N10740

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 12 OF 2024

BETWEEN:
EDDIE KAVINA 
Plaintiff/Applicant

AND:
JACK KARIKO as
SECRETARY NATIONAL JUDICIAL STAFF SERVICES
First Defendant/Respondent

AND:
HER WORSHIP JOSEPHINE NIDUE as CHAIRPERSON NATIONAL JUDICIAL STAFF SERVICE APPEAL TRIBUNAL
Second Defendant/Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Respondent

Waigani:  Purdon-Sully J
2024:  15th April

PRACTICE & PROCEDURE - Application for leave for judicial review – Unreasonableness (Wednesbury) – no arguable case – application dismissed

PNG Cases Cited
Asakura v Kumbakor [2008] N3303
O’Neill v Eliakim [2016] SC1524
NTN v PTC [1987] PNGLR 70
Pora v Leadership Tribunal [1997] PNGLR 1
Peipul v The Leadership Tribunal [2002] PGSC 1; SC706
Ombudsman Commission v Yama (2004) SC747
Koti v Susame [2015] N5860 
Ipatas v Somare [2010] N4190
Raz v Matane [1986] PNGLR 38

Overseas Cases Cited 
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd) [1982] AC 617
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, (HL) (UK))

Legislation
National Court Rules, Order 16
National Judicial Staff Service Act 1987, s 19(3) 
Claims By and Against the State Act 1996, s 8
Constitution ss 20 and 21 and Schedule 2.2, 155(3), 59
Underlying Laws Act 2000

Other References Cited
Christopher Karaiye, Administrative Law and Judicial Review in Papua New Guinea, 2019

Counsel
N. Hukula, for the Plaintiff
M. Narokobi, for the Third Defendant 

DECISION
19th April 2024

1.	PURDON-SULLY J: This is my ruling on a contested leave application for judicial review of:

a.	the decision of the First Defendant dated 22 November 2022 in sustaining a disciplinary charge and imposing a penalty on the Plaintiff by way of demotion to an officer of a lower classification (the Decision); and 

b.	the decision of the Second Defendant dated 18 September 2023 to dismiss the Plaintiff’s appeal against the Decision (the Tribunal Decision).

2.	If granted leave the Plaintiff seeks to challenge both decisions on the basis of unreasonableness (Wednesbury principle) and on the basis of an unfair and unjust result.  

3.	In order to succeed on his leave application, the Plaintiff must show that:

(a) 	He has locus standi.
(b) 	He has an arguable case.
(c) 	He has exhausted other available avenues to resolve the matter.
(d) 	There has not been undue delay in bringing the matter to Court.

4.	The Plaintiff contends that he has met the above requirements and should be granted leave.  He relies upon the material detailed at B.2 of written submissions filed on his behalf on 11 April 2024.

5.	The State contends that the Plaintiff has not demonstrated that he has an arguable case.  It seeks dismissal of the application and that each party bear their own costs. The State relies upon its written submissions filed on 12 April 2024.

6.	At all material times:

a.	The Plaintiff was the Deputy Chief Security Officer attached to the National Judicial Staff Services (NJSS).

b.	The First Defendant was the Secretary of the NJSS whose powers of disciplining officers for serious disciplinary offences are set out in s 16 of the National Judicial Staff Service Act 1987 (NJSS Act).

c.	The Second Defendant was the Chairperson of the NJSS Appeal Tribunal (the Tribunal) which is created under s 18 of the NJSS Act.

d.	The Third Defendant is the Independent State of Papua New Guinea who is vicariously liable for the acts of its agents or servants and who has a statutory right to be heard on applications for leave for judicial review by virtue of s 8 of the Claims By and Against the State Act 1996.  

BACKGROUND

7.	The Plaintiff’s evidence as to the background to the dispute is detailed in his Statement Pursuant to O 16 r 3(2)(a) of the National Court Rules (NCR) and Affidavit in Support filed 9 February 2024.  

