A provincial officer was sacked, won a recommendation for reinstatement from the Public Services Commission, and was ignored. His case produced three rules that every public servant's lawyer now relies on.
Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and the State [2005] PGSC 27; SC797
Supreme Court, Lae — Jalina, Cannings and Manuhu JJ, 28 October 2005. SCA 162 of 2004.
What happened
Mr Asiki, an officer of the Morobe Provincial Administration, was charged with misconduct, heard, and dismissed by the Provincial Administrator. He sought review by the Public Services Commission, which found procedural errors and recommended his reinstatement. The Administrator refused to accept the recommendation and told him the original decision stood.
Mr Asiki obtained leave for judicial review. At the substantive hearing the National Court refused review on a single ground: he had not given notice of intention to make a claim against the State under section 5 of the Claims By and Against the State Act before commencing proceedings.
The National Court decision approved
A year earlier, in Frederick Martins Punangi v Sinai Brown, Injia DCJ had granted leave to the suspended Secretary for Defence to review an NEC decision and held that a section 5 notice is not required for an application for judicial review under Order 16 of the National Court Rules, discussing the meaning of “claim” in section 5. The Supreme Court in Asiki approved that decision.
What the Supreme Court decided
1. The notice requirements of the Claims By and Against the State Act apply only to actions founded on contract or tort or breaches of constitutional rights. 2. Section 5 does not apply to actions seeking orders in the nature of prerogative writs under Order 16, which provides a comprehensive and exclusive procedure for judicial review. Punangi v Brown approved. 3. Mr Asiki, having been granted leave, ought to have had the merits determined.
4. Having found error, the Supreme Court may set aside the judgment and make all orders the National Court could have made. 7. Where a duty imposed by a Constitutional Law has plainly been breached, it is in the interests of justice for the Supreme Court to conduct the review itself and avoid a multiplicity of proceedings.
5. A provincial administrator, equivalent to a departmental head, who receives a recommendation from the Public Services Commission, a constitutional institution, has a duty either to implement it or to give cogent and convincing reasons for not doing so. 6. The duty to give reasons is an integral part of natural justice; if no reasons are given it is to be inferred that there were no good reasons. Niggints v Tokam [1993] PNGLR 66 approved.
8. The Court ordered Mr Asiki’s reinstatement and payment of the salary and emoluments lost.
Did it make new law?
On section 5 the Supreme Court affirmed and applied the National Court’s reasoning in Punangi, reversing the trial judge. On the status of Public Services Commission recommendations, and on the Supreme Court granting the review itself, it broke new ground. Later cases have also drawn from the judgment a further principle: that establishing an error of law is one thing, and making out a case for a remedy is a separate, discretionary step.
Why it matters
Judicial review applicants need not serve a section 5 notice, though a damages claim joined to the review may still attract it.
Departmental heads cannot simply ignore a Public Services Commission recommendation. Silence will be read as having no good reason.
Successful applicants must still argue for the remedy. Reinstatement and back pay were ordered here because the breach of a constitutional duty was clear; in other cases the Court has upheld a review and refused damages.
What it does not decide
Asiki does not exempt every claim against the State from section 5. In Joseph v Rami (2021) the Court stressed that its actual decision is confined to judicial review proceedings, and that section 5, with its general words “any claim”, still governs claims for damages however framed. The condition-precedent rule for ordinary actions remains that in Tohian v Tau Liu (1998) SC566.
Recent cases applying it
- Konda’lane Properties Ltd v Parkop [2022] PGSC 80; SC2289 — upholding a review does not automatically establish a case for the remedy sought; Asiki applied and damages refused.
- Woodbank Pacific Ltd v Paropet [2021] PGSC 106; SC2177 — a judge’s duty to give reasons, and the inference from silence, drawn from Asiki and Amet v Yama.
- Joseph v Rami [2021] PGSC 62; SC2138 — Asiki explained as limited to Order 16 proceedings.
- Life Outreach Ministries Association Inc v Gware [2026] PGSC 52; SC2896 — the discretionary nature of certiorari under Asiki considered.
Sources
- Asiki v Zurenuoc [2005] PGSC 27; SC797 (Jalina, Cannings and Manuhu JJ, 28 October 2005)
- Punangi v Brown [2004] PGNC 120; N2661 (Injia DCJ, 8 October 2004)
- Claims By and Against the State Act 1996 — ss 2, 5; National Court Rules 1983 — Order 16; Constitution — ss 59, 191
- Konda’lane Properties Ltd v Parkop [2022] PGSC 80; SC2289; Woodbank Pacific Ltd v Paropet [2021] PGSC 106; SC2177; Joseph v Rami [2021] PGSC 62; SC2138; Life Outreach Ministries Association Inc v Gware [2026] PGSC 52; SC2896
Niggints v Tokam [1993] PNGLR 66 is cited as it appears in the judgment and was not separately opened for this brief.
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