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State v Eluh [2016] PGSC 26; SC1479 (2 February 2016)

SC1479

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO.138 OF 2015

BETWEEN
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND
GARI BAKI as Commissioner of Police
Second Appellant

AND
THOMAS ELUH
Respondent

&

SCA NO.139 OF 2015

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND
GARI BAKI as Commissioner of Police
Second Appellant

AND
TIMOTHY GITUA
Respondent

Waigani: Makail J
2015: 2^nd December &
2016: 2^nd February

PRACTICE & PROCEDRE – Application for leave to appeal – Leave sought to appeal grant of leave for judicial review – Whether meritorious and arguable case established – Exhaustion of alternative remedies – Whether right of statutory review available – Contract of employment – Whether remedy lies in damages – Supreme Court Act – s. 14(3)(b) – Police Act – s. 26 – National Court Rules – O. 16

Cases cited:

Boyope Pere v. Emmanuel Ningi (2003) SC711
Central Pomio Logging Corporation Pty Ltd v. The State [1990] PNGLR 195
Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853
David Nelson v. Patrick Pruaitch (2004) N2536
Dominica Philip v. The National Education Board (2008) N4024
Ereman Ragi v. Joseph Maingu (1994) SC459
Hon. Ano Pala & The State v. Sam Koim Chairman Task Force Team Sweep
(2015) SC1436
Joel Luma v. John Kali & Ors (2014) SC1401
Kekedo v. Burns Philip (PNG) Limited [1988-89] PNGLR 122
Lawrence Sausau v. Kumgal (2006) N3253
Martin Kenehe v. Allan Jogioba (2008) N4025
Matiabe Oberia v. Chief Inspector Charlie (2005) SC801
Ron Napitalai v. Caspar Wallace (2010) SC1016
Sekesu Sisapi Land Group (Inc) v. Turama Forest Industries Ltd (2008) SC976
Simon Kauba v. NEC & The State: OS (JR) No 477 of 2014 (Unnumbered & Unreported Judgment of 13^th November 2015)
Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240
The State v. The Transferees (2014) SC1348
Young Wadau v. PNG Harbours Board [1995] PNGLR 357
Zachary Gelu v. Secretary, Department of Justice and Attorney-General (2004) N2762

Counsel:

Mr. I. Molloy & Mr. N. Tame, for Appellants
Mr. G. Egan & Mr. M. Nale, for Respondents

RULING
2^nd February, 2016

1. MAKAIL J: In these cases, the Appellants seek leave to appeal against the decision of Nablu AJ given on 30^th October 2015 in the National Court at Waigani in proceedings OS (JR) No. 633 of 2015 and proceedings OS (JR) No. 634 of 2015 whereby her Honour granted the Respondents leave to apply for judicial review of the Second Appellant’s decision to dismiss each of the Respondents from the Police Force. To save time and resources, I propose to deal with both matters together because the same kind of submission was made in each matter.

2. Leave is required because the decision in each case is an interlocutory one and does not fall within any of the exceptions contained in s. 14 (3) (b) of the Supreme Court Act.

Background Facts

3. Both Respondents were dismissed for disciplinary reasons. The Respondent Mr. Thomas Eluh was served a Notice of Penalty on 23^rd September 2015 terminating his services and dismissing him from the Police Force for, amongst other things, insubordination. It was a result of a finding after an investigation that he accompanied the Respondent Mr. Timothy Gitua and another member of the Police Force Mr. Peter Guinness to the Prime Minister’s private residence at Konedobu to serve a letter from the then Commissioner of Police inviting the Prime Minister to attend an interview at the Fraud Squad Office at Konedobu.

4. In the case of Mr. Gitua, he was served a Notice of Penalty on 28^th September 2015 demoting and dismissing him from the Police Force for, amongst other things, discharging a firearm at Armani Night Club, Gordons on 12^th July 2014. The dismissal was also a result of an investigation.

