thereafter having permitted him to undertake the functions associated with the role for a period of seven (7) months. It included ensuring that the First Defendant, as Provincial Administrator, would not only provide financial oversight, but attend to or ensure all necessary procedural requirements had been attended to whether within or outside his area of administrative responsibility, to give effect to the appointment he had made. To ignore those requirements and then raise the absence of an instrument of appointment as a basis for the dismissal of the Plaintiff's claim in these proceedings offended not only the principles of fairness but was arguably an abuse of authority.

5. The relevant background facts are as follows.

6. By letter dated 10 October 2022 the Plaintiff wrote to the then newly elected Member of Maprik, Hon Gabriel Kapris MP, expressing interest in an appointment as the District Administrator or CEO of the Maprik District. At the time, the Plaintiff was a career public servant of over twenty (20) years' experience with the Department of Finance serving as Regional Coordinator for the New Guinea Island region overseeing all Provincial and District finance operations across the region.

7. The position of Acting District Administrator of Maprik District was then held by another person who I shall call Mr X.

8. By letter dated 23 November 2022, Mr Kapris wrote to the First Defendant notifying him that the Plaintiff had been appointed Acting CEO/District Administrator for the Maprik District Development Authority and that he would be on secondment from the Department of Finance pending a proper job transfer. Mr Kapris noted in his communication that the Plaintiff was a Senior Officer within the Department and would bring with him a wealth of financial management experience. Mr Kapris requested the First Defendant's prompt attention to affirm the position enclosing a resolution for his endorsement.

9. In a further letter to the First Defendant of the same date Mr Kapris requested the revocation of Mr X's appointment.

10. On 12 December 2022 Ms. Taies Sansan, Secretary of the Department of Personnel Management (DPM), wrote to Mr Kapris in response to a request by him for advice on the administrative arrangements required to give effect to the Plaintiff's appointment and transfer. Ms. Sansan detailed the urgent steps required to assist payroll and transfer requirements. The Plaintiff and First Defendant were copied in on this letter.

11. On the same date Ms. Sansan wrote to the First Defendant She noted inter alia a lack of response by the First Defendant's office, as administrative head, to the recommendations of Mr Kapris and requested urgent clarification as to what steps had been taken within his administrative structure to address the matter with respect to Mr X and the Plaintiff's position to assist Mr Kapris. She sought a prompt response to her letter.

12. By further letter dated 14 December 2022 to the First Defendant, Ms Sansan, referring to her earlier letter to the First Defendant of 12 December 2022, requested that “an Instrument of acting appointment for Mr Stanley Mangulik and revocation of appointment for (Mr X) be immediately signed by you as the Provincial Administrator in compliance with the Public Services (Management) Act 1995 as amended and released to the two officers”. It noted that the release of the Plaintiff had been endorsed by the Secretary for the Department of Finance and that the Plaintiff would hold the position “for an indefinite period until such time a permanent position is made”. The First Defendant was requested to “formalize this revocation and acting appointment as soon as possible…..”. She reiterated that the First Defendant needed to comply with the selection and recruitment process to enable the vacancies to be filled. The First Defendant was encouraged to remain neutral and as head of the public service in the province to provide assistance to all members of the province.

13. On 1 February 2023 the First Defendant revoked, by instrument, the acting appointment of Mr X effective 2 February 2023. By letter to Mr X of the same date he instructed him to ‘participate in the official handover takeover session with (the Plaintiff) the incumbent Acting District Administrator’ and do so within five (5) days.

14. By letter dated 1 February 2023 to the Plaintiff, the First Defendant appointed the Plaintiff ‘Acting District Administrator for Maprik District pertaining to the endorsement by the Secretary Department of Personnel Management dated 14 December 2022’ effective 2 February 2023, congratulating him on the appointment. The letter was copied to Mr Kapris, the Governor of the Province, the Secretary for the DPM, the Secretary of the Department of Finance, the Provincial Finance Manager and the Executive Director of the Human Resource Management.

15. The Plaintiff's appointment was publicly announced in The National newspaper and the Loop.

16. The Plaintiff thereafter assumed the role of Acting Administrator with no evidence led by the First Defendant to suggest that any other person was Acting Administrator or performing the duties associated with the role.

17. On 13 August 2023 Mr Kapris died unexpectedly.

18. Between mid-August and September 2023, the First Defendant commissioned and received a report on the spending activities of the Maprik District Development Authority. On his evidence, he asked his officers (whom he had earlier tasked to do a discrete investigative review of the Plaintiff's activities prior to his appointment on 2 February 2023) to undertake the report. Their findings were presented to the First Defendant in the form of a PowerPoint presentation. The report marked Annexure ‘ST 9’ to the...