State v Police Appeal Tribunal; Ex Parte Sausau [1980] PGNC 5; N220 (19 May 1980)

Unreported National Court Decisions

N220

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
POLICE APPEAL TRIBUNAL, EX PARTE LAWRENCE ALLEN SAUSAU

Waigani

Miles J
16 May 1980
19 May 1980

REASONS FOR JUDGMENT

MILES J: This is an applicaby way oway of notice of motion for an order nisi for a writ of certiorari directed to the Police Tribunal at Port Moresby.

the application is successful a judge of the National Court will decide on the return of t of the order nisi whether the order should be made absolute and the writ issue. If the writ issues it would in the normal course of events be made returnable before the Supreme Court but some matters may properly be dealt with in the National Court by virtue of s.155 (4) of the Constitution: re Peter KanjipaN220.html#_edn179" title="">[clxxix]¹.

The respondent as I understand it has made a submitting appearance, but the Commissioner of Police appeared by Counsel before me on this application to oppose the making of the order nisi.

It was my view that the Commissioner had no right to appear but needed leave, as it were, as an intervener and might indeed need leave to appear on the return of the order nisi if made. I therefore heard Mr. Peterson for the Commissioner on his client’s locus standi and on the issue of whether the order nisi should be made.

As I consider that the order nisi should be made in any event I express no considered view of the locus standi of the Commissioner to oppose the making of the order nisi.

As is well known an order nisi is made conditionally and only until such time as a court considers whether or not it should be made absolute. If it is not made absolute, it is discharged. On the hearing of an application for an order nisi a court does not embark on a determination of all the issues but merely looks to see whether, on assumed facts, a prima facie arguable case is made out.

Mr. Peterson made a vigorous effort to convince me that no arguable case can be made out in favour of the applicant. He submits, and Mr. Rea for the applicant agrees, that the applicant’s case is founded on an alleged error on the face of the record of the Police Appeal Tribunal, that error being a denial of natural justice in failing to give reasons for its decision in dismissing the applicant’s appeal. I can see that there may be some difficulty in determining what it is that appears on the face of the record in this case, but as I understand Mr. Peterson, it is no part of his submission that the record discloses that the Tribunal did in fact give reasons.

Mr. Peterson further submits that the failure to give reasons does not amount to a denial of natural justice. He cited in support a recent text, G.A. Flick: Natural Justice (Butterworths, Sydney, 1979), p. 95 and cases referred to therein.

It is sufficient rejoinder to that submission to refer to pages 96 and 97 of the same text where there is ample contrary authority cited and discussed, particularly in relation to tribunals concerned not with the withdrawal of privileges granted administratively but with the denial of important rights such as the right to earn a living. Indeed the trend of Australian authority is said to be against what Mr. Peterson is submitting.

I would also add that it was submitted that authority for the proposition that failure to give reasons does not amount to natural justice was contained in Davies v. PriceN220.html#_edn180" title="">[clxxx]² and v. Gaming Board for Gror Great Britain, Ex parte Benaim & anor.N220.html#_edn181" title="">[clxxxi]³

From my somewhat cu reading of those cases it s it seems to me that they are not authority for the proposition at all.

On the same subject, a less recent but respected text, Benjafield & Watson: Principles of Australian Administrative Law (4th edition, Sydney, 1971) has this to say at p. 50: “It was possible until 1969 to state categorically that the rules of natural justice did not require the giving of reasoned decisions”. What happened in 1969 was that the High Court handed down its decision in Giris v. Commissioner of TaxationN220.html#_edn182" title="">[clxxxii]⁴ which has led to some dat l at least about the matter.

The case is therefore appropriate for the issue of an order nisi and the argument of these questions in full at the return of the order nisi.

I have entitled this judgment in accordance with what I understand to be the principles and practice” see R. v. Stipendiary Magistrate of the District Court at Port Moresby, Ex parte the Secretary for LawN220.html#_edn183" title="">[clxxxiii]⁵, R. v. Smith, Ex parte the Government of Papua New GuineaN220.html#_edn184" title="">[clxxxiv]⁶, and re Peter KanjipaN220.html#_edn185" title="">[clxxxv]⁷, and until further order I direct that the proceedings continue accordingly. appreciate that there may be a question of substituting the State for the sovereign.

The order will be: order nisi as asked returnable at the National Court Waigani in its June sittings. Existing injunction to continue until further order. Costs to be the applicant’s costs in the proceedings.

Solicitors for the applicant: D.E. Reatau-Mea.

Counsel: D.E. Reatau-Mea.

Solicitors for the respondent intervener: R. Woods, Acting State Solicitor.

Counsel: I.R. Peterson.

<79">N220.html#_ednref179" title="">[clxxix](Unreported) 28th March 1980, per Andrew J.<

N220.html#_ednref180" title="">[clxxx]^{(1958(1958) 1 W.L.R. 434}

N220.html#_ednref181" title="">[clxxxi]^{[1970] EWCA Civ 7; (1970) 2 Q.B. 417}

N220.html#_ednref182" title="">[clxxxii]^{(1969) 43 A.L.J.R. 99}

N220.html#_ednref183" title="">[clxxxiii]^{(1974) P.N.G.L.R. 201}

N220.html#_ednref184" title="">[clxxxiv]^{(1974) P.N.G.L.R. 293}

N220.html#_ednref185" title="">[clxxxv]^{(unreported) 28th March, 1980 per Andrew J.}