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Western Highlands Provincial Health Authority v Kereme [2025] PGSC 92; SC2791 (31 October 2025)

SC2791

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SCM NO. 11 OF 2024 (IECMS)


BETWEEN:
WESTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
First Appellant


DAVID VORST – Chief Executive Officer, Mt Hagen General Hospital
Second Appellant


AND:
DR PHILIP KEREME as Chairman of Public Services Commission
First Respondent


PUBLIC SERVICES COMMISSION
Second Respondent


FRANCIS WAU
Third Respondent


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


WAIGANI: COLLIER J, ANIS J, KAUMI J
31 OCTOBER 2025


ADMINISTRATIVE LAW – Appeal against decision of National Court dismissing application for judicial review of decision of the Public Services Commission – where National Court held that Public Services Commission had jurisdiction to review termination of senior contract employee of first appellant – where Part XIV of the Public Services Management Act excluded in relation to senior contract employees – operation of General Orders – whether s 41 of Public Services Management Act excludes ability of Public Services Commission to review decisions of public service bodies – whether termination of employment of third respondent solely within terms of his contract – not in dispute that the third respondent was a member of the public service – whether primary Judge conducted merits review of Public Services Commission review


The first appellant terminated the employment of the third respondent. The third respondent sought a review by the second respondent of his termination of employment. The second respondent found that the employment of the third respondent was not properly terminated and determined that the third respondent should be reinstated. The appellants applied to the National Court for judicial review of the second respondent’s decision. The National Court upheld the second respondent’s decision.


Held
The Public Services Management Act does not exclude the jurisdiction of the Public Services Commission to review decisions related to personnel matters in the National Public Service, including in respect of senior contract officers. Comments of the primary Judge in respect of the lawfulness of the termination were obiter dicta.


Cases cited
Arran Energy (Elevala) Ltd v Ol [2023] N10268
Christian v Namaliu [1996] SC1583
Francis Damem v Jerry Tetaga (2005) N2900
Ganzik v Iguan [2024] SC2572
Kekedo v Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122
Mol v Appa [2022] PGNC 184; N9615
National Agriculture Quarantine & Inspection Authority v Tetega [2009] PGNC 220; N4030
Paul Lupai v John Kali (2015) N6109
Saiho v Solomon [2016] PGNC 282; N6474
The State v Tamate (2021) SC2132
Western Highlands Provincial Health Authority v Kereme [2025] PGSC 49; SC2741


Counsel
M Tamutai with E Ngona for the appellants
T Torato for the first and second respondents


REASONS FOR JUDGMENT


  1. BY THE COURT: Before the Court is an appeal from a decision of the National Court given on 29 January 2024 in Western Highlands Provincial Health Authority v Kereme in case OS(JR) 89 of 2019 (Primary Judgment). By the primary judgment, the National Court affirmed a decision of the first respondent, the Public Services Commission (PSC), to annul the termination of employment of the third respondent, Mr Wau (PSC Decision). The third respondent was employed by the first appellant, the Western Highlands Health Authority (Health Authority). The appellants appeal against the whole of the primary judgment.

BACKGROUND

  1. On 1 January 2015, Mr Wau commenced employment as the Manager for Information Management for the Health Authority, pursuant to a “Senior Officers Performance Based Contract of Employment under the Public Services (Management) Act NATIONAL PUBLIC SERVICE” (PSMA).
  2. By an undated letter the second appellant, Mr Vorst (as Acting Chief Executive Officer of the first appellant), wrote to Mr Wau in the following terms:
I refer to the meeting of the ICT group conducted on Thursday 6th July 2017 and which you attended.
I understand that in the recent past Dr Ripa the Acting CEO also had occasion to discuss your performance with you.
I further refer you to the statement by the Acting Director Corporate Services to whom you report that you were absent from work for at least 5 and possibly 6 days - dates relevant being
Monday 26th June 2017
Tuesday 27th June 2017
Wednesday 28th June 20l7
Thursday 29th June 2017
Friday 30th June 2017
Monday 3rd July 2017
In relation to this absence you neither applied for nor were granted approval to taJce leave and you had therefore absconded from your point of duty.
I attach the text of Mr Anuma's email at appendix I
You are well known to be tardy in your attendance and I draw your attention to GO 15 Sect 46 and 47
15.46 An officer arriving on duty later than 15 minutes after the ordinary time of commencing duty shall not record his/her attendance, but shall report himself/herself to the officer-in-charge (Delegate of the Departmental Head), who shall make the record together with the officer's explanation for late attendance.
Absence during Office Hours
15.47 If an officer is irregular in his/her attendance or absents himself/herself without leave during office hours, the circumstances shall be reported by the officer-in-charge to the Departmental Head, and the officer shall be charged under the disciplinary procedure.
I refer to the allegation that of the 5 training sessions conducted on-site by Dr David Johnson for the ITC staff you attended only one.
I also refer to the matters which have occurred in 2017. I will not document matters prior to 2017 as they demonstrate a similar pattern. Please see appendix 2
Despite having been reminded constantly to log tickets for the work you are undertaking there is not one ticket logged in your name in 2017.
Further I take note that your administrative privileges which gave you access to the network were revoked as senior WHPHA management bad lost trust in your ability to protect the network following the "WannaCry' ransomware attack which was traced back to your computer and your accessing "Bitcoin" related sites and other activities which put the network at risk.
You will recall the WHPHA was attacked by WannaCry ransomware in May 2017 which targeted computers running the Microsoft Windows operating system by encrypting data and demanding ransom payments in the Bitcoin cryptocurrcncy. The attack caused most of the 333 users of the network to lose all or some of their data.
Despite being warned you continued to behave in a way putting the network and its users at risk and which demonstrated an unacceptable level of arrogance.
All in all your lack of application· to the tasks demanded by position and the fact that you admit you have conducted no training although you have agreed on several occasions that training of users is a priority is a most serious matter.
I am also taking into account your continued refusal to meet agreed deadlines and timcframes, and in that regard I refer particularly but not exclusively to the recommendations contained in IT Audit report issued late in 2016 and to your contract.
In that document which you signed it states as follows
Sect2
(b) skilfully and diligently perform all the duties within the scope of or incidental to the employment of a Senior Officer holding the position in accordance with Job Description or as may reasonably be regarded by the Departmental Head as being within the capabilities of a person engaged in such position from time to time;
(c) obey and comply with all lawful orders and directions given by the Departmental Head or his delegates and senior officers of higher seniority and without limiting the generality of this clause, shall work whatever hours may be necessary whenever instructed or required to do so in order to discharge the duties or his or her office;
(d) make every endeavour to comply with Performance Undertakings made to the Departmental Head as provided herein, to enable the Departmental Head or his delegate to monitor the Senior Officer’s performance from time to time;
Your overall performance would suggest that you have not satisfied these three requirements of the contract.
These matters and those documented throughout this letter leads to only one conclusion and that is that despite the support and opportunities for training both of which you refused to avail yourself of, you do not wish to remain in the position.
Again I refer to your contract and in particular to Schedule 3 thereof which states in part
The grounds on which the Departmental Head may terminate the Contract, subject to the conditions in Clause 2 are:
(b) for poor performance by the Senior Officer, following a failure to improe performance over a reasonable period of time, following a formal written warning by the Departmental Head;
I therefore give you notice that this is a formal written notice consistent with clause (b) of Schedule 3 above.
You now have 14 days from the date of this letter to complete those tasks which you agreed would be completed according to the attached list at Appendix 3 by the date of the ITC meeting which was 6th July 2017.
The timelines in that document are those which you agreed to and were not imposed upon you. It is noted that these revised timeframes are a result of your failure to meet the initial timeframes which required that the tasks be completed by December 2016. Again these were the timeframes agreed by you.
In summary, failure to comply with the 14 days which you have been given will result in the termination of your employment.
Should you chose to resign you will be given every opportunity to discuss an exit strategy and applicable benefits with the Acting Manager Human Resources.
I encourage you to give careful consideration to this letter.
(First Warning Letter)
  1. Although the First Warning Letter was undated, Mr Vorst gave evidence that Mr Wau “received that letter of 16 July 2017” (affidavit of David Vorst sworn 7 February 2019 para 20). However Mr Vorst also gave evidence that the then Acting Chief Executive Officer Dr Paulus Ripa, wrote to Mr Wau on 18 August 2017 (Second Warning Letter) which letter in turn referred to First Warning Letter having been sent “On June 16th”. Given that the First Warning Letter related to events which had occurred after 16 June 2017 we consider it more likely that the First Warning Letter was sent on or about 16 July 2017.
  2. The Second Warning Letter dated 18 August 2017 was in the following terms:
As you are aware you are on a three year performance based contract. There have been real concerns in regard to your performance and these issues have been raised with you numerous times over the past 18 months or so. Indeed, I have spoken with you directly in this regard.
On June 16th a letter was sent to you from the Deputy CEO, advising on current concerns and required a response by you no later than July 6th. You have failed to provide any response to the letter although I am aware that you received the letter.
There have been many opportunities for you to improve your performance as IT Manager but it appears that you are not willing or not able to do so. You have also continued to take significant leave without any approval. I have sought advice from the Acting DCS in this regard and again your most recent absences of at least 7 working days are without approval or notification from you.
As a result of your poor performance, and your failure to respond to the lawful letter sent to you and the ongoing unapproved absences, I am formally advising you that I am referring your situation to the next Disciplinary Committee meeting on Thursday August 24"' 2017 at 10.30am.
In accordance with your contract, termination seems the appropriate option, however, I invite you to speak to the issues raised as a final opportunity to discuss why termination should not be implemented.
The specific issues are your poor performance, non-compliance in responding to a lawful instruction, failure to address the issues of the ICT internal audit within agreed timelines, non-attendance at work without prior approval, failure to implement organizational training programmes, failure to regularly address safety and compliance issues and others you are aware of.
  1. By letter dated 25 August 2017, the first appellant terminated the employment of Mr Wau. That letter, signed by Dr Paulus Ripa, Acting Chief Executive Officer (Termination Letter) was as follows:
Dear Francis
Re: Performance Contract
I am writing following your attendance at the disciplinary committee meeting yesterday.
You have received both verbal and written concerns in regard to your performance over the past 18 months. You advised the Committee that you haven't had an official appraisal for a couple of years, and whilst regular appraisals are encouraged, the fact is that your performance has been discussed with you a number of times since 2015. During this year, I personally discussed your poor performance with you, on June 16th a letter, from the Deputy CEO, was sent to you requesting information within 14 days and highlighting this request was in relation to clause b, schedule 3 of your contract and therefore constituted a final written warning. You also met with the Hospital Manager, overseeing HR following receipt of this letter where again performance was discussed including the importance of responding within the 14 day timeline. You failed to respond or advise anyone that you would not be responding, nor why you were not responding.
Any suggestion that you did not understand that your performance needed improvement to comply with your contract, specifically in the areas of managing the department, complying with system security policy and plans, meeting agreed deadlines and ensuring organisational educational programmes were in place is not accepted.
I have written (18 August 2017) that at my request that the Disciplinary Committee would hear any comments you wished to make in relation to why termination of your employment should not be implemented, prior to my final decision. The Disciplinary Committee heard your feedback and provided me with advice, I can confirm that all members' advice was aligned.
You advised the Committee that your performance has been compromised since your return from leave in 2015. You have stated that you have had communication problems with the Deputy CEO and Kuakawa since this time. However, you have also acknowledged that you have taken no steps to highlight these issues with either the Deputy CEO or Kuakawa or attempted to ensure these perceived issues were resolved. You state you spoke to the Director Corporate Services in this regard, and that nothing was done but again you left the problem with nothing being done. In effect, it is my view that you abdicated the entire responsibility for your performance to others and have taken no steps to personally address performance issues or develop strategies to address performance issues.
You are a senior Grade 13 public sector employee on a performance based contract. The key result areas within the contract agreed in August 2015 include:
• Annual activity plans and budgets - none have been submitted
• Policies to be developed - very few are in place as per internal audit
• Backup facilities maintained - evidence of failure in maintenance
• In house training - not commenced
• Preventative maintenance - there are numerous requests from Kuakawa for work to be completed in this area which have been ignored by you
Whilst the internal audit report is not part of the key result areas, it is an important report that you participated in, agreeing dates for resolution to outstanding requirements, almost none of those requirements have been fully addressed.
For these reasons and your personal failure to address your performance issues or seek solutions I am terminating you employment with the WHPHA, subject to schedule 3 (b):
"for poor performance by yourself; following a failure to improve performance over a reasonable period of time and following a formal written warning."
Your final date of work will be Monday August 28th following receipt of this letter. Given the high risk nature of this area of work, you will be required to return your keys and vacate your office immediately. You will be paid one month's pay in lieu of notice and any other monies owed to you.
I wish you well for the future and hope you find a role which engages you in the future.
  1. On 5 September 2017, Mr Wau lodged an application for review of the termination of his employment with the PSC. Mr Vorst gave evidence that he wrote to the PSC and (in an undated letter) stated (in summary) that:

THE CONTRACT

  1. Mr Wau’s contract of employment was annexed to the affidavit of Mr Vorst in the primary proceedings. The recital to the contract stated:
WHEREAS:
(A) Pursuant to the provisions of Section 41 of the Public Services (Management) Act ("the Act"), the Departmental Head wishes to employ the Senior Officer on Contract by virtue of the powers delegated by the Secretary, Department of Personnel Management.
and
(B) The Senior Officer has accepted an offer of continuing employment made by the Departmental Head, subject to the Senior Officer's continuing satisfactory performance, as hereinafter provided.
and
(C) The Parties have agreed to enter into a “Performance Based Employment Contract" (“the Contract"), containing performance standards against which the Senior Officer will be appraised by the Departmental Head from time to time.
  1. The Contract was divided into several parts, namely:
  2. Clause 1 of the Contract provided as follows:
    1. The Contract, comprising the Agreement, the Standard Terms & Conditions and the General Orders made pursuant to the Act, is of three years in duration, subject to the termination provisions in Schedule 3 hereto.
  3. Clause 2 provided that Mr Wau undertook to meet the Performance Commitments listed in Schedule 1 to the Contract, and set out further obligations including compliance with the PSMA and the Contract (cl 2(a)), skilful and diligent performance of his duties (cl 2(b)), obedience ad compliance with lawful orders and directions (cl 2(c)), compliance with Performance Undertakings (cl 2(d)), observance and compliance with all General Orders, rules, regulations and codes of conduct (cl 2(e)), disclosure of known or potential conflicts of interest (cl 2(f)), not engaging in conflicting activities (cl 2(g)), not holding political office (cl 2(h)), not entering into other employment (cl 2(i)), and not divulging information related to the departmental business (cl 2(j)).
  4. Clauses 3 and 4 provided for salary, remuneration and deductions.
  5. Clause 5 provided for repatriation and recreation leave.
  6. Clause 6 identified the commencement date of employment for the purposes of calculating continuous service as 23 February 2009.
  7. Clause 7 was an entire agreement clause, specifically providing:
    1. The Senior Officer has read, understood and accepted the Contract terms and conditions, as determined from time to time by the Departmental Head, and this Contract supersedes any previously existing agreement(s) made between the Departmental Head and the Senior Officer, and all communications between the Parties for the purpose of interpreting the Contract shall be made in writing in the English language.
  8. Clause 8 concerned interpretation and definition.
  9. Clauses 9-11 provided for termination. In particular clauses 9 and 10 provided:
    1. The Contract may be terminated only in accordance with its provisions, as described in the Agreement, by the giving of due notice. or payment in lieu thereto, or without notice in the event that termination is for cause.
    2. Under no circumstances shall the Contract be terminated by either Party contrary to law, so that on termination only the severance benefits specified in the Agreement, if any, shall be payable to the maximum limit specified therein. and under no circumstances shall an unrestricted termination payment be made by the Departmental Head for the un-expired period of the Contract.
  10. Clause 12 contained a warranty on behalf of Mr Wau referable to the accuracy of information he provided.
  11. Clause 13 permitted variation to the substantive terms of the Contract by the Departmental Head in agreement with the Secretary, Department of Personnel Management, by the gioving of 3 months notice.
  12. Clause 14 made provision for termination as follows:
    1. In the event that the Contract terminates or is terminated on any grounds, the future employment of the Senior Officer shall be determined by the Department Head in accordance with the Public Services (Management) Act and the General Orders.
  13. Clause 15 addressed requests for interpretation of the contract.
  14. Schedule 1 to the Contract sets out the Senior Officer’s Performance Undertakings.
  15. Clause 1 of Schedule 1 sets out the Purpose and Objectives of the Performance Based Contract.
  16. Clause 2 of Schedule 1 sets out Performance Commitments and Performance Assessment. Clause 2.1 provides that the Departmental Head has defined the Performance Commitments, to be achieved from time to time in the form of Key Result Areas and Performance Indicators as shown in the matrix attached to the Contract. Clause 2.2 provides that the Performance Commitments are a binding condition of the Contract. Clauses 2.3-2.6 address assessment of compliance with the Performance Commitments. Clause 2.7 provides:
2.7 Notwithstanding the above procedure. the Departmental Head may at any time give notice of termination on grounds of poor performance, in the event that the Senior Officer consistently fails to fulfill the Performance Commitments.
  1. Clause 3 of Schedule 1 provides for performance rating, remuneration incentives and penalties. In particular it provides:
3.2 In the event that the Senior Officer consistently fails to fulfill the Performance Commitments over a 12 month period, the Departmental Head shall determine what remedial action must be taken to correct his or her poor performance.
3.3 The Departmental Head may give 3 months notice (or shorter period of not less than one month) to the Senior Officer to upgrade his or her performance to comply with the Performance Commitments.
3.4 In the event that following counseling and upon expiry of the notice period no significant improvement in performance is evidenced, then the Departmental Head may determine to terminate the Contract on grounds of poor performance.
  1. Clause 4 of Schedule 1 addresses performance and renewal of contract.
  2. Schedule 2 sets out salary, allowances and benefits applicable to Mr Wau.
  3. Schedule 3 sets out detailed Termination Provisions. In particular:
Grounds for Termination
  1. The grounds on which the Departmental Head may terminate the Contract, subject to the conditions in Clause 2 are:-
(a) legislative amendments affecting the continued employment of the Senior Officer or other grounds resulting in redundancy of the Senior Officer's position; or
(b) for poor performance by the Senior Officer, following a failure to improve performance over a reasonable period of time, following a formal written warning by the Departmental Head; or
(c) as a result of non-renewal of the Contract by the Departmental Head as a result of poor performance and/or misconduct recorded during the Contract period:
(d) for Cause as a result of breach of Contract by the Senior Officer, as determined by the Departmental Head following disciplinary action; or
(e) on grounds of ill health, as advised by a medical officer appointed by the Departmental Head; or
(f) as a result of Retirement as determined by the Departmental Head pursuant to the Act; ·
(g) on resignation by the Senior Officer. as accepted by the Departmental Head; or
(h) in the best interest of the State as determined by the National Executive Council.
  1. Grounds for termination shall at all times be determined in the interest of the National Public Service. and the validity of grounds for termination in this regard, shall comply with the following rules:
(a) termination will be legal in terms of the grounds provided by the Contract and will not breach any law;
(b) the Department will not become exposed to any unnecessary financial or legal liability resulting from the termination, and any monies payable to the Senior Officer shall not exceed those specified in the Contract as a result of such termination;
(c) termination will in fact advance the interests of the Department, as determined by the Departmental Head, in consultation with the Secretary, Department of Personnel Management:
(d) termination is not motivated by regional or by personal interests and grounds for termination shall demonstrably be one of the grounds listed in the Contract;
(e) the principles of natural justice as referenced in the Constitution of Papua New Guinea shall be adhered to by the Panics.
  1. Clauses 3 and 4 of Schedule 3 address employment in the National Public Service following termination.
  2. Clause 5 of Schedule 3 sets out Termination Procedures, in particular:
    1. Employment under the Contract. shall be terminated by a decision of the Departmental Head in the following manner:-
(a) pursuant to Clause 1 (a), (b), (c), (e) (f) and (h), by:
(i) giving to the Senior Officer not less than three calendar months' notice in writing, or, in the event that the Senior Officer is terminated from the Department, or by:
(ii) paying to the Senior Officer salary and allowances, listed under Schedule 2, calculated up to the expiration of three calendar months in lieu of such notice, in which event the Contract will terminate on the date stipulated in such notice; or
(b) pursuant to Clause I (d), for Causi:, with or without 3 months notice or payment in lieu of notice, as determined by the Departmental Head.
  1. Clause 6 of Schedule 3 sets out payment of accrued benefits on termination.
  2. Clause 7 of Schedule 3 addresses resignation by Mr Wau.
  3. Clauses 8, 9 and 10 address unsatisfactory work performance. In particular clauses 8 and 9 provide:
    1. Pursuant to Clause I (b), in the event that the Department Head becomes concerned about consistently poor work performance by the Departmental Head [sic], the Departmental Head shall, issue a warning in writing to the Senior Officer to improve his/her performance and/or to overcome weakness in conduct within a reasonable period as determined by the Departmental Head.
    2. In the event that there has been no improvement in performance over the prescribed period, the Senior Officer shall provide a written explanation of his/her failure to improve performance and the Departmental Head may in his sole discretion terminate the Contract on grounds of poor performance and not as a disciplinary matter.
  4. Clauses 11, 12, 13, 14, 15 and 16 of Schedule 3 deal with Termination for Cause as defined by clause 1(d) of Schedule 3. In particular, clauses 11 and 12 provide that:
    1. Pursuant to termination under Clause l(d), in the event that credible evidence has been provided to the Departmental Head to demonstrate that the Senior Officer allegedly:
...
(c) willfully disobeyed or disregarded a lawful order of the Departmental Head or his delegate;
(d) was negligent in the discharge of the duties specified by the Departmental Head;
...
(h) was continually absent from work without proper authority or good reason;
...
then the Departmental Head shall initiate the suspension procedure hereunder for the purposes of conducting an official investigation.
  1. Thereafter, the Departmental Head shall invoke the disciplinary procedure hereunder, and charge the Senior Officer with a disciplinary offence, and having considered the Senior Officer's response to the allegations, having found the Senior Officer guilty of an offence, may terminate the Contract for cause.
  2. Clauses 14, 15 and 16 address suspension.
  3. Clauses 18, 19 and 20 deal with ex gratia termination benefits on retrenchment.

PSC DECISION

  1. On 18 October 2018 the PSC made the PSC Decision, annulling the termination of Mr Wau’s employment with the Health Authority.
  2. After setting out facts and grounds of Mr Wau’s application, the PSC found, in summary, as follows.
  3. Mr Wau’s first ground was that the termination was not done in accordance with General Order 9, Clauses 9.27-9.34, and Forms SOL9.3, SOC9.4, SOC 9.4B and 9.4C. The PSC found that the Health Authority had not provided the Notice of Charge or other documentation in respect of advice of HR before dismissing Mr Wau, and further noted that the Health Authority had confirmed that the requirements of the GO 9 were included in the letters without the actual form attached. The first ground was upheld (para 2.4.1).
  4. Mr Wau’s second ground was that the Acting CEO did not have full power to terminate contract officers. The PSC upheld this ground on the basis that the appellants had not attached a copy of the gazettal notice giving the Acting CEO powers to take action against Mr Wau.
  5. Mr Wau’s third ground was that charges against him were fabricated by individuals with certain interests. The PSC upheld this ground on the basis that copies of the charges were not provided to the PSC to verify Mr Wau’s non-performance.
  6. Mr Wau’s fourth ground was that the charges and termination were influenced by the Deputy CEO on personal vendetta grounds. This ground was dismissed.
  7. Mr Wau’s fifth ground was that the proper chains of command and channels of communication were not followed. This ground was dismissed on the basis that the departmental head had exercised his powers under s 41 of the PSMA.
  8. Mr Wau’s sixth ground was that management failed to appraise him for three consecutive appraisal periods from 2015-2017, as verified in Clause “C” of his contract. The PSC found that the only evidence relied on was the appraisal done by Ms Julie Bengi for the first six months of the Contract on 12 February 2015. This ground was upheld.
  9. Mr Wau’s seventh ground was that the proper process of General Order was not followed in the termination. The PSC found that General Order 9 provisions to lay charges were breached by Dr Ripa, and Mr Wau was not properly charged and dismissed from employment. In particular in referring to GO 9 the PSC stated:
DISCIPLINARY PROCEDURES
The Act exempts senior officers on contract from the provisions of Part XIV of the Act itself, covering the discipline of public servants. Each contract contains a disciplinary procedure, which, together with the definition of acceptable work performance, and grounds for termination for Cause binds the Parties.
Section 41-43 of the PS (M) Act. Section 41(3) of the Public Services (Management) Act 2014 explicitly states as follows:
"41. CONTRACTS OF EMPLOYMENT.
(3) Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment shall make specific provision for discipline and an officer employed under a contract of employment is exempted from the provisions of Part XIV of this Act (Underlining ours)
(emphasis in original)
  1. Mr Wau’s final ground, namely that the charges did not warrant termination, was upheld in circumstances where there was no charge notice issued before the dismissal notice was issued to Mr Wau.
  2. The PSC continued:
2.4.9 It is clear from the above facts and evidences that the Applicant was dismissed for allegations of neglect, incompetence and disgraceful conduct in the discharge of his official duties on the 25 August 2017. He was employed under the Standard Terms and Conditions for Employment of Senior Officers in the National Public Service under Category "D" Contract.
2.4.10 The Applicant in his first grounds of appeal has challenged the then CEO's decision to dismiss him from the Western Highlands Provincial Health Authority was unlawful. However, since the Applicant is a Contract Officer, the charge ought to have been laid, and a decision on the charge ought to have been made by the then CEO, except the decision on punishment which lies with the Secretary for Department of Personnel Management. That whatever the purported charges should be laid within reasonable time to avoid injustice to any person. Moreover, the dismissal without charge also amounts to a breach of the Principles of Natural Justice as stipulated under Section 59 (ii) of the Constitution rendering the decision of the CEO null and void...
2.4.11 ln this case, contract officers are exempted from the disciplinary process under the Public Service (Management) Act and the General Orders, the process and procedure for disciplining contract officers is provided for under their own contract according to Section 41 Subsection (3) of the Public Service (Management) Act 2014.
2.4.12 The Applicant has also challenged the then CEO for failing to consult the Secretary Department of Personnel Management. There is no evidence before the Commission to show Dr. Paulus had consulted the Secretary Department of Personnel Management to impose the punishment of dismissal on a contract officer under Clause 2S of the Standard Terms and Conditions of Contract and General Order 9.48-9.62.
2.4.13 Section 25 subsection 25.1 (c) expressly provides for the Secretary for the Department of Personnel Management who shall having obtained a legal opinion determine whether or not the Senior Contract Officer should be terminated.
2.4.14 In view of that, although the then CEO had been given the power to execute, or sign and terminate a senior officer's contract of employment under the devolved powers, the contract of employment says otherwise. The Secretary of the Department of Personnel Management is the only appropriate body to terminate contract acting on advice from the Departmental Head as indicated in the contract of employment under Schedule 3 Clause 2 (c).
2.4.15 Another important issue of concern is that the Applicant and the Western Highlands Provincial Health Authority for and on behalf of the State had agreed to enter into a "Performance Based Employment Contract." The Contract clearly stipulates that the Applicant was to be appraised by the Departmental Head from time to time. However, it is evident that the only appraisal conducted by the Director Corporate Services Ms. Julie Bengi was on the 12 February 2015. The Applicant maintained that this was the only Appraisal done for the first six months after he signed his Contract, but there was no periodical performance appraisal conducted since 2015-2017. This clearly shows that the Departmental Head had breached the Employment Contract clause "C" which reads· "The Parties have agreed to enter into a "Performance Based Employment Contract" ("the Contract"), containing performance standards against which the Senior Officer will be appraised by the Departmental Head from time to time" (underlining ours)
2.4.l6 From the forgoing, the dismissal of the Applicant was in fact a summary dismissal.

