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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS.NO. 505 OF 2012
JUDICIAL REVIEW PURSUANT TO ORDER 16 OF THE NATIONAL COURT RULES
BETWEEN:
MICHAEL JAMES for and on behalf of himself and 24 Others Students of PAPUA NEW GUINEA UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT
Applicant/Plaintiffs
AND:
JOACHIM PITALA, CHAIRMAN STUDENTS DISCIPLINARY COMMITTEE.
First Defendant
AND:
PROFESSOR PHILIP SIAGURU, in his capacity as the VICE CHANCELLOR OF PAPUA NEW GUOINEA UNIVERSITY OF NATURAL RESOURCES AND ENVIRONMENT.
Second Defendant
AND:
THE UNIVERSITY OF NATURAL RESOURCES AND ENVIRONMENT (NO.4)
Third Defendant
Kokopo: Lenalia; J.
2013: 16th & 25th April & 4th May.
ADMINISTRATIVE LAW – Substantive Judicial Review – Judicial review of decision by 1st and 2nd Defendants terminating the 24 students from the University of Natural Resources & Environment – Vudal, East New Britain Province.
PRACTICE & PROCEDURE – Judicial Review – Judicial review of decision by the 1st Defendant terminating the plaintiffs' studies for two (2) years and the 2nd Defendant refusing to hear the appeal but latter heard their grievances in the appeal process provided for by the University Bye Laws and the Students School Rules.
PRACTICE & PROCEDURE – Judicial Review – Exercise of powers ultra vires the powers given the Disciplinary Committee and confirmation of the suspension by the Second Defendant on appeal
Cases cited:
Robinson-v-National Airlines Commission [1983] PNGLR 476
Kekedo-v-Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122
Ila Geno and Others-v-Independent State of Papua New Guinea [1993] PNGLR 22
Chan-v-Ombudsman Commission [1998] PNGLR 171
Ombudsman Commission-v-Yama (2004) SC747
Kelly Kerua-v-Council Appeals Committee of UPNG & The University of Papua New Guinea (2004) N2534
Graham Kevi-v-The Teaching Services Commission Disciplinary Committee [1997] PNGLR 659
Jimmy Gwaitep-v-Harbours Board (1994) N1309
Honk Kiap-v- Board of Governors of Kerevat National High School & Others N1381 (1995
Peter Kama-v-Council Appeals Committee, University of Papua New Guinea
(2010) N
Paul Saboko-v-Commissioner of Police (2006) N2975
Other case cited:
Associated Provincial Picture Houses Ltd-v-Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Counsel.
Mr. T. Potoura, for Applicant/Plaintiffs
Mr. Paul Yange, (Did not appear).
4th May 2013
1. LENALIA, J. The plaintiffs were students studying at the University of Natural Resources & Environment, Vudal East New Britain Province. On 24th June 2012, they were suspended by the Students Disciplinary Committee from the University for a period of two (2) years each.
2. Their suspension followed allegations of consumption of liquor in the campus premises. Following their suspension they were ordered out from the campus premises and had lived either with friends, relatives or had sought private accommodations elsewhere.
3. On 8th August last year, this Court refused their application for judicial review since, they had appealed to the Vice Chancellor Professor Philip Siaguru against the decision of the Disciplinary Committee and as such their appeals had not been heard so that, other alternative statutory remedies had not been exhausted: Kekedo-v-Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122 or Ila Geno and Others-v-Independent State of Papua New Guinea [1993] PNGLR 22).
4. The matter went through the appeal processes and on 6th August 2012, the Vice Chancellor heard their appeals and dismissed them all on the basis that, there were no valid grounds for appealing and up-held the decision of the Students Disciplinary Committee. They came back to Court on 5th of September last year and applied for judicial review. They were granted leave the following day and they have pursued, this matter this far into the substantive review on the grounds of breach of natural justice and whether, the decision to suspend them for two years is prescribed by the University By Laws. Part of the plaintiffs' complain is that, the decision by the Students' Disciplinary Committee to suspend all without going on a case by case basis was unreasonable, unwarranted, most unfair and ultra vires the powers given the Committee by the Vudal UNRE.
5. The Notice of Motion filed on 20th September 2012 seeks the following Orders:
Evidence by Plaintiffs
6. The evidence by the 24 plaintiffs is similar. They all say that, the decision by the Student Disciplinary Committee (SDC) to suspend all the 24 plaintiffs for the same period of time namely 2 years without considering each case on a case to case basis was most unreasonable, excessively harsh and most unfair as compared to the offences they allegedly committed. They all admitted that although they were part of the group of students making noises near Dorm 13 which created disturbances to other students who were already asleep, most of them were not drunk as stated in their respective Notice of Charges. Some of them just woke up due to turmoil in that dormitory.
