SC2398
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 70 OF 2021

BETWEEN:
JOHN TIMOTHY TEMBIL
Appellant

V
STEPHEN POKANIS – Commissioner of Papua New Guinea Correctional Service
First Respondent

AND
VINCENT KUNDI, DONALD APETI & BOB OMBA as
Members of Disciplinary Board
Second Respondent

AND

PAPUA NEW GUINEA CORRECTIONAL SERVICE
Third Respondent

Waigani: Yagi J, Geita J & Anis J
2023:  25th April, 19th May

JUDICIAL REVIEW APPEAL – Appeal against exercise of discretion by leave court in refusing leave for judicial review – contested arguments concerned arguable case and exhaustion of administrative remedies – whether review judge erred in the exercise of discretion – whether there was prima facie arguable case – whether the appellant had exhausted administrative remedies provided for under the Correctional Service Act 1995
Cases Cited:
Papua New Guinean Cases

Curtain Bros (PNG) Limited v. UPNG (2005) SC788
The State & Sam Akoita v. Central Provincial Government (2009) SC977
Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106

Overseas Cases:
Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621

Counsel:

N Kopunye with counsel assisting M Worinu, for the Appellant
V Gonduon, for the Respondents

19th May, 2023
1.	BY THE COURT:  This was a judicial review appeal hearing.  The appellant is the Commander of Mukurumanda Correctional Institution (MCI).  He is currently under suspension with full pay.  He had unsuccessfully applied for leave for judicial review in the National Court (leave or JR Court).  He had intended to challenge the decision of the first respondent (CS Commissioner) in appointing a Special Disciplinary Board within the Correctional Service (Disciplinary Board).  The said decision is contained in the Commissioner’s internal circular dated 16 July 2020.  The Disciplinary Board was appointed to determine serious offences the appellant was alleged to have committed under s39(g) of the Correctional Service Act 1995 (CS Act).  
2.	The appeal is filed under Order 10 Rule 1 of the Supreme Court Rules 2012 (amended to date), that is, by Notice of Motion (appeal/NoM).  The NoM refers to the leave Court’s decision of 23 November 2021 in proceeding OS (JR) No. 78 of 2021 (JR proceeding), and we note that there are 2 main grounds raised therein where we are being asked to determine.  We summarise them as follows:
•	Alleged error of mixed fact and law.  The appellant claims that His Honour, in assessing whether there was an arguable case, should have but did not restrict himself to consider whether there was a prima facie case; instead, the appellant claims, His Honour proceeded to substantially determine the argument; (grounds a and b);
•	Alleged error of mixed fact and law.  The appellant claims that His Honour, in assessing whether the appellant had exhausted all administrative remedies, should have noted or found that the CS Act does not provide any administrative remedies for one to exhaust before filing for judicial review proceeding if one intends to challenge the CS Commissioner’s decision in appointing a disciplinary board or its composition under s42 of the CS Act. (Ground c).
LAW
3.	The decision by His Honour in refusing leave for judicial review is discretionary.  Such decision may be disturbed or set aside by an appellant Court if an identifiable error(s) has occurred, or if not, where the order made may be inferred as so unreasonable or plainly unjust.  See cases: Curtain Bros (PNG) Limited v. UPNG (2005) SC788, The State & Sam Akoita v. Central Provincial Government (2009) SC977, Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 and Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106.  
4.	The Supreme Court in Curtain Bros stated:
The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is "unreasonable or plainly unjust" and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25;(1956) 94 CLR 621 at p. 627, which was adopted by Clarkson J in Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 at p.112 – 113:
"The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance ..." 
[Underlining ours]
DID THE LEAVE COURT JUDGE COMMIT AN IDENTIFIABLE ERROR?
5.	The question we ask ourselves is whether the trial Judge committed an identifiable error when he exercised his decision and refused leave in the JR proceeding.
6.	The appellant’s intended challenge concerns exercise of power by the CS Commissioner in appointing the Disciplinary Board that would hear disciplinary charges that were laid against him.  Premised on the Statement (which contained the pleaded facts) filed in support of his leave application (i.e., red tab in the NoM), the appellant refers to s42(2) of the CS Act (which was pleaded in the Statement) and submits that he had an arguable case that should have warranted the granting of leave by His Honour.  The appellant submits that His Honour instead considered and determined the arguable case argument substantially, something which, the appellant submits, should have been reserved for substantive argument after the leave stage.  In doing so, the appellant submits, His Honour committed an identifiable error.