5. At the time of dismissal, Mr. Eluh was employed under a contract of employment between him and the Second Appellant on behalf of the Police Force. The contract was for three years expiring on 13^th July 2016. Mr. Gitua was not employed under a contract of employment.

6. The principles applicable on an application for leave to appeal are well-established. In Boyope Pere v. Emmanuel Ningi (2003) SC711 the Supreme Court said the reason for leave is “to ensure that only meritorious cases go to the Supreme Court on appeal....... If the court is satisfied there is merit in the proposed appeal......the appellant should be granted leave or allowed to proceed to lodge his appeal.” In Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853 the Supreme Court stated that there must be a meritorious and arguable case.

7. Other considerations may be relevant, particularly where the application for leave is from a discretionary decision within the Court’s jurisdiction involving a question of practice and procedure. See, for example, Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240 (application for leave to appeal against orders in respect of discovery and affidavit evidence), and Matiabe Oberia v. Chief Inspector Charlie (2005) SC801 (application for leave to appeal against a refusal to enter default judgment, and to extend time for filing a defence). Sekesu Sisapi Land Group (Inc) v. Turama Forest Industries Ltd (2008) SC976 provides an example of leave to appeal from a grant of leave to apply for judicial review. See also The State v. The Transferees (2014) SC1348. It is also rare for the Court to grant leave from a grant of leave for judicial review as matters raised at the leave hearing are for the National Court to determine at the substantive hearing as the Court only conducts a cursory inquiry at the leave hearing. See Hon. Ano Pala & The State v. Sam Koim Chairman Task Force Team Sweep (2015) SC1436.

8. The issue is, is there is a meritorious and arguable case?

Appellants’ Submissions

The Appellants contend that her Honour erred in granting leave on two grounds, each of which raises an arguable case on appeal. First, each Respondent has not exhausted alternative remedies. They contend that s. 26 (5) and (6) of the Police Act (“Act”) provide for a statutory review. I set out s. 26 below:

“26. Penalties for serious offences.

(1) Subject to Subsection (2), any one or more of the following penalties may be imposed under this Division:—

(a) a fine not exceeding K200.00;

(b) reduction of the member's salary;

(c) forfeiture of not more than four weeks' pay;

(d) reduction of the member to a rank having a lower classification, and to a salary within that classification;

(e) in addition to or instead of a punishment specified in Paragraph (d), the transfer of the member to other duties;

(f) in addition to or instead of a punishment specified in Paragraph (d) or (e), the transfer of the member to some other locality;

(g) dismissal of the member from the Force.

(2) In addition to any penalty imposed under Subsection (1)(a) to (f) inclusive, the Commissioner may also require the member to undergo a course of re-training.

(3) The penalty specified in Subsection (1)(f) shall not be imposed on a member of the Community Auxiliary Police or on a Special Constable.

(4) The Commissioner shall notify a member of a penalty imposed on that member.

(5) Where a penalty is imposed under this section by a disciplinary officer, the member affected may, within seven days of notification to the member under Subsection (4) of the penalty, or within such further time as the Commissioner may allow, apply in writing to the Commissioner for a review of the decision.

(6) An application under Subsection (5) for a review may be effected by —

(a) delivery in person to a disciplinary officer; or

(b) sending the application by ordinary post addressed to the Commissioner; or

(c) delivery in such other manner as may be approved by the Commissioner,

and is deemed to have been made on the day on which it is so delivered or posted.

(7) On a review under Subsection (5), the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final.

(8) The Commissioner may direct that a penalty imposed under Subsection (1) by a specified rank of disciplinary officers shall not be put into execution until confirmed by him.

(9) The power conferred on the Commissioner for this section to confirm a penalty is deemed to include the power to increase or otherwise to vary the penalty in any way not inconsistent with this Act.

(10) The power of the Commissioner to delegate under Section 17 is limited for the purposes of Subsections (6) and (7) to a power to delegate to a member of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made.” (Underlining is mine).

