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Nepo v Waipo [2018] PGNC 471; N7592 (15 November 2018)

N7592

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 209 OF 2015

BETWEEN:
BENARD NEPO
Plaintiff

AND:
MICHAEL N WAIPO in his capacity as the Commissioner of the Papua New Guinea Correctional Service
First Respondent

AND:
PNG CORRECTIONAL INSTITUTE SERVICE
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Nablu, J
2018: 7, 15 November

JUDICIAL REVIEW – Administrative decision – Promotion of Correctional service officers – whether Commissioner has the power to grant brevet ranks for special occasions – whether the plaintiff’s promotion was lawful – judicial review refused.

Cases cited:
Joe Yamason v. The Commissioner for Correctional Services (OS (JR) No.342 of 2015)
Dinion Gah v. Waipo (2017) N7174

Counsel:
S. Sakarias, for the Plaintiff
H. Monei, for the Respondent

13^th November, 2018

1. NABLU, J: The plaintiff was granted leave in April 2018 to review the decision of the Commissioner to demote him from the position of Chief Superintendent to the position of Inspector. The decision in regard to the plaintiff’s promotion to Chief Superintendent was made on 23^rd January 2015. The formal notification of the demotion was made pursuant to the Correctional Service Gazette No.1 of 2015 dated 30^th March 2015.

2. The plaintiff is a commissioned officer with the Correctional Service for over 30 years. He occupied various management positions including the Corporate and Human Resources Manager position. At the material time, he was acting in the position of the Chief Superintendent, Commandant of the Correctional Service Training College located at Bomana. The plaintiff alleged that on 23^rd January 2015, the first defendant in recognition of his long service promoted him and confirmed him to the rank of Chief Superintendent, for the position of Commandant of the Correctional Service Training College. He alleged further that this was done during the graduation parade for 2014 recruits.

3. The plaintiff took up the position and even participated in a parade as the Chief Superintendent in the graduation parade on 23^rd January 2015. He wore the full rank uniform and took part in the parade during the graduation. Six days later, the Commissioner requested that the plaintiff revert to the position of Inspector and the decision was published in the Correctional Service Circular No.6 of 2015.

4. The plaintiff challenges the decision on three main grounds of review. The plaintiff says that the respondent did not have the power to demote him without first initiating the disciplinary process under Part IV of the Correctional Service Act. By demoting the plaintiff, the respondent acted ultra vires or without power.

5. The plaintiff also argued that the respondent denied him natural justice, when he went ahead to consider the penalty of demotion without first initiating the disciplinary procedure prescribed by statute. Based on those arguments the decision to demote the plaintiff was unreasonable within the Wednesbury sense.

6. The State conceded to the application for judicial review. Mr Monei submitted that the State did not contest the application for the reason that the respondent did not have the power to make the decision. Therefore, the Commissioner acted ultra vires. Counsel also submitted the case of Joe Yamason v. The Commissioner for Correctional Service (OS (JR) No. 342 of 2015). This was an unreported decision of His Honour Justice Gavara-Nanu. Counsel submitted that, in that case, the facts were similar to the present case. The decision complained of is also the same decision. The decision of the Commissioner to purportedly demote Mr Yamason was quashed. The decision was published in Correctional Service Circular No.6 of 2015. This is the same Circular which purportedly contains the decision which the plaintiff is aggrieved by in the present case.

7. Notwithstanding, the concessions by the State, the plaintiff has the onus of establishing a case for judicial review to be granted. If judicial review is granted, the plaintiff has the onus to make a case for the relief to be granted. The grant of relief is discretionary. The steps taken in initiating a disciplinary case against an officer is succinctly provided in Part V of the Correctional Service Act. Section 44(1)(b) of the Correctional Service Act states that one of the penalties which can be imposed where an officer is guilty of committing a serious offence is demotion. This penalty is imposed through a recommendation to the Commissioner for a member to be reduced to a lower classified rank and to a salary within that classification.

