N8433
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO.545 OF 2018

BETWEEN:
DIMAS NOKI
Plaintiff

AND:
LIEUTENANT COLONEL WILLIE JACK GALIA, Senior Disciplinary Officer
First Defendant

AND:
COLONEL ANTHONY OAWA, Chief of Personnel
Second Defendant

AND:
BRIGADIER GENERAL GILBERT TOROPO,
Commander of PNGDF
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani:    David, J
2020: 14th & 27th July

JUDICIAL REVIEW – natural justice – ultra vires – whether member of the Defence Force denied natural justice  - whether the second defendant acted ultra vires.

Cases Cited:
Papua New Guinea Cases

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90
Mision Asiki v Manasupe Zurenuoc (2005) SC 797
Miam v Dai (2009) N3699
Raphael Pius v Commodore Peter Ilau (2009) N3833
Raphael Pius v Commodore Peter Ilau (2011) SC1115

Overseas Case

Tweed v Parades Commission of Northern Ireland (2006) UKHL 53, (2007) 2 WLR 1
Counsel:

Junior Fish Unua, for the Plaintiff
Rodney Yahamani, for the First, Second and Third Defendants

JUDGMENT
27th July, 2020

1.	DAVID, J:  INTRODUCTION: This is the Court’s decision on an application for judicial review made under Order 16 of the National Court Rules.

2.	The plaintiff, Dimas Noki, married with two children and from Baiyer District in the Western Highlands Province is a former soldier of the Papua New Guinea Defence Force (Defence Force).  He enlisted in the Defence Force on 4 May 2011 following a successful basic recruitment training at the Goldie Training Depot and passing out as a Private.  He was initially posted to the First Battalion of the Defence Force, First Royal Pacific Island Regiment (1RPIR), Bravo Company at Taurama Barracks.    He was recommended for promotion to the rank of Lance Corporal on or about 26 October 2017.

3.	It was alleged that on Saturday, 4 November 2017 at about 1900 hours (07:00 pm), the plaintiff was drunk and caused a disturbance including behaving in a disorderly manner at the Other Ranks’ Mess at Taurama Barracks.  On 7 November 2017, he was charged under the Code of Military Discipline (Code) for breaches of service discipline, found guilty after a hearing on 8 November 2017 conducted before a Junior Disciplinary Officer and dismissed from the Defence Force on 9 November 2017 by the first defendant as Senior Disciplinary Officer.  The decision to dismiss the plaintiff from the Defence Force was confirmed by the third defendant on or about 13 November 2017 and the plaintiff was subsequently discharged from the Defence Force. 

4.	On 10 August 2018, the plaintiff commenced these proceedings by originating summons seeking leave to apply for judicial review pursuant to Order 16 Rule 3 of the National Court Rules.  On 11 September 2018, the Court granted leave for the plaintiff to apply for judicial review.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

5.	By notice of motion filed on 25 September 2018, the plaintiff applied for judicial review under Order 16 Rule 5(1) of the National Court Rules seeking a number of substantive relief:  Miam v Dai (2009) N3699.

6.	The first, second and third defendants contest the application.

7.	The fourth defendant is a nominal defendant. Its position is unknown as it was not represented at the hearing. 

GROUNDS OF REVIEW

8.	The plaintiff sets out three grounds of review at paragraph 5 of the Statement in Support filed on 20 August 2018, but the first of the three grounds (the decision-making authority made a decision which was unreasonable under the Wednesbury principles of unreasonableness) was abandoned at the hearing and is therefore dismissed.  He asserts that his dismissal from the Defence Force was defective in two respects:

1.	He was denied natural justice which was in breach of Section 59 of the Constitution as his dismissal from the Defence Force was done:

(a)	without his appeal being considered, not being made aware of the decision of the third defendant, and not giving him an opportunity to appeal the decision; and
(b)	he was not given a fair hearing when he was denied the opportunity to examine and cross-examine both his witnesses and the witnesses used against him during the hearing of the disciplinary proceedings before the first defendant.
2.	(a)	The second defendant acted ultra vires in his purported decision of 11 February 2018 to dismiss him from the Defence Force; and
(c)	he was not given a fair hearing when he was denied the opportunity to examine and cross-examine both his witnesses and the witnesses used against him during the hearing of the disciplinary proceedings before the first defendant contrary to Clause 9(4)(b)(iv) and (v) of the Code.

