N3833

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO 677 OF 2008

RAPHAEL PIUS
Plaintiff

V

COMMODORE PETER ILAU,
COMMANDER, PAPUA NEW GUINEA DEFENCE FORCE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Kimbe: Cannings J
2009: 25, 26 June, 30 December

STATE SERVICES – Defence Force – whether member of Defence Force allegedly absent without leave must be charged under Code of Military Discipline before being discharged. 

JUDICIAL REVIEW – natural justice – whether member of a disciplined force must be afforded natural justice prior to being discharged.

A member of the Defence Force was discharged on the ground that he was absent without leave for two years. He sought judicial review of the decision to give him a dishonourable discharge on the grounds that the procedures in the Code of Military Discipline, which provide for a member being charged with a breach of service discipline and given a hearing, were not followed and that he had been denied natural justice.

Held:

(1)	The Defence Act provides alternative procedures for discharging a member from the Defence Force, eg under the Code of Military Discipline or under the Defence (Period of Service) Regulation.

(2)	If it is proposed to discharge a member on the ground of an alleged breach of service discipline (eg being AWOL) it is not mandatory for the Code of Military Discipline to be followed. Alternative procedures under the Defence (Period of Service) Regulation procedure may be used, provided that the member is treated fairly.

(3)	The requirements of the duty to act fairly depend on the nature of the allegation against the member and whether he or she is available to be given a right to be heard.

(4)	If a member has abandoned his post and is still absent when it is proposed to discharge him the principles of procedural fairness do not require that he be given a right to be heard.

(5)	In this case the plaintiff had been absent without leave for two years and was still absent when the decision was made to discharge him. He by his own conduct forewent his right to be heard and extinguished the duty of the appropriate authority to give him a hearing.

(6)	It was incumbent on him to prove that in fact he was not absent without leave (by proving that he was not absent or that he had leave to be absent). He proved neither, therefore no good reason existed to quash the decision to discharge him.

(7)	The application for judicial review was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Diro v Ombudsman Commission (1991) N1385
Dopsie v Tetaga & Apeng (2009) N3722
Gegeyo v Minister for Lands [1987] PNGLR 336
Leo Nuia v Benias Sabumei, Minister for Defence [1992] PNGLR 90
Ombudsman Commission v Donohoe [1985] PNGLR 348
The State v Justin Komboli (2005) N2891
The State v Toroken, Ex Parte Perera (1981) N281

Counsel

R Uware, for the plaintiff
F Cherake, for the defendants

30 December, 2009

1. CANNINGS J: Raphael Pius, the plaintiff, was enlisted in the Defence Force in January 1990. In February 2003 he applied for retrenchment. He held the rank of Lance Corporal and was attached to the Support Company, First Royal Pacific Island Regiment (1RPIR), Taurama Barracks. His unit commander supported his application for retrenchment as did the Major in charge of the retrenchment office and the application was sent to the Defence Council for approval. The plaintiff then came to Kimbe to live and start life again as a civilian and wait for the approval.

2. He waited until 2005 without hearing anything so he went back to Port Moresby to find out what was going on. He was told that he had been discharged in May 2005 on the ground that his retention was not in the best interests of the Defence Force. He enquired further and was told that he had not been approved for retrenchment and that he had been discharged on the ground that he had been absent without leave (AWOL).

3. Aggrieved by this dishonourable discharge the plaintiff applied for and was granted leave to seek judicial review of the decision to discharge him. This is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

4. The plaintiff set out four grounds of review in his supporting statement but one was not pursued and the others can be boiled down to two. He is arguing that his discharge was defective in two respects:

•	the procedures in the Code of Military Discipline, which provide for a member being charged and given a hearing, were not followed; and 

•	he was denied natural justice.

5. They are the two grounds of review. If either or both are upheld the plaintiff wants the Court to declare that his discharge was unlawful and null and void and to order that it be quashed and that he be reinstated and paid back-pay and placed on the retrenchment list.

6. The defendants do not dispute that the plaintiff was not charged under the Code of Military Discipline and was not given a right to be heard. They argue that it was not necessary to follow those procedures.

ISSUES

7. There are three issues before the Court:

1	Did the procedures in the Code of Military Discipline have to be followed?

2	Was the plaintiff denied natural justice?

3	What declarations or orders should the Court make?

1	DID THE PROCEDURES IN THE CODE OF MILITARY DISCIPLINE HAVE TO BE FOLLOWED?

8. The Code of Military Discipline is set out in the Schedule to the Defence Act (Chapter No 74). All members of the Regular Force other than the Commander are subject to it. A member who commits an act or omission that is prejudicial to good order and military discipline or is unbecoming a member of the Defence Force is guilty of a breach of service discipline (Section C4(1)). Examples of breaches of service discipline are provided by Section C4(2) and include "(j) to be absent without leave".

9. The Code provides for the appointment of disciplinary officers and prescribes the procedures to be followed in disciplinary proceedings. Section C9 states that as far as operational requirements allow, disciplinary proceedings must be conducted in such a manner as to give the person charged a full and fair opportunity of presenting his defence or explanation. The person charged is entitled to have the charge reduced into writing, to have a copy of the charge before the proceedings commence, to have the charge explained to him by the disciplinary officer at or before the commencement of the proceedings and to examine and cross-examine witnesses called against him. Disciplinary officers have the power to impose a range of punishments including dismissal from the Defence Force (Sections C7 and C8). A member who is dismissed has a right of appeal to the National Court constituted by the Defence Force Judge (Section C10).

10. Mr Uware for the plaintiff submitted that because the Code expressly refers to AWOL as a breach of service discipline the procedures of the Code must be followed if it is proposed to discharge a member for that reason. The member must be charged by a duly appointed disciplinary officer, the charge must be reduced into writing, there must be a disciplinary hearing, he must be given a full and fair opportunity of presenting his defence or explanation and all other procedures in the Code must be followed.

11. I reject that argument as the Defence Act does not stipulate that the only way a member can be dismissed or discharged – on the ground that he was AWOL or committed some other breach of service discipline – is by following the procedure in the Code. The Act does not expressly state that. Nor does it impliedly require it.

12. The Act allows for an alternative method of discharge: where the "appropriate officer" is "satisfied that the retention of the member of the Defence Force is not in the best interests of the Defence Force".

13. Section 33 (termination of service) of the Defence Act states:

A member of the Defence Force may be discharged from the Defence Force by such authority and on such grounds (if any) as are prescribed.

14. Section 11(2)(e)(ii) (termination, etc, of service of member) of the Defence (Period of Service) Regulation states:

A member of the Defence Force, other than an officer, may before the end of his period of service, be discharged by the appropriate authority [ie the Chief of Personnel] … where the appropriate authority is satisfied that … the retention of the member of the Defence Force is not in the best interests of the Defence Force.

15. It was confirmed by Los J in Leo Nuia v Benias Sabumei, Minister for Defence [1992] PNGLR 90 that there are at least two alternative ways by which a member of the Defence Force can have his service as a member terminated: under the Code or under the Regulation. In that case the National Executive Council relied on the Regulation. There was nothing intrinsically wrong with adopting that procedure but his Honour held that whichever procedure was followed Colonel Nuia had a right to be heard – which was denied him – and therefore the termination of his service was unlawful.

Conclusion re ground 1

16. I agree with Los J's reasoning in Nuia's case, the correctness of which has not been questioned in any subsequent decision of the National Court or the Supreme Court, and adopt it for the present case.

17. The plaintiff was alleged to be AWOL and the decision was made to discharge him for that reason. It was not mandatory to charge him with a breach of service discipline and follow the procedure in the Code of Military Discipline before discharging him. The first ground of review is therefore dismissed.

2	WAS THE PLAINTIFF DENIED NATURAL JUSTICE?

18. This is a more general ground of review that rests on the proposition that though it may not be essential to follow the procedure in the Code of Military Discipline a procedure must be adopted that is fair and complies with the principles of natural justice. That is what Los J decided in Nuia's case and again I find myself in full agreement with his Honour's reasoning and will apply it to the present case.

19. Colonel Nuia, then the Task Force Commander in the Bougainville Crisis, was alleged to have brought the Force into disrepute through his participation in an ABC television interview in which he made comments on various allegations including that bodies had been dumped into the sea from Australian-donated helicopters. He was summarily dismissed from the Force by the Governor-General acting on the advice of the National Executive Council but given no right to be heard or opportunity to comment on the allegations even though he was still performing his duties and his location was well known. Los J held that the National Executive Council had a duty to be fair, which in this case meant that Colonel Nuia had a right to be heard on the allegations against him. He was denied that right and his dismissal was held to be unlawful.

20. A member has the right to be treated fairly and the appropriate authority (in this case the Chief of Personnel) has a duty to adopt fair procedures when deciding whether to discharge a member. Exactly what the procedures have to be depends on the facts of the case. The duty to be fair is constant but what must be done to comply with the duty can vary (Ombudsman Commission v Donohoe [1985] PNGLR 348, Diro v Ombudsman Commission (1991) N1385, The State v Toroken, Ex Parte Perera (1981) N281).

21. What must be done depends on the nature of the allegation against the member and whether he or she is available to be given a right to be heard. If a member is alleged to have been absent without leave and is still absent when it is proposed to discharge him the principles of procedural fairness do not, in my view, require that he be given a right to be heard.

22. I followed a similar line of reasoning in Dopsie v Tetaga & Apeng (2009) N3722. A public servant took 19 months unapproved leave without pay and then returned to his workplace wanting his old job back. When told that his position was occupied by someone else he complained that he had been unlawfully terminated without following the disciplinary procedures in the Public Service General Orders and had not been given a right to be heard. I was not moved by the argument and held that an officer who is absent without leave for an extended period can properly be regarded as having resigned, making it unnecessary to lay disciplinary charges.

23. Another analogy is provided by the right of an accused person under Section 37(5) of the Constitution not to be tried in his absence. If he chooses not to attend his trial or escapes from custody the court is not obliged to stop the case and wait for him to come back to court or be arrested. The accused by his conduct gives up his right to be present at the trial and extinguishes the duty of the court not to try him in his absence (The State v Justin Komboli (2005) N2891).

24. The principles of natural justice work in two directions. A person whose position or livelihood is at stake generally has a right to be heard before being removed from office (Gegeyo v Minister for Lands [1987] PNGLR 336). But he must himself act fairly to retain that right. If he acts unfairly, eg by going AWOL, he foregoes his right and extinguishes the duty of the decision-maker to provide a hearing.

25. In this case the plaintiff had been absent without leave for two years, his unit reported him AWOL to Defence Force headquarters at Murray Barracks. and he was still absent when the decision was made to discharge him. He had, unlike Colonel Nuia, abandoned his post.

26. It became incumbent on the plaintiff to prove that in fact he was not absent without leave. He could have done this by proving either that he was not absent or that he had leave to be absent. He has presented no evidence in these proceedings that sheds any doubt on the allegation that having applied for retrenchment in 2003 he came – without getting leave – to Kimbe to live and restart his life as a civilian. He stayed in Kimbe for two years before he was discharged from the Force.

27. Mr Uware submitted that the Chief of Personnel had not followed all the procedures in the Manual of Personnel Administration before making the decision to discharge the plaintiff. In my view this is inconsequential. That Manual is just a set of administrative guidelines. It has not been made or promulgated under the Defence Act or any other law. It is not a subordinate legislative enactment so failure to follow its provisions has no necessary legal consequences. In any event I am not satisfied that there was any material breach of the guidelines in the Manual.

Conclusion re ground 2

28. The Chief of Personnel had a duty to be fair but the requirements of fairness depend on the facts. Here, the plaintiff was in fact absent without leave so he gave up his right to be heard. He was not treated unfairly. Ground 2 is dismissed.

3 	WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

29. As both grounds of review have been dismissed the application for judicial review must fail.

ORDER

(1)	The application for judicial review is refused.

(2)	All relief sought in the notice of motion filed on 4 May 2009 is refused.

(3)	Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants