N6266

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 52 OF 2016

BETWEEN

MICHAEL WAIPO as the COMMISSIONER, PNG CORRECTIONAL SERVICE 
 Plaintiff
 
AND
HON. JIMMY SIMITAB, as the MINISTER FOR PNG CORRECTIONAL SERVICE
First Defendant

AND
JOHN KALI, as the CHAIRMAN, MINISTERIAL EXECUTIVE APPOINTMENTS COMMITTEE 
Second Defendant

AND
HON. PETER O’NEIL, as the CHAIRMAN, NATIONAL EXECUTIVE COUNCIL 
Third Defendant

AND
CHIEF INSPECTOR BERNARD NEPO 
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Fifth Defendant

Waigani: Makail, J
2016:  4th & 5th May  

JUDICIAL REVIEW – Review of revocation of appointment – Departmental Head – Commissioner of Correctional Services – Public Services (Management) Act, 2014 – Sections 27 (1) & 28 (6) (d) – Public Services (Management) (Employment  of Departmental Heads) Regulation, 2014 – Section 28 (3) (i) – (iii)

JUDICIAL REVIEW – Grounds of review – Breach of procedure – Denial of right to be heard – Allegation of poor performance by Commissioner 

JUDICIAL REVIEW – PRACTICE & PROCEDURE – Objection to competency – Failure to plead relief – Certiorari – Pleading substantive relief in Originating Summons – Whether proceeding abuse of process – Order 16, rules 3 (2) (a) & 9

Cases cited:

Isaac Lupari v. Sir Michael Somare, NEC & The State (2010) SC1071
Joel Luma v. John Kali, NEC & The State (2014) SC1401
Joseph Klapat v. NEC & Ors (2014) N5536
Peter Peipul v. The Leadership Tribunal (2002) SC706
Simon Kauba v. NEC & The State: OS (JR) No 477 of 2014 (Unnumbered & Unreported Judgment of 13th November 2015)

Counsel:

Mr. M. Koimo, for Plaintiff
Mr. P. Mawa, for First, Second & Third Defendants
Mr. J. Abone, for Fourth Defendant
Ms. J. Topo, for Fifth Defendant

JUDGMENT
5th May, 2016

1.	MAKAIL, J:  On 9th February 2016 in its Decision No. 15/2016 the National Executive Council (“NEC”) approved to advise the Head of State to revoke the appointment of the Plaintiff as Commissioner for Correctional Service and in his place, appoint the Fourth Defendant as Acting Commissioner for Correctional Service.  The decision was based on a recommendation by the portfolio Minister the First Defendant in this proceeding pursuant to Section 28 (6) (d) of the Public Services (Management) Act, 2014.  The ground for revocation was breach of contract of employment, namely poor performance.   The decision was conveyed to the Plaintiff in a letter by the First Defendant dated 11th February 2016.

Grounds of Review

2.	The Plaintiff seeks review of that decision.  According to the Amended Statement made pursuant to Order 16, rule 3 (2) (a) of the National Court Rules (“NCR”) filed on 15th February 2016, he relies on two grounds, breach of procedure and denial of right to be heard.  These grounds are based on Section 28 (3) of the Public Services (Management) (Employment of Departmental Heads) Regulation, 2014 which provide for “The grounds, criteria and the procedure for termination prescribed by a contract of employment.....” 

3.	He relies on a further ground.  It is based on the absence of a contract of employment between him and the Defendants.  He says that as there is no contract of employment, the decision was made in a “vacuum”.

Preliminaries 

4.	Pursuant to the Notice of Motion filed on 23rd February 2016 following grant of leave, the Plaintiff seeks a declaration that the subject decision is of no legal effect and be quashed.  At trial counsel who appeared for the First, Second and Third Defendants informed the Court that he was not served with affidavits of the Plaintiff and requested a brief adjournment to enable the Plaintiff’s lawyers to serve the affidavits on him.  