RELIEF SOUGHT   
  
9.	The substantive relief sought by the plaintiff are set out at paragraph 4 of the Statement in Support and these are:

1.	An order in the nature of certiorari to remove into the Court and quash the decision of the third defendant in dismissing him from the Defence Force;
2.	An order in the nature of mandamus requiring the third defendant to reinstate the plaintiff to his substantive position;
3.	An order in the nature of mandamus requiring the third defendant to “back-pay” all salaries, entitlements and other emoluments lost by the plaintiff as a result of his termination from the date of his termination to the date of his reinstatement;
4.	Damages for mental distress, anxiety, public humiliation and hardship suffered by the plaintiff, his family and dependents as a result of his termination; and 
5.	An order for costs of and incidental to these proceedings.

EVIDENCE

10.	The plaintiff relies on his own affidavit sworn on 27 July 2018 and filed on 10 August 2018 (Exhibit A). The content of the affidavit was not tested by cross-examination.  I have considered the evidence.

11.	The first, second and third defendants did not adduce any evidence.

LEGAL ISSUES

12.	The main legal issues that arise for my decision are:

1.	Whether the plaintiff was denied natural justice?
2.	Whether the second defendant’s decision of 11 February 2018 was made ultra vires? 
3.	What relief or orders should the Court grant?

THE LAW

13.	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 abuses its powers: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

14.	The purpose of judicial review is not to examine the reasoning of the decision-making authority with the view to substituting its own opinion.  It is concerned not with the decision, but with the decision-making process:  Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

15.	According to Order 16 Rule 6(1) of the National Court Rules, only the grounds and relief pleaded in the statement filed under Order 16 Rule 3(2)(a) can be argued at the hearing of an application except where they are amended by order of the Court (Order 16 Rule 6(2) and (3)).

16.	The judicial review jurisdiction of the Court is discretionary. However, the discretion vested in the Court by Section 155(3) of the Constitution and Order 16 Rules 1 and 9 of the National Court Rules must be exercised judicially and on proper principles and proper grounds. An authoritative statement of that principle was made by the Supreme Court in Mision Asiki v Manasupe Zurenuoc (2005) SC 797 where it stated: 

“It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

… in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the … proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.”

17.	This decision clearly indicates that in deciding how to exercise its discretion; firstly, the Court must look at all the circumstances of the case and decide whether it is appropriate to grant a remedy as it is not a formality; and secondly, the Court will generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.

18.	The plaintiff carries the burden of proving his claim on the balance of probabilities.

WHETHER THE PLAINTIFF WAS DENIED NATURAL JUSTICE?

19.	The principles of natural justice are part of the underlying law of Papua New Guinea:  Constitution, Section 59(1).  The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly:  Constitution, Section 59(2). There is nothing in the Defence Act that excludes the right to be heard.  The underlying principle is that a member of the Defence Force who is subjected to disciplinary proceedings for any breach of service discipline must be treated fairly and be given time and chance to defend himself:  Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90.

20.	The plaintiff was charged and dismissed under the Code which is the Schedule to the Defence Act.  The dismissing authority must observe the principles of natural justice:  Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90.

21.	The Code contains detailed provisions that require a member of the Defence Force to be properly charged and be given time and chance to defend himself. It is instructive that I set out Section C9(4), (5) and (6) of the Code  below.

