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Sarua v Kali [2013] PGNC 256; N5616 (20 September 2013)

N5616

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 289 OF 2013

BETWEEN:

HANS SARUA
Plaintiff

AND:

JOHN KALI, Secretary to Depart of Personnel Management
First Defendant

AND:

JOEL LUMA, Secretary of Department of Works
Second Defendant

AND:

PUBLIC SERVICE COMMISSION
Third Defendant

Waigani: Gavara-Nanu, J
2013: 11 June & 20 September

JUDICIAL REVIEW - Practice and Procedure - Application for judicial review - National Court Rules, Order 16 r 3 and 7 - Senior public servant - Employed under a contract - Public Services (Management) Act, 1995; ss 40, 41, 42 - Termination of contract of employment - Remedy in damages - Termination a private law nature unless the terms of contract provide otherwise.

Cases cited

Eramas Ragi & Ors v. Joseph Manfu [ 1994] PGSC3; SC459
Issac Lupari v. Somare & The State (2008) N3476
Issac Lupari v. The State (2008) SC930,
Nakikus v. Tubal & Ors [2012] PGNC 130 N4845
Ron Napitalai & Ors v. Casper Wallace [2010] PGSC 1, SC 1016

Counsels

R. Diweni, for the plaintiff
A. Nasu, for the defendants

20th September, 2013

1. GAVARA-NANU J: This is an application by the plaintiff for leave for judicial review of the decision of the first defendant made on 14 March, 2012 to terminate him as Deputy Secretary (Technical) Department of Works. As a consequential relief the plaintiff also seeks review of the subsequent decision of the third defendant made on 11 April, 2013, affirming the termination.

2. The defendants' main ground of objection to the application is that the plaintiff used wrong process to bring the matter to Court. They argued that plaintiff's remedy lies in damages as he was employed by the State under a contract and the termination was made pursuant to the terms of the contract. The legality of the termination therefore has to be determined pursuant to the terms of his contract of employment.

3. The defendants argued that the plaintiff should be seeking damages by a writ of summons for unlawful termination of his employment.

4. The plaintiff on the other hand argued that he can seek judicial review of his termination, his application can be converted later to a Statement of Claim for damages. This in fact is an alternative relief the plaintiff seeks in the Statement in Support. Mr Diweni of counsel for the plaintiff submitted that the plaintiff is seeking judicial review because he wants to be reinstated to his substantive position. He argued that if his application for judicial review is refused, he will seek leave to have his application converted to a Statement of claim for damages. The plaintiff relies on Issac Lupari v. Somare & The State (2008) N3476 for this contention.

5. The pertinent question then is; has the plaintiff correctly invoked Order 16 of the National Court Rules to have his termination reviewed, or does his remedy lie in damages, in which case he needs to seek damages by a writ of summons. In my view, the answer lies in the proper construction of the relevant provisions of the Public Services (Management Act) 1995, viz, ss. 40, 41, 42 and 43, which set out the procedure by which senior officers employed under contracts of employment may be disciplined.

6. There is no dispute that the above provisions apply to the plaintiff, who was a senior officer in the public service and was employed under a contact of employment by the State. The sections apply to senior contracted officers other than the Departmental Heads who are covered by ss. 26 to 29 of the Act. This is clear from the terms of s. 40 (1).

7. Ordinarily a junior public servant charged with a disciplinary offence would be dealt with under the procedure set out under Part XIV of the Act. Section 41 (3) expressly exempts senior officers who are on contracts of employment from being dealt with under Part XIV. Section 41 (3) is in my view determinative and is significant as it expressly states that a contract of employment "shall, make specific provision for discipline". Section 41 (3) is in these terms:

(3) Notwithstanding the provisions of this Act relating to discipline of offences, a contract of employment under Subsection (1) shall make specific provision for discipline and an officer employed under a contract of employment and Subsection (1) is exempted from the provisions of Part XIV.