7. They further say that, after they were charged, the most if not all responded to the Notices of Charges laid against them, nevertheless the SDC found them guilty. They say that this was done without individual audience with the SDC. In fact they all say that, they were not given any opportunity to explain to the committee their reasons. Part of their evidence relates to the University By Laws and what they call Students Rules or Student Discipline Statute No.6 0f 1999 where they say that, imposition of 2 years suspension was ultra vires the powers given the SDC under such statutes was no prescribed in either the University By Laws of the Students Discipline Statute N.6 of 1999.
Defence Evidence
11. Professor Philip Siaguru makes similar comments of the standard of behavior required by the University. According to this witness, the penalties imposed on offending students fall into four categories. They are:
12. In his affidavit, he does not explain how the SDC applies various penalties for instance to the various categories. Most of the Professor's evidence is about how to properly run the UNRE and in order to develop a student to be or get a professional qualification, student must "be wholesomely developed in mind, body and spirit" to be future leaders of this nation.
Application of Law
13. The power of this court to review a decision of an administrative body or quasi legal authority comes from the Constitution and other sources. Firstly, Section.59 of the Constitution states:
"Principles of natural justice.
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly."
14. Secondly, Section 155 (3) and (4) further gives the Supreme and National Courts the power to review decisions of administrative authorities. This section states:
"(3) The National Court—
(a) has an inherent power to review any exercise of judicial authority; and
(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
except where—
(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d) the Supreme Court assumes jurisdiction under Subsection (4); or
(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."
15. The principle in relation to judicial review is that this Court has inherent power to review a decision of judicial authority or decisions made by quasi judicial authorities or administrative bodies. Such power comes from the sections quoted above and Order 16 of the National Court Rules which state:
"(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.
(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to—
(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review."
16. When a decision is being reviewed in a judicial review, it has been said that the reviewing Court is not a court of appeal: Chan-v-Ombudsman Commission [1998] PNGLR 171 or Ombudsman Commission-v-Yama (2004) SC747. The reason for judicial review is to examine the procedure followed or the steps taken by a person in authority whether quasi judicial or administrative decision-maker to reach the final decision he reached and which the plaintiff complaints of to determine whether the process or procedure taken to decide his cause was proper and done in accordance with the law.
17. The principles of judicial review of actions or exercise of powers by administrative authorities are well settled in our jurisdiction. It is a process whereby this Court sitting as the reviewing Court to review the process taken from the time the plaintiffs were served with the notices of the disciplinary charges to the time of hearing of their cases and to the time they were terminated and then on to the appeal process provided for by the UNRE By Laws. Judicial review therefore involves reviewing the legality of the process and procedures followed to arrive at a decision: Kekedo-v-Burns Philip & Ors [1988-89] PNGLR 122. In the above case, late Kapi DCJ (as he then was) stated at page 127:
"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 abuse its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process".
18. The Supreme Court case of Ombudsman Commission-v-Yama (2004) SC747, the Court held:
"Proper matters subject of judicial review are illegality, procedural impropriety and irrationality or unreasonableness. The plaintiff must come to the Court promptly if he or she is genuinely aggrieved. 'The right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy...' (Review of Administrative Action, Law Book Co. 1987 at p. 22 adopted in John Mua Nilkare v Ombudsman Commission (1995) N1344)".
19. The Students Disciplinary Committee like other disciplinary authorities or bodies established under Statute is subject to the principles of natural justice specified and defined by Section 59 of the Constitution. The principles of natural justice require a fair hearing in which the case for both sides is considered in a fair manner and a decision made and reasons ought to be given for such decision given: Kelly Kerua-v-Council Appeals Committee of UPNG & The University of Papua New Guinea (2004) N2534. (See also Graham Keri-v-The Teaching Services Commission Disciplinary Committee (1997) N1555, Jimmy Gwaitep-v-Harbours Board (1994) N1309, Honk Kiap-v- Board of Governors of Kerevat National High School & Others N1381 (1995).
20. In Kelly Kerua's case (supra), a similar case to the instant review where the plaintiff was suspended from the University of Papua New Guinea and could not be allowed to obtain hid Degree. The presiding Judge, Injia DCJ (as he then was) said:
"The academic life of a final year University student lays the foundation for his career in life and any decision made by a reasonably neutral student disciplinary body, which is likely to deny him the opportunity to continue and complete his studies successfully, must be made carefully, through a process which is fair to both parties. The decision given by the disciplinary body as recorded, must reflect a fair deliberation of the case for both sides and a fair decision reached."
21. Judicial review is about the fairness of the process by which the decision by an administrative body is reached and not the correctness of the decision itself. On the instant review, the SDC deliberated on the allegations of each plaintiff suspended each one of them. On the Notices of the charges issued to the plaintiffs in May 2012, the plaintiffs were informed that they were charged with disciplinary offence of alcoholic related nature pursuant to s.3(1) of the Student Discipline Statute No.6 of 1999. The letter also contained a Notice to reply within 7 clear days as required by s.3(2) of such statue. I noted from their evidence each plaintiff replied in writing. This was followed by the Notices of suspension dated 25th June 2012 all across the board for all the 24 plaintiffs.
22. They then lodged their appeals in various dates in June last year to the Vice Chancellor as provided for by the UNRE By Laws. The Second Defendant deliberated on the appeal and on 6th August he wrote letters to each plaintiff and said for instance in the case of the principal plaintiff on the letter dated 6th August 2012, the Second Defendant said:
"Dear Mr. Michael,
Subject: Appeal
This has reference to your appeal letter dated 29th June, 2012.
While I appreciate your concern and the fact that the disturbances were caused beside your room, your appeal lacks an alibi and sufficient proof of witness to justify otherwise.
It is therefore rejected.
Thanks.
Professor Philip Siagur, MBE, CBE – Vice Chancellor." (Signed).
23. No further reasons for decision were given. There is no affidavit from someone testifying as to how or to show how the Committee arrived at its decision or even there is no evidence from other sources as to where the SDC obtained their evidence from which the Committee acted upon. Much of the focus in the submissions by Mr. Potoura is on the procedure on which the appeal took almost two months to determine the appeals. All appeals of the 24 plaintiffs were all rejected by the Second Defendant on the basis that they "lacked alibi" evidence of some sort.
24. The UNRE By Law Sections 3 – 5 provide for alcohol related offences. The maximum penalty for drunkenness, drunk and disorderly, having in possession of alcohol in restricted areas is a fine of K100.00. Other related offences relate to "protection of persons". They are covered by Sections 7 to 11 of that statute. They also carry the maxim of K100.00 except for Section 10 and 11 which maximum penalty is K200.00 fine each.
25. One would have thought that, the affected students would have been entitled to better explanations or have access to reasonable explanation as to why they were suspended and why their appeals were rejected. The First and Second Defendants have belatedly given lengthy evidence of the standard of practice required of students at the campus of the UNRE. In any event, all the 24 plaintiffs were all first time offenders and one would have thought that, for such offenders, consideration should have been given to consider their personal particulars. The defendants can now call for alibi evidence. Did the SDC call evidence to rebut the alibi allegations put forward by most of the plaintiffs or did the Second Defendant conduct an alibi hearing? There is no evidence.
26. In Peter Kama-v-Council Appeals Committee, University of Papua New Guinea (2010) N Cannings, J said at paragraph 6 of the judgment:
"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."
27. 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 [1947] EWCA Civ 1; [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? (See Paul Saboko-v-Commissioner of Police (2006) N2975.)
28. As earlier alluded to this Court is not sitting to hear and exercise its appellate jurisdiction. The court's role is to determine if the SDC and the Vice Chancellor properly exercised their powers to terminate the plaintiffs from their studies and to see if the administrative procedures established by the UNRE By Law and the Student Discipline Statute No.6 of 1999 were complied with as intended by the UNRE administration: Chan-v-Ombudsman Commission [1998] PNGLR 171; Ombudsman Commission-v-Yama (2004) SC747. (See also Associated Provincial Pictures House Ltd-v-Wednesbury Corporation [1948] 1KB 223; [1947] EWCA Civ 1; [1947] 2 ALL ER 680.
29. I like the expression of footnote 4 in the judgment of the case of Peter Kama-v-Peter Kama-v-Council Appeals Committee, University of Papua New Guinea (supra) where his Honour Cannings J held:
"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."
30. So how do the above principles apply in the instant case? The above quote reflects what happened on the instant review. Both Mr. Pitala, as Chairman of the Students Disciplinary Committee and Professor Philip Siaguru, the Vice Chancellor of the UNRE filed affidavits evidence which this Court has considered on how the SDC came up with the decision to suspend the plaintiffs for 2 years. The UNRE By Law provides for the maximum penalties of K100.00 or K200.00 fines. This Court has not been provided with specific reference to any authorities or provisions of either the By Law or Students Discipline Statute which, the SDC acted upon to suspend the student for 2 long years.
31. I am of the view that, since the decision involved suspension of a lengthy period of time, notice should have been given to the plaintiffs that the committee was considering increasing the penalty of suspension from 1 year to 2 years and the plaintiff should have been given the opportunity to address the SDC or the Second Defendant on appeal on such issue.
32. The Court cannot accept the belated evidence by the Defendants about the standard of practice required at the campus of the UNRE. In any event, all the 24 plaintiffs were all first time offenders and one would have thought that, for such offenders, consideration should have been given to consider their personal antecedents and particulars.
33. It is an integral part of the right to natural justice is, the right to be heard and to give good, proper and sufficient reasons for the decision made whether a body is exercising its powers judicially or an administrative body: Ombudsman Commission-v-Peter Yama (supra). Circumstances under which judicial review may be available are where the decision making authority acts ultra vires its powers, or where a body commits an error of law or commits a breach of natural justice which no reasonable tribunal could have reached.
34. It is part of the principles of natural justice that any authority either administrative or quasi judicial has or have a duty to act fairly that once a decision is made the decision-maker must give good and sufficient reasons for the decision: Ombudsman Commission-v-Peter Yama (supra) see also Mision Asiki-v-Manasupe Zurenuoc (2005) SC797. On the circumstances of the Plaintiffs cases, the Court has not been furnished with any sufficient reasons given by the First and Second Defendants to the 24 Plaintiffs. At least if the Defendants conducted an alibi trial, they would have found out if the defence of alibi could be sustained or not.
35. Judicial review concerns the fairness of the process by which the decision by an administrative body is reached and not the correctness of the decision itself. The First and Second Defendants are constituted under provisions of the Student Disciplinary Statute Chapter No. 165. I accept the fact that the SDC and the Appellate authority of the UNRE have wide powers to deal with student disciplinary matters, and they should not be required to and expected to operate under strict rules of practice and procedure in an adversarial style like what we have in the Court system and other statutory tribunals. They are however have duty to act fairly and reasonably and to arrive at a fair decision.
36. I do however accept the Defendants evidence that disciplinary rules are part of a student's education and these rules are there for good reasons and to develop a student into a future leader. Students disciplinary rules are an integral part of student academic life and any breach of such rules may be the sole reason for their exclusion from studies. The Plaintiffs on this case of course have a right to receive education which will qualify them for their future careers in life. In Kelly Kerua-v-Council Appeals Committee of UPNG & The University of Papua New Guinea (2004) N2534 Injia Dep. CJ (as he then was) said:
"Judicial review is about the fairness of the process by which the decision by an administrative body is reached and not the correctness of the decision itself. The SDC and the Appeals Committee are constituted under provisions of the Student Disciplinary Statute Chapter No. 165. I accept that the SDC and the Appeals Committee have wide powers to deal with student disciplinary matters, and they should not be required to and expected to operate under strict rules of practice and procedure in an adversary style hearing/trial process that is adopted by the Courts and other statutory tribunals. They are under no duty to act judicially or quasi-judicially. Disciplinary rules are part of a student's education and these rules are there for good reasons. Student disciplinary rules are an integral part of student academic life and breach of those rules may be the sole reason for their exclusion from studies. Students of course have a right to receive an education which will qualify them for a future career or job in life but that right is qualified – the student must adhere to the disciplinary rules. In matters of student discipline, they are the best judges and arbitrators of disputes affecting the academic and social welfare of the University students, teachers and staff and the Court must pay greater deference to their judgment on these kind of matters. When a Court of law is requested to interfere in the decision-making process of a student disciplinary body, the Court will only do so where the body has committed an error of law, has failed to follow the prescribed procedures, exceeded its jurisdiction or exercise of power in decision-making is so irrational. That principle of irrationality has come to be known in the common law as the Wednesbury principle of unreasonableness – that no reasonable student disciplinary body would have reached such decision on the materials placed before it: Associated Provincial Picture House v Wednesbury Corporation [1974] 2 ALL ER 680."(Emphasis added).
37. Having considered the plaintiffs cause, I am of the view that, the decisions by the First and Second Defendant ought to be reviewed. For the foregoing reasons, I quash the decisions made by the SDC which decision was upheld by the Second Defendant under the Wednesbury principle of unreasonableness. The Defendants shall pay the Plaintiffs costs of these proceedings.
38. The formal Orders I make are as follows:
____________________________________________________________
Paraka Lawyers: Lawyer for the Plaintiffs
Warner Shand Lawyers: Lawyer for the Defendants
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