8. The main legal issues for determination is; whether the plaintiff was promoted to the position of Chief Superintendent? If the answer to the first issue is yes, then the next question is whether the plaintiff could be demoted lawfully in the manner purportedly done so by the first respondent.

9. The plaintiff relied on his affidavits filed in this application. The State did not file any affidavit material in response.

10. The plaintiff stated in his affidavit that he had served as the Acting Commandant of the Correctional Service Training College since November 2013. He says he was confirmed to the position by Commissioner Waipo on 23^rd January 2015 during the graduation ceremony for the 2014 recruits. The plaintiff stated that there was a meeting to deliberate on the parade for the graduation ceremony on 22^nd January 2015 where they identified two inspectors for the Platoon Commanders role. He stated that in the evening he became aware that there were no inspectors available. He then consulted divisional heads, Mr Pokanis and Mr Mosiri and directed both officers to wear their major ranks subject to the Commissioner’s approval. He says he did this as the Commissioner’s representative.

11. On the morning of the parade, he called the Commissioner and briefed him on the need for those ranks and sought approval. After the brief, he stated that the Commissioner instructed him, gave him approval and promoted him to the full rank of Chief Superintendent. Based on the purported promotion, the plaintiff wore the rank of Chief Superintendent. He then took part in the parade. He stated that everyone congratulated him on his promotion during the graduation ceremony. On 27^th January 2015, the plaintiff wrote to the Commissioner expressing his appreciation for the purported promotion. Then on 29^th January 2015, the Commissioner issued a circular stating that the ranks bestowed on the officers for the purpose of the parade were brevet ranks and therefore those ranks would be decommissioned after the occasion. Subsequently, those officers would revert to their substantive rank since the ranks were only bestowed for the graduation parade.

12. The pertinent issue is whether the purported promotion was a brevet rank for special occasion or a lawful promotion.

13. It is not disputed that the plaintiff was acting as the College Commandant and therefore was Acting Chief Superintendent. It is also not disputed that the Commissioner authorized the brevet ranks. It is also not disputed that there were two officers who were promoted by the late Commissioner Balthazar. Mr Monei submitted the case of Joe Yamason who was one of the aggrieved officers. He submitted that was a case on point where the National Court held that the Commissioner’s decision was ultra vires. Upon brief research, I found the case of Dinion Gah v. Waipo (2017) N7174. This was a reported case by His Honour Justice Gavara-Nanu. Mr Gah and Mr Yamason were the officers who were promoted to the rank of Inspector by the late Commissioner.

14. I have read this judgement and I agree with His Honour’s views of the law and reasons for the decision. I note that Mr. Gah was aggrieved by the same decision complained of by the plaintiff in the present case. In Mr Gah’s case, he and Mr. Yamason were promoted by the late Commissioner Martin Balthazar. During the parade on the 23^rd January 2015, they were promoted to Inspector and wore the full pips and uniforms for that rank for that occasions. After the parade, the Commissioner then in a Circular stated that the ranks were brevet ranks which were only intended for that special occasion. Been aggrieved by that decision, Mr Gah sought judicial review after numerous attempts to get the Commissioner to re-consider his decision and restore his promotion were unsuccessful.

15. The Court considered their application for review and found that Mr Gah and Mr Yamason were promoted lawfully by the late former Commissioner Balthazar. The reasons for their promotion was that they had shown acts of bravery which prevented a mass jail break out at the time notorious criminal William Kapris escaped from prison. His Honour also held that the Commissioner had the discretion to promote officers who displayed acts of valour and bravery. For that reason, Commissioner Waipo’s decision to demote Gah was unlawful and contrary to the Correctional Service Act.

16. In the present case, the plaintiff contends that the decision of the first defendant was wrong in law because he was lawfully promoted. The plaintiff also argued that because the National Court had held that the Circular which contained the decision was quashed that meant his promotion was for all intent and purposes, a lawful promotion. Because the promotion was proper, the Commissioner did not have the discretion to rescind the promotion in the manner that he did.

