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Puri v Gaegaming [2019] PGNC 428; N8156 (29 November 2019)

N8156

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 851 OF 2017

BETWEEN:
PRESLEY PURI
Plaintiff

AND
ESTHER GAEGAMING, Officer in Charge, Immigration & Citizenship Services Authority
First Defendant

AND
SOLOMON KANTHA, Acting Chief Migration Officer, Immigration & Citizenship Services Authority
Second Defendant

AND
IMMIGRATION AND CITIZENSHIP SERVICES AUTHORITY
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Gavara-Nanu J,
2018: 23^rd August

2019: 29^th November

JUDICIAL REVIEW - Public Services Commission - Review of a personnel matter - Powers of the Public Services Commission to review - Decision of the Public Services Commission - Public Services Management Act; 2014, s. 18 (6) (b) - Whether decision of the Public Services Commission binding after 30 days - Whether such decision is amenable to judicial review.

JUDICIAL REVIEW - Statement in Support - National Court Rules; Order 16 r 3 (2) (a) - Grounds of review - Notice of Motion - National Court Rules; Order 16 r 5 (1) - Application for judicial review - Relief sought - Pleadings - Grounds for relief sought not pleaded in the grounds for review - Abuse of process - Court has no power to review.

Cases Cited:
Alois Kingsly Golu v. The National Executive Council & Others (2011) N4425
Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949
Kekedo v. Burns Philip (PNG) Ltd & Others [1988-89] PNGLR 122
Vele Pat Ila'ava v. Dr Philip Kereme & Others (2018) SC1730

Counsel:
T. Jugari, for the Plaintiff
G. Gaudi, for the Defendants

29^th November, 2019

1. GAVARA-NANU J: The plaintiff is seeking review of the decision of the first defendant made on 7 December, 2016, to terminate him from his employment as a Senior Migration Officer within the Immigration and Citizenship Services Authority (ICSA).

2. At the time of the plaintiff's termination, the first defendant was Acting Chief Migration Officer and was in-charge of the ICSA. The plaintiff was based in East Lorengau Refugee Transit Center, Manus Province.

3. The plaintiff was terminated after the first defendant found him guilty of the charges laid against him for serious disciplinary offences prescribed under s. 51 of the Public Services Management Act, 2014. The disciplinary offences were –”being negligent or careless in the discharge of his duties; using intoxicating liquor to excess; disgraceful and improper conduct and violating Public Service Oath”.

4. It was alleged that on 20 November, 2016, between 1pm and 3pm, the plaintiff:

(i) was driving an official vehicle around Lorengau Bridge, Ward 4 area looking for beer while already under the influence of liquor; and

(ii) was careless and irresponsible by parking the official vehicle on the side of a public road and falling asleep inside the vehicle with doors of the vehicle open and keys for the vehicle still in the ignition, thereby risking the vehicle being stolen; and

(iii) assaulted a co-worker while under the influence of liquor and thereby tarnished the good name of the PNG ICSA by his despicable behaviour in public.

5. The defendants also claimed the plaintiff's conduct breached the Public Service General Order 15.9 (a), (d), (f), (h) and (i) and the PNGISCA HR Policies and Procedures - Code of Conduct (Performance of Duties).

6. The plaintiff was suspended on full pay after being charged. He responded fully to the charges. The first defendant subsequently found him guilty of the charges and terminated him.

7. In a Notice of Motion filed pursuant to Order 16 r 5 (1) of the National Court Rules, the plaintiff by way of substantive relief initially sought declarations that his termination on 7 December, 2016 by the first defendant and the subsequent termination or upholding of the termination by the second defendant on 15 September, 2017, after the Public Services Commission (PSC) had annulled his termination, were illegal, null and void.

8. The plaintiff also seeks to have the above two decisions quashed and have him reinstated to his previous position.

9. On 20 August, 2018, the plaintiff filed an amended Notice of Motion under Order 16 r 5 (1). Notably, in the amended Notice of Motion, the plaintiff abandoned the declaratory relief he was initially seeking in his first Notice of Motion. Thus, the only relief he is seeking in the amended Notice of Motion is mandamus. This relief is based on the plaintiff’s argument that the defendants are bound by the PSC decision under s. 18 (6) (b) of the Public Services Management Act, because the defendants are claimed to have failed to challenge or review the PSC decision within 30 days of the decision being made.

10. It is noted that the PSC decision to annul the plaintiff's termination was based purely on its view that the first defendant had no power to terminate the plaintiff. The PSC in its decision said the appointment of the first defendant as Acting Chief Migration Officer by the then Chief Migration Officer was improper and illegal, thus she had no power to terminate the plaintiff. This issue is canvassed further below. The PSC did not consider and weigh up the evidence to make findings as to whether the allegations made against the plaintiff of committing serious disciplinary offences were true or not. The PSC did not embark on this exercise because it focused its decision solely on the validity of the first defendant's appointment as Acting Chief Migration Officer.

