DC 812

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 21 of 2006

BETWEEN

GIDEON PARU
First Complainant

PARU TUKUNDU
Second Complainant

AND

THERESA DINGU
First Defendant

THE CHAIRMAN OF BOARD OF GOVERNORS
Second Defendant

THE SECRETARY DEPARTMENT OF EDUCATION
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Kainantu: I Kurei

2007: January 12, 17

Cases Cited

1. Bai –v- St Paul’s Teachers College [1995] PNGLR 364

References

1. Wrongs Miscellaneous Provisions Act ch 297 s 1 (1) (a)(2)

Counsel

For the Complainants – In Person
For the Defendants – In Person

12 January 2007

DECISION

Background

The Firs plaintiff is the former student of Aiyura National High School (ANHS). The Second Plaintiff is the father of the First Plaintiff.

The First Defendant is the Principle of Aiyura National High School. The other Three (3) Defendants are under the First Defendant.

The claim is for:-

(1)	Expenses for air fares, transport and incidentals.

(2)	Refund for school fees.

(3)	General damages for undue frustrations, inconvenience and stress.

(4)	Costs.

Facts

First Plaintiff (Gideon Paru) was a student at Aiyura National High School in 2002, was studying at Grade Twelve (12) level.

First Plaintiff was expelled on 25 June 2002 for breaching school rules namely for entering opposite sex halls of residence. Gideon Paru was expelled by governing Council Disciplinary Committee. The expulsion comes under the Aiyura National High School Student Hand book p 5 heading Expellable Offences para (a i) Relevant provision:- 

"(para c) Entering the dormitory of a member of the opposite sex, orencouraging a person to break this rule." 

"( para d) Deliberate damage. This includes the putting of graffiti on school property."

"(para h) Any continual breaking of the school rules?"

The Notice of Expulsion dated 6 September 2002 was issued signed by the Principle (first defendant). The copy filed in this proceeding shows Chairman G/C at that time did not signed.

In the Notice of Expulsion at the end it states: "You are given seven (7) days as of today to appeal to the National Education Board".

The second Plaintiff (Paru Tukundo) formally lodged the Appeal to the Chairman National Education Board (NEB) Waigani dated 10 September 2002.

The said appeal was by way of a three (3) page letter filed within the appeal period time frame.

There is also ANHS g/c Disciplinary Committee member No. 4 dated 25 July 2002 records.

Fax Transmission verification Report dated 10 October 2002. Record indicates Result was OK.

The National Education Board dealt (review) with the Appeal unfortunately this Court does not have any records of the sittings or what decision was made.

Nevertheless Gideon sat for Grade Twelve (12) National Examinations.

Higher School Certificate (HSC) No. 0207810687 dated 10 December 2002 was issued however found to be incorrect, i.e., Gideon was given marks for subjects he did not study and sat for in the final examination.

Another HS Certificate No. 020781000687 dated 3 December 2002 was forwarded and issued on 17 October 2005. This HSC was accepted to be a correct one as subjects studied and sat for in the final examination showed together with relevant marks.

The first complainant (Gideon) completed exams in 2002 and HSC was issued on 17 October 2005 period of say three (3) years.

Issue

Was/Were the first and second defendants negligent in performing these official duties as to cause the inconvenience to the plaintiffs?

The third and fourth defendants, are they vicariously liable for the negligence of first and second defendants as per plaintiff claims?

Negligence – causation – a breach of duty of care must be direct cause of the injury to the plaintiff – (Max M PNG p 272)

Law of Tort – Crooked (conduct) wrong – (Law Osborne Dictionary)

An act which cause harm/injuries/damages, to a determined person intentionally or not, being the breach of duty arising out of a personal relationship.

It is based on notion of fault.

It is an area of law that allocates responsibility for behavior that has injuries effect on other people.

Negligence – the duty of care.

The tort of negligence is based on duty of care that is owed either to a particular person or to a group of people. (Magistrate Manual of PNG p 271).

The tort for existence of duty is whether a person can reasonably foresee that his or her behavior will cause injury/damages to somebody.

Wrongs (Miscellaneous Provision) Act ch 297 s 1 (1) (a) – general liability of the State in tort. (see the Act).

Section 1 (2) – See the Act)

Interpretation is State not liable unless cause of action in tort against the servant or agent is established.

Both complainants and the defendants have not in their respective submissions have not citied any case laws for my pursual (I did not expect it anyway).

Nevertheless the limited library material that I have merely few PNGLR the research conducted, then were few negligent (tort) cases. However most were for motor vehicle related, as such not helpful for the purpose of this case. In the case of Bai –v- St Paul’s Teachers College [1995] PNGLR 364 Brown J in referring judicial review pointed out the difference in public law and private law. Also the process of Appeal was discussed and the view held is that the Governing Counsel is the authority. The next step is to appeal to National Education Board and the Minister flowing as they do from the private law provision.

The above aim is for the purpose of Judicial Review (Administrative law). Not so much on negligence or duty of care, etc.

Contributory Negligence, - Wrongs Miscellaneous Provisions Act.

More than one party’s negligence might be the cause of the damages suffered by a plaintiff. When the plaintiff has been negligent, and that negligence has, together with negligence of a defendant, caused the plaintiff’s damage, we say that plaintiff is guilty of contributory negligence. Contributory negligence is usually expressed as a percentage. - (Magistrates Manual of PNG p 273).

Summary of Evidence

Before I go into discussing the evidence it should be made clear that District Court, as a creature of Parliament has no jurisdiction in conducting Reviews for any administrative decision, disciplinary matters, qausi judicial decision. 

If there is any law like Village Court Act which provides for Appeal/reviews of Village Court Decision by District Court. In other words legislation for particular matters has to specify and give jurisdiction to District Court Act.

Also there has to be a fine line drawn in this case as not to get confused with matters for NEB to dealt with and for the Court to deliberate on. This Court is to look into area of Law of Tort. That is, if any wrong was done by first and second defendants. It is not for this Court to consider ‘natural justice’, i.e., right to be heard, or to consider harsh penalty, or for this Court to impose alternative penalty to what was imposed by G/C. This Court is oblige to look at whether or not the first and second defendants did commit a tort which was injuries or did damage or caused inconvenience to the plaintiffs.

Now I turn to relevant correspondence the first defendant had with authorities with Education Department. First Defendant was instructed by NEB Appeals Committee when the Appeal was lodged by second plaintiff that Gideon was to sit for exams. Correspondence I presumed by telephone, not written records.

Then there is this letter of 25 May 2003 form NEB signed by one Patrick Modakewau, a/Chairman – Appeals Committee. It was request from HSC to be issued. Reasons given therein is that "school authority failed to provide the evidence of Governing Council Meeting Minutes." I have reservation on the above reason as I see Fax Prints were made on the record of minute. Nevertheless I remind myself I have no legal authority to question or review such reasoning.

The next correspondence I consider is dated 3 September 2004 from Department of Education General Education Services Division signed by 

O Lavaki – Assistant Secretary – General Education Service on behalf of Secretary. 

The content is an advisory one pointing out the complaints by plaintiff and requesting matter to be resolved rather then court process. 

Again I have reservation especially on pre-empting what might happen. I do not have authority to question/review that. Then we consider letter (reply) dated 14 October 2004 from ANHS signed Theresia Dingu (Mrs), Principle now first defendant.

It was in reply to correspondence by O Lavaki. No doubt it gives well documented chronologies of what had taken place. I need not go into details but briefly respond to O Lavaki’s queries were for reasons for expulsion, non-refund of part of the school fees, correspondence and difficulties in getting Measurement Services Unit (MSU), the HSC issued with wrong subjects, process of getting proper one issued para 21 reveals of conversation between first defendant and second plaintiff.

There are other correspondences but I hold the view they are irrelevant for our purposes. I notice a letter from Department of Education to Mr Peter Bridger Director – MSU signed P Modakewau FAS – Human Resources Development, dated 01 September 2006. I take it, it is same P Modakewau – a/Chairman NEB – Appeal Committee. 

Again in this correspondence, in the third paragraph expressing of possible legal proceedings.

I will come to briefly outline on such possible legal proceedings hereunder a little latter.

After much time spent on both sides in an effort to get the certificate, finally a correct HSC was issued on 17 October 2005. After a period of almost over three (3) years.

Conclusion

Indeed, plaintiffs admit Gideon was expelled for an expellable offence at the school.

There was the appeal to the NEB.

NEB ruled Gideon to sit for Final HSC exams, N.B. he had his Student 

Information Booklet (SIB) sent to MSU, his status at that time was as expelled student. NEB made its decision after this vital information was already with MSU.

The School (ANHS) does not issue HSC that is done by MSU relaying on information forwarded to them by the School in accordance with relevant rules and timing regulations.

Indeed the HSC was not issued within a reasonable time. As such no doubt second plaintiff has spent substantial amount of money and resources to pursue the appeal, and follow up on the results of the appeal. There is no clear indication or furnishing of the exact amounts but that is subject to assessment if judgment is in complainant’s favor.

From evidence issuing of HSC was a real delay. I note after NEB decision for allowing Gideon to sit for exams, thereafter there were no correspondence unlike letter of 25 May 2003 from a/Chairman NEB – Patrick Modekewau directing Gideon’s HSC be issued.

Any reasonable thinking person can see with given facts and circumstances those in authority at NEB or General Education Services Division or Education Department and leadership to address the issues related to expulsion of Gideon Paru.

Instead of pre-empting legal proceedings and passing buck and using first defendant and ANHS as scrape goat or sacrificial lamb those at NEB or their Executive Officers to take ownership to deal with MSU promptly to address the possible inconvenience that may arise because of SIB being forwarded already to MSU and Gideon’s status at that time.

In my view it is for all division within Education Department to collaborate to address issues of this nature.

In my final analysis I make following findings on the issue of whether or not first and second defendant are liable for any torts:-

(1)	First and Second Defendants, in particular First Defendant had acted professionally, transparently and accounted for what course the G/Council had decided on the disciplinary matter.

(2)	First Plaintiff had immensely contributed towards the frustration, unnecessary spends, time and effort by Second Plaintiff. This is all due to Gideon not taking responsibility of himself and the reprimand he has received prior to his expulsion.

(3)	Those at higher eclus of Education Department did not take ownership and leadership in the whosage. Instead of prophesying legal proceeding as such end result is the process taking its course.

Accordingly I find:-

(1)	First and Second Defendants not liable in law of tort or First and Second Defendants in particular First Defendant not negligent in her duties as such not liable in this civil suit.

(2)	As pursuant to s 1 (1) (a) (2) – Wrongs (MP) Act. I do not hold Third and Fourth Defendants vicariously liable even though I have reservation on commitment of those servants at high edon of Education Department not the Secretary.

Orders made accordingly.

For the Complainants – In person
For the Defendants – In person