9. They submit that in her reasons, her Honour recognised that an Applicant for leave to apply for judicial review should first exhaust other remedies. As to the right of review under the Act, she said “this provision is only effected when the penalty is made by a disciplinary officer.” However, they submit that under s. 2 (1) of the Act a “disciplinary officer” includes by definition the Commissioner. It is on this basis that the Commissioner can review his own decision. I set out s. 2 (1) below:

“"disciplinary officer" means—

(a) the Commissioner; or

(b) a commissioned officer appointed under Section 19 to act as a disciplinary officer;”

10. Further, her Honour said that it would be “inappropriate and highly irregular, not to mention a breach of the law to permit the Commissioner to review his own decision.” First, the Appellants submit it cannot be a breach of the law to apply the legislation. Secondly, the Act provides for an administrative review by the original decision-maker which is not unusual. They concede that it appears irregular and inappropriate for a judge or magistrate to sit on appeal from his own judicial decision but there are well-established examples of decision-makers reviewing their own decisions.

11. They cite three examples:

11.1. s. 20A of the Stamp Duties Act provides for an objection to an assessment or amended assessment to the Commissioner General,

11.2. under s. 245 (1) of the Income Tax Act, a taxpayer has 60 days after service of a notice of assessment to post to or lodge with the Commissioner General an objection to assessment, following which under s. 246 (1), “the Commissioner General shall consider the objection” and may allow it in whole or in part, and

11.3. under s. 178 of the Customs Act, a person dissatisfied with a decision under the Act may “in the first instance appeal to the Commissioner General.”

12. These examples show that there is a statutory right of review and in this case, that right exists under s. 26 (5) (6) and (7) of the Police Act. Relying on the cases of Kekedo v. Burns Philip (PNG) Limited [1988-89] PNGLR 122 and Dominica Philip v. The National Education Board (2008) N4024, the Appellants emphasise that these cases held that an appeal or review process must be exhausted first before leave for judicial review is granted.

13. In this instance, in the case of Mr. Eluh, the evidence is that he has not exhausted his remedies. He commenced these proceedings within four days of applying to the Second Appellant for a review – parallel with the judicial review process – instead of waiting for the administrative review to be determined. The Appellants rely on the cases of Central Pomio Logging Corporation Pty Ltd v. The State [1990] PNGLR 195 and Martin Kenehe v. Allan Jogioba (2008) N4025.

14. In Mr. Gitua’s case, the evidence is that he has not exhausted his remedies because he commenced these proceedings without applying to the Second Appellant for a review under s. 26 of the Act.

15. Secondly, in Mr. Eluh’s case there is an arguable case that leave should have been refused because the decision arose out of his contract if employment and consequently the issue was not a matter of public law and therefore not subject to judicial review under O. 16 of the National Court Rules.

16. They rely on s. 4 of the Act which provides that a person may be appointed to be a member of the Police Force in accordance with the Act. They submit members of the Police Force, whatever their rank, are contractual employees. S. 133 of the Act provides for contracts of employment. The case is essentially a contractual dispute and, if there has been a breach, then Mr. Eluh’s remedies lies elsewhere.

17. To support this submission, they submit that the matter has been addressed by the Supreme Court in Ereman Ragi v. Joseph Maingu (1994) SC459; Young Wadau v. PNG Harbours Board [1995] PNGLR 357; Ron Napitalai v. Caspar Wallace (2010) SC1016 and Joel Luma v. John Kali & Ors (2014) SC1401.

18. The Appellants further submit that there are a number of cases, generally National Court decision, which go against the notion that this is not a matter of public law attracting judicial review: for example, Zachary Gelu v. Secretary, Department of Justice and Attorney-General (2004) N2762; David Nelson v. Patrick Pruaitch (2004) N2536 and Lawrence Sausau v. Kumgal (2006) N3253. See also Joel Luma (supra).