17. In the evidence before me, I am not convinced that the plaintiff was promoted inaccordance to the law. I am of the considered view that the plaintiff was awarded a brevet rank for the purpose of the graduation parade. According to the Dictionary, a brevet rank is a commission promoting a military officer to a higher rank without increase of pay and with limited exercise of the higher rank often granted as a honour immediately before retirement. The term also refers to a document entitling a commissioned officer to hold temporarily a higher military rank without the appropriate pay and allowances. The plaintiff argued that the National Court in the case of Gah and Yamason held that the respondent did not have the discretion to demote the officers because they were lawfully promoted by Commissioner Balthazar.

18. Be that as it may, I am not persuaded that the present case has the same facts as the facts in Gah and Yamason’s case. Therefore, the facts of the present case are distinguishable. In the present case, the plaintiff was purportedly promoted by Commissioner Waipo. At the outset, I find there is no evidence of the purported promotion. There is no circular or formal notification. The only evidence before the Court is the plaintiff’s affidavits. However, that evidence is inconsistent. The reason, I say this, is that, numerous vacant positions were advertised on 11^th November 2014 and published in the Correctional Service Gazette No.1 of 2014. Interested persons were required to lodge their applications by 31^st December 2014. The position which the plaintiff was acting in was also advertised. The position was the Correctional Service Training College, Commandant and the rank for that position was Chief Superintendent.

19. The plaintiff argued that he was promoted to Chief Superintendent. The Commissioner as evidenced by the Circular says that, a brevet rank was bestowed on the plaintiff only for the occasion of the 2014 graduation parade.

20. From the evidence before me, it is reasonable to infer that the first defendant has a discretion to bestow a brevet rank for special occasions such as the graduation parade. This was not a substantive promotion as contended by the plaintiff. The reason is because the vacant positions were advertised and were pending consideration at the material time. It was not until 30^th March 2015 when the decisions on the applications were made in the Correctional Service Gazette No.1 of 2015. According to that Gazettal notice, the plaintiff was promoted to Chief Inspector and not Inspector, the job title was Commandant of the Correctional Service Training College. This Court is also required to take judicial notice of the gazettal notice. The notice is conclusive evidence that the positions were formally advertised and the appointment decisions were duly made in March 2015.

21. In my view, it would be unlawful and also irregular for the first defendant to promote the plaintiff to the substantive position of Chief Superintendent, Correctional Service Training College during the graduation when the position was still pending the recruitment process. The only reasonable inference that can be drawn is that the plaintiff was bestowed a brevet rank for the purposes of the graduation ceremony and not a substantive promotion.

22. Mr Sakaris argued that the plaintiff’s case was similar to Joe Yamason’s case. Having read the case of Dinion Gah whose facts are similar, I am unable to accept that submission. In Gah’s case, His Honour made a finding that there was a report which outlined the acts of bravery by Gah. The report recommended that Gah and Yamason should be promoted for their acts of bravery. In the present case, there is no report making such recommendations. It is clear the rank was only intended for the special occasion of the graduation. The first defendant had such powers to bestow such brevet ranks as required from time to time. I am not convinced that the Commissioner’s exercise of that discretion was unreasonable in the circumstances of the present case.

23. Therefore, I find that the plaintiff was brevetted the rank of Chief Superintendent for the occasion of the 2014 graduation parade. It is not necessary for me to consider the other grounds of review after finding that the purported promotion was a brevet rank promotion and not intended to be a substantive promotion.

24. For the foregoing reasons, the plaintiff’s application for judicial review is refused and is dismissed. Due to the fact that the State conceded to the application, I will exercise my discretion to order that each party bear their own costs.

Judgement and orders accordingly,
___________________________________________________________
Jeffersons Lawyers: Lawyers for the Plaintiff
Solicitor – General: Lawyer for the Defendant