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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS (JR) NO. 45 OF 2024
BETWEEN:
DAVID MANAU in his capacity as Secretary for Department of Petroleum and Energy
Plaintiff
AND:
GARIGI MUI
First Defendant
AND:
APEO SIONE AND JUDITH STENIS constituting the PUBLIC SERVICE COMMISSION
Second Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
WAIGANI: PURDON-SULLY J
30 JUNE, 25 JULY 2025
JUDICIAL REVIEW- Application for judicial review – Employee charged with serious disciplinary offences – Employee dismissed from her employment – Public Service Commission ordered reinstatement – Employer seeks judicial review – Employer granted stay - Fresh evidence relevant to charge admitted at time of stay – Grounds of error of law partly upheld based on failure of Commission to immediately notify the Plaintiff of the decision - Grounds of Error of Law, Breach of Natural Justice and Unreasonableness (Wednesbury) otherwise dismissed – Relief discretionary – Application dismissed.
Cases cited
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Blay v Pollard & Morris [1930] 1 KB 628
Dale Christopher Smith v Minister for Lands (2009) SC973
Isaac Lupari v Sir Michael Somare (2008) N3476
Kamuta v Sode [2006] N3067
Kekedo v Burns Philp Ltd & Ors [1988-89] PNGLR 122
Kim Food & Sons Pty Ltd v Minister for Finance & Planning [1996] N1464
Kioa v West [1985] HCA 81; [1985] 159 CLR 550
London Passenger Board v Moscrop [1942] 1 ALL ER 97
Magiri v PNG Forest Authority [2009] N3670
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Monoluk v Pala [2018] N7181
More v University of PNG [1985] PNGLR 401
Ombudsman Commission v Yama [2004] PGSC 30; SC747
Palaso v Kereme [2017] PGNC 231; N6816
Counsel
Mr A Chillion, for the plaintiff
Mr G Bon, for the first defendant
Ms M Narokobi, for the second and third defendants
1. PURDON-SULLY J: This is an application by the Plaintiff seeking review of the decision of the Second Defendant (PSC) made on 11 March 2024 annulling the dismissal of the First Defendant from her employment as a legal officer and ordering her reinstatement
(the decision).
2. The First Defendant had been dismissed from her employment by the Plaintiff on 23 November 2022, purportedly on serious disciplinary grounds, inter alia on the basis that she had been employed with two employers at the same time and receiving income from both.
3. The plaintiff raises three grounds of review:
BACKGROUND FACTS
4. The Plaintiff in his capacity as the Secretary of the Department of Petroleum and Energy (the Department) oversaw and had direct control over the employment of the First Defendant at the relevant time with powers to discipline and impose punishment for discplinary actions under the Public Services (Management) Act 1995 (as amended) (the Act).
5. The First Defendant, a senior legal officer was employed with the Department from 26 March 2019, initially on a short-term contract, then from about 18 November 2020 on conditional employment and then from 1 August 2022 as a permanent officer having signed an Oath of Loyalty and Service to the State and Executive Government on 27 May 2022.
6. With respect to the latter, the First Defendant had applied for the position of permanent officer by application to the Plaintiff on 4 July 2022. Her application was supported by her supervisor on 18 July 2022. The application was then approved on 1 August 2022.
7. Later that month, and by letter dated 19 August 2022 addressed to the Acting Manager, Director National Energy Authority (NEA), the First Defendant accepted an offer of employment with the NEA, with a request that her contract be put forward to the date of the letter. Unfortunately, the copy of the letter in evidence is of poor quality and the contents not fully legible, although there is reference by the First Defendant to a “short term contract”.
8. On being made aware of that circumstance, on 13 September 2022 the Plaintiff issued the First Defendant with a show cause notice as to why she should not be removed from the Department’s payroll.
9. On the same day, the 13 September 2022, the First Defendant responded that she had not signed a short term contract and having been appointed to a substantive position as Senior Legal Officer of the Department she had asked the NEA to disregard her acceptance letter of 19 August 2022 and had sought a secondment through the Managing Director of NEA requesting that he communicate with the Plaintiff to that end.