19. Nonetheless, the Appellants submit that at worst, it remains arguable that leave should not have been granted as the decision sought to be reviewed was not amendable to judicial review.

20. For these reasons, there is an arguable case and leave should be granted.

Respondents’ Submissions

21. In relation to the first ground, the Respondents argue that there is no arguable case as there is no right of review or appeal by which a member of the Police Force may seek redress. They refer to s. 27 of the Act which states:

“27. No right to appeal.

The Commissioner's decision in respect to the finding of guilt and in respect to penalty for serious disciplinary charges is final.”

22. They submit this provision is plain and clear. It puts to rest any argument that the Commissioner has discretion to review his own decision. The evidence based on the Notice of Penalty shows that it was the Commissioner who dismissed the Respondents. Thus, based on s. 27 (supra), the decision is final. He cannot review it. This ground does not raise an arguable case.

23. With regard to the second ground, the Respondents rely on the case of Joel Luma (supra) and submit that it sets out the tests to be applied in a case where a terminated contract employee seeks leave for judicial review. The threshold question is whether his remedy lies in judicial review or damages.

24. First, the Court must look at the process of appointment and revocation and secondly, the subject action or decision must be of public importance and interest. Finally, if the employing agency is not created under statute but is incorporated under the Companies Act, the termination is of a private nature and the remedy of judicial review is not available to the aggrieved party.

25. In this case while Mr. Eluh is employed under a contract of employment, his employment clearly falls within the tests in Joel Luma’s case (supra) and make the decision to dismiss him susceptible to judicial review. For instance, Mr. Eluh was employed by the State through the Police Force that is established by the Constitution. He holds the rank of Assistant Commissioner of Police and assumes the Office of ACP (Crimes) within the Police Force. The rank and office he holds and functions he performs are directly derived from the Constitution and the Police Act.

26. Further and significantly, Mr. Eluh’s employment, procedures for discipline and dismissal are governed by the Police Act. The evidence based on the Notice of Penalty clearly shows that the Second Appellant used his power under s. 26 of the Act to dismiss Mr. Eluh, thus confirming that the appointment and revocation of appointment are governed by statute and the office he holds is a public office.

27. For these reasons, they submit this ground fails to disclose an arguable case and should be dismissed.

Exhaustion of Alternative Remedies

28. As to the first ground, my view is that the law is quite clear. What must be appreciated is that the Commissioner is the head of the Police Force. As the head, he is charged with the duty of running the affairs of the Police Force. See s. 198 of the Constitution. Unlike the Defence Force which has two heads, the Commander who is responsible for military personnel and operational matters and a Secretary who is responsible for administration matters, the Police Force is unique. The Commissioner is responsible for both administration and operational matters of the Force.

29. In terms of disciplinary matters, by virtue of s. 2 (1) of the Act, the Commissioner is a disciplinary officer and is authorised to discipline any member of the Police Force who steps out of line. However, he may be assisted by other members of the Police Force, and for a variety of reasons, he may appoint commissioned officers to act as disciplinary officers. In my view that is the purpose of this provision when read together with s. 19 which provides for appointment of disciplinary officers.

30. Then where it is stated under s. 26 (5) that where a penalty is imposed by a “disciplinary officer”, the member affected may apply to the Commissioner to review the decision, it could only refer to the commissioned officer appointed by the Commissioner to act as disciplinary officer. Thus, I agree with her Honour that this provision is only effected when a penalty is imposed by a disciplinary officer. It does not include the Commissioner as if is intended so, it would have stated so. For it would not make sense to ask the Commissioner to review his earlier decision.

31. The Appellants tried to draw a comparison between the right of review under s. 26 (5) with other legislations providing for administrative review where decision-makers review their own decisions such as the Collector of Stamp Duties under the Stamp Duties Act, and the Commissioner General under the Income Tax Act and Customs Act. Those purported reviews must be considered within their context and are distinguishable. First, they deal with the imposition of stamp duties or income tax or import duties under the respective legislations. In this instance, the Commissioner is dealing with a disciplinary matter concerning members of the Police Force.

32. Secondly, the duties and taxes are imposed by statute. The collection of the duties and taxes form part of the Collector of Stamp Duties and Commissioner General’s functions and duties under the respective legislations. They assess and impose these duties and taxes based on information submitted to them by the person liable. Strictly, the Collector of Stamp Duties and the Commissioner General do not conduct an “investigation” into the liability of a person but assess and impose stamp duties and taxes based on the information submitted by that person. Under s. 26 of the Police Act, the disciplinary officer conducts an investigation into allegations of breaches by members of the Police Force.

33. Finally, in the case of stamp duties, where a person is aggrieved by the assessment of the Collector of Stamp Duties, he may object to it in writing to the Collector of Stamp Duties. Likewise, in the case of income tax and custom duties, a person aggrieved by a decision of the Commissioner General may object in writing to the Commissioner General. These are “objections” hearings. In these hearings, the aggrieved person is given the opportunity to dispute the assessment by the Collector of Stamp Duties or the Commissioner General. There is no mention of a “review” hearing by the Collector of Stamp Duties or Commissioner General. This is another distinction between these purported reviews and the review by the Commissioner under s. 26 (5) of the Police Act.

34. In my view the objections under the Stamp Duties Act, Income Tax Act and Customs Act and the review by the Commissioner of Police under s. 26 (5) of the Police Act are vastly different because they serve different purposes. Thus, I am not satisfied that the review referred to in s. 26 (5) includes a decision on penalty imposed by the Commissioner.

35. The evidence based on the Notice of Penalty served on each Respondent is that the Second Appellant was the decision-maker. Accordingly, he cannot review his earlier decision. Neither can the Respondents appeal against his decision to dismiss them because as correctly submitted by the Respondents s. 27 prohibits a right of appeal. The only recourse available is to seek judicial review.

36. For these reasons, I am not satisfied that this ground raises an arguable case.

Remedy-Judicial Review or Damages

37. The threshold question is whether the Respondents’ remedy lies in judicial review or in damages. Her Honour canvassed this issue in her decision. One of the reasons for holding that the decision to dismiss the Respondents was reviewable is that the Commissioner is responsible for the superintendence, efficient organisation and control of the Police Force under the Police Act and the disciplinary process and decision to dismiss the Respondents, more so, Mr. Eluh who is employed on contract are effectively based on the Police Act.

38. Given this, I consider that the arguments for and against this threshold issue can be either determined on appeal or at the substantive hearing of the application for judicial review. One factor which persuades me to find in favour of it being determined at latter hearing is that the proceedings have been commended in the National Court and are in progress. Time and resources have been expended by both sides to progress these proceedings. It would be a case of expending extra time and resources to further these appeals if leave were to be granted. Such course should be discouraged especially where the aggrieved party’s right to raise the issue is not being denied.

39. There have been reported cases of dismissed members of the Police Force seeking judicial review of the decisions by the Commissioner to dismiss them and have sought reinstatement. Leave for judicial review have been granted and following substantive hearing, the Court have upheld their applications for judicial review by finding that the subject decision was illegal or unreasonable but ordered the Commissioner and the State to pay damages in lieu of reinstatement as the reinstating them would cause inconvenience and hardship to the administration of the Police Force. One such case is Simon Kauba v. NEC & The State: OS (JR) No 477 of 2014 (Unnumbered & Unreported Judgment of 13^th November 2015) by Poole J.

40. In my view this threshold issue is still open to the Appellants to draw to the notice of the National Court. See Hon. Ano Pala & The State v. Sam Koim (supra). I propose to leave this issue for the National Court to consider.

Order

41. The application for leave to appeal in each case is refused with costs.

________________________________________________________________
Nicholas Tame Lawyers: Lawyers for the Appellants
Jema Lawyers: Lawyers for the Respondents