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Tapale v Secretary, Department of Southern Highlands and Southern Highlands Provincial Government [1995] PGNC 156; [1995] PNGLR 229 (8 March 1995)

PNG Law Reports 1995

[1995] PNGLR 229 - David Tapale v Secretary, Department of Southern Highlands and Southern Highlands Provincial Government 

[1995] PNGLR 229

N1303

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DAVID TAPALE

V

SECRETARY DEPARTMENT OF SOUTHERN HIGHLANDS AND

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

Mount Hagen

Woods J

10 February 1995

8 March 1995

ADMINISTRATIVE LAW - Judicial review - Departmental selection board decision on application for promotion - Scope of judicial review - Proper concern of judicial review.

Facts

The applicant sought judicial review of a decision of the Selection Board of the Department of Education of the Southern Highlands Provincial Government concerning the appointment of an officer to a position within the Department. The applicant was the substantive holder of a previous equivalent position and applied to be promoted but the Selection Board chose another applicant. The applicant appealed to the Public Services Commission which recommended in favour of the applicant. The applicant then sought judicial review.

Held

Judicial review is not an appeal from the decision of the administrative body, it is concerned with the decision making process, not the decision. There are three heads of judicial review: illegality, irrationality and procedural impropriety. Judicial review should not be used to monitor the actions of Departmental Heads or oversee work practices. Application dismissed.

Cases Cited

Papua New Guinea cases cited

Kekedo v Burns Philp [1988-89] PNGLR 122.

Temu v Dept of Works & The State [1994] unreported.

Other case cited

Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 A.E.R. 935.

Counsel

A McDonald, for the applicant.

No Appearance for the respondents.

8 March 1995

WOODS J: This is an application to review the decision of the Department of Education of the Southern Highlands Provincial Government Selection Board made in 1993 regarding the appointment of an officer to position No SHES008, Zone Education Officer, EO8.

The evidence comes from the applicant who states that he was the substantive holder of a position of Regional Education Officer Gr EO6 prior to 1992. He was actually working in that position from 1986 to 1989. In 1989 he then went to study at UPNG till 1991. Then from 1991 to 1992 he was temporarily working in the position of Education Planner. In 1993 his previous position was upgraded to Zone Education Officer Gr EO8, and of course as per Public Service requirements the new position was advertised. The applicant duly applied to be considered for the new position in particular on the basis that he had been the substantive holder of the previous equivalent position. However the Selection Board awarded the position to another applicant. The applicant appealed to the Public Service Commission who recommended that the applicant be considered for the position. One must realise that the Public Service Commission only has power to make recommendations, it cannot overturn the decision of the Department.

The applicant claims that he was not given a fair hearing. First he notes from a copy of a report on his application that the Selection Board considered that he had ‘absconded’ from his position to work elsewhere and whilst it is not clear what the Board meant by the word ‘absconded’ the applicant claims that he was not given a fair hearing on that suggestion. He also claims that he had better academic qualifications than the successful candidate and that should have meant he was better qualified for the position. Also he claims that he was entitled to that position as that was his substantive position, albeit reclassified.

Judicial Review is not an appeal from the decision of the administrative body. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion; judicial review is concerned not with the decision but the decision making process, as per Kapi DCJ in Kekedo v Burns Philp [1988-89] PNGLR 122.

The House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 AER 935 said that administrative action is subject to control by judicial review under three heads:

N2>1.       Illegality where the decision making authority has been guilty of error in law.

N2>2.       Irrationality where the decision making authority has acted so unreasonably that no reasonable authority would have made the decision.

N2>3.       Procedural impropriety where the decision making authority has failed in its study to act fairly.

As the Supreme Court has noted in Temu v Dept of Works & The State [1994] unreported: “There is increasing use of review proceedings in employment cases where the aggrieved employee is a “public servant” under the Public Services (Management) Act. The use of judicial review for the purpose of challenging the performance of managers and department heads carrying out their function under the Act when the Act clearly intended the authority to be judges of fact, risks debasing the remedy. Judicial review is a discretionary remedy. It should not be used to monitor or oversee the actions of Statutory department heads or authorities directly empowered and responsible for their own sphere other than in exceptional circumstances. Courts should not interfere with decision of properly constituted national bodies when a person aggrieved comes before the court seeking another result, not because of any failings in the decision making process but rather because he seeks to fashion an appeal as it were, from such decision. To oversee work practices in the guise of affording relief to an aggrieved employee takes little account of the embryonic socio-political development of our Government and Semi-Government departments run by National officers according to local aspirations and expectations. To interfere, in the exercise of an undoubted discretion, however, in other than exceptional circumstances, is unjustified in law and can only stifle initiative in those directly responsible for the administration and development of an indigenous public service. Judicial review proceedings are not appeal proceedings. They are concerned solely with the decision making process. There is no brief for a court to believe it has a right to judge for other people in these circumstances. The court is only empowered to consider the reasonableness of a decision by an authority where it can clearly be shown that there has been a failure to afford the aggrieved a right to be heard, or that procedures where laid down have been shown not to have been substantially complied with.”

In this case before me now the applicant was merely one of a number of applicants for a new position. Just because he held the prior lesser position does not mean that he had an automatic right to the new position. The Selection Board would have had a number of criteria to help it in its consideration but there is nothing before this court to show that the decision making process has miscarried such that this court should interfere. It is suggested that the Board placed some weight on the fact that the applicant had not actually worked in his substantive position for some time however that would be a consideration in the discretion of the Board and the Departmental Head. The applicant may feel that he has the better academic qualifications for the job but that is in the discretion of the board and the Departmental Head. It is not the job of this Court to tell a departmental head whom he should employ. The applicant has not lost his position in the service, he has only missed out on a substantive promotion .

The facts of this application for Review suggests that in fact the applicant is using this review as an appeal against the decision of the Board and the Department.

I am satisfied that this is not a matter in which this court should interfere by way of review. I dismiss the application.

Lawyer for the plaintiff: Warner Shand.