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Pohei v Sione [2021] PGNC 412; N9144 (13 September 2021)

N9144

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 40 OF 2021 (IECMS)

BETWEEN:
SHIRLEY POHEI
Plaintiff

AND:
APEO FUATA SIONE LM MPP CHAIRMAN PUBLIC SERVICES COMMISSION
First Defendant

AND:
PUBLIC SERVICES COMMISSION
Second Defendant

AND:
BENJAMIN SAMSON SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 10^th & 13^th September

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Termination Manager Legal Services –Performance Based Contract Senior Officer – Termination Schedule 3 Performance Based Contract – No Procedural Error – No Ultra Vires – Natural Justice Accorded –Initial Decision upheld PSC – Balance not discharged – Motion dismissed – cost follow event.

Cases Cited:

Attorney General v Tetaga, Chairman Public Service Commission [2005] PGNC 57; N2900

Pinggah v Secretary, Department of Labour and Employment [2005] PGNC 107; N2850

Kekedo v Burns Philip (New Guinea) Ltd [1988-89] PNGLR 122

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Counsel:

D. Kipa, for Plaintiff
Mr. Wangi, standing in for State

RULING

13^th September, 2021

1. MIVIRI, J: This is the ruling on the plaintiff’s substantive notice of motion of the 15^th July 2021 for judicial review.
   
2. There is no representation by the State despite confirmation of today’s date for the hearing confirmed initially on the 19^th August 2021 when all parties were in attendance. Specifically, in attendance was Counsel for both defendants, M. Ranyeta for the 1^st and 2^nd defendants, and Mr Ephraim Bua for the State. And it was confirmed there that the matter will proceed to trial today. There is no appearance by either counsel for the defendants. There is really nothing that has been filed as to the reason for the non-appearance of all defendants. The plaintiff applicant has appeared. There is really no reason apparent or identifiable to adjourn the proceedings to another day. It is not necessary to adjourn because of their non-appearance. They were in attendance and know of today’s hearing date.
   
3. No adverse determination will be made against the non-appearance of the defendants. What is before the court is the views of the plaintiff. But that is a matter that the court will consider with all other evidence for and against that has been filed in the matter. The plaintiff does not gain in view of the non-appearance by the defendants. The Court is independent and will make its determination considering all for and against to arrive at a determination by the facts and the law.
   
4. The plaintiff seeks certiorari pursuant to Order 16 Rule 1 (1) (2) of the National Court Rules to remove into Court and quash the decisions of the First Second and Third Defendants made respectively on 3^rd September 2018, 31^st October 2018, and the 27^th November 2019 to terminate her contract of employment and dismissing her from the Public Service. Which in itself is a cluster and culmination of the differing levels of decision making that have led to the ultimate confirmation of her termination from the position she holds, and also the public Service. In this regard it is important to consider that the decision of the PSC as a Constitutional office set up by section 190, 191 & 192 of the Constitution. Which is binding under section 18 (3) (d) (ii) of the Public Services Management Act after lapse of 30 days after it is made: Attorney General v Tetaga, Chairman Public Service Commission [2005] PGNC 57; N2900 (2 September 2005).
   
5. It is clear that the Public Services Commission determination is as a result of the appeal that was lodged by the plaintiff. And that decision is in the following, “The Commission finds no flaws in the disciplinary processes executed against you in the lead up to the termination of your contract of employment and your dismissal from the Department and the National Public Service by then Acting Secretary for Department of Lands & Physical Planning.
   
6. The Commission finds no evidence of any breaches of the Principles of Natural Justice and unfair hearing on the part of the then Acting Secretary for Department of Lands & Physical Planning in this matter.
   
7. The Commission finds that you occupied a strategic position of trust as the Acting Registrar of Titles within the Department of Lands & Physical Planning at that time. However, your failure to have diligently performed your duties; thus which can be considered as professional negligence in the discharge of your lawful duties is beyond reasonable excuses.
   