10. On 20 September 2022 the Plaintiff informed the First Defendant in a memorandum that the matter would be referred to the Disciplinary Committee.
11. It appeared from that communication that the Plaintiff viewed the First Defendant’s acceptance of employment as legal binding.
12. Six days later, on 26 September 2022 the Plaintiff wrote again to the First Defendant notifying her that having considered her response and the findings of the Disciplinary Committee he had decided to suspend her from duty with pay for twenty (21) days to allow for further investigation. A Suspension Notice was attached. The First Defendant was formally suspended on full pay pending an investigation.
13. On 4 October 2022 the Plaintiff wrote a letter to the Acting Managing Director of NEA, Mr Meketa, stating that his office was investigating an allegation that the First Defendant had been employed on a short term contract prior to accepting an offer of employment from the NEA and had been rewarded or paid salaries in connection with the discharge of those duties. A request was made for the Department’s internal audit unit to access copies of paid vouches and cheques to the First Defendant. In requesting permission, relevantly the letter noted that NEA was a separate entity under Mr Meketa’s leadership and that “it would be a hindrance to obtain such required information/evidence without your approval for my viewing and appropriate action is required”.
14. No formal response was received to that correspondence.
15. On 12 October 2022 the Plaintiff received an internal memo from the Acting Internal Auditor, Mr Remon Riepe, tasked with the investigation or part of it. He outlined his findings on page two of his report concluding inter alia that the Plaintiff had “made up her mind to join NEA”; that “the Acceptance Offer Letter also constitutes her employment”; that the evidence suggested intentional ‘double dipping’ and ‘an intention to defraud the State”.
16. On 21 October 2022 the First Defendant was charged by reason of her being employed by the NEA, the Notice of Charge served on her on 24 October 2022. She was suspended from duty without pay.
17. On 27 October 2022 the First Defendant responded inter alia that she did not sign a contract of employment, denied working for NEA and that the charge was unsubstantiated.
18. On 18 November 2022 the Chairman of the Disciplinary Committee and members were briefed in writing by Mr Walo Kila, Officer in Charge of the HR Branch. After outlining the facts, the findings of the Internal Audit Unit, the law, and penalties available under the Code, the report recommended that:
19. On 21 November 2022 the Plaintiff received a response from the Chair of the Disciplinary Committee following an urgent meeting. It recommended various punishment/penalties for his consideration, namely fine, reduction of salary, demotion, transfer or dismissal from the public service.
20. The recommendations were stated to be based on the Internal Auditor’s report. The Committee’s report concluded as follows:
The Committee also took into consideration your desire to dismiss the officer from the Public Service, hence, the Notice of Punishment of Dismissal with reasons for dismissal reasons is attached for your signature should (sic) approve the penalty of dismissal. Included also is the letter to the National Fraud & Anti-Corruption Directorate (NFACD) requiring your signature.
21. On 23 November 2022 the Plaintiff exercised his powers under the Act to terminate the First Defendant from her employment from the Department and the public service inter alia as she had committed a serious offence of “double dipping” and/or working for and receiving payment from two government departments at the same time without the knowledge and approval of the Plaintiff.
22. Aggrieved, on 8 December 2022 the First Defendant applied to the PSC to administratively review the decision pursuant to s 18 of the Act.
23. On 6 February 2023 the Plaintiff received a notice dated 2 February 2023 and summons from the PSC to attend a hearing of the matter concerning the First Defendant’s termination. He was requested to bring with him the following:
24. On 10 February 2025 the Plaintiff provided a written response to the PSC. The letter inter alia noted that on 4 October 2022 the Plaintiff had sought permission from Mr Meketa seeking his approval to allow the IAU to enter his office to investigate and establish whether or not the First Defendant had signed any contract and received any renumeration by NEA, with no response received after which the First Defendant was charged. He went on to note his reliance on the audit report commissioned thereafter, including a verbal report from Mr Meketa on 12 October 2022 to the effect the First Defendant was “receiving payments from NEA as a contingency to compensate her for her time and services with NEA (only reports will reveal the nature of the payment)”.
