N2046

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O.S. 38 of 2000

BETWEEN:

LETO DARIUS
Plaintiff

AND:

THE COMMISSIONER OF POLICE
First Defendant

AND:

THE STATE
Second Defendant

LAE	:	Kandakasi J
2001	:	12 & 19 January 2001

ADMINISTRATIVE LAW - Judicial review - Application for leave - Failure to take into account relevant factors before decision on penalty despite earlier court order - Factors for consideration on leave application considered - Arguable case shown - Leave granted

Cases cited:
Ombudsman Commission of Papua New Guinea v. Denis Donohoe [1985] PNGLR 348
NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70
The Application of Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276
An Ex Parte Application of Eric Gurupa For Leave To Apply For Review (1990) N856.
Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1
Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216
National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139
Air Niugini Ltd v. Beverley Doiwa (2000) N1972
Tiga Nalu v. Commissioner of Police and The State (1999) N1927.
Application of Christopher Haiveta (1998) N1783
Diro v. Ombudsman Commission of Papua New Guinea [1991] PNGLR 153
Application of Demas Gigimat [1992] PNGLR 322
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Ombudsman Commission of Papua New Guinea v. Honourable Justice Sakora and 2 Others as the Leadership Tribunal (1996) N1720
In the Matter of Ex Parte Application of Poka Biki [1995] PNGLR 366
Lawrence Kalaiva and Others v. Simon Arua and Others (1999) N1922

Counsel:
Mr. Unido for the Plaintiff.
No appearance for the Defendants.

19 January, 2001

KANDAKASI, J: This is an application for leave for judicial review of a decision of the First Defendant (hereinafter "the Commissioner"). The application is made pursuant to Order 16 Rule 3 of the National Court Rules 1983 ((Chp. 38) hereinafter simply referred to as "O" for Orders and "r" for a rule and "rr" for more than one rule).

The relevant originating summons was filed on the 1st of February 2000. That was together with an affidavit in support by the Plaintiff sworn on the 15th of December 1999. Subsequently, on the 16th of March 2000, a statement in support of the application together with an affidavit of the Plaintiff verifying the facts relied on were filed. At that time, a notice of motion seeking leave for judicial review and other orders was also filed. 

There is an affidavit of service sworn by a Barry Kiway on the 20th of April 2000 and filed on the 1st of May 2000. That affidavit shows that the above documents were served on the Acting Solicitor General for the purposes of O.16 r.3(3). On the 29th of May 2000, the then Acting Solicitor General filed a Notice of Intention to Defendant on behalf of the Defendants. 

Then by notice of motion filed on the 2nd of June 2000, the Plaintiff applied for and received and interim restraining order against the Defendants, preventing them from evicting the Plaintiff from the Bumbu Police Barracks, here in Lae. Prior to that, the original notice of motion filed on the 16th of March 2000, was the subject of continuous adjournments which continued until it came before me on the 12th January 2001. The last adjournment was from the 15th of December 2000 to the 12th of January 2001. With the exception of only two appearances by Mr. Saranduo and Ms Kiele Polume respectively on the 15th of May 2000 and 29th September 2000, there has been no appearance for the Defendants on each of the occasions the matter went before the Court and was adjourned. I was thus satisfied that the Defendants showed no interest in the matter despite being served and making two brief appearances on two separate occasions, evidenced by their consistent non appearances. Besides I reminded myself that O.16 r. 3 permits an applicant for leave for judicial review to proceed ex parte subject only to the requirements for service on the Secretary for Justice under O.16 r. 3(3), which requirement was met. I therefore granted leave to the Plaintiff to proceed ex parte.

Facts

On the 7th of May 1997, the Plaintiff was charge with a disciplinary offence of being drunk whilst on duty, failing to report for duty on time and failing to respond to radio calls. That followed his suspension from duties on 22 of April 1997. Eventually, he was found guilty and dismissed from the Police Force (hereinafter "the Force") by the then Commissioner of Police, Peter Aigilo LLB, QPM, with effect from the 24th of December 1997.

