N2825

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 60 OF 2005

BETWEEN:

NAPOLEN SIMATAB & NATHAN SUAGAIA
Plaintiffs

AND:

GEORGE IRUNI, PRINCIPAL, TUSBAB SECONDARY SCHOOL
First Defendant

AND:

THE BOARD OF GOVERNORS, TUSBAB SECONDARY SCHOOL
Second Defendant

Madang: Manuhu, AJ.
2005: February 25 & March 14.

RULING

Administrative law – Disciplinary procedure of Secondary School – Application for order directing compliance with disciplinary body’s decision – Whether administrative avenue and procedure exhausted – Whether relief can be granted - Application of principles of equity.

Cases cited in the judgment:
Lawrence Kalaivi & Ors v Simon Arua (1999) N1922.
Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417.
Amadio Pty Ltd v The State & Ors [1992] PNGLR 218.
Dusava v Justice Teresa Doherty & Ors (1999) SC629.

Counsel:
Mr. B. Waipek, for the Plaintiffs.
Mr. W. Akuani., for the Defendants.

14th March 2005.

MANUHU, AJ.: I ruled and made certain consequential orders on 25th February 2005 at Madang. I advised the Plaintiffs’ counsel (counsel for the Defendants did not subsequently appear to receive the orders) that my reasons will be furnished to them at a later time. I do that now.

Relevantly, the Plaintiffs were students at Tusbab Secondary School ("The School"). Following reports that the Plaintiffs had consumed and were in possession of home brew spirit, they were suspended on 13th September 2004, and were asked to respond to the suspension letter. The Plaintiffs responded to the suspension letter on the same day. The matter was then referred to the School’s Disciplinary Committee which eventually made known its decision on 1st October 2004. Such decision, which effectively terminated the students from the School, was endorsed on 3rd October 2004 by the Board of Governors of the School ("BOG"). The Plaintiffs were aggrieved by the decision of the BOG and appealed to the Provincial Education Board ("PEB"). The appeal was lodged on 7th October 2004. The PEB sat on 26th October 2004 and heard the appeal. Its decisions were that the Plaintiffs be allowed to be reinstated to continue education at the School; and, that they be placed under strict behaviour bond. 

On 18th November 2004, new members of the PEB were appointed and decided on the same day in favour of the Plaintiffs. On 25th January 2005, the Chairman of the new PEB advised the First Defendant that the Plaintiffs be reinstated on condition they be placed on good behaviour bond. Given the refusal of the Defendants to admit the Plaintiffs, the PEB sat again on 10th February 2005 and reaffirmed its earlier decision to reinstate the Plaintiffs. The Defendants, at all material times, have refused to admit the Plaintiffs to continue their studies as directed. Hence, this proceeding.

The matter comes before the court not for judicial review but for the court, apparently under s. 155 of the Constitution, to make certain orders directing compliance with the relevant decision of the PEB. By way of notice of motion, the Plaintiffs seek substantive orders, as per the originating summons, in the following terms:

"An order directing the First and Second Defendant to reinstate the Plaintiffs to do Grade 12 for 2005 school year at Tusbab Secondary School, in accordance with the decision of the Madang Provincial Education Board made on the 26th of October, 2004."

To my mind, the initial issue is whether the court can intervene and grant the orders sought by the Plaintiffs. In other words, is the court the appropriate forum to deal with the question of compliance with an administrative decision? The reason I ask is clear. This is strictly not a judicial review matter but it is trite procedural law, nonetheless, that administrative avenues and procedures should first be exhausted before the National Court’s inherent jurisdiction can be invoked. See for instance the National Court case of Lawrence Kalaivi & Ors v Simon Arua (1999) N1922 and the Supreme Court case of Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417. 

In this case, the PEB has made a certain decision which is disputed not by the Plaintiffs but by the Defendants. Under s. 104 (2) of the Education Act, a person aggrieved by a decision of a PEB may appeal to the National Education Board ("NEB"). The Defendants are obviously aggrieved by the decision of the PEB but they have not appealed. Such administrative procedure is awaiting invocation by the Defendants. On the other hand, the Plaintiffs are helplessly caught in between the Defendants’ refusal to admit them and, at the same time, the Defendants’ failure to appeal. The Plaintiffs cannot take their grievance to the NEB. A decision has been in their favour and, as far as they are concern, they have nothing else to pursue administratively. 

The Plaintiffs, in the circumstances, are entitled to seek the court’s intervention to compel the Defendants to comply with the decision of the PEB. I find therefore that they have properly invoked this court’s inherent jurisdiction to hear and attend to their grievance. 