25. On 11 March 2024 the PSC handed down its written advice and findings annulling the decision of the Plaintiff which had terminated the First Defendant for double dipping and reinstating the First Defendant to her position as Senior Legal Officer (Grade 14) with the Department.
26. Aggrieved, on the 14 June 2024 the Plaintiff commenced these proceedings.
27. Having been granted leave for judicial review, on 4 September 2024 the Plaintiff was also granted leave to introduce fresh evidence in the form of three payments made by the NEA to the First Defendant.
THE ISSUES
28. The following issues emerge at [27] of the Statement of Agreed and Disputed Facts and Legal Issues filed on 13 February 2025 together with the written submissions relied upon as otherwise varied during the course of oral submissions:
LEGAL PRINCIPLES
29. Judicial review is a special procedure developed to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public powers conferred by statute (Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (Makeng)).
30. The circumstances in which judicial review is available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision that no reasonable body could have reached or abuses its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to the Court substituting its own opinion but to examine the decision-making process (Kekedo v Burns Philp Ltd & Ors [1988-89] PNGLR 122).
CONSIDERATION
Whether the PSC refused or failed to exercise its powers under s 13(1)(b) and (d) of the Act when there was evidence before it to prompt the exercise of those powers?
31. It is the Plaintiff’s contention that this ground is premised on error of law for the refusal or failure of the PSC to exercise its powers under s 13(1)(b) and (d) of the Act to request evidence from relevant persons or officers in possession of the evidence. It is submitted that the provision clearly gives the PSC the power to summons documents. It is submitted that at the hearing it was clear that there was an allegation of ‘double dipping’ against the First Defendant for receiving salaries from the NEA whilst at the same time being employed with the Department. It was also clear that a request had been made with the NEA to produce the documents, a copy of that request tendered into evidence before the PSC to which the PSC then made reference in its findings, the PSC however concluding that there was no evidence to prove the charge. However, the letter of 4 October 2022 should have prompted the PSC to inquire into and summons the evidence from the NEA utilising the powers they had to do so. Now that that evidence had come to light as a result of a request made by the Plaintiff dated 14 June 2024, the date of the filing of these proceedings, that critical evidence would have affected the decision of the PSC if it had been available at the hearing conducted by it.
32. Section 13(1) of the Act provides:
(1) The Commission may at any time, for the purpose of performing its functions–
(a) enter premises occupied or used by–
(i) a Department of Government; or
(ii) any State Service (other than the Defence Force); or
(iii) any Provincial Government; or
(iv) any other governmental service; and
(b) summons a person whose evidence appears to be material to the determining of any subject, inspection, inquiry, review or investigation being conducted by the Commission; and
(c) take evidence on oath or affirmation and for that purpose administer oaths and affirmations; and
(d) require any person to produce documents within his possession or subject to his control.
[Underlining added]
33. The Court does not find the submissions on behalf of the Plaintiff as persuasive.
34. The submissions ignore the Plaintiff’s responsibility to ensure that the PSC had the evidence it required to uphold the decision the Plaintiff had made and if, on it best endeavours, the evidence was not available, to then invite the PSC to use its powers to obtain it. It was then open to the PSC to decide if it would do so. The PSC as an independent constitutional office is empowered, inter alia to decide on how to conduct its hearings of the complaints it receives from aggrieved public servants. As such, it is not subject to the direction or control of anyone when carrying out its functions. While its power extends to cover its investigations into the complaints, including collection of evidence - section 18 of the Act setting out the procedure the PSC has to follow in its review of the complaints - there is no mandatory requirement for the PSC to exercise its powers under s 13(1) (b) and (d). The discretion lies with the PSC, a discretion that does not exist in vacuo, rather one that is informed and shaped by the circumstances of the matter, including any requests made of it, on a proper basis, to exercise its powers.
35. The weight of the evidence supports a conclusion that the Plaintiff did not pursue the information from the NEA with any vigour. It could have, should have, but did not, follow up with the NEA when there was no response to its letter of 4 October 2022, a letter sent five (5) months before the oral hearing before the PSC. The evidence suggests that it did not do so because it placed significant weight on the assessment undertaken and conclusions reached in its audit report.
36. The need for corroborative evidence was supported by the letter to Mr Meketa of 4 October 2022 seeking access for the purpose of financial analysis. The lack of concrete evidence to support ‘double dipping’ was acknowledged by Mr Riepe at [4] of his Way Forward in concluding that the Department “still needs to establish (her employment) with the payment records to substantiate the type of payment she has been receiving”. It was further acknowledged on 10 February 2023 in the Plaintiff’s written response to the PSC when it wrote in bold type that “only reports will reveal the nature of the payment”.
37. The Plaintiff was further alerted to the need for credible evidence to support its allegations in the PSC’s summons of 6 February 2023.
38. Following that communication there was no request by the Plaintiff that the PSC exercise its powers under the Act to summons Mr Meketa or other staff of the NEC to give evidence and to produce documents.
39. Given that the Plaintiff’s evidence before the PSC to prove the allegation of ‘double dipping’ involved an audit report by an auditor who had no access to any financial documents, yet was able to confidently form the conclusions he did, including a recommendation that the First Defendant be referred to the National Fraud and Anti-Corruption Directorate (NFACD), the findings of the PSC that the allegation of ‘double dipping’ by the First Defendant lacked credible evidence were unremarkable. An expectation that it would rely on hearsay and less than credible evidence to charge and discipline officers of the public service, in this case a senior legal officer, was contrary to the legislative intent behind s 18 (3) (a), (b) and (c) of the Act, which required the PSC to summons the persons mentioned in the provision, including the officer making the complaint, and to consider all the facts relative to the complaint, including the views of the persons summoned.
40. Therein lies the difficulty for the Plaintiff, one that it has sought to sidestep by seeking to shift the responsibility for its failure to ensure that all relevant evidence was before the PSC, a position no doubt now buoyed to that end by the fresh evidence of payslips it was later able to obtain with ease of effort within nine (9) days of a further request of Mr Meketa, albeit, only after the PSC had handed down its decision to annul the First Defendant’s dismissal.
41. The Plaintiff’s submissions in these proceedings that such fresh evidence would have affected the outcome of the PSC hearing is speculative. The Plaintiff’s explanation response is not before this Court, nor any other evidence that may have been relevant to its receipt. What is not speculative is that the fresh evidence was not before the PSC, a consequence of the Plaintiff’s failure to produce it.
42. In conclusion, the PSC was entitled to expect that the Plaintiff would marshal, with a sense of purpose, the evidence necessary to support the upholding of a decision it had made to dismiss an employee and in accordance with its summons request. The review concerned a senior legal officer dismissed on grounds viewed as sufficiently serious by the Plaintiff to involve recommendations for her referral to the police, the NFACD and her legal professional body. If, for demonstrated good reason, the Plaintiff was unable to do so then it had an obligation to invite the PSC, in its discretion, to exercise its statutory powers to summons the material and Mr Meketa to give evidence. It did not do so. Its submission that it could do no more than send its letter of 4 October 2022 to Mr Meketa cannot be accepted.
43. The Plaintiff cannot now complain that the necessary material was not before the PSC and that the absence of that material was a failure of the PSC to exercise its statutory responsibility under that Act amounting to an error of law.
44. This ground of review fails.
Whether the PSC’s failure to serve their final decision dated 11 March 2024 on the Plaintiff immediately on the handing down of its decision which became binding within 30 days was contrary to s 18 (3)(d)(ii) of the Act?
45. This ground relies upon a failure of the PSC to comply with the provisions of s 18 (3)(d)(ii) of the Act which required it to serve its decision immediately on the parties.