The Plaintiff then successfully applied for a judicial review of the Commissioner’s decision. His Honour, Hinchliffe J. in a judgement delivered on the 4th of May 1999, made the following orders:

1.	That the decisions of the first Defendant (that is the Commissioner of Police) dismissing the plaintiff from the Police Force effective from the 24th of December, 1997 are quashed.

2.	That the decisions finding the plaintiff guilty of the serious offence are confirmed.

3.	That the Police Commissioner is to hear the plaintiff on penalty before he makes a final decision. The hearing and the decision and the notification of the decision are to occur within sixty … days from today.

4.	The State is to pay the costs. If not agreed then to be taxed.

By letter dated 3rd June 1999, the plaintiff submitted his address on penalty and was received by the Commissioner on the 21st of September 1999. On the same day of the receipt of the plaintiff’s address on penalty, the Commissioner decided to re-affirm the earlier decision to dismiss.
 
On the 19th of October 1999, the plaintiff was served with a copy of the decision dismissing him, dated 21st September 1999. This led to the present proceedings being filed on the 1st of February 2000. That was well within the 4 months stipulated by O.16 r. 4, both from the date of the decision and from the date the decision was received by the plaintiff.

The plaintiff was employed by the Force since 8th June 1978, until the decision to dismiss him. The plaintiff has 13 prior disciplinary convictions. They appear at page 2 of annexure "B" to Mr. Unido’s Affidavit sworn and filed on the 2nd of June 2000. All of these appear to be alcohol consumption related problems. According to a letter dated 18th May 1999, Pastor Allan Tagi of the Buimo SDA Church, (annexure "D" to Mr. Unido’s Affidavit and original admitted into evidence has exhibit "1"), the plaintiff was attending that church and was schedule to baptised and hence become a member of that Church on the 5th of June 1999. In so doing, he has accepted and was following that Church’s teaching of no consumption of alcoholic drinks.

The decision the subject of the application reads apart from the formalities:

Your address on penalty was received at Police Headquarters on the 21st of September 1999. This address was taken into account when arriving at the decision. The reasons for the decision are as follows:-

His Honour J. HINCHLIFF made a ruling on the principles of Natural Justice and made the following orders: 

1.	That the decisions for dismissing you from the Police Force, is quashed.

2.	The decision of finding you guilty of the serious offence are confirmed.

3.	That I am to hear you on penalty before I make a final decision.

The charges against you were:

1.	That on the 19th of April, 1997, you were negligent in the discharge of your duties, in that you failed to respond on a two way radio to your OIC Traffic Inspector SIMONGI and zero Alpha who wanted to know your location.

Thereby contravening to section 43(c) of the Police Force Act, Chapter 65.

2.	That on the 19th of April 1997, at Lae you committed a breach of the Police Force Act (Chapter 65) in that you used intoxicated liquor too excesses at Bumbu Barracks.

Thereby contravening to section 43 (a) of the Police Force Act, Chapter 65.

I have considered your submission on penalty, which was received at the Police Headquarters. This submission was taken into account when making a decision as to penalty. Reasons for the imposition of this penalty are as follows:

The practice of members not responding to transmitting calls from the main base control of the Police establishment are now prevalent and your action in one of the classic example.

Normally offending members giving different reasons for not responding, in this case you claimed to have forgotten to put on the radio. The reason you have given is not acceptable and not reasonable.

At the time you were not responding you were busy away in private conversations and indulging in the consumption of liquor which is regarded as unofficial. You did not take your official Police duties seriously.

You saw fit to consume liquor prior to reporting for official duty and continued to do so after reporting for duty. Despite knowing very well that policemen are expected to report for duty sober not in a drunken condition.

The Constabulary is already facing serious problem with bad habits of members and your the actions you took is a danger to the already worsening state of discipline caused by liquor related problems in the Constabulary.

Despite your denials there’s sufficient evidence to substantiate the charges and secure the previous decision.

Your length of service in the Constabulary have been smeared by your unprofessional, unethical actions. You have 13 disciplinary previous convictions.

You have not considered your family’s well being in the commissioned of the offences, you have regarded your official duties at the time casually and unprofessionally executed your duties.

You have not provided any concrete evidence to substantiate your address on penalty for me to considered and imposed a lesser penalty.

The penalty of dismissal is appropriate to be consistent with past penalty awarded on similar matters.

