Judicial Review Application by Andrew Posai [1995] PGLawRp 703; [1995] PNGLR 350 (30 August 1995)

PNG Law Reports 1995

[1995] PNGLR 350 - Judicial Review Application by Andrew Posai 

[1995] PNGLR 350

N1354

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JUDICIAL REVIEW APPLICATION BY ANDREW POSAI

Waigani

Sheehan J

7 July 1995

2 August 1995

18 August 1995

30 August 1995

ADMINISTRATIVE LAW - Judicial review - Application for leave - Need to establish an arguable case.

CONSTITUTIONAL LAW - Judicial review - Basis and scope of court’s power, Constitution s 155(4).

Facts

The Leadership Tribunal found the plaintiff guilty of misconduct in office on 26 counts and recommended his dismissal from office on some counts and reprimand on others. The plaintiff sought judicial review of the tribunal’s decisions on penalties and applied leave to make an application therefore.

Held

N1>1.       The Court’s powers of judicial review stem from s 155(4) of the Constitution, and from the inherent jurisdiction of the Courts. Essentially the supervisory jurisdiction of judicial review is intended do justice, to review - for cause - the actions or determinations of any public authority dealing with the rights of the individuals.

N1>2.       The power of review ranges across the whole of public administration whether judicial or administrative. Since Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 and many decisions since that time both here in Papua New Guinea notably Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 and overseas there is no longer any distinction between judicial and administrative decisions and Courts supervisory role now extends to the review of public authorities and persons charged with any public duty where their actions or determinations affect the public rights of individuals.

N1>3.       The Leadership Tribunal is required to recommend punishment. In Judicial Review In Judicial Review this Court cannot itself exercise that discretion even if it were to disagree with the determination made. It can not act as a Court of appeal. It can not substitute its own view of what penalty should be imposed. All that it can do in review is to determine whether the Leadership Tribunal exercised its discretion lawfully and accordance with the powers given to it by the Organic Law.

N1>4.       Application for leave for judicial review do not involve a full enquiry into the facts and issues of a case. It must be shown however that a plaintiff has an arguable case. Here the plaintiff has not established such a position.

Cases Cited

Papua New Guinea case cited

Premdas v Independent State of Papua New Guinea 1974 PNGLR 329.

Other cases cited

R V Hillingdon v London BC [1986] UKHL 1; [1986] AC 484.

Chief Const. of North Wales Police v Evans [1982] UKHL 10; 1982 1 WLR 1155.

Ridge v Baldwin [1963] UKHL 2; 1964 AC 40.

Counsel

Dr Marat, for the plaintiff.

Mr F. Damem, for the defendant.

30 August 1995

SHEEHAN J: On 5 July 1995 a Tribunal constituted under the Organic Law on Duties and Responsibilities of Leadership found the plaintiff guilty of misconduct in office on some 26 counts. The Tribunal was then addressed by both the Public Prosecutor and Counsel for the plaintiff “as to what penalty should be imposed upon the leader and the law relating to the powers of the Tribunal and what the law required as the relevant considerations”.

On the following day 6 July 1995 the Tribunal delivered its written decision, the “Imposition Of Penalties” determining that on certain of the counts against the plaintiff it was appropriate that there should be a recommendation for dismissal from office and on others that there need be a reprimand only.

Pursuant to s 28(1A)(2) of the Constitution the appropriate authorities acted in accordance with the Tribunal recommendation. The plaintiff was therefore reprimanded and dismissed from office.

The plaintiff now seeks leave to apply for judicial review of the Tribunal’s decision on penalties, on the grounds that the determination of the Tribunal to recommend dismissal on the relevant counts “was against the weight of evidence advanced during the Tribunal hearing which was suggestive of a much lesser degree of culpability on the part of the applicant.”

Additional grounds for review assert that a comparison of the offences for which dismissal was recommended, with those where a reprimand only was determined, show an inconsistency which indicates want of proper consideration by the Tribunal. Another ground was that no aggravating circumstances were disclosed in the offences of misconduct which the plaintiff was guilty of. It is contended therefore that decisions to recommend dismissal must be seen to be unreasonable and therefore can not be sustained.

For the plaintiff, Dr Marat said that the plaintiff would argue that there had been breaches of natural justice, in that the Tribunal had failed to take into account matters in favour of the plaintiff when assessing the penalty. A proper view of the evidence given during the enquiry he said, showed that the imposition of dismissal was excessive and unfair to the plaintiff. Imposing a penalty that cannot be justified, amounts to unfairness and therefore a breach of natural justice. Under such circumstances it was submitted. the plaintiff had an arguable case which should go to review.

For the defendant, Mr Damem, Solicitor General submitted that the Court should decline jurisdiction for this application on the basis that s 155 of the Constitution provides for review by way Certiorari for judicial proceedings only. Since the proceedings of the Leadership Tribunal are not strictly judicial then this application should not succeed. He further argued that even were Court to accept jurisdiction in this matter, a suggestion that a decision of a Tribunal was against the weight of evidence, is insufficient as a ground for review. He submitted that merely asserting that a decision was wrong, without pointing out the nature of the error did not establish an arguable case. It was the plaintiff’s obligation he said in claiming error or breach to show an arguable case as to just in what way the Tribunal failed to carry out the duty entrusted to it. This he said the plaintiff had failed to do.

RULING

As both Counsel submitted the Courts powers of judicial review stem from s 155(4) of the Constitution, and from the inherent jurisdiction of the Courts. Essentially the supervisory jurisdiction of judicial review is intended do justice, to review - for cause - the actions or determinations of any public authority dealing with the rights of the individuals. That power of review, it should be said ranges across the whole of public administration whether judicial or administrative. The submission that review, or the Courts power to make orders in the nature of certiorari are restricted to judicial decisions only, no longer holds. Since Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 and many decisions since that time both here in Papua New Guinea notably Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 and overseas there is no longer any distinction between judicial and administrative decisions and Courts supervisory role now extends to the review of public authorities and persons charged with any public duty where their actions or determinations affect the public rights of individuals.

But it is vital that the Court in exercising a power of review keeps in mind that its role is one of supervision only. That is to say a role to ensure fairness by public authorities in the exercise of their powers, bearing in mind, that it is the public authority that retains, at all times, the Parliament - authorised power of decision.

“It is important to remember in every case that the purpose of (Judicial Review) is to ensure that the individual is given fair treatment by authority to which he has been subject and that it is no part of that purpose to substitute the opinion of the jurisdiction or individual Judges for that of the authority constituted by law to decide the matter in question” Chief Const. of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155.

That is just another way of saying that the Court must not act as a Court of appeal. The Court cannot make the decision of the public authority for it. All that it is empowered to do is to ensure that the decision is made according to law and within the jurisdiction given to that body.

The plaintiff contends that the Leadership Tribunal did not exercise its jurisdiction in a fair manner when it made its recommendations for penalty in respect of the misconduct it had found.

The Leadership Tribunal takes it authority from the Organic Law on the Duties and Responsibilities of Leadership.

By s 27(4) of the OLDRL:

“The Tribunal shall make due enquiry into the matter referred to it, without regard to legal formalities or the rules of evidence and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

N2>(5)      if the Tribunal finds that a person to whom this law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that - (a) he be dismissed from office or position; or (b) as permitted by s 28(1a) of the Constitution and in the circumstances set out in that subsection - some other penalty provided by an Act of the Parliament.”

The Leadership Tribunal in this case has made due enquiry and found the Plaintiff guilty of misconduct. It was therefore empowered to make recommendations on the penalty it considered appropriate. It had the statutory discretion of the Organic Law to determine whether the misconduct it found should be visited with the dismissal the Organic Law provided for or that some other penalty “provided by an Act of Parliament be imposed”.

In Judicial Review this Court cannot itself exercise that discretion even if it were to disagree with the determination made. It can not act as a Court of appeal. It can not substitute its own view of what penalty should be imposed. All that it can do in review is to determine whether the Leadership Tribunal exercised its discretion lawfully and accordance with the powers given to it by the Organic Law.

That is well summarised in R V Hillingdon v London BC [1986] UKHL 1; [1986] AC 484 where it was said;

“the grounds on which the Court will review the exercise of an administrative discretion is abuse of power eg bad faith, a mistake in construction of limit of the power, a procedural irregularity [for example breach of natural justice] or unreasonableness in the Wednesbury sense .... that is unreasonableness verging on absurdity. Where the existence or non existence of fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decisions of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that body, consciously or unconsciously are acting perversely”.

Applications for leave for judicial review do not involve a full enquiry into the facts and issues of a case. It must be shown however that a plaintiff has an arguable case. Here the plaintiff has not established such a position. The most cursory examination of the Tribunal decision on the penalties challenged shows that it made its decisions or penalty based on the facts before it, submissions of counsel for the parties on the appropriateness of the penalty and the law that was applicable.

That is what the public record of the Tribunal shows. The Tribunal declares in its “imposition of penalties” that it considered its powers of penalty - the evidence and the submissions on these, before exercising its discretion. That the Leadership Tribunal in fact did exercise a discretion is illustrated by the fact that in not all cases was the penalty imposed one of dismissal. Penalties of reprimand were also recommended.

But even without those matters this application could not succeed. The essence of this application is a request that if the Court review and determine whether it considers that the weight of evidence before the Tribunal justified the penalty of dismissal imposed or whether that evidence in fact suggested that a different penalty would be more appropriate. That is a challenge to the Tribunal’s decision not to its validity and is something the Court cannot do. The power of that decision rests solely with the Leadership Tribunal and whether or not the evidence that the plaintiff contends might suggest to the Court that it would decide penalty in another way, that would not be a ground for review, that would simply be the Court assuming functions of the Tribunal. Something that it is simply not empowered to do.

There is no argument or arguable case put by the plaintiff to suggest that the Tribunals exercise of its discretion was exercised in a manner which is wrong or unfair or unreasonable. Under such circumstances this application for leave must be declined.

Lawyer for the plaintiff: Marat & Associates.

Lawyer for the respondent: Solicitor General.