(4) 	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 (if any), and for that purpose and to that extent -
(a) 	the disciplinary officer dealing with a charge should not proceed with that charge where in his opinion it is in the interests of justice that the charge should be dealt with by another disciplinary officer; and
 		(b) 	a person charged is entitled:
 (i) 	to have the charge reduced into writing; and
 (ii) 	to have a copy of the charge before the proceedings commence; and
(iii) 	to have the charge explained to him by the disciplinary officer at or before the commencement of the proceedings; and
(iv) 	to examine and cross-examine witnesses called against him and persons whose statements are used against him; and
 (v) 	to call and examine witnesses on his behalf; and
 (vi) 	to be represented by a person subject to this Code (not being a member of the Defence Force who is the superior officer of the disciplinary officer conducting the proceedings) of his own choice.
(5) 	A disciplinary officer conducting any disciplinary proceedings may examine persons on oath or affirmation.
(6) 	A disciplinary officer conducting any disciplinary proceedings shall keep in the prescribed manner a record of:
 (a) 	the charge; and
 (b) 	the defence or explanation (if any) of the person charged; and
 (c) 	the decision; and
 		(d) 	the reasons for the decision,
and a note of the evidence given, and such other records as are prescribed.       

22.	Mr. Unua for the plaintiff contends that on 8 November 2017, a hearing was conducted by a Junior Disciplinary Officer, but the plaintiff was not given a fair hearing and not allowed under Section C9(4)(b)(iv) and (v) of the Code to; firstly, examine and cross-examine witnesses called against him and persons whose statements were used against him; and secondly, to call and examine witnesses on his own behalf.  This, he said, was a blatant breach of the principles of natural justice including the breach of the audi alteram partem (let the other side be heard as well) rule. 

23.	Mr. Yahamani for the first, second and third defendants on the other hand argues that maintaining of discipline within the Defence Force is one of the functions bestowed on the third defendant by virtue of Section 10 of the Defence Act.    The exercise of that function is fundamental in ensuring that the Defence Force is manned by soldiers whose reputation will not unnecessarily endanger national security.  In addition, it was submitted that the third defendant, pursuant to his functions under Section C8 of the Code has jurisdiction over all breaches of service discipline. Counsel said the Defence Force under Section 159(3) of the Constitution is expected to be disciplined at all times through the conduct of its members, units and operations.  The Defence Force is expected to maintain a high level of readiness amongst its soldiers at all times. Soldiers who display characteristics not expected of a member of the disciplined force will have to be discharged as a means of only retaining disciplined and obedient soldiers who are willing to carry out any lawful order of the Government as stipulated under Section 4 of the Defence Act.  

24.	It was also contended that the plaintiff has not included certain documents in the Review Book which were critical in the success or otherwise of the application for judicial review. Mr. Yahamani submitted that one of them was the third defendant’s decision and it was not in evidence or in the Review Book.  Counsel said, the Defence Force has a unique communication channel referred to as “signal” through which information concerning every individual member of the Defence Force is notified of any changes affecting the member’s employment.      Counsel said while the Court has jurisdiction to review the decision of the third defendant in the absence of those documents, a wrong precedent may be set in not following the prescribed process stipulated under Section C9(6)(a)(b)(c) and (d) of the Code.  

25.	It was submitted that the summary of proceedings concerning the plaintiff’s case was essentially the charge, the defence, the decision and the reasons for the decision. It was argued that the plaintiff has provided insufficient information to enlighten the Court in arriving at an informed decision. In the absence of those critical information, the relief sought by the plaintiff to quash the decision of the third defendant was without any substance and must be dismissed.  

26.	It was argued that the plaintiff was treated fairly.  This was dependent on the nature of his case.  He was charged on 7 November 2017 and his case was heard by a Junior Disciplinary Officer on 8 November 2017.  On 9 November 2017, his case was heard by a Senior Disciplinary Officer and a recommendation was made for his dismissal and confirmed by the third defendant thereafter.  On 14 November 2017, the plaintiff lodged his appeal.  In January 2018, the plaintiff received notification of his discharge.    

27.	It is not disputed that on 7 November 2017, the plaintiff was charged with four counts of breaches of service discipline (annexure A, Exhibit A) and these are for:
1.	Being unbecoming of a member of the Defence Force in that he misbehaved in a disorderly manner in the Other Ranks’ Mess at Taurama Barracks on Saturday, 4 November 2017 at 1900 hours while under the influence of intoxicating liquor by swearing and throwing cups on the floor, using obscene language to the IPI Civilian staff when food ran out contrary to Section C4(1)(b) of the Code;
2.	Being drunk and causing a disturbance at the Other Ranks’ Mess at Taurama Barracks on Saturday, 4 November 2017 at 1900 hours contrary to Section C4(2)(h) of the Code;
3.	Disobeying a lawful order in that at Taurama Barracks on Saturday, 4 November 2017at 1900 hours, he failed to obey the Commander PNGDF Directive No.07/2017 on compliance with Catering Contract Standard Operating Procedures by harassing IPI staff contrary to Section C4(2)(g) of the Code.
4.	Causing a disturbance in that at Taurama Barracks on Saturday, 4 November 2017 at 1900 hours, he caused a lot of disturbance by throwing cups on the floor, slamming tables and shouting in the Other Ranks’ Mess while soldiers and IPI Catering staff were waiting for food to be delivered contrary to Section C4(2)(d) of the Code. 

28.	A number of documents which, in my view, are necessary to make an informed decision on the issue under consideration are not in evidence.  These are:

1.	Record of Proceedings before a Junior Disciplinary Officer of 8 November 2017;
2.	Record of Proceedings before a Senior Disciplinary Officer namely, the first defendant of 9 November 2017.
3.	The decision and reasons of the third defendant of 13 November 2017 confirming the decision or recommendation for dismissal and the discharge order/signal.

29.	The record of proceedings before the Junior Disciplinary Officer would provide details as to the manner in which the proceedings were conducted including whether the requirements under Section C9(4), (5) and (6) of the Code were observed and the findings of guilt and entry of conviction and the referral to the first defendant for punishment under Section C9(7) of the Code and whether the plaintiff was informed orally or in writing as to his right to appeal against conviction and the time to do so.

30.	The record of proceedings before the Senior Disciplinary Officer would also provide details as to the manner in which the proceedings on punishment were conducted including addressing matters of mitigation and aggravation and whether the plaintiff was informed orally or in writing as to his right to appeal against punishment and the time to do so.

31.	The plaintiff asserts that after his punishment was given by the first defendant on 9 November 2017, he was informed by the first defendant that he could appeal the punishment imposed within 7 days.  His evidence aside, there is no other documentary evidence either from the relevant records of proceedings before the Court or any other document confirming that assertion or that he had a right to appeal within seven days from the date of punishment.   He says that his appeal against the whole of the decision including severity of punishment constituted by a Notice of Appeal dated 10 November 2017 and a letter to Lt. Col. Luke Sawere, Director Personnel Management, Personnel Branch, Headquarters, Murray Barracks dated 14 November 2017 with supporting character references from Major R. Pakii, Company Sergeant Major, Warrant Officer Budo Levi and Platoon Commander, Second Lieutenant Simon Tunga, was lodged with the Director of Personnel Administration on 14 November 2017 (annexure B, Exhibit A) within seven days of the appeal period given, but he found out later that the third defendant had already confirmed the first defendant’s decision to dismiss and discharge him from the Defence Force on 13 November 2017.

32.	The plaintiff also asserts that he waited for the third defendant to hand down his decision on his appeal, but learnt later from the Human Resource Division of the Defence Force in January 2018 that his discharge from the Defence Force was final.

33.	The plaintiff states that on 22 January 2018, he wrote to the third defendant (annexure C, Exhibit A) that his decision to confirm the first defendant’s decision to dismiss and discharge him from the Defence Force was reached without considering his appeal which was lodged within seven days as advised by the first defendant and did not form part of the court summary which was forwarded to him and based upon which he made his decision.  He requested the third defendant to consider his appeal, revisit and review his decision. However, on 11 February 2018, the second defendant, making reference to his letter of 22 January 2018 and the third defendant’s decision of 29 January 2018, by letter informed him that the third defendant’s decision to discharge him from the Defence Force still stood and he was to proceed with his discharge administration forthwith (annexure D, Exhibit A).  The third defendant’s decision dated 29 January 2018 is not in evidence.
34.	On 26 January 2018, the plaintiff wrote to the Office of the Director of Other Ranks Management requesting copies of his court summaries for his perusal and to find out the reasons for the third defendant’s decision to dismiss and discharge him from the Defence Force (annexure E, Exhibit A).  On 13 February 2018, the Director of Other Ranks Management, Thomas Y. Ponjom by letter informed the plaintiff that the court summaries were the property of the Defence Force and that he was not privy to those documents as he was no longer a serving member of the Defence Force (annexure F, Exhibit A).