The matters you raised in your address on penalty have been considered when I made my previous decision to dismiss you.

I stand by the previous decision of dismissal made by the former Commissioner of Police and therefore confirmed your dismissal from the Constabulary, effective from the 14th of January, 1998.

(signed)
J. Wakon 
Commissioner of Police.

For his grounds for judicial review the plaintiff advances the following:

1.	Bias and revenge tainted the Commissioners decision.

2.	The Commissioner did not take into account relevant factors, especially, the fact that he has completely given up his drinking habits and was now a member of the SDA church, his family background and his years of service to the Force.

3.	The commissioner failed to provide details of the similar cases in which there were dismissals, which meant that there were no similar cases and hence the decision to dismiss was harsh and oppressive.

4.	No reasonable tribunal could have made the decision complained of given his change of habit and the lack of any evidence of similar prior cases.

5.	The Commissioner erred in deciding to dismiss him, when there was evidence warranting a more lenient and lesser penalty.

During arguments, the plaintiff abandoned the first ground, as he did not have any evidence to support it. As for the remaining grounds, the plaintiff asked the court to consider the facts as outlined above and the decision, the subject of his application, and make a finding that those grounds do exist and or present an arguable case which warrant a grant of the leave sought.

The Relevant Law

Whether or not leave should be grant is a matter which calls for an exercise of the discretion vested in the Court by O.16 r.1(1) and ss. 166 and 155(3) and (4) of the Constitution. As the Supreme Court said in Ombudsman Commission of Papua New Guinea v.Denis Donohoe [1985] PNGLR 348 at page 361 per Amet J (as he then was), a Court considering that issue need only be satisfied of the requirements under O.16 rr. 2, 3 and 5 and not r.1(2). I venture to add that the Court must also be satisfied of the requirements under r.4. This is because any delay in bringing an application is a very important factor for consideration. That can be appreciated from the perspective of changes in administration including changes in personnel that may take place once a decision has been made. Thus any delay in bringing an application for judicial review may prove detrimental to good administration and that may form the basis for a denial of leave. See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70 at 76; The Application of Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276 and An Ex Parte Application of Eric Gurupa For Leave To Apply For Review (1990) N856.

According to these rules and the case law on it to date, the requirements amongst others that must be met by an applicant for leave for judicial review, can be summarised as follows:

1.	He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be review;

2.	The decision sought to be reviewed is that of a public body or authority;

3.	The applicant has an arguable case on the merits;

4.	All other available remedies have been exhausted; and

5.	The application is being made promptly without undue delay.

In respect of the first requirement, the Court in Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1, said at page 3 that:

But depending on the nature of the relief, which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests (per Mason J in Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176), and as his Honour said in Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283 at 327-328:

"The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another."
					(underlining mine)

The Courts have on many occasions expended the categories or situations in which a person could have locus standi simply be reference to having "sufficient interest" in the matter, which may not necessarily be a right: See for example NTN Pty Limited v. The Board of Post & Telecommunications Corporation (supra); Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216; and National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139.

In respect of the second factor, the latest statement of the position is by the Chief Justice in Air Niugini Ltd v. Beverley Doiwa (2000) N1972 at page 4 in these terms:

In the first instance Order 16 of the National Court Rules provides the means by which judicial supervision of some judicial decision making and administrative action is exercised. It extends to the review of public authorities and persons charged with any public duty where their actions or decisions affect public rights of individuals.

Decisions of the Police Commissioner have been considered appropriate for judicial review and they have come under the supervisory jurisdiction of the National Court. Recent examples of this are cases like that of Tiga Nalu v. Commissioner of Police and The State (1999) N1927.

With regard to the third factor, it has been held in a number of cases already and it is the law that, an applicant for leave for judicial review must demonstrate an arguable case. Sheehan J express the position in these terms in Application of Christopher Haiveta (1998) N1783:

I realise that the application before me to day is only an application seeking leave for judicial review. So it is not incumbent on me to analyse the matter in detail, that comes when the review itself is heard. I am only concerned with the likelihood of a breach of human rights, and whether there is an arguable case. But this does not mean that leave for judicial review should be almost automatic and then peruse the matter in detail at the full review.