5.	The request was declined on the ground that although Mawa Lawyers had filed a Notice of Appearance on 15th March 2016, they did not serve a copy on the lawyers for the Plaintiff.  As a result, the Plaintiff’s lawyers were not informed of Mawa Lawyer’s engagement in this matter and did not serve them.  The Plaintiff’s lawyers only served the documents on the Solicitor-General and there was appearance by counsel from the Office of the Solicitor-General on behalf of the Fifth Defendant at trial.  

6.	The position the Plaintiff took was proper and in accordance with Order 4, rule 11 (Time for giving notice of intention to defend) and Order 16, rule 12 (Service on the Secretary for Justice).  The confusion as to legal representation of the First, Second and Third Defendants and lack of service of the documents on them are not reasonable and justified an adjournment.  

7.	Secondly, counsel for the Fourth Defendant attempted to object to the competency of the proceeding on the ground that the issue of revocation of appointment of the Plaintiff as Commissioner was before the Supreme Court in proceeding SCM No 2 of 2016 and further the determination of this issue has been stayed.  An order of the Supreme Court was produced to confirm this. The attempt failed because that order relates to a different matter – issue of a stay of the NEC decision, which in effect restored the Plaintiff as Commissioner pending the appeal.  The order did not stay this proceeding and the Plaintiff is perfectly entitled to prosecute it.

Objection to Competency 

8.	The Fourth Defendant objects to the competency of the proceeding on the ground that the proceeding is an abuse of process pursuant to Order 16, rule 40 of the NCR.  First, the Plaintiff has pleaded and sought substantive relief in the Originating Summons.  This is contrary to and in breach of Order 16, rule 3 (2) (a) of the NCR, which states that the sole relief to be pleaded in the Originating Summons is leave to apply for judicial review.  

9.	It is clear at paragraph 1 of the Amended Originating Summons filed on 15th February 2016 that the Plaintiff pleads and seeks leave for judicial review.  It is not a case where he failed to plead the relief of leave in the Originating Summons.  And while the pleading of the substantive relief are not necessary, the Defendants do not show how they are being prejudiced by their inclusion.  To my mind, the Originating Summons is compliant of rule 3 (2) (a).  This ground is dismissed as being misconceived.  

10.	Secondly, the Fourth Defendant supports the First, Second and Third Defendants’ submission that Order 16, rule 9 (2) states that an Applicant must plead and claim certiorari in the Amended Notice of Motion.  They submit that the Plaintiff failed to do that.  He only pleads and seeks a declaration.   A declaration is not sufficient as it is a relief that only declares the legal position of a conflict.  There must be a coercive order such as a certiorari to bring the subject decision into Court and have it quashed.  

11.	This submission is incorrect.  While the Plaintiff may have not clearly expressed the claim for relief of certiorari in the Amended Notice of Motion, it has been pleaded at paragraph 1 (a) that the subject decision “should be quashed”.  To my mind, this is sufficient.  It takes the form of a coercive order and puts the Defendants on notice that he seeks an order to have the subject decision quashed.  This ground is dismissed.

Uncontested Facts

12.	As to the merits of the Plaintiff’s complaint, I note the First, Second and Third Defendants did not rely on any affidavits at trial.  Counsel for the Fourth Defendant informed the Court that the Fourth Defendant did not file any affidavit in response.  As for the Fifth Defendant, it did not indicate whether it relies on any affidavit in response but informed the Court that it takes a neutral position.

13.	That being the case the evidence of the Plaintiff as set out in his affidavits filed on 12th February, 13th February and 30th March this year is uncontested.  The Plaintiff is a career rank and file officer of the PNG Correctional Service, having served for 40 years.  On 7th October 2014 he was appointed as Commissioner for a term of four years.  The term will expire on 25th September 2018.  The notice of his appointment was published in the National Gazette on 7th October 2014.

14.	Around the first week of February of this year there were rumours of a change of management by the First Defendant.  The First Defendant as the Minister responsible for the affairs of the Correctional Service and the immediate person to who the Plaintiff reports to never informed the Plaintiff of the change and reasons for the change of the Head of the Correctional Service.  The move to change the Plaintiff was in essence a secret one until the Plaintiff was served the letter of 11th February 2016.