8.	The Plaintiff commenced employment with the NJSS Security Division on 22 January 2018 as a security officer.

9.	At the time of his demotion he was the Deputy Chief Security Officer attached to the NJSS Security Division.

10.	On 1 September 2022 he was on duty when a security officer (X) was drunk and causing a commotion.  He gave directions to another security officer (Y) to deal with X.  Y assaulted X and detained him in the holding cells.

11.	On 25 October 2022 the Plaintiff was charged with a serious disciplinary offence arising from the incident.  He was suspended for 21 days on full pay pending the outcome of an investigation.  

12.	The charge read:

On or between the date 1 September 2022 you displayed an improper conduct in your official capacity as manager, in that you instructed the Security Supervisor Y to deal with a staff of NJSS X and further gave orders to have him detained in the National & Supreme Court holding cell block. As a result X was brutally assaulted by Y and locked up in the Supreme and National Court holding cell.

	[Emphasis as shown in the charge document]

13.	The Plaintiff was directed to reply in writing in response to the charge as to whether he admitted or denied the truth of the charge and to give an explanation.
 
14.	On 28 October 2022 the Plaintiff wrote to the First Defendant with a detailed reply, the Plaintiff denying any wrongdoing in the assault of X.  He explained his reasons for the detention of officer X in the holding cell by reason of X being aggressive and out of control.

15.	On 22 December 2022 the Plaintiff was served with a notice of the Decision sustaining the charge and imposing a penalty of demotion to an officer of a lower classification and salary within that classification in accordance with s 16(5)(c) of the NJSS Act.  He was informed he may appeal within 14 days of receiving the notice.

16.	On 23 November 2022 the Plaintiff appealed the Decision to the Tribunal on the basis of innocence and severity of punishment.  He contended inter alia that the penalty was too harsh and the incident was minor and should have been dealt with administratively in a Melanesian way.

17.	The First Defendant responded with his submissions which inter alia asserted that by issuing the directive he did the Plaintiff breached a standard of conduct for all NJSS officers, the directive resulted in the assault of X, the Plaintiff was present during the assault of X and did nothing to intervene and the penalty imposed was lenient in the circumstances.

18.	On or around the 18 September 2023, the Plaintiff appeared before the Tribunal and made submissions.

19.	On 18 September 2023 the Second Defendant handed down the Tribunal Decision dismissing the appeal.  The Plaintiff was verbally informed of the outcome that day by the Second Defendant as Chairperson of the Tribunal.

20.	On 12 October 2023 the Plaintiff received a grant of legal aid.

21.	On 13 November 2023 the Plaintiff received the Tribunal’s written reasons for its decision. The reasons, which run to 9 pages, outlined inter alia the jurisdictional basis of the disciplinary process, the category of offences for officers under the NJSS Act, penalty, charge, the appeal grounds, the submissions of the Plaintiff and First Defendant and a summary of its determination addressing the Plaintiff’s complaints of innocence and harsh penalty.

22.	The Tribunal found the charge against the Plaintiff made out, its findings summarised as follows:

a.	It was the Plaintiff who gave the direction in his official capacity as manager to Y to deal with X.  It was for the Plaintiff to withdraw that direction once the assault of X by Y commenced. He did not. The Plaintiff had the power and authority to stop the assault which he did not exercise.

b.	The Plaintiff was not authorised to issue a direction that X be held in a court holding cell, a facility for persons involved in criminal proceedings at the court.  It was an instruction that amounted to the unlawful detention of X.

c.	There were no grounds to reduce the penalty, the Plaintiff’s management of the incident wanting, resulting in the assault of X by another person and X’s unlawful detention which further opened the Plaintiff and the NJSS to potential civil and criminal redress.

23.	On 9 February 2024 the Plaintiff filed proceedings for judicial review.

THE LAW

24.	Judicial review proceedings are governed by the provisions of Order 16 of the NCR.

25.	The right to judicial review is not absolute.  A judicial review application will not proceed unless the court grants leave to proceed to a hearing. The granting of leave is a discretionary exercise (Asakura v Kumbakor [2008] N3303 (Asakusa)).