The position was made a bit clearer in Diro v. Ombudsman Commission of Papua New Guinea [1991] PNGLR 153 by these terms:

An ex parte application for leave to apply is not intended to be as extended or exhaustive as a full substantive judicial review hearing. The purpose is to establish whether the applicant has an arguable case. There will just as likely be an arguable case in opposition. But that would not be a ground for refusal. If the court can be satisfied there is a case fit for further consideration then leave should be granted.

Earlier on, Woods J in Application of Demas Gigimat [1992] PNGLR 322, said:

The established principles in seeking leave for judicial review emphasise that an applicant must show that he has an arguable case. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but rather the decision-making process itself. It is important to remember that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which it has been subjected. But it is not the purpose of review to substitute the opinion of the judiciary or the individual judge for that of the authority constituted by law to decide the matter in question. A reviewing court is not a court of appeal.

To determine whether or not an applicant has an arguable case regard must be had to what Lord Roskill said in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 953. His Lordship in summary said it would be an appropriate case for judicial review if a plaintiff can show any of the following against the decision-making authority:

1.	Want or excess of jurisdiction.
2.	Where there is an error of law on the face of the record.
3.	Failure to comply with the rules of natural justice.
4.	The Wednesbury principle - where a power is exercised in so unreasonable a manner. 

In our own jurisdiction Kapi DCJ state that position in this way in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124:

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. 

Having regard to and applying those principles, Woods J found that the decision-making authority complied with the relevant procedures and accorded the plaintiff with his rights according to the principles of natural justice. He therefore, found that the plaintiff failed to demonstrate an arguable case. Consequently, he dismissed the application in Application of Demas Gigimat(supra). On similar findings, Sheehan J. dismissed the plaintiff’s application in Application of Christopher Haiveta (supra).

It is apparent from the above authorities that the question of whether or not an arguable case is shown involves the question of whether the application raises any fundamental or serious legal issue which warrants the Court’s consideration: See Ombudsman Commission of Papua New Guinea v. Honourable Justice Sakora and 2 Others as the Leadership Tribunal(1996 ) N1720.

Finally the legal position on the last two factors is clear. First in relation to the time limit, an applicant for judicial review must come within the time limit stipulated by the rules. If however, an applicant comes outside that time limit, he must offer a reasonable explanation and show his case is not one of a case of undue delay and that, the delay is not detrimental to good administration before leave can be granted: See NTN Pty Limited v. The Board of Post & Telecommunications Corporation (supra); The Application of Evangelical Lutheran Church of Papua New Guinea Superannuation Fund (supra); An Ex Parte Application of Eric Gurupa For Leave To Apply For Review (supra) and In the Matter of Ex Parte Application of Poka Biki [1995] PNGLR 366.

As for the need to exhaust all other remedies, there is no doubt that, an applicant for leave for judicial review must show that he has exhausted all available remedies if any, first before going for leave. See Lawrence Kalaiva and Others v. Simon Arua and Others (1999) N1922 which is one of the latest case on point.

Present case

In the present case, the need to exhaust all other remedies and to come within the time limits can not be in issue. This is because there is no other available remedy for the plaintiff and that he has file these proceedings within the time limits stipulated by O.16 r.4. Similarly, there can be no issue that the Commissioner of Police is a public authority, which makes decisions that are open to the supervisory jurisdiction of this Court by way of judicial review in appropriate cases.

There can also be no argument that the plaintiff does have the locus standi to bring this application. The plaintiff is personally affected by the very decision sought to be review. The decision the subject of this application was to have him dismissed from the Police Force, with which he has been employed since the 8th of June 1978.

What is left to be determined is, whether the plaintiff has shown an arguable case. That issue can be determined by having regard to the principles set out above at pages 7 to 8. In view of those principles, I ask myself the question, whether the plaintiff has been able to place his case under any one or more of the factors emanating from the words of Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service (supra). In other words, I have to consider whether the plaintiff has been able to show that the Commissioner was in want or in excess of his jurisdiction; or that the Commissioner made an error of law which appears on the face of the record; or that he has failed to comply with the principles of natural justice and or whether the decision he arrived at was one which a reasonable tribunal could not have arrived at. Since this is an application for leave for review I need not go into a detailed consideration of any or all of these issues and make a finding on the facts. Instead, I need only determine whether there is some basis to argue that the case falls under anyone or more of these categories.