8. This is because as a result of your lack of due diligence checks, and further to a decision you made has cost the Department and the State K 695, 445.00 in legal fees (not yet taxed) in PNG Tonar & Ink Supplies Limited & George Ipi v Jim Tapako & ors & The State- Plaintiff’s cost on Solicitor Client basis PNGLR (2017).
   
9. That in view of all the foregoing, the Commission considered in detail all your grounds of appeal in your review application and found them all not able to stand against the allegations against you. Therefore, the Commission considered the decision taken against you by then Acting Secretary for Department of Lands & Physical Planning to terminate your Contract of Employment and to dismiss you from the National Public Service to be a proper decision made.”
   
10. That decision becomes binding after 30 days from the date it is issued. Here it was issued on the 27^th November 2019. To which the plaintiff wrote a letter dated the 17^th December 2019 complaining that the decision did not consider her second appeal. A second letter addressed by the Commission to her is dated the 05^th March 2020 where it responds that because plaintiff is no longer a public Servant it cannot see out the review. It does not have jurisdiction because it can only see out where a public Servant is involved, which is not the case for the plaintiff then.
    
11. The decision of the Public Service Commission has become law because the 30 days from the decision would have expired on Friday 10^th January 2020. The applicant has not appealed that decision nor sought leave now obtained on the 17^th June 2021 for Judicial review. That is way past the 30 days allowed and cannot break the binding effect between the parties by that decision. The subject decision by the PSC is of the 27^th November 2019. The original decision of the Department of Lands & Physical Planning is of the 31^st October 2018 when the plaintiff was terminated from employment with the National Public Service.
    
12. These facts establish that the decision of the PSC of the 27^th November 2019 is binding on the Plaintiff. She remained terminated from that decision there was no error in law, nor was there breach of the principles of natural justice pursuant to section 59 of the Constitution. There was in essence no error of law at first instance in the hands of the Acting Secretary of the Department of Lands & Physical Planning. Because the words of Section 18 (3) (d) (ii) Public Services Management Act 1995 makes the decision binding after 30 days. It is binding upon the plaintiff because that decision is not challenged within the 30 days period allowed. It now has the force of law: Pinggah v Secretary, Department of Labour and Employment [2005] PGNC 107; N2850 (22 June 2005). It means in effect what is contended by the Plaintiff has not place in the law. It cannot be brought in the form it has been allowed to. Leave may have been given but substantially there is no room by the provisions of section 18 (3) (d) (ii) for her to move as she does here.
    
13. The initial decision of the Acting Secretary Department of Lands & Physical Planning is 31^st October 2018. It is the culmination of a number of mandatory steps notice of Disciplinary Suspension under schedule 3 of the Terms & Conditions of A Contract of Employment. That specifically reads compliance with schedule 3 from which suspension takes place upon the plaintiff. And it is a result of the disciplinary charges that have been laid against the plaintiff on Form SOC9.3 in respect of certain offences that She committed. It is dated the 28^th August 2018 annexure “D” to the affidavit of Benjamin Samson of the 17^th August 2021.
    
14. Given these position in law, Order 16 Rule 1 (1) (2) of the National Court Rules for certiorari to remove into court and quash the consequential decision of the third Defendant on the 10^th December 2018 does not lie. Let alone Order 16 Rule 7 (1) (a) and (b) of the National Court Rules. She does not lay out the basis for claim for mental distress and anxiety, including public humiliation and financial loss. Reinstatement is also not made out for her to return to her substantive position of Manager Legal Services, nor for the same the public Service. These grounds are without merit including any claim to salaries and loss thereof. Specifically, there is no declaration that can be made in her favour given because of the position in law set out above by the decision of the PSC which is now binding between the parties.
    
15. That effectively means that the contention she makes do not hold water simply because the decision set out above of the Public Services Commission was not challenged either by appeal or otherwise in any way by the plaintiff. Its effect binding now at law means the remedies that are claimed for by the plaintiff cannot be granted as there is no basis upon which to grant.
    