26.	The purpose of leave is inter alia to flush out at an early stage groundless or hopeless applications and prevent wastage of court time (O’Neill v Eliakim [2016] SC1524 per Sakora J at [55]).

27.	The NCR provide two statutory principles for the granting of leave namely locus standi and undue delay (O 16 r 3 (5) and O 16 r 4). The other two common law principles are exhaustion of administrative remedies and an arguable case. The requirement of arguable case is not prescribed by the NCR however as a common law requirement it is adopted by virtue of ss 20 and 21 and Schedule 2.2 of the Constitution and the Underlying Laws Act 2000.

28.	The assessment of an arguable case is one conducted by way of a quick perusal of the material before the court by the Judge hearing the leave application (particularly the grounds for review in the Statement in Support and the supporting affidavits) and if the material discloses what might on further consideration turn out to be an arguable case in favour of the applicant for the relief sought, the court ought in the exercise of a judicial discretion grant leave (Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd) [1982] AC 617 at p 644; NTN v PTC (1987) PNGLR 70).  

29.	An arguable case is one where the issues raised have merit to warrant a full hearing. It means that fundamental, serious, substantive or genuine issues of law have been raised that require judicial determination. The determination of an arguable case is ‘a question of fact and degree depending on the evidence available to the Court, as to the existence or otherwise of a case that merits examination by the Court’ (Pora v Leadership Tribunal [1997] PNGLR 1).

30.	In deciding what is an arguable case the applicant for leave must show that the ground/s pleaded contain reference to proper grounds of review recognised by law and a clear and concise description of the specific statutory provision or common law duty alleged to have been breached with reference to those established grounds (Asakusa per Injia DCJ (as he then was) at [18] – [19]).

31.	The grounds of judicial review are founded on English common law and are codified in Order 16 of the NCR and other laws including the Constitution. An established ground of review found in O 16 r 13 of the Judicial Review (Amendment) Rules 2005 include the Wednesbury principle of unreasonableness.

32.	Whilst judicial review is not concerned with the decision but the process of decision-making, the exception to this is the Wednesbury principle.   It is a ground that looks at the merits of the decision rather than the procedure by which it was arrived or the legal basis on which it was founded. 

33.	Whilst different phraseology has been used in case law to describe ‘unreasonableness’, in reviewing the merits of the decision the court’s duty is not to do so purposely to arrive at a different decision but to assess whether the decision under consideration is ‘rational’ (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 per Lord Greene MR at p 230 cited with approval in Peipul v The Leadership Tribunal [2002] PGSC1; SC706 by Kapi DCJ (as he then was)).

34.	In Ombudsman Commission v Yama (2004) SC747 the Court (Injia DCJ, Sakora & Sawong JJ) said:

The Wednesbury principle of unreasonableness is described by Lord Greene MR as a decision that is ‘so absurd that no sensible person could dream that it lay within the powers of the authority – a decision that no reasonable body could have come to’.  It is embodied in the principle of irrationality that we referred to earlier. We prefer a simplified break up of this principle into six (6) categories by Doherty J in Kim Foon and Sons Pty Ltd v Minister of Finance and Planning as follows:

(a)	It must be a real exercise of discretion;
(b)	The body must have regard to matters which it is expressly or by implication referred by statute conferring the discretion;
(c)	It must ignore irrelevant considerations;
(d)	It must not operate on the basis of bad faith or dishonesty;
(e)	It must direct itself properly in law; and
(f)	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.

35.	If the decision is so unreasonable or absurd having regard to the circumstances that no reasonable decision maker would have made the decision, then the decision involves an error of law, the decision-maker would have exceeded its authority and the decision would be open to judicial review (Koti v Susame [2015] N5860 per Cannings J at [25] – [26]).

SUBMISSIONS

36.	Counsel for the Plaintiff submits inter alia that based on the Wednesbury principle no reasonable tribunal would have found him guilty of the charge and imposed the penalty of demotion, where the Plaintiff was carrying out his duty as a security officer and the assault, the subject of his disciplinary action, was carried out by another security officer.  Further, the imposed penalty was harsh and excessive.  At 5.3 of his Statement the Plaintiff further advances as a ground of review that it was unfair and unjust for the him to be punished for an assault that he did not commit and for carrying out his duties.  

37.	Counsel for the State submits that the grounds pleaded by the Plaintiff are not arguable as they stand, that the grounds of unreasonableness and the unfairness of the penalty do not give rise to questions of law based on statutory provisions or duties imposed by common law.  It is further submitted that by virtue of the provisions of s 19(3) of the NJSS Act the decision of the Tribunal is not amenable to judicial review.

38.	Section 19 of the NJSS Act is in these terms:

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.
[Underlining added]

CONSIDERATION

39.	Turning firstly to the State’s submission that the decision of the Tribunal is final and not open to judicial review, the submission is rejected.

40.	While judicial review is not available if there is a legislative intent to oust or restrict the jurisdiction of the court, such intent must be clear (Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, (HL) (UK)). The court is unable to interpret the language of s 19(3) of the NJSS Act as being so clear and coercive as to be incapable of any other interpretation that it must be read to set at large the court’s jurisdiction to review the Tribunal’s decision.  No other provision or provisions of the NJSS Act nor authority was advanced by learned Counsel for the State to support her submission.  

41.	The court is reinforced in reaching its conclusion with respect to s19(3) of the NJSS Act where Papua New Guinea has constitutional supremacy as opposed to parliamentary supremacy, the National Court by virtue of s 155(3) of the Constitution having inherent jurisdiction to review any exercise of judicial authority.  Further the constitutional mandate afforded by s 59 makes clear that, subject to the Constitution and statute, the principles of natural justice are rules of the underlying law developed for control of judicial and administrative proceedings and the minimum requirement of natural justice is the duty to act fairly and to be seen to act fairly.

42.	With respect to the balance of submissions on arguable case, the court finds that the ground of review at 5.2 of the Plaintiff’s Statement, namely unreasonableness (Wednesbury), contains a reference to established grounds recognised by law as a proper ground upon which judicial relief is available to him.  The Plaintiff asserts that with respect to both laying of the charge and the penalty imposed the duty was breached.  The court is accordingly unable to accept the submission on behalf of the State that the pleading of the Plaintiff at 5.2 in the Plaintiff’s Statement would not raise a clear ground of law for the determination of the court such that it falls short of the test of arguability established in Asakusa.

43.	The court accepts however that as pleaded in its current form in his Statement in Support the Plaintiff has failed to identify at 5.3 of such Statement a ground recognised by law as a proper ground upon which judicial relief is available to him based on the Decision or the Tribunal Decision being unjust or unfair.  As pleaded, he does not identify any clear issues of law by reference to any statutory provision or a common law duty which he asserts were breached by the Defendants, as opposed to mere opinion and assertion as to the penalty being unjust and unfair.  

44.	Having, however, identified an established ground of review based on unreasonableness (Wednesbury) which the Plaintiff asserts was breached, the issue is whether on a quick perusal of the material before the court the Plaintiff has established an arguable case based on that ground.

45.	In considering that question, some general principles and/or acknowledgements should be made at the outset.  

46.	Firstly, the discretion being exercised at the leave stage is not the same as that which the court is called upon to exercise when all the evidence is in and the matter fully argued at a substantive hearing.  That said, the onus lies with the Plaintiff to establish he has an arguable case having regard to the criteria that must be met to establish unreasonableness in the Wednesbury sense.

47.	Secondly, the court accepts that the Plaintiff feels aggrieved by the decisions made, that he views the decisions as being unreasonable and that an injustice has been done to him as a consequence.  That, however, is not the test of unreasonableness in the Wednesbury sense. While the word ‘unreasonable’ is often freely used by the man in the street, including lawyers, in what Davani J described in Ipatas v Somare [2010] N4190 at [69] as a general description of things that should not be done, in the Wednesbury sense it has a more particular meaning.  Christopher Karaiye, in his excellent book Administrative Law and Judicial Review in Papua New Guinea, 2019, at Chapter 6, provides an overview of the development of the jurisprudence and its adoption in a series of cases in this jurisdiction, noting at [6.1] that the principle is premised on three interrelated elements: irrationality, absurdity and unreasonableness.    

48.	Thirdly, this court is required to ‘swim in its own lane’: the judicial review lane.  Judicial review is not a process of appeal.  When a discretion is entrusted by Parliament to a public authority, here the NJSS and the Tribunal, that discretion can only be challenged in the courts in a strictly limited number of cases.   Where the discretion is exercised by the decision-maker within the ambit of considering what is relevant the court cannot intervene, except where the conclusion is so unreasonable that no reasonable body could have come to it. It is not what this court considers to be unreasonable, ‘a different thing altogether’ (Raz v Matane [1986] PNGLR 38).  Whether the discretion is exercised so unreasonably that no sensible body could have come to it, will depend on the facts of each case, however the parametres within which the court must operate, remain. 

49.	Based on a ‘quick perusal of the material’ the court is unable to conclude it sufficiently discloses an arguable case on the merits to warrant a grant of leave.  Put another way, the court is unable to conclude that the Plaintiff has discharged the onus that lies on him to demonstrate that the First and Second Defendants failed to exercise their powers reasonably or rationally and that the Decision and the Tribunal Decision, the subject of the leave application, could be viewed as being so unreasonable that no sensible authority acting with an appreciation of its responsibilities would have come to it.  

50.	The evidence does not demonstrate that the exercise of discretion was not a real exercise of discretion.  Nor does the evidence or the submissions advanced on behalf of the Plaintiff demonstrate that the Defendants as decision-makers failed to give attention to matters required to be considered, failed to exclude from its considerations the irrelevant, operated on the basis of bad faith or dishonesty, failed to obey the rules they were required to follow or that the outcome presented as being so absurd that it could be said to meet the test of unreasonableness in the  Wednesbury sense.  The written reasons of the Tribunal dated 18 September 2023 being Annexure G to the Affidavit of the Plaintiff filed 9 February 2024 support such a conclusion.

51.	It is not the case, as submitted, that the Plaintiff was punished for an assault he did not commit.  He was not charged with committing an assault. He was charged with improper conduct in his official capacity as manager.  It was a failure which resulted in the assault of X by Y.  It was a failure to intervene and stop the assault when he had the authority to do so and was present and able to do so. He was further found to have directed, without authority, the unlawful detention of X in a court holding cell, a facility for the holding of those charged with crimes who are required to attend court, not for the holding of drunk and aggressive NJSS staff.

52.	The Plaintiff does not deny in the sworn evidence he places before this court in support of his leave application, nor in his response to the charge and the appeal he annexes to his Affidavit in Support does he take issue with the submission of the First Defendant before the Tribunal that the assault of X took place in his presence and that he failed to intervene.  Nor does the Plaintiff deny that he instructed Y to take X to the court holding cells and detain him there. On the evidence, he gave the instruction ‘until (X) is sober and released’.  Nor does the Plaintiff adduce evidence that detaining X in the holding cells was in accord with court Security Operational Procedures. 

53.	As a consequence of those events, the Plaintiff was charged.  Following an investigation and hearing, where at each stage he was afforded natural justice to understand the charge, to be heard and engage, the charge was upheld and a penalty of demotion was imposed.  He was not dismissed.

54.	While he does not agree with that outcome that is a separate question from whether on the established ground of review he relies upon, namely unreasonableness in the Wednesbury sense, he has met the strict requirements for leave for judicial review.  For the reasons given the court concludes he has not.  His application should be dismissed.

ORDERS

55.                  I make the following Orders:

(1)	The Plaintiff’s application for leave for judicial review filed 9 February 2024 is refused.
(2) 	Each party bear their own costs.
(3) 	Time is abridged.

Public Solicitor: Lawyers for the Plaintiff
Solicitor General: Lawyers for Third Defendant