The plaintiff argues that the Commissioner did not take into account the fact that he has changed completely from his drinking habits. Indeed it was his drinking problem that has landed him in a number of disciplinary problems and has led to the dismissal decision, the subject of this application. On the 4th of May 1999, my brother Justice Hinchliffe ordered the Commissioner to "hear the plaintiff on penalty before making his final decision". That meant in my view, a requirement for the Commissioner to consider and or take into account the arguments and evidence presented in the plaintiff’s mitigation. The plaintiff forwarded his address on sentence, which had attached to it, a letter from the Buimo Road SDA Church confirming his change of habit and becoming a member of that Church. There is not a single reference to that fact in the decision. It therefore, appears the Commissioner did not take that fact into account when he decided to affirm the earlier decision to dismiss the plaintiff.

Next the plaintiff argues that the Commissioner failed to list and or specify the alleged past similar cases he refers to in his decision. Apart from only stating that past similar cases have been taken into account, no details such as, names of the persons dismissed, when, where and circumstances in which they were dismissed, do not appear in the decision. In my view, it is necessary that such details should be provided to show that the reference to past similar cases is not a speculation but is based on facts and thereby enable the person affected by the decision to appreciate the penalty given. Indeed I note that, the Courts do as a matter of course rely on past-decided cases and do in fact provide the relevant and correct references to such cases. To do so is in my view, meeting the requirements of natural justice and ensures fairness and reasonableness in the decision making process.

Finally, the plaintiff argues that no reasonable tribunal could have arrived at the decision the Commissioner arrived at. That, it is submitted is so having regard to the fact that the plaintiff gave up his drinking habits for good. He has become a born again SDA Christian which requires no consumption of alcoholic drinks. It is further submitted and I accept that the Commissioner’s failure to provided any details about the alleged past similar cases, could mean there were no passed similar cases. There is thus an appearance of unreasonableness.

Further, the fact that the plaintiff’s address on penalty was received on the same day of the decision raises the question, whether the Commissioner did take the time to carefully consider the evidence and arguments presented by the plaintiff in his mitigation before he arrived at the decision. A quick perusal of the decision shows a number of typographical errors which could have been avoid by the exercise of due care and attention. For example, in the second last paragraph, the current Commissioner says he made the earlier decision. That cannot be right because the former Commissioner made that decision. Also in the same paragraph the Commissioner says he considered the address on sentence before arriving at the earlier decision. Again that can not be right because he did not make the decision and the address in question was not before the Commissioner then. This is confirmed by the fact that the earlier judgement of this Court per Hinchliffe J., found that the Commissioner did not hear the plaintiff on penalty before imposing the penalty of dismissal. His Honour therefore, ordered the Commissioner to hear the plaintiff by way of his address on sentence before a final decision and quashed the Commissioner’s earlier decision. The plaintiff in his address on penalty, raised amongst others, one main point and that was his completely giving up drinking alcohol and becoming a born again Christian. There is no evidence of that being taken into account and being reflected in the penalty decision. 

On a careful consideration of all of the above and the plaintiffs arguments as well as the decision itself, together with the evidence adduced in support of the application, I find there is an arguable case. The plaintiff is therefore granted leave to go for judicial review of the decision of the Commissioner dated 21st September 1999. At the hearing of the review proper, I trust the Commissioner will produce all of the evidence he had before him and provided details as to the matters he took into account before arriving at his decision and show what he took into account and his reflected in his decision. Only upon a consideration of all of the relevant evidence, will the Court carrying out the review, be able to determine whether or not the plaintiff should be granted the other relieves sought. I therefore consider it in appropriate and unnecessary for me to consider the other orders sought in the notice of motion filed on the 16th of March 2000.

I direct and order that the plaintiff take all the steps that need to be taken in accordance with the rules promptly from today to get his substantive review heard without unnecessary delay. 

I order costs against the Defendants.
_____________________________________________________________________
Lawyer for the Plaintiff:		Warner Shand
Lawyer for the Defendants:		State Solicitor