N6123

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 698 OF 2013

BETWEEN

KAPI SAROHAFA
SECRETARY, NATIONAL JUDICIAL STAFF SERVICES
Plaintiff

AND

POSAIN POLOH
CHAIRMAN OF NATIONAL JUDICIAL STAFF SERVICES
APPEAL TRIBUNAL
First Defendant

AND

PETER MOGU
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2014: 11th September
2015: 04th December

JUDICIAL REVIEW – Review of decision of Appeal Tribunal – Recommendation to dismiss officer from service – National Judicial Staff Service Appeal Tribunal – Hearing before Appeal Tribunal – Hearing de novo – Relevant matters for consideration – National Judicial Staff Service Act – ss. 14, 16, 17 & 19 – National Court Rules – O. 16.

Cases cited:
Papua New Guinea cases 

Commissioner General of Internal Revenue v. Bougainville Copper Limited (2008) SC920 
David Toll v. Kibi Kara & Ors (No. 2) [1990] PNGLR 201
Jack Livinai Patterson v. Lawyers Statutory Committee (2005) SC822
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Overseas cases

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 228.

Counsel:

Ms. K. Maideng, for Plaintiff 
Ms. A. Nasu, for First & Third Defendants
Mr. G. Oudu, for Second Defendant

JUDGMENT

04th December, 2015

1. MAKAIL, J: The plaintiff the Secretary for National Judicial Staff Service ("NJSS") sought review of the decision of the first defendant sitting as the National Judicial Staff Service Appeal Tribunal ("Appeal Tribunal") to quash a decision to recommend dismissal of the second defendant from service as a result of being absent from work for 36 days. The review was brought pursuant to O. 16 of the National Court Rules.

Facts

2. The short facts of this case which are not in dispute are, the second defendant was charged by the Secretary for being absent from work for 36 days. This was an accumulation over a period of time. The charge was laid under s. 14(e) of the National Judicial Staff Service Act ("NJSS Act") which was a serious disciplinary offence namely being negligent or careless in the discharge of his lawful duties. The Secretary considered the charge and found him guilty and recommended his dismissal from service to the Judicial Council pursuant to s. 17 of the NJSS Act. 

Appeal

3. Exercising his right under s. 16(7) of the same Act which provided for appeals to the Appeal Tribunal, the second defendant appealed the decision. The first defendant constituting the Appeal Tribunal upheld his appeal and quashed the Secretary's decision. The first defendant gave three reasons for his decision. They were:

 3.1. The second defendant was wrongly charged;
 3.2. The disciplinary charge was defective; and
 3.3. The evidence produced did not support the charge.

4. In arriving at the decision, the first defendant relied on the second defendant's reply and medical report which he found had sufficiently explained the second defendant's absence from duties on the given dates. Secondly, the charge against the second defendant was laid under s. 14(e) of the NJSS Act. By this charge, it was alleged that he was negligent in the discharge of his duties. However, evidence produced by the Secretary contradicted the charge. It established that the second defendant was absent from duties and if that was so, it was not possible for him to be at work and be negligent. 

Grounds of Review

5. The Secretary relied on three grounds to request the Court to issue an order in the nature of certiorari to bring into this Honourable Court and quash the decision of the first defendant. 

6. First, it was contended on behalf of the Secretary that the decision was wrong because the first defendant took into account irrelevant matters. These matters were the second defendant's reply to the charge and medical report. They were not before the Secretary at the time when he deliberated on the matter and arrived at the decision. So he did not have the benefit to consider them and it was not open to the first defendant to rely on them. 

7. Secondly, the first defendant lacked the requisite authority to allow the second defendant to present "fresh evidence" of his reply and medical report to explain his absence from work. On this issue, it was further contended that the hearing before the Appeal Tribunal was not a hearing de novo, hence the first defendant was confined to the evidence that was before the Secretary and if that was done, the first defendant would have arrived at the same decision as the Secretary.

8. Third and finally, the decision was based on an erroneous construction and application of s. 14(e) of the NJSS Act. It was submitted that the second defendant was expected to be at work and when he did not, he failed in his duty as an officer of the NJSS and this constituted negligence. 

Defence

9. The defendants objected to the competency of the whole proceeding saying that it was incompetent because the grounds of review were not recognized grounds under O. 16, r. 13 (4) of the National Court Rules. 

10. If the Court were to reject this objection, it was contended that the decision was lawful because the first defendant held that the disciplinary offence of which the second defendant was charged with did not exists in law. This is because there is no expressed provision in s. 14 of the NJSS Act for an offence for being absent from work. Yet the second defendant was charged for being negligent and careless in the discharge of his duties when he was reportedly not at work.

11. In any case, it was open to the first defendant to consider the second defendant's reply and medical report because they were relevant and go to explaining the second defendant's absence at work on the given dates.

Competency of Proceeding

12. First, I dismiss the objection to the competency as having no merit because the grounds are succinctly clear. They are also recognised grounds of judicial review. The Secretary alleged that the decision to quash his decision was based on irrelevant matters and as a result was unreasonable and must be quashed. This ground is based on the Wednesbury principle of unreasonableness founded in the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 228.

13. Secondly, he alleged that the first defendant lacked the requisite authority to take into account matters that were not considered by him when he recommended dismissal of the second defendant from service. This ground is based on the well established principle of ultra vires which is one of the principles of judicial review the Court apply in exercising its supervisory jurisdiction over a subordinate decision making authority. For these reasons, the objection is dismissed.

Hearing before Appeal Tribunal

14. Section 19 of the NJSS Act provides for an appeal to the Appeal Tribunal and the powers of the Appeal Tribunal but does not define the nature or type of hearing before it. Section 19 states:

 "19. Appeals.

(1) An appeal under this Division may be made on the ground of innocence of the charge or excessive severity of the punishment.

(2) The Appeal Tribunal may confirm, annul or vary the decision appealed against, and if the Tribunal varies the decision it may—

(a) impose a punishment specified in Section 16(5)(a), (b), (c) or (d); or

(b) recommend to the Council that the officer be dismissed from the Service.

(3) Except where the Appeal Tribunal recommends that an officer be dismissed from the Service, its decision is final.

(4) In deciding an appeal made on the ground of excessive severity of the punishment, the Appeal Tribunal shall take into consideration the previous record of the officer.

(5) Where, under this section—

(a) the Appeal Tribunal recommends to the Council that an officer be dismissed from the Service; or

(b) the Secretary recommends to the Council that an officer be dismissed from the Service and on appeal the Tribunal confirms the recommendation—

the Council may—

(c) impose a punishment specified in Section 16(5)(a), (b), (c) or (d); or

(d) dismiss the officer from the Service.

(6) Before imposing a punishment under Subsection (5), the Council shall consider—

(a) the reports relating to the offence; and

(b) the reply and explanation (if any) of the officer charged; and

(c) the evidence (if any) given before the Appeal Tribunal; and

(d) any recommendation of the Secretary or the Tribunal."

16. The dispute between the parties as to the admission of the second defendant's reply and medical report before the Appeal Tribunal raises the question of nature or type of hearing before the Appeal Tribunal. Is it an appeal restricted to the material that was considered by the original decision maker or an appeal based on the material that was considered by the original decision maker, subject to the power of the Appeal Tribunal to grant leave to the parties to adduce additional evidence, which can be called an appeal by way of a rehearing or, an appeal which involves a fresh hearing, in which all issues of fact and law are re-tried and the parties have the right to adduce whatever evidence they wish to, which can be called a de novo appeal? These are the three different types of hearing highlighted by the Supreme Court in Commissioner General of Internal Revenue v. Bougainville Copper Limited (2008) SC920. 

17. The Supreme Court in that case went on and gave examples of appeals which may fall within any one of these types of appeal hearing. They are appeals from Commissioner General's assessment of income tax under the Income Tax Act, Statutory Boards and Committees hearings like the Lawyers Statutory Committee decisions under the Lawyers Act to appeals from Workers Compensation Tribunal decisions under the Workers Compensation Act. 

18. For the present purposes, in my view a common characteristic of an appeal before the Appeal Tribunal under s. 19 (supra) and an appeal before the National Court from a Lawyers Statutory Committee decision under s. 58 of the Lawyers Act is that they arise from disciplinary proceedings. In the former case, it is a disciplinary proceeding for officers of the NJSS and the latter concerns lawyers within the legal profession in the country. 

19. At the end of either proceeding, the decision makers have powers to impose a wide range of penalties including in the former case, dismissal of the officer from service and in the latter, removal from the Lawyers' Roll: s. 54(c) of the Lawyers Act. In either case, the aggrieved party's fate is subject to the decision maker. So in my view it is important that each decision maker must give the aggrieved person every opportunity to be heard before a decision is made. In David Toll v. Kibi Kara & Ors (No. 2) [1990] PNGLR 201, it was held that a hearing of an appeal from a Lawyers Statutory Committee decision is a hearing de novo. This position was approved by the Supreme Court in Jack Livinai Patterson v. Lawyers Statutory Committee (2005) SC822.

20. Given these reasons I am of the view that a hearing before the Appeal Tribunal is a hearing de novo. It follows that when the first defendant considered the second defendant's reply and medical report, it was within his discretion to do so. Further, I find that the reply and medical report were matters relevant to the finding of guilt and the first defendant correctly took them into account in his reconsideration of the Secretary's decision. The first two grounds are, therefore, dismissed.
 
21. But is the charge defective because of what the first defendant submitted is a "wrong charge"? Furthermore, the first defendant appeared to have found that the second defendant was charged with a disciplinary offence not prescribed by the NJSS Act? I accept the submission made on behalf of the Secretary that the decision was based on an erroneous construction and application of s. 14(e) of the NJSS Act. This provision states:

"An officer who—

 (a) .............

(b) .............

(c) .............

(d) .............

(e) is negligent or careless in the discharge of his duties; is guilty of a disciplinary offence and is liable to be dealt with and punished...."

22. From my reading of the entire s. 14, I am not able to find an expressed disciplinary offence of being absent from work. However, in my view that does not mean that it is not a disciplinary offence. A fair and liberal interpretation should be given to s. 14 and when read in that manner the submission by the Secretary is open to the first defendant to draw. In other words, this provision is intended to cover a wide range of activities including being at work during official hours and when the second defendant was not at work at the relevant times, he was guilty of neglecting his duties. This ground is upheld.

23. Given the finding that it was open to the first defendant to hear the appeal de novo and on this premise he had received "fresh evidence" in the form of the second defendant's reply and medical report, it was also within the discretion of the first defendant pursuant to s. 19(2) (supra) to quash the Secretary's decision. As is the case in judicial review proceedings, this Court is not concerned with the merits of the decision of first defendant but the process by which the decision was arrived at: see Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122. For this reason, I am of the view that it was open to the first defendant to reach the decision he did. 

24. The application for judicial review is dismissed with costs.

Judgment and Orders accordingly.

_______________________________________________________________

 NJSS In-house Counsel: Lawyer for the Plaintiff
Acting Solicitor-General: Lawyers for the First and Third Defendants
 Eda Legal Service: Lawyers for the Second Defendant