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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 881 OF 2017
BETWEEN:
JACK KARIKO – The Secretary, National Judiciary Staff Services
Plaintiff
AND:
GAULI, PM – Chairman, the Appeals Tribunal
First Defendant
AND:
GIDEON PUIO
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Nablu, J
2018: 13th August
13th December
JUDICIAL REVIEW – National Judicial Staff Service Act 1987, ss.16, 19 – appeals – irrelevant considerations – appeal lodged out of time – failure to raise issue at Tribunal – cannot raise issue before the Court – procedure for appeals to the Tribunal – Tribunal decision reasonable – judicial review refused.
Cases Cited:
Papua New Guinea Cases
Ombudsman Commission v. Peter Yama (2004) SC 747
Sudi Yaku v. Commissioner of Police, Exparte the Independent State of Papua New Guinea [1980] PNGLR 27
Philip Kamo v. The Commissioner of Police (2001) N2084
Overseas Cases
Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233
Counsel:
R. Kasito, for the Plaintiff
R. Kebai, for the First and Third Defendants
13th December, 2018
1. NABLU, J: The plaintiff seeks leave to review the decision of the National Judicial Staff Services Appeals Tribunal made on the 25th of July 2017 to reinstate the second defendant and annul the plaintiff’s decision to recommend his dismissal from employment. The Tribunal decided to impose a penalty of a fine rather than dismissal. The second defendant then lodged an appeal with the “Judicial Disciplinary Committee”. The plaintiff argued that the appeal was defective because it was not addressed to the correct entity which is the NJSS Appeals Tribunal.
2. The background facts of the matter are not in great dispute. The plaintiff laid two (2) disciplinary charges upon the second defendant on the 1st of May 2017. The charges were laid pursuant to Section 14(d) and (i) of the National Judicial Staff Service Act 1987 (NJSS Act). The second defendant was charged for wilfully disregarding a lawful order and for disgraceful and improper conduct. It was alleged that the second defendant continued to send highly defamatory emails to the NJSS Management in regard to the appointment and conduct of the Chief Security Officer who was his superior, despite formal caution and direction to follow the proper chain of command.
3. The second defendant was also suspended and a notice of suspension was served on him at the same time. The second defendant responded to the charges within 14 days. The plaintiff considered the response and found that the charges were sustained. The plaintiff considered that the matter was a serious matter and therefore recommended to the Judicial Council that the second defendant should be dismissed from employment.
4. The second defendant then exercised his right to appeal against the decision to recommend that he be dismissed to the Judicial Tribunal. The first appeal by the second defendant was addressed to “The Judicial Disciplinary Committee” and it was filed within time. After 30 days had lapsed the second defendant then lodged another letter of appeal. This time the appeal was made to the Judiciary Appeals Tribunal. The plaintiff argued that the letter dated 30th of July 2017 was statute barred because it was lodged out of time. Therefore the Chairman erred when he heard and determined the appeal. The State submitted that the appeal which was lodged later was a supplementary appeal and in any event the plaintiff did not raise this issue before the Tribunal and therefore cannot raise this objection now before this Court.
5. The preliminary issue for determination is whether the Tribunal had the jurisdiction to deal with the second appeal. Section 16 of the NJSS Act sets out the procedure for dealing with serious disciplinary offences. Following the reply by the officer, the Secretary then considers the relevant reports, the charges, the reply or explanation or other further report that he considers necessary. If the Secretary is of the opinion that the charge has been sustained, he has the discretion to impose a penalty specified in Section 16(5) of the NJSS Act. In regard to the dismissal of an officer the plaintiff does not have the power to dismiss the officer outright. The plaintiff’s power is limited. He only has the power to make a recommendation to the Judicial Council in relation to the dismissal of an officer. The Secretary is required to notify the officer of the punishment imposed or the recommendation made. The officer then has 14 days to appeal to the Appeals Tribunal against the punishment imposed. The procedure for appeals is provided in Section 19 of the NJSS Act.
6. Section 19 of the NJSS Act states that:
(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–
(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–
recommendation –
the Council may–
7. The appeals to the Tribunal are limited. There are only two valid grounds of appeal (Section 19 (1) of the NJSS Act). The first ground is that the officer is innocent of the charge. The second ground is that the punishment was too severe in the circumstances. The Tribunal’s powers are also limited. The Tribunal can either confirm, vary or annul the decision (Section 19(2) of the NJSS Act) if the Tribunal decides to vary the decision, the tribunal has the discretion to impose alternative penalties pursuant to Section 16(5)(a) to (d) or recommend to the Judicial Council that the officer be dismissed from the Service (Section 19(2)(a) and (b) of the NJSS Act). Only the decision to recommend dismissal is amenable to judicial review, the imposition of other penalties by the Tribunal is final. Section 19(4) of the NJSS Act makes it mandatory for the Tribunal to take into consideration the previous record of the officer.