Breach of Procedure & Denial of Right to be Heard

15.	The Defendants do not contest the Plaintiff’s submission that the grounds and procedure for revocation of appointment of the Head of the Correctional Service are prescribed in Section 28 (3) (b) of the Public Services (Management) (Employment of Departmental Heads) Regulation, 2014.  And the Regulation is based on Section 27 (1) of the Public Services (Management) Act, 2014.

16.	In brief they are in a case of breach of contract for poor performance where no disciplinary action was involved and over a period of not less than 6 months, a warning in writing must be given to the Plaintiff to improve his performance or overcome weakness in his conduct within a period of not less than 6 months.  

17.	Then the Secretary shall provide a performance report to the Ministerial Executive Appointments Committee (“MEAC”) as to the change in the performance of the Plaintiff and to confirm if the Plaintiff has complied with the directive by improving his performance.  Finally, if the NEC, having received a report from the Chairman of MEAC determines that the Plaintiff’s performance has not improved adequately, shall advise the Head of State to terminate the Plaintiff for poor performance.

18.	The Plaintiff submits that the Defendants did not comply with this procedure.  The main point of contention which the Plaintiff placed heavy reliance on and says is a serious and fundamental breach, thus tainting the decision is the failure by the First Defendant to warn him in writing of his poor performance and the details of the poor performance.	

19.	Secondly, the failure to warn him of his poor performance denied him the right to be heard in his defence of the allegation and/ or improve on his work performance if it is true that he has underperformed.

20.	The Defendants made no submissions in response to these submissions.  On the evidence presented, I uphold the Plaintiff’s submissions.  I am satisfied that the Defendants have failed to comply with the procedure for termination prescribed in Section 28 (3) (i) – (iii) above.  Secondly, they failed to accord the Plaintiff the right to be heard when they failed to warn him of poor performance and to give him the opportunity to improve his performance within 6 months.  

21.	In my view where the decision-making authority by-passes or fails to comply with each step in the process for revocation of appointment, it should not be allowed to gain from the illegal act.  Peter Peipul v. The Leadership Tribunal (2002) SC706 and Joseph Klapat v. NEC & Ors (2014) N5536.  In this case, I am of the view that the breaches identified by the Plaintiff are very grave and serious such that the subject decision must not stand.  I uphold these grounds of review.

22.	This being the case, it is not necessary, in my view, to consider the ground on absent of contract of employment.

23.	The remaining consideration is the question of remedy.  What is the appropriate remedy to order in this case?  The First, Second and Third Defendants supported by the Fourth Defendant submit damages would be the appropriate remedy for the Plaintiff.  For this submission they rely on the case of Isaac Lupari v. Sir Michael Somare, NEC & The State (2010) SC1071.

24.	The only criticism that may be levelled against the Plaintiff is that he did not specifically plead and seek an order for reinstatement.  However, he did clearly express in his submission that he seeks reinstatement which the Defendants do not deny.  Notwithstanding this defect, as he has pleaded at paragraph 10 of the Amended Notice of Motion “Such further and (sic) orders as the Court deems fit”, I am of the view that this prayer for relief is wide enough to include and give the Court discretion to grant an order for reinstatement.

25.	The Defendants did not place any evidence to show that the Plaintiff’s relationship with them has become noxious or deteriorated to such an extent that it is beyond repair.  On the other hand, the contrary view is open to find based on the departing remarks of the First Defendant in the letter dated 11th February 2016.  The relevant parts of the letter read:

“At the same time I would like to express, on behalf of my Ministry and the Government, my deep appreciation to you for the dedicated services to the PNG Correctional Service, firstly as Commissioner over the last two years , and also as a fine correctional officer in the PNG national prison system for over four decades.

Let me thank you most sincerely for the association I have had with you over your tenure as Commissioner.  I also know that as a loyal civil servant, that (sic) you will accept the executive decision of the Government on revoking your appointment as a Departmental Head.”

26.	In my view the tone of this letter does not in any way suggest that the relationship between the Plaintiff and First Defendant has broken down.  The converse is true.  The First Defendant is full of praise for the Plaintiff.  Given this I am satisfied that reinstatement is a remedy open to the Court to grant.  

27.	The Plaintiff’s claim for reinstatement is further supported by public policy and public interest considerations.  The Plaintiff further submits that public interest and public policy demands that the subject decision must be quashed and he be restored to his former position as Commissioner.  I am of the view that the subject decision undermines the policy and legislative intent behind the creation of the Regulation.  It is apparent that the Regulation is there to ensure that amongst other things, revocation and termination of Departmental Heads such as the Plaintiff are done on merits, transparently and without malice.  If the policy maker the NEC does not respect the laws that Parliament enacts, there is going to be a break down in good governance.  

28.	Similarly, the Office of the Commissioner is established under Section 8 of the Correctional Service Act, 1995.  It is a public office.  The office holder’s primary duty is to serve the interest of the State.  Public interest is the paramount consideration.  In a disciplinary force like the Correctional Service, command and control is crucial to the smooth running of the Force.  Public interest calls for confidence in the security Forces and command and control must be maintained at all costs.  As it should be acknowledged the Correctional Service is responsible for maintaining and rehabilitating prisoners in prisons throughout the country.  Where there is stability at the top hierarchy, one can expect the Service to operate smoothly.   

29.	The uncontested evidence is that the revocation of the Plaintiff’s appointment was done in secret.  Quite clearly, the actions of the First Defendant as Minister responsible in keeping that information from the Plaintiff has kept the Plaintiff in suspense and caused uncertainty within the rank and file, and the public generally.  In my view if the Defendants simply followed the procedure prescribed by law, it would have resulted in a smooth transition and operation within the Service.  

30.	In a case where the Plaintiff holds an important public office and is terminated without due process being followed, a claim to reinstatement must not be stifled under the guise of a claim for breach of contract of employment.  Joel Luma v. John Kali, NEC & The State (2014) SC1401.

31.	Finally and significantly, I am of the view that reinstatement is the appropriate remedy because the Plaintiff still has about two and a half years to serve until his term expires in September of 2018.  Compare this case with Simon Kauba v. NEC & The State: OS (JR) No 477 of 2014 (Unnumbered & Unreported Judgment of 13th November 2015) per Poole J.  Mr. Kauba was not reinstated as Deputy Commissioner (Operations) because he almost reached retirement age and it was considered not in the best interest of the Police Force.

32.	For all these reasons, I am satisfied that the Plaintiff should be reinstated to his former position and the Fourth Defendant must vacate the office.  This order must be given effect to forthwith.  There is no evidence that the Plaintiff has lost pay and entitlements during the interval.  In any case as there is a stay order issued by the Supreme Court which effectively restored the Plaintiff as Commissioner pending the Supreme Court appeal, he would have received pay and entitlements.  

Order
33.	The orders are:

1.	The application for judicial review is upheld.

2.	An order in the nature of declaration that the decision of the National Executive Council No. 15/2016 of 9th February 2016 approved to advise the Head of State to revoke the appointment of the Plaintiff as Commissioner for Correctional Service and in his place, appoint the Fourth Defendant as Acting Commissioner for Correctional Service is of no legal effect.  

3.	An order in the nature of certiorari bringing into this Court the decision of the National Executive Council No. 15/2016 of 9th February 2016 approved to advise the Head of State to revoke the appointment of the Plaintiff as Commissioner for Correctional Service and in his place, appoint the Fourth Defendant as Acting Commissioner for Correctional Service and quashing it.  

4.	A further order in the nature of mandamus compelling the           Defendants to reinstate the Plaintiff as Commissioner for           Correctional Service forthwith.

5.	The Defendants shall pay the Plaintiff’s costs of the proceeding, to be taxed, if not agreed.

____________________________________________________________
Kipes Lawyers:	Lawyers for the Plaintiff
Mawa Lawyers:	Lawyers for the First, Second and Third Defendants
Parkil Lawyers:	Lawyers for the Fourth Defendant
Solicitor-General:	Lawyers for the Fifth Defendant