11. The plaintiff did not dispute that he consumed liquor on the day of the incident but denied parking the official vehicle on the side of a public road. He also denied leaving the vehicle doors open with the keys of the vehicle still in the ignition and falling asleep in the vehicle. He however admitted parking the vehicle inside a friend's yard and falling asleep. He claimed to have slept for about two hours, he said the keys for the vehicle were removed from the pocket of his trousers by a co-worker while he was asleep. He said he started looking for the keys for the vehicle after he woke up. He admitted assaulting his co-worker that removed the vehicle keys from the pocket of his trousers. This is corroborated by independent eye witnesses, one of whom is the co-worker he assaulted.

12. From the evidence before the Court, it is reasonable and proper to conclude that the plaintiff was under strong influence of liquor at the time he committed the assault.

13. It appears that the decision of the second defendant made on 15 September, 2017, to terminate or to uphold the plaintiff's termination by the first defendant on 7 December, 2016, was because of the finding by the PSC that the first defendant had no power to terminate the plaintiff.

14. It is noted that in the letter of termination signed by the first defendant, she signed as Acting Chief Migration Officer. This was because the then Chief Migration Officer, who was on sick leave in a circular to all the staff of ICSA advised that the first defendant would be Acting Chief Migration Officer during his absence. The PSC as I alluded to above, found the appointment invalid.

15. The plaintiff seeks mandamus to compel the defendants to reinstate him to his previous employment. The plaintiff claims the defendants are bound by the decision of the PSC after 30 days of the decision being made as stipulated under s. 18 (6) (b) of the Public Services Management Act.

16. Any relief sought in a Statement in Support filed under Order 16 r 3 (2) (a) and a Notice of Motion filed under Order 16 r 5 (1) of the National Court Rules should be based on the grounds for review as pleaded in the Statement in Support. In this regard, it is significant to note that the grounds for review pleaded in a Statement in Support and a Notice of Motion are binding on the plaintiff. See, Vele Pat Ila’ava v. Dr Philip Kereme and Others (2018) SC1730.

17. As a general rule, the grounds for review should be clearly pleaded so that the opposing party and the Court are made fully aware of the basis of the relief sought. This requirement goes to the jurisdiction of the Court to determine the relief sought and to give the parties a fair hearing. It is trite law that an opposing party should be fully informed by clear pleadings of what they will meet in their defence. This is a principle of pleading which is of a universal application. See, Jubilee Hambru v. Michael Baur (2007) N3193.

18. In this instance, the plaintiff has not pleaded s. 18 (6) (b) of the Public Services Management Act, in the grounds for review regarding the PSC decision becoming binding after 30 days. The upshot of this is the plaintiff has no basis to seek mandamus. Thus, as a matter of law the plaintiff cannot rely on s. 18 (6) (b) of the Public Services Management Act.

19. The other grounds for review are premised on ultra vires, error of law and unreasonableness in the Wednesbury sense. I find these grounds for review have no basis because the plaintiff was in my view given sufficient opportunity to be heard before his termination. I also find the charges laid against him were properly grounded on s. 51 of the Public Services Management Act, and General Order 15.9 and 21-25. The plaintiff has therefore failed to make out these grounds and I dismiss them.

20. The plaintiff has also purportedly challenged his termination or confirmation of his termination by the second defendant on 15 September, 2017.

21. In my view, if the plaintiff was aggrieved by the decision of the second defendant made on 15 September, 2017 to terminate him or to uphold his termination, he should have laid a fresh complaint before the PSC as a personnel matter for the PSC to review because that decision amounted to a fresh personnel matter or complaint. The review process provided by the PSC should have been exhausted first in regard to the second defendant's decision to terminate him or to uphold his termination. See, Kekedo v. Burns Philip (PNG) Ltd & Others [1988-89] PNGLR 122; Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949 and Alois Kingsly Golu v. The National Executive Council & Ors (2011) N4425. The effect of this is that the decision of the second defendant to terminate the plaintiff or to uphold his termination remains unchallenged. Thus, I find that if the decision of the first defendant to terminate the plaintiff on 7 December, 2016 was unlawful because she lacked authority, which I do not think it was, because she had in my firm view acted in good faith, the termination by the second defendant was valid because he had the authority to terminate and he reached his decision after due consideration of all the relevant facts.

22. For the foregoing reasons, the plaintiff's application is dismissed with costs, which if not agreed are to be taxed.

23. Orders accordingly.
_____________________________________________________________
Napu & Company Lawyers: Lawyers for the Plaintiff
Legal Brach, PNG Immigration & Citizenship Service Authority: Lawyers for the Defendants