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Holee v Vegogo [2013] PGNC 30; N5101 (15 March 2013)

N5101

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NOS 543, 544 & 545 OF 2012

JOMINO HOLEE, PAULA VUVU & GAUEALELE SAMUEL
Plaintiffs

V

SEM VEGOGO, CHIEF EXECUTIVE OFFICER,
PORT MORESBY GENERAL HOSPITAL
First Defendant

PASCOE KASE, SECRETARY, DEPARTMENT OF HEALTH
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2013: 11, 15 March

JUDICIAL REVIEW – failure to comply with decision of Public Services Commission as to review of personnel matters – Public Services (Management) Act, Section 18 – remedies – when appropriate to award damages in judicial review proceedings.

The plaintiffs are three former nurses who were required to retire from the Public Service after more than 40 years of service each, upon reaching the retirement age. They disputed the amount of their retirement benefits and being unable to resolve the dispute complained to the Public Services Commission, which inquired into their complaints and made decisions in their favour that required the Chief Executive Officer of the public hospital at which they had been employed to include three additional categories of benefits in their final entitlements. The Chief Executive Officer failed to comply with the decisions so the plaintiffs brought judicial review proceedings seeking a declaration that the decisions of the Public Services Commission were binding, an order in the nature of mandamus compelling the defendants to comply with the PSC decisions and damages.

Held:

(1) A decision of the Public Services Commission under Section 18(3)(c)(ii) of the Public Services (Management) Act becomes "binding" after a period of 30 days from the date of the decision. Unless the decision is set aside or amended or quashed by some lawful means it must be complied with. It is a self-executing decision, tantamount to a court order.

(2) The first defendant's failure to comply with the PSC's decisions was unlawful, being in direct contravention of the duty of compliance imposed by the Act, and was contrary to the principles of natural justice as no reasons were given for failing to comply, and was unreasonable as no reasonable public official could have ignored or refused to comply with the decision in the manner that the first defendant did.

(3) The degree of unlawfulness and the breach of natural justice and unreasonableness were manifestly severe and have resulted in a grave injustice to the plaintiffs and all relief sought by the plaintiffs was granted including an order for damages.

Cases cited

The following cases are cited in the judgment:

Ambrose Vakinap v Thaddeus Kambanei (2004) N3094
Anthony John Polling v MVIT [1986] PNGLR 228
Bau Waulas v Veronica Jigede (2009) N3781
Francis Damem v Jerry Tetaga (2005) N2900
Lawrence Sausau v Joseph Kumgal (2006) N3253
Niugini Mining Limited v Joe Bumbandy (2005) SC804
Ombudsman Commission v Peter Yama (2004) SC747
Paul Dopsie v Jerry Tetaga (2009) N3722
Paul Saboko v Commissioner of Police (2006) N2975
Robin Sam v Peter Tsiamalili (2006) N3072

Counsel

J Napu, for the plaintiffs
T Kamuta, for the defendants

15 March, 2013

1. CANNINGS J: The plaintiffs are applying for judicial review of the failure of the first and second defendants, the Chief Executive Officer of Port Moresby General Hospital and the Secretary for Health, to comply with decisions of the Public Services Commission that they be paid three categories of retirement benefits following their retirement from the Public Service. The plaintiffs are women now aged in their sixties. They were employed as nurses at Port Moresby General Hospital for more than 40 years each before being required to retire in 2009. They took the view that they should be paid retrenchment benefits in addition to normal retirement benefits but the CEO of the Hospital disagreed, and they left employment without being paid those additional benefits. Being unable to resolve the dispute, they complained to the
Public Services Commission which inquired into their complaints and on 28 March 2012 made decisions in their favour in the following terms:

That the calculation of [the plaintiff's] retirement benefits be amended to include the following:

(a) 50% ex gratia component as provided by clause 19.1(i) of the memorandum of agreement on salaries and other terms and conditions of employment in the Public Service 2007 to 2010 (""the MOA"") and under Circular Instruction No 31 of 2007, dated 3 December 2007, by the Secretary for Department of Personnel Management ("the Circular); and

(b) 8 weeks salary as money in lieu of notice as provided by clause 17.3.3 of the MOA and the Circular; and

(c) lost salary (as a result of being put off payroll) effective from 24 August 2010 to date.

2. The Chief Executive Officer failed to comply with the PSC's decisions so the plaintiffs have applied for judicial review of his failure to comply seeking a declaration that the decisions of the Public Services Commission were binding, an order in the nature of mandamus compelling the defendants to comply with the PSC decisions and damages.

GROUNDS OF REVIEW

3. The plaintiffs argue that the failure of the chief executive officer and the Secretary for Health to comply with the decisions is:

• unlawful;
• contrary to the principles of natural justice; and
• unreasonable.
  

4. The defendants agree. Mr Kamuta of the Office of Solicitor-General who appeared for the defendants sensibly conceded the case.

THIS IS A STRAIGHTFORWARD CASE

5. Once the Public Services Commission inquires into complaints of this nature and makes a decision on the matter its decision becomes binding after 30 days. Section 18 (review of personnel matters connected with the National Public Service) sets out the powers and procedures of the PSC and states in Section 18(3)(c)(ii) that after considering all the facts relative to the matter it shall "make a decision to uphold, vary or annul the decision the subject of the complaint" and in Section 18(3)(d)(ii) that the decision "shall become binding after a period of 30 days from the date of the decision".