The next consideration is largely based on the principles of equity. It has to be determined, in particular, whether there are good reasons for the court to exercise its discretion in the Plaintiffs’ favour. 

In that regard, in the circumstances, it is necessary at the outset to consider whether the appropriate administrative procedure has so far, on the face of it, been adhered to. In this exercise, I am guided by the decision of his Honour Justice Woods in the case of Amadio Pty Ltd v The State & Ors [1992] PNGLR 218, which was cited with approval by the Supreme Court in the case of Dusava v Justice Teresa Doherty & Ors (1999) SC 629, where his Honour said:

"The established grounds on which administrative decisions can be reviewed can be summarized from what Lord Roskill said at 935 in the Council of Civil Service Union case…:

(i)	Want or excess of jurisdiction.
(ii)	Error of law on the face of the record.
(iii)	Failure to comply with the rules of natural justice.
(iv)	The Wednesbury principles – where a power is exercised in an unreasonable manner."

I have already set out the appropriate facts which demonstrate what has happened so far. On the basis of those facts, I am satisfied that what has transpired so far, on the face of the records, is in accordance with the appropriate disciplinary procedure of the School. The initial suspension and the subsequent deliberation by the Disciplinary Committee and the BOG are in accordance with the School’s established procedures. The Plaintiffs then appealed, as is their right to do so, and the matter proceeded to the PEB, which heard their appeal. I am satisfied that the PEB did not exceed its jurisdiction in reinstating the Plaintiffs. A proper appeal was lodged by the Plaintiffs, which has been dealt with, not once, but three times. The PEB has, on three occasions, decided that the Plaintiffs be reinstated. I am further unable to see any error of law or breach of the principles of natural justice on the face of the records. 

In times like this, I enjoy reciting the maxims of equity, one of which is, that he who comes into equity must come with clean hands. In this case, in favour of the Plaintiffs, it is pleasing that the decisions of the PEB are untainted by any impropriety. The Plaintiffs are therefore in good stead. The Defendants, on the other hand, have not come to court with clean hands. With respect, it is wrong and utterly irresponsible for them to not appeal and, at the same time, refuse to comply with the decision of the PEB. The matter cannot be left in such uncaring and injurious stalemate. 

Consistently, this court will not stand in for the NEB. Matters that should have been brought by the Defendants before the NEB by way of an administrative appeal, which is an option that is probably still available, should not be brought before this court. I can only consider the face of the records, as I have so done. The Defendants’ detail arguments on the composition of the PEB; the legality or otherwise of the decisions in question; the truth or otherwise of the allegations against the Plaintiffs; the school’s endeavour to manage discipline; and various other related issues, are matters that should have gone, by way of an appeal, before the NEB. The NEB is the appropriate forum to deal with all of the arguments the Defendants are now raising. The Defendants, having failed to appeal, and thereby, having failed to exhaust all administrative avenues and procedures available to them, cannot argue their appeal in this court. 

I also take into account the rights of children to be educated. As I write, there are discussions going on about universal education. Education is a fundamental right and should never be taken so lightly. A child’s future and the country’s future are nearly totally dependent on education. Every school teacher and administrator should therefore understand that the right of our children to be educated is paramount.

Furthermore, what is seemingly lacking in our administrative systems and mechanisms is sound administrative practices and good governance generally. Good administration is an enormous subject but, in the circumstances of this case, we ought to learn to respect decisions of persons and bodies in lawful authority. To act otherwise is administratively disastrous and irresponsible. In this case, with respect, the Defendants ought to understand that they are not indispensable. They do not, with respect, own the education system and the School. They ought to know that their decisions can be appealed and overturned. Without appealing, they should therefore be prepared to perform their public duty by respecting and implementing the decision of the higher authority. They have, instead, with respect, failed terribly in upholding their public duty and have thereby undermined the disciplinary process of the School and, to some extent, the education system in Madang.

Finally, it should just be emphasized that any order by the court to reinstate the Plaintiffs does not circumvent the parties, especially the Defendants, to appeal to the NEB, if such option or any other proper administrative avenue is still available to them. Otherwise, the only option presently available to them is to comply with the decisions of the PEB. In the meantime, I am satisfied that there are very good reasons for the court to exercise its discretion in the Plaintiffs’ favour. I order, accordingly, that the Plaintiffs be reinstated as directed by the PEB. 

Orders accordingly.
____________________________________________________________________

Lawyer for the Plaintiffs			:		Kunai & Co. Lawyers
Lawyer for the Defendants			:		William Akuani Lawyers