7.	The respondents, we note, tried to raise substantive argument in their response.  Counsel submits on point that the CS Act or s42(2) is silent on composition of a disciplinary board in a case where a commanding officer of a CS institute is charged with a serious offence.  Therefore, they submit, the Commissioner was at liberty to look at other provisions within the Act to assist including s13.  They also submit that the action of the Commissioner was consistent with similar practices that were in place and enforced in the other disciplinary forces such as police, and therefore they submit that His Honour was correct in his decision thus no identifiable error was committed.
8.	It is appropriate that we begin by setting out s42.  It reads:
“42.  SERIOUS OFFENCES.
(1)  A charge for a serious offence shall be heard by the Disciplinary Board.
(2)  The Commissioner shall appoint for each correctional institution a Disciplinary Board which shall be comprised of the Commanding Officer of that correctional institution, the Deputy Commanding Officer of that correctional institution and another senior correctional officer or member of that correctional institution.
(3)  A member of a Disciplinary Board may disqualify himself or herself and the Commissioner shall appoint another member of the same or senior rank to the disqualifying member.
(4)  In hearing the offence a Disciplinary Board shall–
(a)	if not satisfied on the evidence, dismiss the matter; or
(b)	if satisfied on the evidence, find the charge proven and apply one of the penalties prescribed under this Act.
(5)  A Disciplinary Board shall not be bound by the rules of evidence in the conduct of a hearing under this section, but shall conduct the hearing in accordance with the rules of natural justice and the procedures prescribed.”
9.	The appellant had pleaded in the Statement at paras 12 to 17 that the 3 appointed members of the Disciplinary Board were officers from outside the Mukurumanda Correctional Institution.  According to the pleadings, Vincent Kundi is the Acting Commissioner responsible Bougainville Affairs, Chief Inspector Donald Apeti is the Commanding Officer of Bihute Correctional Institution, and Chief Inspector Bob Omba is an officer with the Barawagi Correctional Institution.  The appellant stated that he had argued, amongst others, that by making these appointments, the CS Commissioner acted ultra-vires or that his action contravened s42(2) of the CS Act.  As such, he said he had submitted before the leave Court that it raised an arguable case for judicial review.
10.	We note that the role of a leave Court in judicial review proceedings is settled in this jurisdiction.  Justice Lay in Ken Norai Mondiai v. Wawoi Guavi Timber Company Ltd (2007) N3120, summarised that at para 17 as follows:
“17.  The role of the Court on an application for leave to seek judicial review is simply to express a view as to whether or not the case might be arguable based on a quick review of the Plaintiff’s material. If the judge forms the view that on a closer examination it may turn out that there is an arguable case for granting the relief then leave should be granted:  See Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited [1982] AC 617 at 644 applied in NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70 Wilson, J. Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153, Sheehan, J.   The Court need only be satisfied with the requirements of O16 r 2, r 3, & r 5. The Court is not required to address the matters in O16 1(2). Substantive issues should be considered at the substantive hearing:  See Ombudsman Commission v Dohonue [1985] PNGLR 348 at 361 applied in Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22.”  [Underlining ours]
11.	A copy of the transcript of the proceeding (the Transcript) the subject of this review is attached to the affidavit of Melisha Worinu filed on 8 February 2023.  The affidavit forms part of the review documents, and we note that no issue was taken in that regard.  We refer to line 30 at pp 27 of the Transcript, which reads:
“In this case, judicial review process has been invoked to look into a process decision, process of appointment the board, and the board is the correct place to raise the issue and the plaintiff has.  While that is in chain and the board is yet to come to a decision, this application has been filed.  If there has bee a delay in the picking up of the hearing that was adjourned then the relief sought should be reflecting that, an order to compel the disciplinary board to reconvene and to make a decision on this point.  That is not what is sought in this proceedings.  Instead this proceeding is seeking to challenge and get around the decision to appointing the second defendants as members of the disciplinary board and constituting the disciplinary board under section 42 of the Correctional Service Act.
That being the case, the plaintiff has already raised the issue correctly in the board and the board is yet to come to a decision.  So he is trying to have two bites at the cherry so to speak.  (1) Having raised the issue with the board and while the board is yet to come to a decision, coming to this court to have the decision appointing them reviewed and revoked effectively.  So, that is a process that amounts – what the plaintiff has done, in my view, has abused the process of the court.  He should wait and see to a completion of the process that has commenced, part-heard and is pending for conclusion before the second defendants.”
12.	We note the submissions of the parties on this issue.
13.	We make the following observations.  First, we observe that there is no available or prescribed internal process set out in the CS Act that caters for situations such as this (i.e., where an aggrieved Commanding Officer of a CS Institute intends to challenge a decision of the CS Commissioner concerning the Commissioner’s appointment or selection of members of a disciplinary board to investigate serious disciplinary charges laid against him or her).  We find the appellant’s submission on this matter supported by references to the CS Act itself.  We also note that the respondents also acknowledge this fact.
14.	Our second observation is this.  The fact that the appellant had written to the Disciplinary Board to argue that the board had no jurisdiction is, with respect, inconsequential.  The intended issue that was raised and filed before the leave Court, we observe, concerned the decision-making process by the CS Commissioner in appointing the Disciplinary Board.  It did not concern matters that relate to the charges that the appellant was charged with and where the Disciplinary Board was set-up to decide on.  The intended challenge by the appellant, in our view, was within the purview of a JR Court.  The Disciplinary Board, we note, has no such judicial review jurisdiction or discretion to interpret law and or decide whether a law within the CS Act was broken by the CS Commissioner, or whether the action by the CS Commissioner in appointing the board was, amongst others, ultra-vires.  Only the National and the Supreme Courts have that jurisdiction.  See: Constitution ss 99 and 155.  This Court in Reference by Dr Allan Marat, in the matter of Prime Minister and NEC Act 2002 Amendments (2012) SC 1187 at para 429 (per Gavara-Nanu J) stated:
429.  It is important to note that the supremacy of the Parliament only relates to its power to make laws. That correlates with the notion that all laws passed by the Parliament will remain binding unless they are either repealed or are declared invalid by the courts. The Parliament’s unlimited power of law making under s99 (2) (a) is to be contrasted with the unlimited jurisdiction of the National and Supreme Courts expressed in s99 (2) (c). I consider the inherent powers of the two courts which are expressly stated under s155 (2), (3) (a), (4) and (5) is tied to the unlimited jurisdiction of the two courts, to empower the two courts to interpret laws including the Constitution and to review actions and conduct of the three arms of the government. The courts in the exercise their unlimited jurisdiction also have the duty to defend and enforce the Constitution. Thus, it is the constitutional duty of the two courts to guard and defend the Constitution. They are the guardian of the Constitution.  [Underlining ours].
15.	The Disciplinary Board’s role, in our view, is limited to considering the disciplinary charges that were laid against the Appellant.  To do otherwise or to revisit the power or decision of their top hierarchy, which is the CS Commissioner, could also amount to and perhaps in the worst-case scenario constitute insubordination; the board may be accused of questioning the exercise of power by their head in appointing them to investigate or determine the serious charges that have been laid against the appellant.
16.	With these, we are therefore of the view and find, with respect, that His Honour committed an identifiable error when he found that the appellant did not exhaust the administrative remedies before he applied for leave for judicial review.
17.	We finally refer to His Honour’s decision at lines 20 and 30 at pp 26 of the Transcript and quote:
In this case, the commanding officer is the plaintiff is the person who is to be charged.  Section 42 does not provide adequately as to what should be the case when that is the situation nor does the Act in any part of the – any of its provisions provides for this situation.  Also there seem to be no recognition of the need for impartiality in dealing with someone who is caught and more so it does not account for what is to be the case or steps to be taken in terms of appointing a disciplinary board if the commanding officer himself is the person to be charged and dealt with.  So it seems the commissioner of correction has proceeded to and appoint the members of the disciplinary board who are the second defendants in this proceeding.  And he has selected senior officers appreciating that the plaintiff is a senior officer and he is got to be dealt with people of equal rank or higher but that is not – it is not founded in the Act nor does it run contrary to any express provision in the Correction Service Act.  All we have is section 42.
So that is a matter for parliament to revisit but the commissioner in the absence of any expressed guidance as to what should be the case when the commanding officer himself is involved and the commissioner has gone ahead and made the appointment of the second defendants in the way he has.  [Underlining ours]
18.	We note the submissions of the parties in regard to the above, that is, on whether the Court had, instead of making a cursory inquiry to see if there was an arguable case, proceeded to determine or gave its opinion on the intended substantive issue.
19.	We would also uphold the submissions of the appellant in this regard.  We find that His Honour, with respect, had given his views or interpretations concerning s42 of the CS Act.  His Honour for example expressly stated that the s.42 does not provide adequately as to what should be the case when that is the situation nor does the Act in any part of the – any of its provisions provides for this situation.  That, in our view, is making or expressing a view or interpreting the provision, which should have been left for the substantive judicial review Court to deal with.  Issues surrounding s42 of the CS Act were intended to be raised as primary matters before the JR Court.  The appellant had intended to argue, amongst others (after leave was granted), that the s42(2) was express and that the CS Commissioner ought to have complied with it; that the CS Commissioner did not do so thus he committed an error; that he also breached or exceeded his power under s42 of the CS Act when he appointed the Disciplinary Board which comprised of members who were outside the Mukurumanda CS Institution.  In our view His Honour should have, after he had considered that section s42 was silent on who to appoint in a case where a commanding officer has been charged, ruled that there was an arguable case and left it at that for the JR Court to determine at the next stage of the JR proceeding.
20.	We therefore also find that His Honour erred in the exercise of his discretion when he made these findings, in particular, when His Honour tried to justify the actions of the CS Commissioner for acting outside of s42 in appointing the Disciplinary Committee.
SUMMARY
21.	In summary, we are satisfied and find that the judicial review appeal should be upheld.  The combine or consequential effect of our above findings means that the appellant has established his case for leave to apply for judicial review, and that the matter should progress to a substantive judicial review hearing before the National Court.
22.	We will issue consequential orders for the appellant to file and serve the substantive notice of motion for judicial review pursuant to Order 16 Rule 5(1) of the National Court Rules, and further, we will issue orders for its service upon the defendants as named in the JR proceeding.
COST
23.	We will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT:

24.	The orders of the Court are:

1.	The appeal is upheld.

2.	The judgment of the Learned Judge of 23 November 2021 in refusing the application for leave for judicial review and dismissing the entire proceeding, is quashed, and in place,

(i)	pursuant to Order 16 Rule 3 of the National Court Rules, leave is granted to the Plaintiff to apply for judicial review over the decision of the 1st Defendant made by a letter dated 16 July 2020 in appointing the 2nd Defendants as the members of the Disciplinary Board to hear and determine the disciplinary charges against the Plaintiff;

(ii)	pursuant to Order 16 Rule 5 of the National Court Rules, the Plaintiff shall file and serve its substantive Notice of Motion for judicial review over the decision (referred to above herein) within 14 days from the date of this order;

(iii)	the matter shall return before the JR Court for directions shortly after service for listing.

3.	The Respondents shall pay the Appellant’s cost of the appeal on a party/party basis to be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the Supreme Court which shall take place forthwith.
________________________________________________________________
Kopunye Lawyers: Lawyers for the Appellant
PNG Correctional Service In-House Counsel:  Lawyers for the Respondents