6. A binding decision is one that must be complied with. It imposes a statutory duty on the person to whom it is directed to comply with it. This has been made clear in a number of decisions of the National Court, in particular Ambrose Vakinap v Thaddeus Kambanei (2004) N3094, Robin Sam v Peter Tsiamalili (2006) N3072 and Francis Damem v Jerry Tetaga (2005) N2900. It is open to the person at whom a PSC decision is directed to apply by judicial review to have the decision quashed (eg Paul Dopsie v Jerry Tetaga (2009) N3722) but unless the decision is set aside or amended or quashed by some lawful means it must be complied with. It is a self-executing decision, tantamount to a court order.

7. The PSC decisions of 28 March 2012 have not been set aside, amended, revoked or quashed. They have remained in place but they have been ignored. The failure of the chief executive officer and the Secretary for Health to comply with the decisions is manifestly unlawful. It is also contrary to the principles of natural justice as no reasons have been given for the failure to comply. The plaintiffs were entitled to the protection of the principles of natural justice. They were entitled to receive reasons for the failure to comply with the PSC's decisions. They received no reasons. They were denied natural justice (Ombudsman Commission v Peter Yama (2004) SC747). The failure of the first and second defendants to comply with the PSC's decisions was unreasonable according to the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The failure to comply was so unreasonable, having regard to all the circumstances, no reasonable decision-maker could have displayed similar inertness (Paul Saboko v Commissioner of Police (2006) N2975).

REMEDIES

8. The plaintiffs' three grounds of judicial review are upheld and the question of remedies must be considered. I have no hesitation in granting the relief sought. The degree of unlawfulness and the breach of natural justice and unreasonableness are manifestly severe and have resulted in a grave injustice to the plaintiffs.

9. The declarations sought will be granted and the defendants will be compelled to comply forthwith with the PSC's decisions. I will order the parties to attempt settling the precise Kina amounts to be calculated and to return to court in ten days with settled figures but if settlement does not occur the parties must come to court anyway and explain why settlement has not been reached and be prepared to submit on what the precise amounts should be. I am taking that unusual course to avoid any more unnecessary delay and denial to the plaintiffs of what is rightly theirs.

10. I am also going to award damages under Order 16, Rule 7 of the National Court Rules. Normally the court would insist on a statement of claim and particulars before considering awarding damages. However I dispense with those requirements under Order 1, Rule 7 of the National Court Rules. I consider that the interests of justice require that the severity of the Rules be relaxed. There is good justification for non-compliance with the Rules. No prejudice is done to the defendants, particularly in view of the fact that they have conceded the case (although waiting for the day of the trial to do so). I have not made the decision to waive compliance with the Rules lightly. I have had regard to the leading cases on dispensation, including Anthony John Polling v MVIT [1986] PNGLR 228 and Niugini Mining Limited v Joe Bumbandy (2005) SC804.

11. This is not a normal case. The court is faced with an extraordinary case. Three women who have served the People of this country and the patients of our largest public hospital with distinction (evidence of which is before the court) in a profession of such critical importance as the nursing profession have been treated with disdain and neglect by their former employers, the very persons who should have applauded and thanked them. They have been forced into court unnecessarily. Why the Solicitor-General did not concede this case upon its commencement is unknown. The plaintiffs worked as nurses for more than 40 years and they deserve to be compensated for the suffering that they have had to endure over the last four years, and in particular over the last ten months, in getting their just rewards for the enormous contribution that they have made to the health and well being of the People. I have considered the cases of Lawrence Sausau v Joseph Kumgal (2006) N3253 and Bau Waulas v Veronica Jigede (2009) N3781, where successful judicial review applicants who established that they had been unlawfully dismissed from public employment were awarded damages of K3,000.00 and K5,000.00 respectively. I consider that the suffering and inconvenience of the plaintiffs is greater than that in those cases. I will award damages of K10,000.00 each.

ORDER

(1) The application for judicial review is granted.

(2) It is declared that the first defendant must comply forthwith with the binding decisions of the Public Services Commission dated 28 March 2012.

(3) For the purposes of giving effect to order No (2), the lawyer for the defendants and the lawyers for the plaintiffs shall forthwith meet and use their best endeavours to settle on the precise amounts of money referred to in the decisions of the Public Services Commission and shall appear before the Court on 25 March 2013 at 1.30 pm and either present the Court with a draft consent order giving effect to settlement or apply by notice of motion supported by affidavit for an order to give effect to the decisions of the Public Services Commission.

(4) The plaintiffs shall, in addition to the precise amounts of money which must be paid to them pursuant to the decisions of the Public Services Commission, be paid by the defendants damages of K10,000.00 each, which shall be paid within a reasonable time after entry of this order.

(5) The defendants shall pay the costs of these proceedings to the plaintiffs and in that regard the plaintiffs are at liberty to apply by notice of motion for costs on a solicitor-client basis, and any such motion shall be heard on 25 March 2013 at 1.30 pm.

(6) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.
______________________________________________

Napu & Company Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants