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Bomai v Kia [2025] PGNC 93; N11200 (25 March 2025)

N11200

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 126 OF 2022

BETWEEN:
CLETUS BOMAI
Plaintiff

AND:
JOSEPH KIA
First Defendant

AND:
PUBLIC SERVICE COMMISSION
Second Defendant

AND:
TAIES SANSAN as the SECRETARY of DEPARTMENT OF PERSONNEL MANAGEMENT
Third Defendant

AND:
DAVID MANAU as the SECRETARY of the DEPARTMENT OF PETROLEUM AND ENERGY
Fourth Defendant

AND:
ROSELYN WRAKUAVIA as the CHAIRMAN of the DEPARTMENT OF PERSONNEL MANAGEMENT SELECTION COMMITTEE
Fifth Defendant

AND:
KILA WALO as ACTING HUMAN RESOURCE MANAGER of the DEPARTMENT OF PETROLEUM ENERGY
Sixth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

WAIGANI: PURDON-SULLY J
19, 25 MARCH 2025

JUDICIAL REVIEW - Decision of Public Services Commission upholding a review under s 18 of the Public Services (Management) Act 1995 - whether the Public Services Commission acted with bias and/or breached the principles of natural justice in failing to accord the Plaintiff a right to be heard and provide documents at the hearing of the review under s 13 of the Public Services (Management) Act 1995 (as amended) - s 59(2) of the Constitution – grounds for judicial review not made out – application dismissed.

Cases cited
Asiki v Zurenuoc & Ors [2005] SC797
Dale Christopher Smith v Minister for Lands [2009] SC973
Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400
Kalinoe v Kereme & Ors [208] N7383
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Lainda v Mokono [2023] PGNC 427; N10581
Mayur Renewables Ltd v Mirisim [2024] PGNC 7; N10649
Open Bay Timber Limited & Anor v Hon Lucas Dekena & Ors [2013] N5109
Pinggah v Elias & Ors [2005] N2850

Counsel
Mr V Nigibe for the plaintiff
No appearance for the first defendant
Mr R Simbil for second defendant
Ms Z Rekeken, for third to seventh defendants

DECISION

1. PURDON-SULLY J: This is the Court’s decision on the Plaintiff’s Notice of Motion pursuant to Order 16 r 5(1) of the National Court Rules (NCR) filed 20 February 2024 following a grant of leave on 14 November 2023 to judicially review the decision of the Second Defendant made on 31 August 2022 (the decision) as follows:
   
   1. The annulment of the appointment of the Plaintiff to the position No. PENG 001 designated as Assistant Director, Grade 16 within the Department of Petroleum and Energy by the Selections Committee of the Department of Personnel Management;
   2. That the Department of Petroleum and Energy immediately re-advertise the said position;
   100. That the Secretary, Department of Petroleum and Energy appoint a new Selection Committee, excluding previous members, with the Chairperson of the Committee to be a Senior Officer at Deputy Secretary level; and
   4. That the Selection must be made in strict compliance with the [provisions of the Public Service (Management) Act 1995 (as amended) and the Public Service General Orders.
      
2. The Plaintiff relies upon two grounds of review as follows:
   
   1. The decision of the Second Defendant was made in circumstances of actual and/or reasonable apprehension of bias in that:
      
      1. The Second Defendant only relied upon the documents submitted by the First and Sixth Defendant; and
      2. The Sixth Defendant was a former employee of the Second Defendant.
         
   2. In reaching the decision the Second Defendant failed to comply with the rules of natural justice in that:
      1. The Third Defendant and or the Fifth Defendant and or their respective representatives although summoned to submit necessary documentation on behalf of the Plaintiff in response to the First Defendant’s appeal failed to do so and as such, caused the Second Defendant to make its determination in the absence of any documentation concerning the appointment of the Plaintiff thereby not affording any opportunity to the Plaintiff to respond to the appeal; and
      2. The Plaintiff whose appointment was being appealed against and whose interest was affected by the appeal by the First Defendant was never summoned to respond to the appeal and was therefore not given any opportunity to respond to the appeal.
         
3. At the hearing of its Notice of Motion, the Plaintiff did not press ground (a)(ii).
   
4. The Plaintiff originally sought the following relief in its Notice of Motion:
   
   1. An order for certiorari to quash the decision; and
   2. An order for mandamus requiring the Fourth and Second Defendant to implement the decision of the Department of Personnel Management Selection Committee made on 18 November 2020 appointing the Plaintiff to the position No PENG 001 designated as Assistant Director, Grade 16 within the Department of Petroleum and Energy and reinstate the Plaintiff to the Position No PENG 001 designated as Assistant Director, Grade 16 within the Department of Petroleum and Energy.
      
5. However, at the hearing the Plaintiff abandoned the relief of mandamus. In written submissions filed on 18 March 2025 the Plaintiff conceded there was no utility in seeking the order resulting in his reinstatement to the position as his contract of employment had expired on 18 November 2023. If the grounds of review were upheld, he sought the payment of wages and entitlements that he would have received under his contract of employment.
   
6. The Second to Seventh Defendants seek the dismissal of the Notice of Motion.
   
7. The First Defendant did not participate in the proceedings.
   

BACKGROUND

8. The agreed and disputed facts appear at pages 274 to 279 of the Review Book filed 13 March 2025. For present purposes however, the relevant background can be summarised as follows.
   
9. On about 1 July 2019 the position of Assistant Director of Petroleum Engineering Position No PENG 001 Grade 16 (the position) within the Department of Petroleum and Energy (DPE) was advertised internally.
   
10. The Plaintiff who was employed with the DPE on contract applied for the position as did the First Defendant who had been acting in the position.
    
11. The Plaintiff was appointed to the position on 18 November 2020 by a Department of Personnel Management Selections Committee (the Committee).
    
12. Aggrieved by the decision of the Committee the First Defendant lodged a complaint to Second Defendant under s 18 of the Public Services (Management) Act 1995 as amended (the Act).
    
13. On 31 August 2022 the Second Defendant upheld the First Defendant’s complaint, annulled the Plaintiff’s appointment and ordered for the position to be re-advertised.
    
14. Aggrieved by the decision of the Second Defendant, on 19 December 2022 the Plaintiff commenced these proceedings by way of an application for leave for judicial review.
    

CONSIDERATION

15. Judicial review is available where the decision-making authority exceeds its powers or lacks jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable authority would have reached (Wednesbury principles) or abuses it powers (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at [4]).
    
16. The issues for determination by the Court are firstly, whether the decision was made in circumstances of actual or a reasonable apprehension of bias and secondly, whether the Second Defendant failed to comply with the rules of natural justice in reaching its decision by reason of the Plaintiff in the absence of relevant documentation and in not being afforded an opportunity to be heard at the appeal hearing.
    

Was the decision tainted with bias?

17. The Plaintiff contends that the decision was made in circumstances of bias or a reasonable apprehension of bias because the Second Defendant only relied upon the documents submitted by the First and Sixth Defendants at the hearing on 18 May 2022.
    
18. The Second to Seventh Defendants submit there is no actual or apprehended bias based on the evidence and application of the relevant legal tests. Reliance is placed on Mayur Renewables Ltd v Mirisim [2024] PGNC 7; N10649; Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400; Asiki v Zurenuoc & Ors [2005] SC797; Kalinoe v Kereme & Ors [208] N7383; Pinggah v Elias & Ors [2005] N2850).
    
19. The notion of “bias” as commonly understood implies the presence of a prejudice that improperly influences a conclusion or decision.
    
20. The absence of bias on the part of a public authority in making its decision is part of the duty to be seen to act fairly, as provided by s 59(2) of the Constitution provides that “the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly”.
    
21. If the decision-making process is thus tainted in some way by a lack of independence or impartiality or bias, then it may amount to a breach of the principles of natural justice and is open to judicial review.
    
22. To establish bias as a ground of judicial review it must be proved that the decision- maker was actually biased, or that a reasonable apprehension of bias would arise in the mind of a reasonable person with the knowledge of the relevant facts (Nilkare v Ombudsman Commission [1996] SC498; Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400; Gawi v Public Services Commission [2014] N5473).
    
23. The authorities make clear that a Court should not lightly conclude that an allegation of apprehended bias is made out, let alone actual basis. Reasonable apprehension of bias must be firmly established and not left at the level of speculation. It is not unusual for a party to be unhappy with the outcome of a decision if it is not favourable to them. That does not mean that it was tainted by bias, a serious allegation that should only be made on clear of evidence (Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400).
    
24. In Mayur Renewables Ltd v Mirisim [2024] PGNC 7; N10649, Kandakasi DCJ, in considering the issue of bias, said at [130] et seq:
    
    130. Just because a person is pro something does not necessarily follow that he or she is bias when it comes to decision making. In the context of the law and judicial review, much is dependent on the relevant law, the relevant facts, and the reasons for decision.
         
    131. None of the parties assisted with any submissions on the relevant principles of law on the question of bias and more so the test to determine if a decision is tainted by bias or not. One of the leading authors, D Smith in administrative law under which judicial review falls in his book, Judicial Review of Administrative Action [3rd Edn; 1977] at p. 563 states the relevant principles in the following terms:
         

“A more common formulation of the test is: Would a member of the public, looking at the situation as a whole, reasonably suspect that a member of the adjudicating body would be biased? Another common formulation is: Is there in fact a real likelihood of bias? There is no need, on either formulation, to prove actual bias; indeed, the courts may refuse to entertain submission designed to establish the actual bias of a member of an independent tribunal, on the ground that such an inquiry would be unseemly. In practice the tests of “reasonable suspicion” and “real likelihood” of bias will generally lead to the same result. Seldom indeed will one find a situation in which reasonable persons adequately apprised of the facts will reasonably suspect bias but a court reviewing the facts will hold that there was no real likelihood of bias. Neither formulation is concerned wholly with appearances or wholly with objective reality. In ninety-nine cases out of a hundred it is enough for the court to ask itself whether a reasonable person viewing the facts would think that there was a substantial possibility of bias.”

(Underlining supplied).

132. These principles have been adopted and applied in our jurisdiction in many Supreme and National Court decisions. One of the decisions that does that, is the decision of the Supreme Court in Application by Herman Joseph Leahy (2006) SC981, per Kapi CJ, Cannings J & David J where the following his clear from the headnote to the judgment:

“ ...the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible? (Boateng v The State [1990 PNGLR] 342, PNG Pipes Pty Ltd and Sankaran Venugapal v Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC592 applied.

The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.”

25. Applying the principles that emerge on the above authorities to the facts if this case, there is no persuasive evidence to conclude either actual or reasonable apprehended bias on the part of the Second Defendant in making the decision. The evidence of the Plaintiff in his affidavit filed on 19 December 2022 (AB pages 53 to 121) is silent on why in proceeding to hear the appeal in the absence of the documents as particularised and in its reliance only on the submissions of the First and Sixth Defendants the Second Defendant evidenced actual or apprehended bias. In common parlance, the Plaintiff who carries the burden of proof, has failed to “connect the dots”. He has failed by reference to different pieces of information or events to show why the Court would conclude that the decision under review was tainted by a prejudice towards him amounting to either an actual bias or a reasonable apprehension of bias. This is particularly so where the process was primarily concerned with the issue of the Committee’s compliance with mandatory procedures during the selection process.
    
26. This ground of review accordingly fails.
    

Did the Second Defendant fail to comply with the rules of natural justice in making the decision?

27. The crux of the Plaintiff’s complaint is that the principles of natural justice were breached by the Second Defendant in failing to exercise its power under s 13 of the Act in summonsing the Plaintiff to give evidence and thus be heard at the hearing of the First Defendant’s appeal, compounding the non-production of documentation that would have helped the Plaintiff’s case. It is contended that the Plaintiff in not being heard during the hearing resulted in a breach of the principles natural justice. The Plaintiff’s position is neatly summarised at [28] of the written submissions relied upon by him as follows:
    

“In summary, we submit that the minimum requirement of natural justice of “the duty to act fairly and in principle to be seen to act fairly” was breached by the PSC in (this) case when the interest of the Plaintiff and his position was not heard during the heating despite the power provided to the PSC to summon the Plaintiff to provide such evidences.”

28. The Plaintiff relies upon the decision of Lainda v Mokono [2023] PGNC 427; N10581; Asiki v Zurenuoc & Ors [2005] SC797; Dale Christopher Smith v Minister for Lands [2009] SC973; Open Bay Timber Limited & Anor v Hon Lucas Dekena & Ors [2013] N5109.
    
29. It is submitted on behalf of the Second to Seventh Defendants, in summary, that the Second Defendant complied with the Act and s 59 of the Constitution, ensuring natural justice within its statutory framework. In that regard only three (3) persons were mandatorily required to be summonsed under the Act on the hearing of the First Defendant’s appeal. The Plaintiff was not one. While the Third Defendant did not appear under summons, the Second Defendant, consistent with its discretion under s 224 of the Constitution, was entitled to determine procedure and proceed as it did. Further, the review being undertaken by the Second Defendant revolved around a key issue as to whether in the appointment of the Plaintiff, the Committee had complied with necessary procedural requirements, the Plaintiff’s involvement in the hearing irrelevant as it was only the Third and Fourth Defendants who could provide evidence on that issue by way of the production of a Final Selection Report and the failure by the Third and Fourth Defendants to provide that report warranted the annulment of the Plaintiff’s appointment to the position. Finally, the power to summon a person to give evidence under s 13 of the Act is discretionary, not mandatory.
    
30. I now turn to consider this ground of review.
    
31. The Second Defendant is established by virtue of s 190 of the Constitution, its functions as detailed in s 191(1)(a) of the Constitution to include “the review of personnel matters connected with the National Public Service”.
    
32. The term “personnel matters” as used in s 191(1) of the Constitution and s 18 of the Act is defined under s 194 of the Constitution as follows:
    

194. “PERSONNEL MATTERS”

In this Division “personnel matters” means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise.

33. The complaint of the First Defendant fell within the definition of a “personnel matter” as so defined as it concerned a decision relating to the First Defendant’s employment.
    
34. On written complaint by the First Defendant the Second Defendant was required to conduct a review of a decision on a personnel matter inter alia relating to “an appointment or selection” under s 18 of the Act which is titled REVIEW OF PERSONNEL MATTERS CONNECTED WITH THE NATIONAL PUBLIC SERVICE.
    
35. The procedure to be followed as set out in s 18(3) required the Second Defendant to summon the First Defendant and the Heads of the Department of Personnel Management and the Department in which the First Defendant was employed or their delegate.
    
36. The persons so summonsed were required to make themselves available and the Second Defendant was then required to consider all the facts relative to the matter including the views of the persons summonsed, the personnel management policies of the National Public Service together with the cost implications of any decision which it may make, and then make a decision to uphold, vary or annul the decision the subject of the complaint and notify that decision to the persons summonsed (s 18(3)(c)).
    
37. Time limits applied for the making of the complaint (s 18(2)(b)) and then for the handing down of a decision on the complaint (s 18(3)(d)).
    
38. Based on the above, the Second Defendant was thus empowered by constitutional mandate to deal with the First Defendant’s complaint with respect to the Plaintiff’s appointment to the position and to that end to review the decision to appoint the Plaintiff to the position to ensure compliance with legal and procedural norms as well as consider the merits of the complaint through a structured hearing process, in this case, as detailed in s18 of the Act (Kalinoe v Kereme & Ors [2018] N7383).
    
39. In doing so, the Second Defendant had a duty to act fairly.
    
40. It is a mandatory requirement under the review process that only three categories of persons are required to attend the review hearing by summons under s 18(1) of the Act. The Plaintiff was not one. In this case it was the First, Third and Fourth Defendants. The Plaintiff concedes as much in written and oral submissions.
    
41. Notwithstanding a summons being issued to the Third Defendant to attend on 11 April 2022 and 10 May 2022, that did not happen. The Court accepts the submission on behalf of the Second Defendant, however, that reasonable steps were taken to ensure attendance by the Third Defendant and that consistent with the Second Defendant’s discretion under s 224 of the Constitution, the Second Defendant was entitled in the circumstances to determine procedure and conduct the hearing in the absence of the Third Defendant.
    
42. While there is a power under s 13 of the Act (POWERS OF THE COMMISSION) for the Second Defendant to “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” (s 13(1)(b)), or “take evidence on oath or affirmation...” (s 13(1)(c)) and “require any person to produce documents within his possession or subject to his control” (s 13(1)(d)), it is not a mandatory requirement. The discretion lies with the Second Defendant. This is clear from the use of the word “may” in s 13(1), as opposed to the use of the word “shall”. Further the discretion is to be exercised “for the purpose of performing its functions” and must be evidence “material” to the review being conducted.
    
43. The function that was being performed by the Second Defendant was a hearing in response to a complaint by First Defendant to review the decision of the Committee appointing the Plaintiff to the position. The Plaintiff’s evidence was not material to the review being irrelevant to the central issue that emerged and that was whether or not in making the decision to appoint the Plaintiff to the position the Committee had followed proper process by preparing a mandatory report.
    
44. This is because as part of its hearing, the Second Defendant was required to review the Committee’s compliance with the procedures for appointment in the National Public Service as provided under Public Service General Order 3 (Order 3). The General Orders are the subsidiary legislation issued by the Secretary of the Department of Personnel Management as provided for by s 70 of the Act.
    
45. Order 3 is titled RECRUITMENT, SELECTION, APPOINTMENT AND STAFF REPORTING. The Second Defendant found that the appointment process had failed to comply with the procedure and requirements laid out in Order 3, in that a Final Selections Report had not been provided to the Second Defendant to justify the appointment of the Plaintiff on merit as required by Orders 3.83 and 3.84 of Order 3.
46. Orders 3.83 and 3.84 appear in a suite of orders from 3.82 to 3.85 grouped under the heading THE PRE SELECTION DECISION AND REPORT.
    
47. Orders 3.83 and 3.84 are in these terms:
    

3.83 The Committee must make a complete report of its deliberations and decisions. The report must contain all the essential information which the committee used to arrive at its decision to select a candidate for an adversarial vacancy. Comments in the report must be substantiated. Any irregularities or inconsistences not resolved by the Committee should be mentioned in the report.

3.84 The Final Selections Report (Form RS3.16) shall include the following:

(a) details of the position to be filled, name of the department, division, branch, position number, Gazette number or date of advertisement (or reason for bot advertising), designation, local designation, classification, location naib duties and qualifications;

(b) the number of applicants;

(c) the criteria used for shortlisting and the number shortlisted;

(d) the name of each short-listed applicant with a reason for their rejection;

(e) the reasons for selecting the successful applicant; and

(f) appendices which should include completed Form RS.31 to Form RS3.10 and the names and designations of the Selection Committee.

(Emphasis in the original)

48. The report was sought from the DPE and the Committee and not been provided. It was a failure that entitled the Second Defendant to conclude that the reason it had not been provided was that a critical procedural requirement had not been met. In the circumstances, the need for the Second Defendant to exercise its powers under the Act to secure the Plaintiff’s attendance at the hearing was unnecessary. His involvement, the need for him to give evidence or provide information purportedly not supplied by the Third or Fifth Defendant with respect to his qualifications to justify his appointment or any other contribution he may have made would have added nothing to the review process. His qualifications or fitness for the role to which he had been appointed were irrelevant where a Final Selections Report had not been prepared by the Committee who appointed him. I hasten to add that the Plaintiff may well have had the necessary qualifications to justify a merit-based appointment however it was the absence of the report, a “prime working document for the Selection function” and a mandatory requitement under Order 3.85 of Order 3 that vitiated the appointment because an important and necessary procedural requirement had not been met by the Committee. It was the absence of the report that inevitably led to the First Defendant’s appeal being upheld and an annulment of the decision to appoint the Plaintiff to the position.
    
49. The importance of the report being prepared was underscored by the further requirement in Order 3.85 of Order 3, namely that the report was a useful reference document in the event of an appeal, a reference document, however, not available to the Second Defendant when is conducted its review.
    
50. The findings of the Second Defendant at 4.5, 4.6 and 4.7 of the decision (RB pages 119 to 120) and reproduced at [25] of the Plaintiff’s written submissions, must be viewed in this context. Those findings may well have been worded differently. However, what is clear on any fair reading of the findings and the evidence is that it was the absence of the Final Selections Report which was critical, a report that would have included all of the information detailed in Order 3.84 of Order 3 together with the appendices in the Form RS3.1 to Form RS3.10. The Plaintiff being summonsed by the First Defendant to give evidence and provide his curriculum vitae, qualifications, references, and experience, documents purportedly given him to the Third Defendant who didn’t show ([26] and [27] of the Plaintiff’s written submissions), or any other information the Plaintiff wanted to provide, as noted earlier in these reasons, mattered not. It would have made no difference to the outcome, because the review centred on the Committee’s compliance with Order 3, not what the Plaintiff had provided to others or whether his appointment was merit based.
    
51. Put another way, and respectfully to the Plaintiff, his evidence, his willingness to be heard and the provision of documents by him would not change the fact that the Committee failed to follow proper process by meeting a mandatory procedural requirement to produce a Final Selections Report to justify its decision. It was that failure that warranted the annulment being made because absent the report the Committee could not justify that their selection was merit based (a purpose of the report). Further, their lack of reasons in the form of a Final Selections Report was, in and of itself, a breach of the principles of natural justice in the selections process (Asiki v Zurenuoc & Ors [2005] SC797).
    
52. In consequence there was no denial of the Plaintiff’s right to natural justice by reason of a failure by the Second Defendant to issue a summons to the Plaintiff to appear and thus accord the Plaintiff a hearing at the appeal and the opportunity to submit documentation in response to the appeal. The Second Defendant complied with the Act and s 59 of the Constitution ensuring natural justice was accorded to the Plaintiff within its statutory framework.
    
53. Notwithstanding the Plaintiff’s submission to the contrary, the Court concludes that the annulment by the Second Defendant of the appointment made through a procedurally defective selections process upheld the principles in s 59(2) of the Constitution.
    
54. This ground fails.
    

CONCLUSION

55. Having concluded that both grounds of review fail the Plaintiff’s Notice of Motion should be dismissed.
    

ORDERS

56. The Court makes the following orders:
    1. That the Notice of Motion filed 20 February 2024 be dismissed.
    2. The Plaintiff pay the Defendants costs on a party and party basis to be agreed or taxed.
    3. Time to abridge
       

Lawyers for the plaintiff: Public Solicitor
Lawyers for the second defendant: Public Services Commission Inhouse Lawyer
Lawyers for the third to seventh defendants: Solicitor General