16. Plaintiff commenced employment with the Department of Lands & Physical Planning in 2011 as a Legal Officer in Corporate Services. She was promoted later to Manager Legal Services in 2013 and was holding that position till this termination, and dismissal on the 31^st October 2018 by the third Defendant.
    
17. She was temporarily appointed on the 14^th October 2016 as the Acting Registrar of Titles. She held that position until the 17^th March 2017 when another acting appointment was made for that position and she was reverted to her substantive position of Manager Legal Services. On the 03^rd September 2018 she was served a notice of suspension with pay under schedule 3 of her performance-based Contract of employment. A notice of Charge also of that date was served on her capacity as the Acting Registrar of Titles by the Third Defendant.
    
18. Plaintiff found that she was charged for unlawfully and negligently cancelling of a transfer and Mortgage registration over a property described as Allotment 13 Section 39, Madang, Madang Province; Unlawfully and negligently cancelling of another property described as State Lease Volume 14 Folio 55 over Allotment 27 Section 2 Lae, Morobe Province; and breaching the terms and conditions of her contract.
    
19. On 09^th January 2019 she wrote a letter to the PSC appealing the decisions of the third defendant to terminate her contract and dismiss her from the Public Service and forfeit her gratuity and her service entitlements to the State.
    
20. On the 27^th November 2019 the first Defendant advised the plaintiff of the second defendant’s decision to uphold the third defendant’s decision to terminate her contract and dismiss her from the Public Service. The letter did not mention anything about the plaintiff’s 2^nd Appeal regarding the decision to forfeit her service entitlements by the third Defendant.
    
21. The Plaintiff wrote a letter to the Second Defendant enquiring about her second appeal regarding the decision to forfeit
    
22. She replied to the charge on the 11^th September 2018. Whilst under suspension her gratuity was due but it was not paid to her. Upon enquiry she was told that all her gratuity and service entitlements were forfeited to the State. It was conveyed to her via the appeal forms.
    
23. The Plaintiff argues that she is entitled to the remedies above. Because the termination of her performance-based contract by Oswald Tolopa as Secretary and Chairman of the Disciplinary Committee on the 31^st October 2018 breached Natural Justice. Further he committed errors of law in so doing. It was unreasonable within the Wednesbury principles. And that it was ultra-Vires. It did not stand, and certiorari was in view for that decision to be brought into Court and quashed forthwith.
    
24. However, the third defendant’s predecessor returned with his findings using form 9.4 and he made reference to the offences under section 20 (a) (c) (d) (h) of the Standard terms and Conditions and charges being brought under section 25 of the Standard Terms and Conditions. He then went ahead to deliberate pursuant to those provisions and concluded the Plaintiff was guilty of both charges and terminated her contract and employment from the Public Service.
    
25. And the decision-making process here was within the confines of the law it being settled that judicial review was about the decision-making process as opposed to the substance: Kekedo v Burns Philip (New Guinea) Ltd [1988-89] PNGLR 122. And that process was followed in the confirmation of the decision of the departmental head by the PSC, confirming that the plaintiff was terminated in accordance with the procedures set out by schedule 3 of the Performance Based Contract and there was no error in it. Nor was it ultra vires or for that matter unreasonable within the Wednesbury sense.
    
26. It is not the same situation observed in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). There are no cogent or convincing reasons to open on the basis of the pleadings that she advances. Because these were addressed initially by the Acting Secretary Department of Lands & Physical Planning confirmed by the PSC having the force of law. The termination and the dismissal stand. The action is without any merit and therefore stands dismissed.
    
27. The formal orders of the court are:
    
    • (1) Judicial review is not made out as pleaded.
    • (2) The Substantive Notice of Motion of the Plaintiffs is dismissed forthwith.
    • (3) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Wang Dee Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendants