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Kaupa v Registrar of Workers Compensation Tribunal [1995] PGNC 5; N1300 (7 February 1995)

Unreported National Court Decisions

N1300

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 27/95
JOSEPH KAUPA - Plaintiff
v
REGISTER OF WORKERS COMPENSATION - 1st Defendant
CHAIRMAN OF WORKERS COMPENSATION TRIBUNAL - 2nd Defendant
THE STATE - 3rd Defendant

Waigani

Doherty J
7 February 1995

JUDICIAL REVIEW - leave.

The applicant sought judicial review of the Worker’s Compensation Tribunal.

Held:

Judicial review could only lie if there was error by the Tribunal and none was shown. Leave refused.

7 February 1995

DOHERTY J: The applicant in this matter seeks judicial review pursuant to Order 16 of the National Court Rules of a decision of the Workers Compensation Commission Tribunal.

The facts in the statement before the Court show that the applicant was seriously and permanently injured in 1990 in the course of his employment in North Solomons Province and within a few days of his discharge from the hospital he was evacuated to his home province of Chimbu. Owing to his own lack of knowledge he did not lodge a claim in accordance with the provisions of the Workers’ Compensation Act. He explains that he is illiterate and I well accept that that situation applies to a large percentage of the people in his area and it is not something which we criticise. He was one of those people who was unlucky not to get an opportunity of an education that the rest of us have had.

The Tribunal had an opportunity to consider his application for Workers’ Compensation made during 1994 and did not allow him to bring a claim because it was out of time. They made a ruling pursuant to Section 41 of the Workers Compensation Act. He then wrote and sought a review of that decision. The Tribunal reconsidered this and several other points concerning witness statements which were on the file and his points about his own lack of knowledge etc. which he put forward. The Tribunal again rejected his application making a final decision following a hearing on the 28th September 1994. The actual decision was given on the 4th October 1994.

The proceedings in this matter were then served on the Tribunal although the provisions of Order 16 refer to applications for leave as ex-parte. Since they were served they have appeared in this Court. The applicant seeks review of the Workers’ Compensation Tribunal decision and he says at paragraph 20 of his affidavit and statement in support as follows:

“The decision of the Workers’ Compensation Tribunal to dismiss my claim is very harsh for I have served over 17 years with the Department of Works whom I am still employed with. The Tribunal’s failure to acknowledge my illiteracy and service would cause a grave injustice by dismissing my claim on a technicality is very unfair and does not compensate a grassroot person like me who has been employed as a labourer and office boy and now have physical disabilities without been duly compensated.”

He seeks review on the grounds of harshness and relies also on the powers inherent in Section 41 of the Constitution which empowers the Court to review what is a legal decision if it is harsh and oppressive in a particular personal case. The legislative powers of the Workers’ Compensation Tribunal are contained in Section 49 of the Workers’ Compensation Act. This adopts, at s. 49, the provisions for appeal under the District Court Act. To my mind this would, therefore, include the provisions of Section 231 (b) of the District Court Act which allow for an application to bring in an appeal out of time if there are good reasons. The applicant before this Court has not given any explanation why he has come late before the Court or why he did not appeal in accordance with the Workers’ Compensation Act instead of pursuing a certiorari. The rules and the law relating to the certiorari and the provisions of Order 16 were considered by Judge Woods in the case of Sulaiman v The PNG University of Technology Unreported N610. This and similar rulings are referred to in the Textbook “Administrative Law of Papua New Guinea” by Mr Michael Ntumy. It is in a quotation concerning dismissal of a leave application which Mr Ntumy takes from a case of my own re: Eric Gurapa, unreported N856 “Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to judicially act in excess of the legal authority then the Court has power to review that decision. Certiorari does not automatically apply because the applicant thinks that the situation is a harsh or unhappy one”.

There must be grounds shown before a Court can interfere with a decision of a properly constituted body which has reached its decision in accordance with law and after a hearing, examples are noted in the text book eg. acting outside its jurisdiction or when rules of natural justice were not followed. It is my understanding that this situation has also been reconsidered by the Supreme Court in a recent case of Numapo v Pulpul (SCA 160, 1993) but I understand that a decision has not been handed down.

These particular rules of law which have been adopted into our administrative law and are referred to in the textbook by Mr Ntumy. The concept of a certiorari is not solely that the unfortunate circumstances of the applicant are such that the Court should review a decision. The applicant must show grounds for example, as I have quoted, lack of jurisdiction or failing to follow natural justice.

I have a considerable amount of sympathy with the applicant, lack of education is a sad and an unfortunate situation on which I and no-one else would blame him for. But on the face of the record presented to this Court I cannot fault the Tribunal in their handling of the case. They took into account the applicant’s own situation and reviewed it more than once. They took account of the law as prescribed in the Workers’ Compensation Act. The Workers’ Compensation Act states at s. 41 that the limit is 12 months and they appear to have applied this and looked at the applicant’s grounds when assessing their decision. I therefore cannot find any fault on the part of the Tribunal which this Court would be empowered to review and quash.

I can only repeat what I and other Judges have said, certiorari is not an alternative to an appeal. The Court can only exercise its powers in a prerogative writ such as certiorari under Order 16 where it is shown that the Tribunal or the Administrative body which made the decision has erred in some way.

On the facts before me there is no such error and the Tribunal complied with the law in the circumstances of the case. I therefore refuse leave for judicial review.

Lawyers for the Applicant: Carter Newell

Lawyers for the Defendants: Solicitor General