PRIMARY JUDGMENT

  1. On 15 February 2019, the Health Authority and the second appellant, the Chief Executive Officer of the Health Authority, filed an application for leave to seek judicial review of the PSC Decision in the National Court (JR Application). Leave to proceed with the JR Application was granted by the National Court on 24 April 2019.
  2. On 29 January 2024, the Primary Judgment was delivered, affirming the PSC Decision.
  3. His Honour recognised that Mr Wau was a senior officer employed by the Authority under a written contract of employment which was terminated by the Chief Executive Officer of Mt Hagen General Hospital, Mr David Vorst. His Honour noted that Mr Wau applied to the PSC to review the termination, and the PSC by its decision made 18 October 2018 granted the application and ordered Mr Wau’s reinstatement to the position which he occupied under the contract. His Honour noted that the reasons in summary for the PSC decision were:
3.1 the forms prescribed by General Order 9 were not used with a notice of disciplinary charges pursuant to the terms and conditions of the Contract;
3.2 the [CEO] of the Employer was not duly appointed by publication of that appointment in the National Gazette;
3.3 copies of the charges relating to the termination were not provided as evidence to verify Mr Wau's non-performance;
3.4 no evidence of appraisal reports was adduced to prove the deterioration in performance by Mr Wau of his contractual obligations;
3.5 the process prescribed by General Order 9 for charging Mr Wau was breached by the [CEO);
3.6 the penalty of termination was not warranted as there was no charge notice;
3.7 the termination breached Mr Wau's right under section 59(2) of the Constitution as he was not given the opportunity to address the chief executive officer of the Employer on sentence prior to its imposition; and
3.8 the departmental head of the Department of Personnel Management (“DPM Secretary") is the appropriate authority empowered to terminate the Contract (not the CEO).
  1. The primary Judge noted that the current appellants sought review of the PSC decision (for which leave had been granted) on, in summary, the following grounds:
  2. The primary Judge found that Mr Wau’s employment was not outside s 18 of the PSMA because, in summary:
7 Under section 41 (4) and section 42 of the Act, Mr Wau's employment under the Contract constitutes service in the Public Service. That is, he is a public servant.
8 The plaintiffs, in effect, contend that the PSC exceeded its Jurisdiction when it entertained and granted Mr Wau's application because the termination was for poor performance, a ground for termination under schedule 3 clause 1 (b) of the Contract and not under Part XIV which falls within the jurisdiction of the PSC under section 182 of the Act.
9 The PSC's review jurisdiction under section 18 of the Act is in respect of “... any decision on a personnel matter relating to appointment, selection or discipline connected with the National Public Service, where that officer has been affected by the decision."
10 Part XIV of the Act (sections 51-55) is only one aspect - discipline - of that jurisdiction which section 41 (3) of the Act authorizes the parties to provide for in a contract of employment executed pursuant to Part X (section 40-41) of the Act. In lieu of the discipline provisions under Part XIV of the Act, a conclusion supported by Francis Damem v Jerry Tetaga (2005) N2900....
11 That is, section 41 (3) of the Act does not oust the jurisdiction of the PSC under section 18 of the Act which is the effect of the plaintiffs' contention.
12 ...Section 41 (3) of the Act simply empowers the parties as in this instance to make provision in the Contract for discipline by which their relationship is to be governed in place of the discipline provisions in sections 51 to 55 of the Act.
13 Whether Mr Wau was terminated for cause or for non-performance Is not to the point.
19 Given this conclusion, it is not necessary to determine whether the disciplinary process under schedule 3 of the Contract applies to the exclusion of General Order 9.28 to 9.31 and whether the General Orders are Inconsistent with the Contract provisions.

RELEVANT LEGISLATION

  1. The key legislation in the proceedings is ss 18, 41 and 42 of the PSMA.
  2. Section 18 of the PSMA provides:
18 Review of Personnel Matters in Relation to Appointment, Selection or Discipline.
(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 complaint; and
(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.
(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 complaint, 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.
  1. Section 41 of the PSMA provides:
41 Contracts of employment.
(1) An officer appointed to a senior management office shall be employed under, and shall hold office in accordance with, the terms and conditions of a contract of employment with the State, made subject to the Salaries and Conditions Monitoring Committee Act 1988.
(2) A contract of employment under Subsection (1) shall be executed on behalf of the State by—
(a) in respect of appointees under Section 40(2)(a)—the Head of State; and
(b) in respect of appointees under Section 40(2)(b)—the Departmental Head of the Department of Personnel Management,
and by the appointee.
(3) Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment under Subsection (1) shall make specific provision for discipline and an officer employed under a contract of employment under Subsection (1) is exempted from the provisions of Part XIV.
(4) Notwithstanding the provisions of this Act relating to promotion and appointment, where—
(a) a contract of employment under Subsection (1) terminates or is terminated and is not subsequently renewed; and
(b) the appointee under that contract of employment is not re-appointed to another office under this Act,
his employment in the Public Service is terminated.
(5) The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.
  1. Section 42 of the PSMA provides:
Employment under contract to constitute service.
Employment under contract under this Part shall constitute service in the Public Service for all purposes.
  1. Further, General Order 9 was the subject of consideration both by the PSC and the primary Judge. General Order 9 was made under s 70 of the PSMA, and according to its terms came into force on 1 January 2012. Insofar as we are aware, it remains in force. General Order 9 provides in its title and recital:
CONTRACTS FOR SENIOR OFFICERS APPOINTED
TO MANAGEMENT POSITIONS
Being a General Order, to effect the policies of the National Executive Council in the appointment of senior officers to management positions for the purposes of contract of employment. This General Order covers the contractual terms and conditions of employment, appointment, transfer, discipline and termination of senior officers in the Public Service.
  1. The General Policy Objectives of General Order 9 are set out in clauses 9.1-9.6:
9.1 This General Order applies to all Senior Officers designated by the National Executive Council in senior management positions for the purpose of contract employment under Section 40 to 42 of the Public Services (Management) Act 1995. By definition, positions so designated must have subordinate positions and do not include stand-alone positions
9.2 The Minister for Public Service may with approval of the National Executive Council designate by notice in the National Gazette those senior management offices which are to be occupied solely by senior officers on contract, and as currently listed under General Order 9.6 below. An officer may not occupy a position substantively so designated unless on contract and failure by an officer to execute a contract will result on termination of the appointment.
9.3 The Act specifies that the Secretary, Department of Personnel Management is to be responsible for interpretation of contractual terms and conditions. Each Department Head is responsible for administering the contracts of his/her Senior Officers, acting on the advice from the Department of Personnel Management.
9.4 As a matter of Government policy, all matters concerning the engagement of senior officers on contract will be delegated to Departmental Heads and Provincial Administrators by the Secretary, Department of Personnel Management in the attached delegation Form SOC9.5, subject to compliance with this General Order.
9.5 A Departmental Head will continue to seek approval from the Secretary, Department of Personnel Management and all contracts will be executed by the Secretary, Department of Personnel Management in the event that the Secretary’s powers are not for any reason delegated, or in the event that delegated powers are withdrawn.
9.6 Three types of senior officer appointees are catered for under the Act and this General Order, namely:
(a) officers appointed by the Head of State acting on the advice of the National Executive Council;
(b) officers appointed by Ministers under respective statutory provisions; and,
(c) officers appointed under the provisions of the Public Service (Management) Act 1995 and General Order 1 or General Order 3, on the advice of the Chairperson of a duly appointed Selection Committee.
  1. Materially, clauses 9.28-9.31 and clauses 9.34-9.35 provide as follows:
DISCIPLINARY PROCEDURES
9.28 The Act exempts senior officers on contract from the provisions of Part XIV of the Act itself, covering the discipline of public servants. Each contract contains a disciplinary procedure, which, together with the definition of acceptable work performance, and grounds for termination for Cause binds the Parties.
9.29 The Disciplinary Procedure requires that for serious offences relating to breach of contract and termination for Cause, the Senior Officer shall be formally charged and suspended from duty by his or her Departmental Head, and shall be given the opportunity to reply to the charges prior to a decision being taken.
9.30 Attached to this General Order are Forms SOC 9.2 to Form SOC 9.4, for the purpose of administering discipline for contract officers in accordance with their individual contracts. Prior to terminating a contract prematurely, consultation should be held with the Department of Personnel Management to ensure that the termination is made lawfully.
9.31 Therefore, a Departmental Head shall exercise the power to terminate a contract prematurely on any grounds, in consultation with the Secretary, Department of Personnel Management, and in accordance with the advice of the Contractual Delegate pursuant to General Order 9.10.
...
DISCIPLINE OF PUBLIC SERVICE APPOINTEES
9.34 In the case of persons appointed under the Public Services (Management) Act, the Departmental Head shall, having sought advice from the Department of Personnel Management, have sole responsibility for the exercise of discipline over senior officers on contract.
9.35 The Delegate of the Secretary, Department of Personnel Management shall advise the Departmental Head whether or not the Contract should be terminated, or consistent with the treatment of other Public Servants, whether or not a lesser punishment should be imposed, on the following scale:
(a) demotion to a lower graded position, together with termination of the contract and full imposition of contract penalties; or
(b) demotion to a lower graded position, by variation of the contract; or
(c) termination of the Contract, and retention as an unattached officer; or
(d) permanent withholding of one annual gratuity instalment; or
(e) a formal written warning placed on the Senior Officers personal record, (which may accompany any of the above punishments); or
(f) withdrawal of the charges without sanction or penalty.

THE APPEAL

  1. In their Notice of Motion filed pursuant to Order 10 of the Supreme Court Rules 2012 the appellants rely on seven grounds of appeal, each of which is particularised. These grounds are as follows:
(1) The Learned Trial Judge erred in mixed fact and law, in affirming the decision of the Public Services Commission (PSC) which acted ultra vires to its jurisdiction, and powers, to review a decision of the First Appellant to terminate the services of the Third Respondent under a contract, which was a personnel matter relating to "Discipline" as stipulated under Section 18(1) of the Public Services (Management) Act 2014 (PSMA), for the following reasons:
(a) The Cardinal Rule of statutory Interpretation requires that words of a statute must be read in their context, and as such, a personal matter relating to "discipline" as mentioned under Section 18(1) of the PSMA is restricted to a complaint for review arising from Disciplinary Actions taken under Part XIV of the PSMA, and not for a complaint arising from actions taken under a Performance Contract, whose disciplinary process does not resemble that of the PSMA; and
(b) The Third Respondent, Mr. Francis Wau entered into a Contract with the First Appellant, pursuant to Section 41(3) of the PSMA, and thus, was terminated pursuant to Schedule 3, Clauses 8 & 9 of the Contract, specifically for poor performance in accordance with Clause 9 by the Departmental Head who in his sole discretion may terminate a Senior Officer, under a Contract on the ground for poor performance, and not for a disciplinary matter.
(c) The Western Highlands Provincial Authority is a statutory authority established under the Provincial Health Authorities Act, 2007 (PHA Act) and is empowered under Section 13(a) & 13(g) of the PHA Act to engage into contracts and employ persons and that distinguishes it from a Department in the National Public Service; and
(d) The case of Francis Damem vs Jerry Tetaga (2005) N2900 relied on by the Trial Judge to say that the review process is distinct from the disciplinary process and as such an officer employed under a contract of employment is subject to review under section 18 (1) of the PSMA cannot apply in this instance, due to the afore going reasons because, in the Francis Damem case, the officer was directly responsible to the State, while in this case, the officer is directly responsible to the Provincial Health Authority who has been delegated the power to employ officers.
(2) The learned Trial Judge erred in mixed facts and law in that even if it is a matter for "discipline", Section 41 (3) of the PSMA states that "Notwithstanding the provisions of this Act relating to Discipline of Officers, a Contract of Employment shall make specific provision for discipline", thus this enabled a distinct disciplinary process to be followed under the Contract, which excluded the review process by the PSC under Section 18 (1) of the PSMA because:
(a) The Western Highlands Provincial Health Authority is a Statutory Authority established under the Provincial Health Authorities Act, 2007 (PHA Act) and is empowered under Section 13(a) & 13(g) of the PHA Act to engage into contracts and employ persons; and
(b) In this case, the Contract has bypassed the review provision under Section 18 of the PSMA by stating under Schedule 3, Clause 16 of the Contract that, the only recourse for redress for a Senior Officer in respect of a disciplinary action by a Departmental Head is through the Courts of Law; and
(c) The Third Respondent was not an employee in the National Public Service in a department, as he is an officer employed within the structure of a Statutory Authority which is an independent body. created by statute as a corporate body unlike a department created by the PSMA.
(3) The Learned Judge erred in mixed fact and law and acted ultra vires in affirming the PSC decision of 18th October 2018, which was made in gross error of law and/or in excess of its jurisdiction without considering the view of Departmental Head of the Department of Personnel Management (DPM) or his delegate, as required under Section 18(3)(a)(i) and Section 18(3)(c)(i)(A) of the Public Service Management Act (PSMA) because:
(a) The Summons to the Secretary, DPM was addressed to Ms. Taies Sansan, Acting Secretary but the service of the Summons was conducted on a Cedric Kouga who is the Executive Officer of the Secretary and thus, there was no personal service of the Summons as required by Section 18(3)(a)(i) of the PSMA; and
(b) The Secretary Ms. Taies Sansan was never present at the hearing of the PSC and no further attempts were made to contact her,
and as such, the PSC proceeding was vitiated.
(4) The Learned Trial Judge erred in mixed fact and law in affirming the decision of the PSC when the PSC committed an error of law, in contravening Section 41(3) of the PSMA in considering that the Departmental Head failed to consider the provisions of General Order 9 which were made under Section 72 of the PSMA because:
(a) Section 41(3) states that "notwithstanding the provisions of this Act" any matters relating to discipline of officers under a Contract of Employment, shall be in accordance with specific provision for discipline under the Contract of Employment and in this case:
(i) Clauses 1 (b) and 8 & 9 of Schedule 3 of the Contract entered into between the Appellants and the Third Respondent allude to that; and
(ii) The Contract also provides that the Chief Executive Officer may in his sole discretion terminate the Contract on grounds of poor performance and not as a disciplinary matter.
(5) The Learned Trial Judge erred in mixed fact and law; by affirming the decision of the PSC of 18th October 2018, which was reached contrary to the "Wednesbury Principle" in that it;
(i) failed to seek the views of the Departmental Head of Personnel Management;
(ii) failed to seriously consider the views of the Western Highlands Provincial Health Authority ("WHPHA") which is a Statutory Authority established under the Provincial Health Authorities Act, 2007 (PHA Act), unlike an ordinary Public Service Department, and is empowered under Section 13(a) & 13(g) of the PHA Act to engage into contracts and employ persons and evaluate and assess their performance independently and terminate them for poor performance;
(iii) failed to consider that the WHPHA is a corporate body established under a statute separate from a Department within the National Public Services;
(iv) failed to take into account the fact that General Order 9, Clauses 9.28- 9.31 made under Section 72 of the PSMA in resetting a disciplinary procedure for Contract Officers is derogatory to Section 41(3) which states that "Notwithstanding any provisions under this Act" and that means General Order 9 made pursuant to Section 72 of the PSM Act cannot override the specific provisions of the Contract;
(v) failed to consider that, General Order 9, Clause 9.28 - 9.31 made under Section 72 of the PSMA relates to disciplinary process for Officers dealt with under Clauses 11-16. Schedule 3 of the Contract relating to termination for cause, and not Officers dealt with under Clauses 8 & 9 for poor performance under the Contract, and therefore in this case, General Order 9 provisions were inapplicable; and
(vi) failed to take into account the veracity of the dismal performance of the Third Defendant that warrant dismissal to non-improvement after numerous warnings for many years.
(vii) took into account an irrelevant matter relating to the invalidity of the termination of the Third Respondent which was not a subject of the Judicial Review (See paragraphs 24-34 of the Decision, discussions on process of termination).
(6) The Learned trial Judge erred in mixed fact and law in finding that the termination letter for Mr. Francis Wau was unlawful without a proper Judicial Review Application under Order 16 of the National Court Rules and Judicial Review (Amendment) Rules 2005 to review the decision to terminate Mr. Francis Wau, (because, the National Court is prohibited to review decisions of Statutory authorities in any other manner except by virtue of Judicial review) as provided for under;
(a) Section 155 (3) (a) of the Constitution whereby the National court has an inherent power to review any exercise of Judicial authority; and
(b) Order 16 of the National Court Rules and Judicial Review (Amendment) Rules 2005 which sets out the procedures established under Section 184 (1) and (2) (f) & (h) of the Constitution (whereby the Judges may make rules relating to methods of pleading and means by which particular facts may be proved), to review the decision-making process of the Statutory Authorities.
(7) The Learned Trial Judge erred in mixed fact and law and acted ultra vires his powers when considering the merits of the case (See paragraphs 24-34 of the Decision, discussions on process of termination) rather than, whether the PSC was procedurally correct in exercising its powers under Section 18 of the PSMA because a Judicial Review:
(a) is not an Appeal procedure; and
(b) does not consider merits of any decision that may be challenged.
See; SCR 1 of 1990 (1990) PNGLR441; Kekedo v Burns Philip & Ors (1988-1989) PNGLR; 122: Hans Gima v Malcolm Culligan (2015) N5989
(Errors and emphasis in original.)

SUBMISSIONS OF THE APPELLANTS

  1. The appellants submitted that the gist of the appeal was as follows:
2.2 [Mr Wau] sought a review of the decision to terminate him with the Public Service Commission (PSC) under s. 18 (1) of the PSMA and was reinstated.
2.3 The Appellants then applied for a Judicial Review of the decision of the PSC on the grounds that s.41 (3) of the PSMA had ousted Mr. Wau from the disciplinary process of the PSMA and thus, the PSC did not have the jurisdiction to review the decision because the remedy for such a termination is provided for under the contract, and, it is to go to the courts as a matter of private law. Secondly, the presence of the DPM Secretary was imperative.
2.4 The learned Trial Judge however found that s. 41 (3) of the PSMA does not oust the jurisdiction of the PSC under s. 18 of the PSMA and the views of the DPM Secretary is irrelevant if she’s not present.
  1. The appellants referred to various authorities establishing that a senior contracted public servant must be disciplined within the terms of his contract and not under the PSMA.
  2. They submitted that the judgment was flawed because:
  3. In summary, in respect of ground of appeal 1:
  4. In respect of ground 2 the appellants adopted their arguments in respect of ground 1.
  5. In summary, in respect of ground 3 the appellants argued:
  6. At the hearing, the appellants’ counsel informed the Court that the appellants no longer pressed ground 4 because its contentions were encompassed by its other grounds. Accordingly, we will not consider ground 4.
  7. In summary, in relation to ground 5 the appellants argued:
  8. In relation to grounds 6 and 7, the appellants argued in summary that the primary Judge erred in delving into the validity of the termination letter which was not the subject of the judicial review in the National Court, and arbitrarily made findings that the termination letter issued to Mr Wau was unlawful.

SUBMISSIONS OF THE RESPONDENTS

  1. Dr Kereme (the Chairman of the PSC) and the PSC jointly responded to the appeal. We will refer to the submissions of Dr Kereme and the PSC as those of PSC, in the interests of brevity.
  2. The PSC framed its submissions in response to what it identified as six legal issues which are the crux of the appeal currently before the Court. The six issues identified by the PSC were:
(1) Whether the learned Trial Judge erred in mixed fact and law, in refusing to find that the decision of the PSC which acted ultra vires to its jurisdiction, and powers, to review a decision of the Second Appellant to terminate the services of the Third Respondent under a Contract?
(2) Whether the Learned Trial Judge erred in mixed fact and law by refusing to find that PSC's decision was contrary to S.41(3) of the PSM Act; which provides that disciplinary matters for contract officers must be governed by the specific provisions of their contract which the review process of PSC is excluded.
(3) Whether or not the learned Trial judge erred in mixed fact and law, in refusing to annul the PSC decision of 18 October 2018 without considering the view of Department Head of the Department of Personnel Management (DPM) or his delegate?
(4) Whether or not the learned Trial judge erred in mixed fact and law, in refusing to find that PSC committed as error of law, in contravening Section 41(3) of the PSMA in considering that the Departmental Head failed to consider the provisions of General Order 9 which were made under Section 72 of the PSMA?
(5) Whether or not the learned Trial Judge erred in mixed fact and law, in refusing to find that PSC decision of the PSC of 18 October 2018, which was reached contrary to the "Wednesbury Principle".
(6) Whether or not the learned Trial judge erred in mixed fact and law and acted ultra vires when finding that the termination letter of the Francis Wau by the Appellants was unlawful.
  1. In relation to the first question, the PSC submitted, in summary, that:
  2. In relation to the second question, the PSC submitted, in summary, that:
  3. In relation to the third question, the PSC submitted, in summary, that:
  4. In relation to the fourth question, the PSC submitted, in summary, that:
  5. In relation to the fifth question, the PSC essentially relied on its submissions on questions one to four and submitted that the trial Judge committed no error of law by finding that the PSC Decision was not contrary to the Wednesbury principle.
  6. In relation to the sixth question, the PSC submitted, in summary, that:

CONSIDERATION

  1. We have set out in detail the background, including relevant correspondence from the Health Authority to Mr Wau, the decision of the PSC the subject of judicial review by his Honour, and the decision of his Honour. The grounds of appeal relied on by the appellants are lengthy and detailed.
  2. Notwithstanding the relative length of the grounds of appeal, it appears that grounds can be determined by reference to the following three issues:
  3. At the hearing of the present appeal the Bench put to Counsel that these legal issues for decision summarised the grounds of appeal, and Counsel for both the appellants and the first and second respondents agreed that that was the case.

Issue 1

  1. It was apparent from the oral submissions of Mr Tamutai for the appellants that the key point being made by the appellants in their arguments was that Mr Wau’s contract fell within the ambit of private law as distinct from public law, and accordingly there was no jurisdiction in the PSC to hear or determine any complaint concerning disciplinary actions against Mr Wau under his contract. Mr Tamutai emphasised the terms of s 41(3) of the PSMA, contending that there were, in effect, two limbs of that subsection, namely:
  2. Mr Tamutai contended that, critically, the first limb of s 41(3) excluded the jurisdiction of the PSC because it plainly recognised that disciplinary matters would be dealt exclusively under the contract of employment.
  3. A starting point in determining this issue is that it is not in dispute that Mr Wau is an employee of the Papua New Guinea public service for the purposes of the PSMA. When this issue was put to Counsel for the appellants, he conceded that Mr Wau was an employee of the public service.
  4. We note that under s 42 of the PSMA, employment under a contract under Part XI of that Act is deemed to constitute service in the Public Service for all purposes. That Mr Wau’s contract was plainly one made under the PSMA is also clear from examination of Mr Wau’s contract itself, in that the contract makes specific reference to the PSMA and General Orders made pursuant to s 70 of that Act. For example, the following clauses of the contract all refer to the PSMA and/or General Orders:
  5. In Damem, Injia DCJ (as his Honour then was) considered in detail the application of ss 18 and 41 in the context of a challenge to a decision of the PSC. Although the appellants submit that the principles articulated in Damem should be revisited, it is helpful to commence our own consideration of this appeal by having regard to the reasoning of his Honour in that case.
  6. Relevantly, in Damem, the plaintiff (Mr Damem) was the former Attorney-General of Papua New Guinea, and the third defendant (Mr Gelu) was the former Solicitor-General of Papua New Guinea. Mr Damem applied for judicial review of the PSC’s decision to grant an application by Mr Gelu to review the decision of the Secretary to the Department of Personnel Management to dismiss him on disciplinary grounds. The application was made under Order 16 of the National Court Rules 1983. In summary, Mr Gelu had filed an application under s 18(1) of the PSMA, which had made a decision in his favour that the decision dismissing him should be revoked.
  7. Deputy Chief Justice Injia commenced his analysis by noting that the issues before the court involved:
... interpretation of s.18, s.41(3) and (5) of the PSM Act and Clause 25.1.d of the Contract of Employment (“the Contract”) entered into between the Mr. Gelu on one part and Mr. Damem and the Fourth Defendant for the State. They also require consideration of relevant provisions of the Attorney-General Act 1989 under (“AG Act”) under which office of the Attorney-General and the Solicitor-General are established
  1. His Honour continued:
Employment of officers in the National Public Service is governed by the PSM Act. The Department responsible for Public Service is the Department of Personnel Management (DPM) which is established under the PSM Act. DPM is headed by a Secretary who is the departmental head. The PSM Act provides for the recruitment and discipline of officers of the Public Service: Part XIV (ss.50 – 54).
The PSC is established under the Constitution and it is vested within certain powers and functions, inter alia, the power under s.18 of the PSM Act, to review disciplinary actions taken by departments under Part XIV.
The employment of senior officers on contract in the Public Service is governed by Part XI (Contract Employment) of the PSM Act. Sections 40 – 42 are relevant ...
  1. His Honour observed that the Department of Attorney-General was a department of the National Public Service, and there was no question that the management of this department came under the PSMA, or that the office of the Solicitor-General was an office of the Public Service. His Honour noted that, although Mr Gelu was engaged under a contract as provided in s 41 of the PSMA, by virtue of s 42 of the PSMA, he was an officer of the Public Service.
  2. His Honour noted that Part XIV of the PSMA did not apply to Mr Gelu as a contract officer of the Attorney-General’s Department, but rather the contract made provision in clause 25 for disciplinary procedures including suspension and formal charge in writing. His Honour continued:
The disciplinary process under the PSM Act and Clause 25 of the Contract is a two phase process. The first phase of the disciplinary process is the primary disciplinary process which is provided in Part XIV of the PSM Act in respect of non-contract officers and in respect of contract officers, the Contract should provided for it. For instance, in the case of the Solicitor-General, it is Clause 25(1)(a), (b) and (c) of the Contract. The parties agree that Mr. Gelu was dealt with under the primary disciplinary procedure in the Contract and not under Part XIV of the PSM Act. I accept this position as correct and consistent with s.41(3) and (5) of the PSM Act.
The second phase is the review process. There are two avenues for review open to an officer aggrieved by a disciplinary action. The first is an administrative review by the PSC under s.18 of the PSM Act. There is no question that this avenue is available to all officers of the Public Service, including non-contract officers of the Solicitors-General’s office who are dealt with under Part XIV of the PSM Act.... The second avenue is the Courts. The usual procedure is by application for judicial review under Order 16 of the National Court Rules. A non-contract officer dealt with under Part XIV of the PSM Act would have to exhaust the administrative review process in s.18 of the PSM Act before applying for leave for judicial review: see Order 16 Rule 3(6) of the National Court Rules.
  1. His Honour had regard to cl 25(1)(d) of the contract of employment which provided:
(d) The decision of the Secretary for the Department of Personnel Management shall be final, and the terminated Senior Officer may seek redress through the Papua New Guinea Courts of Law in the event that he considers the termination to have been made unfairly.
  1. His Honour considered whether cl 25(1)(d) of the contract of employment ousted jurisdiction of the PSC under s 18 of the PSMA. His Honour considered the arguments of the parties in this respect and continued:
In my view, the answer to the issue raised is to be found on a proper construction of s.18(1), s.41(3) & (5) and Clause 25.1.(d) of the Contract. The former are statutory provisions and of great importance and they require careful consideration. The latter is an agreement between parties and it does not have the same force as statutory provisions. However, because the Contract is founded on statutory provisions, the terms of the Contract are equally important and the Court must give careful consideration to the terms of the Contract. Those terms must however be reflective of and consistent with the empowering statutory provisions. If the terms of the Contract are inconsistent with the provisions of the empowering statutory provisions, then they may be struck down, to render consistency with the statutory provisions.
I start with s.18(1) of the PSM Act. Once a complaint is made to the PSC by an officer aggrieved by a decision on a disciplinary matter, the PSC assumes jurisdiction and it is required to “review the decision” in accordance with the procedure set out in Subs (3). It is not contested that Mr. Gelu is an officer of the National Public Service who was affected by DPM to terminate his employment. It is not disputed that he lodged a complaint against the PSC in writing, against his dismissal, as required by Subs (2). It is also not disputed that his dismissal was on disciplinary grounds and he was dealt with under the primary disciplinary procedure under Clause 25.1(a), (b) and (c) of the Contract. In the circumstances, I am satisfied that the actions of Mr. Gelu and the PSC are in accordance with s.18(1) of the PSM Act. The only real issue therefore is whether Clause 25.1(d) of the Contract ousts the jurisdiction of the PSC under s.18 of the PSM Act.
As I stated earlier, there are two phases in the disciplinary process – the primary disciplinary phase which results in the disciplinary action taken and the second phase which is the review process. They are two distinct and independent processes and they should not be mixed up. The PSM Act in fact treats them separately under two separate Parts – s.18 in Part III (Review of Organizational Matter), and ss.50 – 54 in Part XIV (Discipline). Section 41(3) expressly makes reference to “discipline of an officer employed under a Contract of Employment”. The disciplinary process under a Contract referred to here must mean the primary disciplinary process, which is the equivalent of Part XIV of the PSM Act. Section 41(3) exempts a Contract Officer from the primary disciplinary process for the reason that the Contract provides for that primary disciplinary process. I do not think Parliament intended to exempt contract officers from the review process under Part III of the PSM Act (s.18). If Parliament intended that a Contract officer should be exempted from application of the review process in s.18, it should have expressly said so in s.41(3) or s.18. Also if Parliament intended that the Contract should also provide for a review process of the primary disciplinary process outside of s.18, it should have expressly said so in s.41(3) or s.18. By not expressly providing so, Parliament intended that Contract officers who are disciplined under the primary disciplinary process set out in the Contract were entitled to invoke the review process under s.18 of the PSM Act. I also consider that Parliament did not intend that a Contract officer who is disciplined under the primary process in Clause 25.1(a)(b) and (c) of the Contract would only resort to the Court to challenge the primary disciplinary decision.
(emphasis added)
  1. In relation to the “ousting” of the jurisdiction of the PSC, his Honour observed:
Clause 25.1(d) of the Contract says the decision of Secretary, DPM is final and the officer “may” seek redress in the Courts. In my view, Clause 25.1(d) does not in any way oust the review jurisdiction of the PSC under s.18 of the PSM Act. All it says is that the decision is final insofar as the initial disciplinary process is concerned. By the use of the word “may” in Clause 25.1(d), the officer is given an option of seeking a judicial review in the Courts. In any case, if Clause 25.1(d) purports to or were intended by the parties to the Contract to oust the review jurisdiction of PSC on disciplinary matters, then to that extent, this Clause is inconsistent with s.18(1) of the PSM Act and cannot be given effect to or enforced by the Courts.
(emphasis added)
  1. The appellants contended that Damem was wrongly decided, that s 41(3) of the PSMA permits a contract to establish its own manner of appeal from a termination under the contract, and a contract is a matter of private law and not public law. The appellants further submitted that, in any event, Damem was distinguishable on the basis that the contract officer in that case was employed by a Department, rather than an Authority, and in this regard relied on the later decision of Injia CJ in National Agriculture Quarantine & Inspection Authority v Tetega [2009] PGNC 220; N4030.
  2. In Tetega, Injia CJ did find that the PSC did not have jurisdiction to review a decision of the authority there because neither the PSMA, nor the statute creating the Quarantine Authority, prescribed that the PSC had jurisdiction in relation to that Authority’s decisions. Without commentating on the specific facts in Tetega, we cannot arrive at the same conclusion in respect of the Health Authority as his Honour did in Tetega. The terms of s 18 of the PSMA are clear. The PSC has jurisdiction to review a decision on a personnel matter “connected to the National Public Service” where an officer of the Public Service was affected by the decision. As previously noted, Counsel for the appellants did not dispute that Mr Wau was an officer of the public service.
  3. We further note the terms of s 42 of the PSMA which provide:
42. EMPLOYMENT UNDER CONTRACT TO CONSTITUTE SERVICE.
Employment under contract under this Part shall constitute service in the Public Service for all purposes.
  1. Further, the contract also expressly acknowledged that the PSMA applied to it.
  2. It follows that the PSC’s jurisdiction is enlivened directly by s 18 of the PSMA. It is unnecessary for the Act which created the Health Authority to also enliven that jurisdiction. We now turn to whether that jurisdiction was excluded by operation of the PSMA or the employment contract.
  3. We are satisfied that the PSC’s review of the Termination Letter was within its jurisdiction and not excluded by statute or contract for the following reasons.
  4. First, s 41(3) of the PSMA does exclude Part XIV of the PSMA in relation to contract officers. It follows that, insofar as the PSMA applies, any disciplinary process in relation to Mr Wau would not be subject to Part XIV of the PSMA. Rather, it follows that any disciplinary action against Mr Wau would be as prescribed by his contract.
  5. That, however, is where the exclusion of the PSMA ends. Section 18 of the PSMA sits under Part III of the PSMA, not Part XIV. As Injia DCJ found in Damem, a clear distinction exists between the disciplinary process (which was to be governed by the contract) and the review process (governed by the PSMA). We respectfully agree with the conclusion of his Honour in Damem that if Parliament had intended to exclude the right of contract officers to seek review of decisions through the PSC, it would have expressly excluded Part III of the PSMA. Absent such express exclusion, we do not consider it appropriate for us to reach that conclusion.
  6. Second, we are not persuaded that the PSC’s review jurisdiction under s 18 of the PSMA was excluded by the contract. In this regard, we note s 41(5) of the PSMA which provides that:
(5) The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.
  1. Schedule 3, clause 16 of the contract provided that the officer “may seek redress through the Courts”. Counsel for the appellants submitted at the hearing that, by operation of s 41(5), sch 3 cl 16 of the contract prohibited Mr Wau seeking review through the PSC.
  2. We hold reservations as to whether a private contract can exclude the review mechanism of a public body which is established pursuant to s 191 of the Constitution. However, it is unnecessary to decide this point, as we are not persuaded that the contract excludes review of a personnel decision through s 18 of the PSMA. The use of the word “may” in cl 16 makes that phrase a permissive one. It means simply that Mr Wau could, if he so chose, seek redress through the Courts. In order to exclude a statutory mode of review, founded in the Constitution of Papua New Guinea, far more explicit and clear phrasing would have had to be used in the contract and relevant legislation. Accordingly, we are not persuaded that s 41(5) of the PSMA operated to exclude the PSC’s jurisdiction to review the Termination Decision.
  3. We find that the primary Judge’s conclusions as to the jurisdiction of the PSC were not attended by error. Grounds 1, 2 and 5 are not substantiated.

Issue 2

  1. The second issue is whether the primary Judge erred by conducting a merits review of the PSC Decision by finding that the Termination Letter was unlawful. The appellants contend that the decision of the primary Judge at [24] to [34] of the Primary Judgment constituted a merits review.
  2. The paragraph immediately preceding the alleged merits review by the primary Judge stated:
    1. Before I address the other grounds of contention, I should, for completeness, set out the basis for Mr Wau’s termination for non-performance.
  3. From [24] to [34] of the Primary Judgment, the primary Judge set out the process of correspondence and discipline of Mr Wau through 2017. In that analysis, his Honour noted several aspects of the disciplinary process taken by the Health Authority that were contrary to express provisions of the contract. His Honour did this in the context of setting out how the events between the parties had unfolded. At [34], his Honour then stated that the Termination Letter was unlawful.
  4. In Arran Energy (Elevala) Ltd v Ol [2023] N10268, his Honour Kandakasi DCJ found:
    1. From this, it is clear to me that, the issue of functus officio was not an issue between the parties in the South Seas Tuna case. Hence, it was not necessary for the Court to go into any detailed consideration of the subject and decide any matter in controversy between the parties. Despite that, the Court decided to make it an issue and devoted a large part of its decision to that issue. Clearly in my view therefore, the Court’s views were obiter dictum. Such decisions are not binding.
  5. In The State v Tamate (2021) SC2132 at [166], Makail J found:
    1. As to the submission by the Public Solicitor that the Supreme Court decision in The Transferees case is obiter dicta, it is noted that there have been numerous commentaries by legal scholars’ judicial expositions and judges in relation to the term obiter dictum. In our jurisdiction, a helpful discussion on this topic may be found in the judgment of Cannings J in Mathias Goma & 703 Ors v. Protect Security & Communication Limited (2013) SC1300. After citing with approval a passage by Sakora J in Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581, his Honour summarised the principles as follows:
“Obiter dicta (dictum is the singular expression) are statements of law or other observations made by a Judge or a Court, either orally or in a written judgment, which were not necessary to the disposition or final decision in the case.
There are two types of obiter dicta: (i) a statement of law that is based upon facts which either were not found to exist or, if found, were not material facts; and (ii) a statement of law which, although based on the facts as found, does not form the basis of the decision, eg a statement of law in support of a dissenting judgment.
Statements of law that are obiter dicta are not binding authority but can be of persuasive authority (and highly persuasive or otherwise) depending on whether the statements have been expressed by a court of high authority and whether they are deliberate statements of law as opposed to a casual expression of opinion. (On the latter point it is useful also to refer to the judgment of Wilson J in Premdas v The State [1979] PNGLR 329 who highlighted the importance when assessing the persuasive value of obiter dicta of distinguishing between a considered enunciation of a Court’s opinion on a point of law and a passing remark or casual expression of opinion: the former will usually be highly persuasive while the latter will often be of little persuasive value.)”
  1. Similarly to this Court’s previous treatment of obiter dicta as not being binding authority on lower Courts, it is equally not open to an aggrieved party to claim on appeal that the obiter of a Judge constituted an error of law, where the remarks in that obiter where not material to the final decision of the Court.
  2. We are not persuaded that the remarks of the primary Judge at [24] to [34] of the primary Judgment were material to his eventual conclusion and disposition of the matter. We have formed this view because:
  3. Grounds 6 and 7 are not substantiated.

Issue 3

  1. The third issue before the Court is whether the National Court erred by failing to find that the PSC Decision was attended by jurisdictional error in that the PSC proceeded in its determination of the compliant absent the presence of the Secretary of the Department of Personnel Management.
  2. Counsel for the appellants acknowledged at the hearing that this exact issue (and as between the appellants and the PSC) was determined definitively by this Court in the June 2025 Kereme Decision. Essentially, the appellants argued we should depart from the principle of stare decisis and find that personal service must be affected on the Secretary to satisfy s 18(3)(a)(i) of the PSMA.
  3. In similar circumstances where the Summons was served on the Executive Officer of the Secretary, the Court in the June 2025 Kereme Decision found that:
    1. It is not realistic, nor could it have been the expectation, that the Secretary of the DoPM be served personally, as it is not realistic that any holder of such high office would be able to be served personally.
    2. For whatever reason, the Secretary, after being summoned, did not attend the disciplinary hearing, the appellants submitting that the Commission decision was then improper, because there was no view offered by the Secretary, as required by Section18 (5) (i).
    3. It is not realistic either, nor could it have been the expectation, that the Secretary of the DoPM would attend every meeting as proffered by the Appellants.
    4. The expectation would have been that the Summons be properly served as it was and it would be for the Secretary to provide views, if any, to the Commission.
    5. The Commission, once the Summons is issued and served, has discharged the mandatory duty imposed by the words ‘shall summons’ and any non-compliance is subject to complaint before the Commission by any party seeking the attendance of a person who does not comply with the Summons.
...
  1. We are also satisfied that the service of the Summons was based on a procedure created to facilitate service on the Office of Secretary and the summons was properly served.
  2. The doctrine of stare decisis was first imported to Papua New Guinean law by a seven-member Bench of this Court in Christian v Namaliu [1996] SC1583. In that case Amet CJ, with whom on this point Kapi DCJ (at [139]), Salika J (as his Honour then was) (at [243]), Doherty J (at [274]) and Andrew J (at [279]), concurred, said:
70. Schedule 2.9(1) of the Constitution provides:
“(1) All decisions of law by the Supreme Court are binding on all courts, but not on itself.”
  1. The effect of this provision has been ruled upon by the Supreme Court in a number of cases since Independence. The first case post-independence was Public Prosecutor v John Aia of Mondo and Others [1978] PNGLR 224, in which the effect of this provision and the court’s power to review and overrule its earlier decision was considered. Only Wilson, J ventured to give an opinion on the effect of Sch 2.9 and the legal doctrine of stare decisis. He said at page 232:
“I realise that the Supreme Court is no bound by earlier decisions of the Supreme Court (see Sch 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of the Supreme Court should only be over-ruled great caution and in a clear case.”
...
  1. In Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNGLR 608 at p 610 the Court comprising Kidu CJ, Amet & Cory JJ said:
“Although this Court is not bound by its previous decisions (see sch 2.9(1) of the Constitution), it will not depart from them unless exceptional circumstances exist.”
...
  1. It is trite that this Court is not bound by its previous decision by virtue of Sch 2.9(1) of the Constitution. But case authorities have established authoritatively that this provision and the power vested in the Court is not absolute. The qualifications and the basis upon which the Supreme Court may correctly invoke and exercise this power to review its own earlier decision should only be in a clear and proper case with the exercise of great caution in the most exceptional circumstances where the earlier decision can be said to be clearly and manifestly wrong and that is maintenance in injurious to the public interest. The Court being invited to review and reconsider its earlier decision will only do so after the most careful and respectful consideration of the earlier decision and after giving weight to all the circumstances, before a Justice may give effect to his own opinions in preference to an earlier decision of the Court. A decision to review and overturn an earlier decision will only be justified if the earlier judgement was given per in curiam, that is it was in conflict with some other decision of the court or with some well established principle that were binding on it. The Court reviewing and overturning an earlier decision will also have to consider what may be the consequences of doing so.
  2. Applying these principles to the circumstances of this application, can it be said that this is a clear and proper case, where the circumstances are so exceptional and that the decision of a five member court presided over by the Chief Justice is so clearly or manifestly wrong and that its maintenance is injurious to the public interest that it should be reviewed and overruled?
  3. In my respectful opinion, the plain answer to the question is NO. In my view the circumstances giving rise to this application do not warrant a review of the decision in SC 487, let along overruling it. This is not a proper case to invoke the per vested in this Court under Sch 2.9(1) of the Constitution. There are no exceptional circumstances in this case. The decision of the Court by a majority cannot be said to be clearly or manifestly wrong. It is not a decision per in curiam, where it can be said to be clearly or manifestly wrong. It is not a decision per in curiam, where it can be said to be in conflict with some binding authority or decision of this Court or another Court which this Court is bound by, or that it was in conflict with some well established principle which would permit this Court to readily review it. Nor, indeed can it be said that its maintenance would be injurious to the public interest.
(emphasis added)
  1. More recently in Ganzik v Iguan [2024] SC2572 Geita, Lindsay and Shepherd JJ said:
    1. The law relating to the manner in which the Supreme Court deals with conflicting prior decisions of law is clear. The principles of law which have been developed by the Supreme Court in this regard emanate from Schedule 2.9 (1) of the Constitution which provides that all decisions of law by the Supreme Court are binding on all other courts, but not on itself. This is the constitutional recognition of the English common law doctrine of stare decisis, meaning “to stand by things decided”, which holds that it is necessary to abide by former precedents when the same points of law arise again in litigation.
    2. When conflicting decisions fall for consideration by the Supreme Court as to which of those decisions the Court should apply or should best have bearing on the particular circumstances of an appeal or review, the Court is not left in a vacuum. Guidance is given by numerous earlier decisions on point. Hartshorn J in the Supreme Court decision in Paraka v Peng (2016) SC1780 summarised the relevant principles, after considering earlier case authorities, and said this at para. 26:
Though the Supreme Court is not bound by its previous decisions, it should only overrule them with great caution, in exceptional circumstances, following full argument and preferably when the Court is comprised of a greater number of Judges than in the earlier case and perhaps when the Chief Justice is presiding.
  1. Given that prior decisions of the Supreme Court are not binding on itself, in Hagahuno No. 2 Kandakasi DCJ expressly considered how the Supreme Court was to resolve its own two conflicting lines of authority, one in favour of the strict approach which had commenced with Biri v Ninkama in 1982 and had continued through to Dekena v Kuman in 2018 and beyond, and the very different liberal approach so clearly articulated in the 2012 case of Coca Cola Amatil (PNG) Ltd v Kennedy, reinforced in 2013 by Kikala v Electoral Commission and followed in many subsequent similar cases at both National Court and Supreme Court levels.
  2. In the course of his Honour’s deliberations on this issue in Hagahuno No.2, Kandakasi DCJ specifically addressed the law relating to the principles which deal with conflicts in past precedent. His Honour summarised the application of those principles at para. 71 of the decision in Hagahuno No.2 as follows:
(a) [T]his five-member Supreme Court is not bound by its own earlier decisions starting from the three-member Supreme Court decision in Biri v Ninkama;
(b) in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court has not readily and easily departed from its earlier decisions;
(c) departure from Biri v Ninkama and the line of decisions following it have been called for and finally after more than 31 years later, this Court in Kikala v Electoral Commission departed from the decision in Biri v Ninkama and the various decisions that follow it:
(d) additionally, exceptional circumstances now exist which warrant a departure from the decision in Biri v Ninkama and its line of authorities because:
(i) that decision and those following it have misinterpreted, misconceived, mistook and or misunderstood the law as pointed out above which requires correction in the terms discussed;
(ii) the law pronounced or stated in the earlier decisions is no longer appropriate and applicable to the current prevailing circumstances and needs of the country for the reasons also given above; and
(iii) although the Chief Justice is not a part of this Court comprising of five Judges, His Honour then as Deputy Chief Justice was the president of the Court in Kikala v Electoral Commission which consciously commenced the departure from Biri v Ninama and its line of cases.
  1. The decisions in Hagahuno No.1 and Hagahuno No.2 were each delivered by five-member benches of the Supreme Court. Moreover, the five-member Supreme Court in Hagahuno No. 2 was specifically empanelled by the Chief Justice at the request of the parties to settle the conflicting approaches taken by both the National Court and the Supreme Court which had up to that point emerged over the years, strict as opposed to liberal, in relation to election petitions, including the differing approaches the Courts have taken to objections to competency at both National and Supreme Court levels. Hagahuno No.1 and Hagahuno No.2 expressly deal with detailed consideration of objections to competency in review proceedings, as distinct from appeal proceedings, where the applicant has pleaded one or more grounds of review when leave for those grounds has not granted by the leave Judge. To our minds, Hagahuno No.1 and Hagahuno No.2 have convincingly resolved the conflict in prior decisions in favour of the liberal approach.
  2. We note that this Court is comprised of three Judges, not including the Chief Justice, and that the June 2025 Kereme Decision was delivered less than 5 months ago. These are all factors against departing from the June 2025 Kereme Decision.
  3. Finally, the authorities make clear that a previous decision of this Court should only be departed from following fulsome argument outlining why those previous decision(s) were wrong. There was no such fulsome argument by Counsel for the appellants. Counsel for the appellants merely submitted that the decision in the June 2025 Kereme Decision was wrong, and therefore, this Court should not follow it.
  4. In any event, the appellants did not identify any “extraordinary circumstances” warranting this Court reaching the conclusion sought by it. We are satisfied that there are no such circumstances. In fact, we respectfully agree with the Court’s conclusion in the June 2025 Kereme Decision. In our opinion, any other conclusion could lead to the PSC being effectively hamstrung in attempting to perform its statutorily mandated functions.
  5. Therefore, ground 3 is refused.

CONCLUSION

  1. Given we have not been persuaded that any of the pressed grounds of appeal are substantiated, the appeal must be dismissed.
  2. We consider it appropriate, as is the usual course, that costs follow the event.
  3. The Court orders that:
    1. The appeal be dismissed.
    2. The costs of the first and second respondents of and incidental to the proceedings be paid by the appellants on a party-party basis, to be taxed if not otherwise agreed.

________________________________________________________________
Lawyers for the appellants: Tamutai Lawyers
Lawyers for the first and second respondents: Public Services Commission In-House Lawyers

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