8. At the outset, I will deal with the preliminary issue of whether the Tribunal had the jurisdiction to consider the second appeal or any supplementary appeal. In the evidence before me, the counsel for the NJSS did not raise this issue in the appeal hearing. In the decision of the Chairman which is found at pages 123 to 126 of the Review Book, there is no statement whether the plaintiff had raised this issue as to jurisdiction. On the face of the record, there is no evidence that the parties raised the issue of the two appeals for the Chairman to deliberate on. Therefore, at the outset, I am of the view that this ground of review is not properly before the Court. The issue was not raised or determined at the appeal hearing to consider the issue of which appeal was valid, therefore, it would not be proper for this Court to review an issue which was not brought before the decision-maker. For those reasons, I am inclined to refuse to determine that issue. Accordingly, the plaintiff’s first ground of review is dismissed.
9. The plaintiff also contends that the first defendant when making his decision took into account irrelevant considerations such as the second defendant’s remorsefulness. In this ground of review, the plaintiff argued that the consideration of an officer’s remorsefulness is an irrelevant consideration which should not have been taken into account when making the decision. The plaintiff also contended that the first defendant failed to take into account relevant considerations such as the failure to comply with Section 19 of the NJSS Act and take into account the previous record of the officer.
10. The common law principles of unreasonableness emanate from the classic case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233. The Wednesbury principles of unreasonableness as they are commonly referred to, has been adopted and applied in numerous cases in this jurisdiction. A succinct summary of the principles was pronounced by the Supreme Court in the case of Ombudsman Commission v. Peter Yama (2004) SC 747. They are as follows:
(1) It must be a real exercise of discretion;
(2) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(3) It must ignore irrelevant considerations;
(4) It must not operate on the basis of bad faith or dishonesty;
(5) It must direct itself properly in law; and
(6) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.
11. Nothwithstanding the fact that the law states that the Tribunal must consider the officer’s previous record. I am not persuaded that the first defendant did not consider the second defendant’s previous record. The Tribunal in the brief facts at page 124 of the Appeal Book states that:
“The appellant has a behaviour (sic) of wilfully disregarding lawful order and or instructions from his superiors. He has been warned or cautioned several times but he failed to adhere to those specific instructions...”
12. I am of the view that the first defendant’s decision is not unreasonable and therefore, I would dismiss the plaintiff’s application for judicial review. From the evidence before me, the first defendant was fully aware of the second defendant’s previous employment record.
13. It is clear that the Tribunal had considered the second defendant’s previous record. He also took into consideration that the second defendant was a first time offender. The second defendant was charged and he admitted to the charges, therefore, saving the plaintiff’s time in considering the matter. Therefore, I am not convinced that the Tribunal failed to take into account relevant considerations. This ground of review is misconceived and is dismissed.
14. In the third ground of review, the plaintiff argued that the Tribunal was restricted to considering the officer’s previous record. By considering the second defendants remorsefulness, the Tribunal took into account irrelevant considerations. I am not convinced that the consideration of the plaintiff’s remorsefulness is an irrelevant consideration.
15. Whilst disciplinary offences are not criminal offences, they are administrative offences (see Sudi Yaku v. Commissioner of Police, Exparte the Independent State of Papua New Guinea [1980] PNGLR 27). Administrative offences still require a public official or the Tribunal to give the opportunity for the officer to be heard on the penalty. Failure to give this opportunity to be heard on the penalty may render the whole disciplinary process null and void (see Philip Kamo v. The Commissioner of Police (2001) N2084). Notwithstanding the fact that the statutory provision is strict, I am of the view that Section 59 of the Constitution has an overriding effect which requires the Tribunal to consider the response of the officer and other reasonable factors when making its’ decision. I am not convinced that the decision to consider the plaintiff’s remorsefulness is unreasonable. In any event, the Tribunal has afforded the second defendant the opportunity to be heard. In doing so, the Tribunal has recognised and applied the principles of natural justice as required by the Constitution. Therefore, the plaintiff’s ground of review is misconceived and is dismissed.
16. The fourth ground of review is whether the decision was unreasonable. I have read the first defendant’s decision. The Tribunal has provided reasons for his decision. The Tribunal accepted that the charge was serious but was of the view that the facts which gave rise to the offence was not serious. The second defendant was disciplined for sending emails despite formal caution not to do so. The Tribunal was of the view that the charges were not so serious so as to warrant a recommendation for dismissal. This is an exercise of the Tribunal Chairman’s discretion. I see no unreasonableness in drawing that conclusion. Therefore, the Tribunal varied the penalty and imposed a fine instead. I am not convinced that the Tribunal’s decision was so unreasonable given the circumstances that no other Tribunal would make such a decision.
17. In the final ground of review, the plaintiff contends that the first defendant’s decision was made contrary to the provisions of the NJSS Act. This ground of review is worded in general terms. There is no specific provisions which the first defendant is alleged to have breached. I am not convinced that the plaintiff has established this ground of review. Therefore, this ground of review lacks merit and is dismissed.
18. For the foregoing reasons, the plaintiff has failed to prove its’ grounds of review, the application for judicial review is refused and is dismissed. Costs follow the event, the plaintiff is to pay the third defendant’s costs of and incidental to the proceedings to be taxed if not agreed.
Orders accordingly,
Kasito Lawyers: Lawyers for the Plaintiff
Solicitor – General: Lawyers for the First and Third Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2018/522.html