46. The section is in these terms:
](1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.
(2) A complaint referred to in Subsection (1) shall be –
(a) in writing; and
(b) made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the compliant; and
(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the compliant.
(3) The procedure to be followed in a review under this section is as follows: –
(a) the Commission shall summons –
(i) the Departmental Head of the Department of Personnel Management or his delegate; and
(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and
(iii) the officer making the compliant, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;
(b) the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons;
(c) the Commission shall –
(i) consider all the facts relative to the matter, including –
(A) the views of the persons summonsed under Paragraph (a); and
(B) the personnel management policies of the National Public Service; and
(C) the cost implications of any decision which it may make; and
(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and
(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);
(d) the decision of the Commission under Paragraph (c)(ii) –
(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and
(ii) shall become binding after a period of 30 days from the date of the decision.
[Underlining added]
47. It is submitted on behalf of the Plaintiff that the subject decision was not served on the Plaintiff until 8 May 2024 as evidenced by the stamped date of receipt by the office of the Plaintiff. Having been swerved outside of the date for service it is submitted that the decision is not binding on the Plaintiff.
48. Ms Narokobi for the State had no instructions on the date of service and her written submissions were silent in that regard. Given the detail of her instructions otherwise in submissions, it entitles the Court to conclude that had the date of service on the Plaintiff been other than 8 May 2024, evidence to the contrary would have been led.
49. I find that the Plaintiff was not served until 8 May 2025. It was a concession Ms Narokobi (properly) made on the evidence. It was one, however, Counsel for the First Defendant reluctantly made in the end (I think) but only after unnecessary Court time was wasted in an attempt to argue that which could not reasonably be argued, namely that service was effected on the date of the decision namely, 11 March 2025. This is, notwithstanding the evidence that the letter containing the PSC’s decision was addressed to the Plaintiff’s PO Box number with no evidence of personal service or delivery by hand of the document or that despatch of a letter addressed to a post box suggested same day receipt. Relevantly, it was also a submission contrary to the contents of the letter of the First Defendant’s lawyer to the Plaintiff dated 14 June 2024 where the concession as to service being on 8 May 2024 was made, albeit evidence, again, that did not prevent Counsel for the First Defendant arguing to the contrary, proceeding on the basis that ‘hope springs eternal’, and urging upon the Court that it should ignore the plain meaning of the contents of his own letter.
50. While the Court accepts that notification of the decision was not given immediately as required under s 18(3)(c)(iii) of the Act the Court does not accept that that failure affected the binding nature of the decision 30 days after the date of the decision thus entitling the Plaintiff to ignore the decision when served. If the legislature had intended that to be the case then it would have said so. Put another way, if the decision became binding on the date of service and not 30 days from the date of the decision, the Act would have expressly so provided.
51. It is a conclusion supported by a reading of the provisions of s 18(3)(c)(iii) and (d)(ii) which are separate provisions, albeit with a combined effect that supports the intent of s 18 as whole which concerns the procedure to be followed on the hearing of a personnel matter and s 18(3) specifically, which concerns the consideration of a complaint and handing down of a decision. Compliance with the section was important because the decision of the PSC had to be made within a certain time (s18(3)(d)(i)). Time for service (s18(3)(c)(iii)) was thus of the essence because the decision became binding 30 days from the date of the decision (s18(3)(d)(ii)).
52. The ground as to a failure of the PSC to serve their final decision dated 11 March 2024 on the Plaintiff immediately on the handing down of its decision which became binding within 30 days was contrary to s 18 (3)(d)(ii) of the Act. This ground of review is thus upheld.
Whether the PSC erred in law and committed a breach of procedural fairness in failing to discuss the evidence provided by the Plaintiff and the reason for not taking them into account in their decision contrary to s 59 of the Constitution?
53. It is submitted on behalf of the Plaintiff that the PSC did not act fairly in exercising its powers to gather information form the NEA whom they were aware were responsible for making the payments to the First Defendant. The submissions are advanced on the basis that a fair hearing requires the gathering of evidence from all parties, the critical evidence as to payments to the First Defendant not before the PSC because of its failure to exercise its statutory powers to obtain the evidence, thus amounting to a breach of procedural fairness and reasonable care in breach of s 59 of the Constitution.
54. Section 59 of the Constitution is in these terms:
59. Principles of natural justice.
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by
that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
[Underlining added]
55. The submissions advanced on behalf of the Plaintiff to support this ground are unpersuasive. Nor is the Court able to conclude that there was a breach of procedural fairness by the PSC in failing to discuss the evidence provided by the Plaintiff and the reason for not taking them into account in their decision contrary to s 59 of the Constitution?
56. I repeat and rely upon my earlier discussion of the issue of the PSC’s failure to use its powers to obtain the evidence with respect to ‘double dipping’.
57. Otherwise, I find that the reasons of the PSC:
58. While its findings and reasoning are contained in four (4) paragraphs, economy of written expression does not suggest a lack of cogency. The PSC identified the issue, found a lack of evidence to support the allegations, explained why the evidence in the form of the audit report relied upon by the Plaintiff was not compelling by reason of a lack of factual information or evidence that proved the allegations against the First Defendant. It noted a lack of response from the NEA but went on to note that Mr Meketa had sought approval from the Plaintiff for the First Defendant’s secondment to the NEC, which did not take place until she was terminated. It then concluded that the decision to dismiss the First Defendant was based on assumption only.
59. While the PSC did not have the benefit of the fresh evidence before this Court the PSC made its decision based on the evidence before it at that time, presented by those persons required to be present, its reasoning clear on the face of its decision.
60. This ground of review is not upheld.
Whether the PSC made a decision that is unreasonable in the Wednesbury sense that no authority in their position would have made in the circumstances where there is evidence to prompt the exercise of powers to gather crucial evidence from the NEA but did not?
61. In support of this ground the Plaintiff relies upon earlier submissions advanced in support of its other grounds. In summary, it is submitted that the PSC failed to dig into the reasons why the Plaintiff wrote the letter to NEA on 4 October 2022, failed to take into account clear evidence of ‘double dipping’, failed to make a reasonable attempt to obtain the information and use its powers to do so which would have sustained the decision for termination, failed to consider and discuss the evidence provided by the Plaintiff and made a decision so unreasonable that a public authority in their position would not have made, a decision contrary to the fresh evidence before this Court.
62. As noted earlier in these reasons, judicial review is not concerned with the merits of the decision made but the decision-making process. The exception to this is what is referred to as the Wednesbury principles of unreasonableness.
63. To succeed on this ground the Plaintiff must show that the decision of the PSC to annul the dismissal and order the First Defendant’s reinstatement was so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker would have made the decision (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).
64. The test of unreasonableness, based on the Wednesbury principles, is a high one. In Ombudsman Commission v Yama [2004] PGSC 30; SC747 the Supreme Court (Injia Dep CJ (as he then was), Sakora & Sawong JJ) endorsed at [7] the following tests or categories for determining unreasonableness outlined in Kim Food & Sons Pty Ltd v Minister for Finance & Planning [1996] N1464:
The Wednesbury principle of "unreasonableness" is described by Lord Green MR as a decision that is "so absurd that no sensible person could dream that it lay within the powers of the authority -- a decision that no reasonable body, could have come to." It is embodied in the principle of "irrationality" that we referred earlier. We prefer a simplified break-up of this principle into six (6) categories by Doherty J in Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996) as follows:
(a) It must be a real exercise of the discretion;
(b) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(c) It must ignore irrelevant considerations.
(d) It must not operate on the basis of bad faith or dishonesty;
(e) It must direct itself properly in law; and
(f) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in
that way.
[Highlighting in decision]
65. Applying the principles as outlined I am unable to conclude that the test has been met on the facts of this case.
66. Based on the evidence that the PSC had before it at the time it made its decision, its decision to annul the dismissal and reinstate the First Defendant could not be viewed as “absurd” or one that defied logic or one not wholly open to it to make on the evidence according to the requisite standard of proof the PSC was required to apply.
67. In referring to the standard of proof Gavara Nanu J said in Palaso v Kereme [2017] PGNC 231; N6816 at [23] – [26]:
68. The evidence presented by the Plaintiff before the PSC was wanting, the conclusions of the audit report on which the Plaintiff placed weight, one of guilt based on assumption, hearsay and weak analysis, unsupported by credible evidence.
69. Further, the PSC did not have the fresh evidence before it, and in submitting now that it made a decision contrary to evidence it did not have at the time is wholly irrelevant to whether the decision at the time it was made met the test in Wednesbury.
70. The Plaintiff assumed a position early that placed the worst possible light on the First Defendant’s conduct. While the First Defendant’s response to the allegations did not serve her well, she denied the allegations. Prudence and fairness suggested a cautious approach by the Plaintiff, further investigation and cogent evidence before acting to dismiss. This is because of the potentially wide-ranging ramifications for the First Defendant’s employment, professional reputation and liberty. Her integrity was called into question, a serious matter for anyone, let alone a lawyer, an officer of the Court. Even the audit report acknowledged a lack of direct evidence. There is no evidence that report was vetted by the legal department, as opposed to the HR Department, or that any legal advice was sought before the Notice of Charge was served on the First Defendant.
71. Even if that was the case, I am satisfied that the PSC had proper regard to the matters before it which it was required to consider, did not evidence bad faith or dishonesty, did not take into account irrelevant considerations, directed itself properly, produced a reasoned decision in writing and did not evidence irrationality or absurdity in reaching the decision it did.
72. This ground fails.
RELIEF
73. Having concluded that the PSC failed to meet its statutory obligation to immediately serve its decision on the Plaintiff, the one ground of review upheld, the Court must then look at all the circumstances of the case and decide whether it is appropriate to grant a remedy and if it is, what that remedy should be (Mision Asiki v Manasupe Zurenuoc (2005) SC797 (Asiki); Dale Christopher Smith v Minister for Lands (2009) SC973).
74. Deciding on what remedies should be granted is a matter of discretion (Isaac Lupari v Sir Michael Somare (2008) N3476; Asiki at [42]).
75. The applicant seeks the orders in its Notice of Motion filed on 11 July 2024 (see [54] of written submissions filed 15 April 2025) in the nature of declaration, certiorari and the alternative remedy of remittance of the matter for rehearing before the PSC. The Plaintiff’s detail of the orders in the final paragraph of its written submissions neglects to include the alternative remedy sought at [3] of the Notice of Motion, namely remittance to the PSC for rehearing. It was an alternative order maintained in oral submissions.
76. In my discretion the declaration sought at [1] of the Notice of Motion could not properly be made in the terms as sought as there was no finding by the Court that the Second Defendant had failed to exercise its powers under Section 13(1)(b) and (d) of the Act and acted unreasonably, committed an error of law and made procedural flaws in failing to consider and discuss evidentiary materials provided by the Plaintiff at the hearing and made a decision contrary to the evidence rendering the decision null and void.
77. In informing my discretion to whether to make the order sought at [2], namely, an order in the nature of certiorari to quash the decision of the PSC in its entirety and affirm the Plaintiff’s decision to dismiss the First Defendant, I place weight on the following factors:
78. Taking into account the matters I have identified, I refuse the order for certiorari, declaration and the alternative remedy to remit.
79. I am unable to conclude that the upholding of the one ground of review identified warrants the remedies sought by the Plaintiff, including the alternative remedy of referral of the matter to the PSC.
80. The application for judicial review should be dismissed.
81. Each party should bear their own costs.
ORDERS
82. The Court orders:
_________________________________________________________
Lawyers for the plaintiff: Chillion Lawyers
Lawyers for the first defendant: Gibson Bon Lawyers
Lawyers for the second & third defendant: Solicitor General
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