8. In my view, this Subsection puts beyond any doubt that senior contracted public servants should be disciplined in accordance with the terms of their contracts of employment unless the terms of the contract themselves provide otherwise, for example provisions in the contract that such officers be dealt with under the PS Act. This was the approach taken by the National Court in Nakikus v. Tubal & Ors [2012] PGNC 130; N4845 (12 July, 2012). In that case the plaintiff was the Director Corporate Affairs in the Administration of East New Britain Provincial Government. He was on a three year contract of employment with the State. He was charged with a disciplinary offence and after being found guilty was demoted. This happened after completing only two years of his contract. He challenged his penalty claiming his contract of employment was unlawfully terminated. He argued that the defendants should have referred the charges laid against him to the Secretary for Department of Personal Management. He was disciplined by the first defendant, who was the Provincial Administrator. The Court said Part XIV of the Public Service Management Act, did not apply to the plaintiff as his employment was governed strictly by the terms of his contract of employment. After referring to s. 41(3), the learned trial judge said: "I am satisfied that Mr Nakikus is an officer employed under a contract of employment under s. 41 (1) as he is an officer appointed to a senior management office and is described in his contract of employment throughout as a senior officer. Consequently he is exempted from the provisions of Part XIV." In Ron Napitalai & Ors v. Casper Wallace [2010] PGSC 1, SC 1016 (8 February, 2010), the Supreme Court said the respondent who was employed under a contract of employment could not be availed of the judicial review process under Order 16 of the National Court Rules to review the termination of his employment with the PNG Ports Corporation Ltd (PNG Ports). The Supreme Court found that the trial judge in that case erred in granting respondent leave for judicial review. The Court said the respondent's termination was of private law nature. In stressing this point, the Court said: "We are satisfied that the appellants have shown that the trial judge fell into error as indicated above... In addition, finding as we have, we are satisfied that the respondent's termination is of a private law nature. As such the remedy of judicial review is not available to him. Thus the trial judge fell into error in granting leave to the respondent for his termination from employment to be judicially reviewed."

9. In Issac Lupari v. The State (2008) SC930, one of the issues the Supreme Court had to decide was whether the plaintiff who was employed under a contract by the State could have his dismissal judicially reviewed. The State argued that the appellant's remedies lay in damages for breach of contract. The appellant on the other hand argued that because his contract was based on the Public Services (Management) Act, the contract did not remove his rights as a public servant to have his termination reviewed. He argued that his contract of employment fell into public law domain. The Supreme Court said:

"...The issue presented can be determined by reference to a determination of the more fundamental question of, can a Departmental Head or a senior public servant who is employed under a contract have it both ways in terms of the benefits under the terms of his contract and the normal public service terms and conditions of employment? The cases, Counsel for the Prime Minister and the State rely upon effectively say that, a Departmental Head cannot have it both ways. If he is employed under a contract of employment, it is to the terms of the contract that he must look to for his remedies and not by way of judicial review. The two Supreme Court decisions in Eremas Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Habours Board (supra) support the proposition that in the case of a public servant employed under a contract that unless there is express provision for the application and continuation of a public servant's rights and privileges including, the public service disciplinary process and the right to judicial review of decisions affecting them, they do not apply. There is no conflict in these two decisions of the Supreme Court." (my underlinging)

11. The case of Eramas Ragi & Ors v. Joseph Maingu [ 1994] PGSC3; SC459, differentiated between public law and private law. The Supreme Court in that case said judicial review was only available where issues of public law are involved; for instance, where a public body or person making the decision relies on a statute or a sub-ordinate legislation. The Court said private law rights relate to issues arising either out of a contract or out of tort where a private individual is claiming damages against either a private or public body for a breach of a contract or a breach of a duty owed to him in common law.

12. Having regard to the principles set out in these cases, in the present case the plaintiff was charged under Clause 20 of his contract and was disciplined pursuant to Clause 25 of the contract. In this regard I consider that the actions of the defendants are consistent with provisions of s. 41 (3) of the Public Services (Management) Act. Clause 20 of the contract stipulates the grounds of termination and Clause 25 stipulates the types of penalties that may be imposed. The plaintiff's right accrued from his contract thus his termination is of private law nature. This limits his remedy to damages which should be determined pursuant to the terms of his contract.

13. The plaintiff had by signing the contract of employment agreed to be bound by its terms. He cannot have it both ways. He has to look to the terms of his contract of employment, if he wishes to seek remedies for his termination, those remedies are in damages. There is no express provision in his contract providing for a process outside his contract under which he could have been dealt with: Isaac Lupari v. The State (supra). It follows that the plaintiff has wrongly invoked the review process under Order 16 of the National Court Rules to challenge his termination.

14. Leave for judicial review of plaintiff's termination is therefore refused with costs.

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Diwenis Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants