N3829

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO 225 OF 2008

PETER KAMA
Plaintiff

V

COUNCIL APPEALS COMMITTEE, UNIVERSITY OF PAPUA NEW GUINEA
First Defendant

UNIVERSITY OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2009: 19 June, 2 July,
2010: 22 January

ADMINISTRATIVE LAW – student disciplinary procedures – whether appeals committee failed to give adequate reasons for decision to dismiss appeal by student and to increase penalty – whether the decision was unreasonable.

The plaintiff was a student at a university. He was charged with a disciplinary offence, found guilty and excluded from studies for two semesters. He appealed to an appeals committee, which dismissed his appeal and increased the penalty to exclusion for four years (eight semesters). He sought judicial review of the appeals committee's decision on two grounds: (1) that the committee failed to give sufficient reasons for its decision; and (2) that the decision was unreasonable.

Held:

(1)	An integral part of the right to natural justice is the right to be given good, proper and sufficient reasons for the decision.

(2)	The test to apply for the purposes of determining whether an administrative decision has been made unreasonably is to ask whether the decision is so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker would have made the decision.

(3)	The appeals committee failed in its duty to give good, proper and sufficient reasons, as the record of its decision contained no reference to the grounds of the plaintiff's appeal and gave no indication that those grounds had been considered and contained no justification for quadrupling the penalty.

(4)	The test as to unreasonableness was satisfied as: no justification for quadrupling the penalty was provided; notice should have been given to the plaintiff that the committee was considering increasing the penalty and he should have been given the opportunity to address the committee on that issue; the committee failed to take account of a number of mitigating factors (eg the plaintiff was a first-time offender; he struck the victim only once; the corroborating statements of witnesses provided by the plaintiff; lack of medical evidence; substantial de facto provocation; character references in support of the plaintiff's prior good character); the committee took aggravating factors into account of which there was no evidence or that were irrelevant (eg that the plaintiff was the child of a leader and that he was involved in group fighting, resulting in grievous bodily harm and that his conduct was an instance of 'ethnic culture'); and the penalty was manifestly excessive.

(5)	The errors of law committed by the appeals committee were serious and its decision was therefore quashed.

Cases cited

Papua New Guinea Cases

Kely Kerua v Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
Paul Saboko v Commissioner of Police (2006) N2975
Wohengu v Hickey (2009) N3721

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Counsel

S Ranewa, for the plaintiff
C Lari, for the defendants

22 January, 2010 

1. CANNINGS J: Peter Kama, the plaintiff, began his studies as an accountancy student at the University of Papua New Guinea in 2007. On 26 August 2007 he assaulted a fellow student who he alleged was responsible for the theft of his laptop computer. He was charged with a disciplinary offence and found guilty by the Student Discipline Committee, which fined him K100.00, excluded him from studies for two semesters and placed him on a good behaviour bond for the remainder of his studies. He appealed against the guilty finding and the penalty to the Council Appeals Committee, which dismissed his appeal and increased the penalty by excluding him from studies for four years (eight semesters).

2. Aggrieved by the decision of the Appeals Committee the plaintiff applied for and was granted leave to seek judicial review of that decision. This is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

3. The plaintiff set out four grounds of review in his supporting statement but only pursued two. He is arguing that the Appeals Committee committed two errors of law:

•	that the Committee failed to give sufficient reasons for its decision; and

•	that the decision was unreasonable.

4. They are the two grounds of review. If either or both are upheld the plaintiff wants the Court to quash the Committee's decision and to award him damages.

ISSUES

5. There are three issues before the Court:

1	Did the Appeals Committee fail to give sufficient reasons for its decision?

2	Was the Appeals Committee's decision unreasonable?

3	What declarations or orders should the Court make?

1	DID THE APPEALS COMMITTEE FAIL TO GIVE SUFFICIENT REASONS FOR ITS DECISION?

6. It is part of the principles of natural justice and the duty to act fairly that once a decision is made the decision-maker must give good, proper and sufficient reasons for the decision. Two recent Supreme Court decisions have entrenched this principle: Ombudsman Commission v Peter Yama (2004) SC747 and Mision Asiki v Manasupe Zurenuoc (2005) SC797. It has been applied in numerous National Court decisions including Kely Kerua v Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534.

7. In the latter case Injia DCJ as he then was stated:

The Appeals Committee's decision superseded the Student Discipline Committee's decision and it is incumbent on the Appeals Committee to provide some meaningful explanation of how it went about addressing the issues raised by the plaintiff and exercised its mind to it and arrived at its decision.

8. In the present case the Appeals Committee conveyed the reasons for its decision in a letter to the plaintiff dated 17 April 2008. The Committee notified the plaintiff that it had "thoroughly considered" his appeal and noted in its discussions that:

(a)	You have admitted to slapping Mr Tongia [the fellow student he was found to have assaulted] across the face. An action which resulted to Mr Tongia sustaining injuries to his face and neck.

(b)	Physical assault is a serious offence and is punishable in a court of law.

The Committee resolved to reject your appeal, vary the decision of the SDC and award the following penalties:

(a)	Exclusion from studies for four years, effective semester 1/2008. You will be eligible for re-enrolment in semester 1/2012. Your readmittance to the University will be subject to confirmation, from a church or community leader that your character has been significantly reformed;

(b)	Complete your outstanding fees with the University;

(c)	Placed on a good behaviour bond for the remainder of your studies at the University of Papua New Guinea.

May I remind you that the decision of the Council Appeals Committee is final.

[Signed]
Dr Nicholas Mann CMS
Chairperson, Council Appeals Committee, on Student Discipline Matters

9. The only part of that letter that can conceivably be regarded as providing reasons for the Committee's decision is where the Committee states that the plaintiff admitted to slapping the complainant and that physical assault is a serious offence. The other parts of the letter are simply a notification of the decision. They do not constitute reasons for the decision. So the reasons for the decision are reduced to two sentences, viz:

(a)	You have admitted to slapping Mr Tongia across the face. An action which resulted to Mr Tongia sustaining injuries to his face and neck.

(b)	Physical assault is a serious offence and is punishable in a court of law.

10. Those reasons are clearly inadequate. The Committee failed in its duty to give good, proper and sufficient reasons. The letter contained no reference to the grounds of the plaintiff's appeal and gave no indication that those grounds had been considered and contained no justification for quadrupling the penalty that had been imposed by the Student Discipline Committee. The plaintiff's three-page appeal letter was carefully drafted and contained three clear grounds:

1	That he was not guilty of the charge as he slapped the complainant only mildly and there was no medical evidence in support of the allegation that the complainant was seriously injured.

2	That the complainant had been accommodating outsiders in his room who the plaintiff suspected were responsible for the theft of his laptop computer and two mobile phones and a radio.

3	The penalty was too severe as he had lost K4,000.00 worth of equipment.

11. The inference to be drawn from Dr Mann's letter is that these grounds were ignored, which highlights the unfairness of the Committee's deliberations.

12. Ms Lari, for the defendants, pointed to the minutes of the Appeals Committee's meeting of 11 April 2008 at which the plaintiff's appeal was considered. The minutes make very interesting reading as they show that the Committee took into account a number of matters that were not disclosed to the plaintiff:

(a)	Mr Kama is the child of a leader and the former SRC President speaks highly of him, though his actions show otherwise.

(b)	The charge shows that he has been involved in group fighting which has resulted in grievous bodily harm, which is punishable in a court of law.

(c)	Physical assault is a serious offence and students should not take the law into their own hands.

(d)	There needs to be a stop put to the ethnic culture in the University.

13. What the minutes show is that when Dr Mann wrote to the plaintiff to notify him that his appeal was dismissed and that the penalty had been increased he did not state the real reasons for the Committee's decision, which included:

•	that the plaintiff was 'the child of a leader';

•	that he was involved in 'group fighting';

•	that the injuries he inflicted on the complainant amounted to 'grievous bodily harm';

•	that he 'took the law into his own hands';

•	that he was involved in 'ethnic culture at the University' (whatever that means).

14. The duty to give proper reasons means there is a duty to provide the real reasons for a decision – a duty to candidly and transparently state the reasons (Wohengu v Hickey (2009) N3721). That duty was not complied with here.

Conclusion re ground 1

15. I find that the Committee failed to provide the plaintiff with a meaningful explanation of how it went about addressing the issues he raised in his appeal and how it arrived at its decision. It failed to give sufficient reasons for its decision. The first ground of review is therefore upheld.

2	WAS THE APPEALS COMMITTEE'S DECISION UNREASONABLE?

16. The argument that an administrative decision is unreasonable under the Wednesbury principles is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The test to apply is: is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision? (Paul Saboko v Commissioner of Police (2006) N2975.)

17. If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded his jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail.

18. I consider that the test is satisfied in this case. The Committee provided no justification for making the extraordinary decision to quadruple the penalty that had been imposed by the Student Discipline Committee. Notice should have been given to the plaintiff that the Committee was considering increasing the penalty and he should have been given the opportunity to address the Committee on that issue.

19. The Committee failed to take account of a number of mitigating factors, including:

•	that the plaintiff was a first-time offender;

•	he struck the victim only once;

•	the corroborating statements of witnesses provided by the plaintiff that suggested that others may have been responsible for striking the complainant;

•	the lack of any medical evidence;

•	the substantial de facto provocation provided by the theft of the plaintiff's laptop and other equipment; and

•	character references in support of the plaintiff's prior good character.

20. The Committee took aggravating factors into account of which there was no evidence or that were irrelevant, including:

•	that the plaintiff was the child of a leader;

•	that he was involved in group fighting;

•	that he inflicted grievous bodily harm on the complainant; and

•	that his conduct was an instance of ethnic culture.

21. The penalty of four years exclusion from studies was in my view manifestly excessive. The Committee's decision can properly be regarded as an absurd and irrational decision: no reasonable decision making body in its position could have made such a decision.

Conclusion re ground 2

22. The Committee's decision was unreasonable. Ground 2 is upheld.

3 	WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

23. It is now time to consider the consequences of upholding the two grounds of review. This is a judicial review, which is a two-stage decision making process. First the plaintiff must establish one or more grounds of judicial review. If he succeeds, the second stage of the process is persuading the court that he should be granted a remedy (Mision Asiki v Manasupe Zurenuoc (2005) SC797).

24. I have no hesitation in exercising the discretion of the Court in favour of the plaintiff and quashing the Appeals Committee's decision. It appears that the Committee and the University have learned nothing from the decision in Kely Kerua's case, which clearly exposed the defects in their system of imposing student discipline. No sensible person would want to curtail the ability of the University to deal firmly and quickly with disciplinary matters that occur on campus. But there has got to be a fair system of justice in place. If the Student Discipline Committee and the Council Appeals Committee act as kangaroo courts the students will lose faith in their justice system, the Rule of Law will be bypassed and the Law of the Jungle will prevail.

ORDER

25. Judgment will be entered in the following terms:

(1)	the application for judicial review is granted;

(2)	the decision of the first defendant, the Council Appeals Committee, conveyed by a letter to the plaintiff dated 17 April 2008, dismissing his appeal and varying the decision of the Student Discipline Committee, is declared null and void and is quashed;

(3)	the decision of the Student Discipline Committee, conveyed by a letter to the plaintiff dated 11 March 2008, finding him guilty of a disciplinary offence and fining him K100.00, excluding him from studies for two semesters and placing him on a good behaviour bond for the remainder of his studies, is restored;

(4)	costs of these proceedings are to be paid by the University of Papua New Guinea to the plaintiff on a party-party basis, to be taxed if not agreed; 

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

Makap Lawyers: Lawyers for the Plaintiff
Nonggorr & William Lawyers: Lawyers for the Defendants