35.	Without the documents I have identified above which are not in evidence, it is difficult to determine whether the plaintiff was treated fairly or not.  There is evidence of the plaintiff requesting copies of the relevant court summaries on 26 January 2018 from the Office of the Director of Other Ranks Management, but as I have alluded to earlier, his request was refused as the court summaries were the property of the Defence Force and he was no longer a serving member of the Defence Force.

36.	Order 16 Rule 8 of the National Court Rules allows for applications for discovery or disclosure of documents, interrogatories, etc. The disclosure of all relevant documents is necessary in order to determine in the circumstances of a particular case whether or not a member of the Defence Force who is subjected to disciplinary proceedings for any breach of service discipline has been treated fairly and given time and chance to defend himself:  Tweed v Parades Commission of Northern Ireland (2006) UKHL 53, (2007) 2 WLR 1.
37.	For the foregoing reasons, I am of the view that the plaintiff has failed to prove on the balance of probabilities that he was denied natural justice including a breach of the audi alteram partem rule.  I will dismiss this ground of review.  

WHETHER THE SECOND DEFENDANT’S DECISION OF 11 FEBRUARY 2018 WAS MADE ULTRA VIRES?

38.	The plaintiff claims that the second defendant acted ultra vires when he purportedly dismissed him from the Defence Force on 11 February 2018.  He says that he was not accorded the right to examine and cross-examine witnesses called against him and to call and examine witnesses on his behalf contrary to Section C9(4)(b)(iv) and (v) of the Code.

39.	Mr. Yahamani contends that the second defendant did not act ultra vires.  The second defendant as the Chief of Personnel was the appropriate authority to discharge the service of the plaintiff then as a member of the Defence Force under Section 11(1)(b) of the Defence (Period of Service) Regulation (Period of Service Regulation). 

40.	It is clear from the evidence that the second defendant did not make the decision to dismiss and discharge the plaintiff from the Defence Force.  That decision was made by the first defendant on 9 November 2017 pursuant to Section C8(2) of the Code following the decision of the Junior Disciplinary Officer to find him guilty as charged and a referral made under Section C9(7) of the Code and confirmed by the third defendant on 13 November 2017 under Section C7(3) of the Code.  The appeal was rendered nugatory given it was filed a day after the third defendant’s decision of 13 November 2017.  The plaintiff, aggrieved by the decisions made in the relevant disciplinary proceedings, ought to have availed himself of the provisions under Section C10 of the Code following the decision of the third defendant. 

41.	The Defence Act, by virtue of Section 33, provides alternative procedures (as opposed to being complementary) for discharging a member from the Defence Force; one is under the Code and the other is under the Period of Service Regulation:  Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90, Raphael Pius v Commodore Peter Ilau (2009) N3833, Raphael Pius v Commodore Peter Ilau (2011) SC1115.   Disciplinary proceedings against the plaintiff were instituted under the Code and so the procedures to be followed by disciplinary officers are set out there.  Given that, the invocation of the provisions of the Period of Service Regulation is unnecessary.

42.	This ground is misconceived, has no merit and is therefore dismissed.       

WHAT RELIEF OR ORDERS SHOULD THE COURT GRANT?

43.	All grounds of review have been dismissed.  Consequently, the application for review must fail. 

ORDER

44.	The formal orders of the Court are:

1.	The application for judicial review is dismissed.
2.	The plaintiff shall pay the costs of the first, second and third defendants on a party and party basis, which shall be taxed, if not agreed.
3.	Time is abridged.

Judgment and orders accordingly.
_______________________________________________________________
Public Solicitor: Lawyer for the Plaintiff			
In-house lawyers, PNGDF Directorate of Legal Services: Lawyers for the First, Second & Third Defendants