SC2217

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 54 OF 2021

BETWEEN:
NATIONAL CAPITAL DISTRICT COMMISSION
First Appellant

AND:
HONK KIAP as CHAIRMAN OF THE STAFF APPEALS TRIBUNAL
Second Appellant

AND:
FREDERICK KASPER
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Logan J
2022: 3rd March

APPEALS – STAY OF ORDERS MADE IN ORIGINAL JUDICIAL REVIEW JURISDICTION PENDING HEARING OF APPEAL – Order made for reinstatement of contract employee whose term of employment would have expired by effluxion of time years beforehand in any event – former employee’s duties long since undertaken by others – arguable case that damages an adequate remedy – stay granted

Facts:

The first respondent was employed by the first appellant, the National Capital District Commission, for a period of three years ending in November 2011. In May 2011, he was dismissed from his employment for misconduct. He sought the review of that dismissal by the Staff Appeal Tribunal. In 2012, the Tribunal dismissed that review and confirmed the dismissal.  The first respondent challenged his dismissal as confirmed in judicial review proceedings in the National Court. In 2021, that court quashed the dismissal decision and that of the Tribunal, ordered his reinstatement with back pay and made an order for damages to be assessed.
In the period following the dismissal and Tribunal decisions, the Commission had reorganised its staffing and appointed others to perform duties hitherto undertaken by the first respondent.

Held: 

Arguable case of error of principle in the ordering, in the circumstances of reinstatement. Having regard to effluxion of time and changes made in the workplace, balance of convenience favoured not disturbing the reorganised position, pending the hearing and determination of the appeal. Stay granted. 

Legislation

Supreme Court Rules 2012

Counsel:

Mr. E. Tolabi and then Mr. N. Kopunye, for the Appellants
The First Respondent appeared in person

Oral decision delivered on
3rd March 2022 (As revised)

1.	LOGAN J: As a sequel to orders made in the Supreme Court on 17 December 2020 in SCA 165 of 2018, a judicial review proceeding was heard and determined in the National Court last year, namely OS (JR) 497 of 2018.  That proceeding was between the present respondent, Mr Fredrick Kasper as plaintiff and the National Capital District Commission (Commission), the State and Mr Honk Kiap as chairman of the Staff Appeal Tribunal (Tribunal) as defendants.

2.	On 6 August 2021, having heard the proceeding, the National Court made orders in Mr Kasper’s favour.  Certiorari was issued and granted, quashing the decision of, it seems, the Tribunal terminating Mr Kasper from his employment with the Commission.  The court also declared that the decisions of the Tribunal of 13 January 2012 terminating Mr Kasper from his employment with the commission were null and void, of no effect.  The court further ordered that Mr Kasper be reinstated to his former position of Deputy Works Manager with the Commission or alternatively to a similar post with all salary and other emoluments to be backdated to 13 January 2012 and paid forthwith.  The court further ordered that damages to be assessed and awarded to Mr Kasper.  An order was made in Mr Kasper’s favour in relation to costs.  

3.	The Commission and Mr Kiap as chairman of the Tribunal have now applied by notice of motion to challenge the orders made in the National Court, naming Mr Kasper and the State as respondent parties.  The State has never taken an active role in the proceedings. 
 
4.	At the heart of the occasion for the judicial review application was an allegation of misconduct on several bases on the part of Mr Kasper. Until 2011, Mr Kasper pursued with notable success a career with the Commission, progressing from general labourer through to council engineer.  He has done that in conjunction with pursuing studies appropriate to particular progression.  

5.	The appellants have applied for a stay of the operation of the orders made in the National Court.  The principles governing whether a stay should be granted have been stated on many occasions by the Supreme Court.  In short, the starting premise is that a person who has succeeded in the National Court is entitled to the benefit of that success.  Delay in the making of a stay application is also material but of no moment in the present case.  The appellants have moved with due expedition.  The balance of convenience including whether damages would be a sufficient remedy is also a consideration.  As to the balance of convenience, questions of hardship, prejudice to either party, the nature of the judgment sought to be stayed, the financial resources of the applicant for a stay.  Of course, whether there is an arguable case is also pertinent.

6.	The grounds of review pleaded in the notice of motion are, to say the least, prolix but at their heart is the question as to whether in terms of principle it was erroneous for the National Court to order reinstatement.  There are technical issues of statutory construction raised in terms of the meaning and effect of the staff disciplinary code and its particular application.  

7.	Also raised is the question as to whether given the lengthy passage of time, approaching a decade, it was in any way up to order reinstatement as opposed to damages.  

8.	One issue raised for consideration in the course of the hearing of the stay application flows from a finding of fact made by the learned primary judge at paragraph 8 of his Honour’s reasons for judgment.  His Honour found that the prevailing contract of employment at the time when termination occurred in May 2011 was a contract of three years which ran from 4 November 2008 to 4 November 2011.  The question which does not appear to have been addressed by the learned primary judge but was sitting there on his finding of fact as to the length of the contract was that the effect of the orders was to order the reinstatement of someone whose term of employment would have expired in any event if not renewed on 4 November 2011.  As it was disciplinary process continued into 2012.

9.	It seems to me that there are serious questions to be tried on the notice of motion.  

10.	Mr Kasper has placed evidence before the court that his former superior has in effect welcomed the prospect of his return.  That, it seems, is because Mr Kasper is suitably qualified in terms of his engineering qualification and also doubtless someone who had particular experience in the application of his formal knowledge.  It also seems inherently likely that over what was a 20-year career until terminated that Mr Kasper acquired a very good practical working knowledge indeed of the commission’s operations particularly in the works area. So it is understandable in these circumstances that Mr Kasper might, with cause, feel that he could translate seamlessly back into his former position.  

11.	The difficulty is that it is now a decade or so later and life has moved on in terms of the Commission’s operations and the engagement of others to perform tasks hitherto undertaken by him.
  
12.	The prospect does exist in my view of Mr Kasper being reinstated in accordance with the National Court’s order only to find himself again without employment with the Commission if the challenge to the National Court’s orders succeeds.  That would be disruptive to the Commission’s operations.

13.	There would also then be a question as to what to do in relation to payment made in respect of Mr Kasper’s services in the interval between reinstatement and any adverse outcome in the Supreme Court.  On the one hand, it might be said that the payments were made without lawful authority.  On the other and perhaps a better argument, it might be said that at the time they were made there was lawful authority, namely the National Court’s order and, further and in any event, that he had performed services in return for the payments.

14.	The real question it seems to me is more one of the disruption it would occasion in the work place.  Another consideration, although after a decade it is perhaps a diminished one, is that the occasion for the termination related to misconduct, some aspects of which were accepted by Mr Kasper, in particular it seems an assault in the workplace with the debate being that there was cause truly in relation to the particular assault.  But the question in that regard was more one as to appropriate penalty rather than the occurrence of the event itself.

15.	Taking into account the prospect of an outcome adverse to Mr Kasper on the notice of motion, following from what in my view is an arguable case and which may be better particularized in relation to the passage of time terminating the contract in any event in November 2011, it appears to me that a stay order should be granted to the appellants.

16.	I am conscious in that regard that it has been a very long time coming for Mr Kasper to get any answer in the judicial proceeding and it may well be that any monetary compensation is poor compensation compared with the loss of the dignity of employment.  But the Commission is well and truly able to meet any award for damages which might be made and I do take that into account as well.

17.	Apart from the stay, there remains a question about interlocutory case management.  Mr Kasper for his part has filed an application which would seek the substantive notice of motion dismissed on the basis that it is somehow frivolous or vexatious.  That should be heard in conjunction with the appellants’ notice of motion.  

18.	The point is made on behalf of the appellants that it would be wasteful of resources to reproduce again the contents of the notice of motion volumes in an appeal book.  I agree.  It also seems to me that the appellants should have leave to make such amendments as they may be advised to the notice of motion having regard to exchanges which occurred today.  

Orders

1.	Pursuant to sections 19 and 5(1)(b) of the Supreme Court Act (Chapter No. 37) and/or Order 13, Rules 14 and 15 of the Supreme Court Rules 2012 (Rules), the whole of the judgment of His Honour Justice Miviri given on 18 August 2021 at Waigani in proceedings OS (JR) No. 497 of 2018 (the NC Proceedings) be stayed pending the hearing and determination of the appeal herein, or further earlier order.
2.	Pursuant to sections 5(1)(a) and (1)(b) of the Supreme Court Act (Chapter No 37) and/or Order 7, Rule 18 and Order 11, Rule 9 of the Rules, the Court makes the following directions:
(a)	Any requirement for settlement, filing and service of an appeal book be dispensed with; 
(b)	After obtaining a certified copy of the transcripts of the NC Proceedings before the learned primary judge, the appellants to file and serve an affidavit containing the transcripts of the NC Proceedings and file an affidavit of service; 
(c)	After service of the affidavit referred to above, the matter be listed for status conference; and 
(d)	The hearing of the substantive appeal be heard and determined on the Notice of Motion [Volumes 1 and 2] and the affidavit containing the transcript of the NC Proceedings.
3.	The application for dismissal of appeal filed on 9 February 2022 be heard in conjunction with the notice of motion.
4.	The appellants have leave to file and serve an amended notice of motion within 14 days, if so advised.
5.	Any such amended notice of motion be heard by the court in lieu of the notice of motion as filed to date.
6.	As to any such amended notice of motion, the requirements of the rules for annexing particular documents thereto be dispensed with.
7.	Costs of today be reserved.
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Kopunye Lawyers: Lawyers for the Appellants