Tandali v Independent State of Papua New Guinea [1990] PGNC 131; [1990] PNGLR 170; N905 (7 May 1990)

N905

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TANDALI

V

INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani
Sheehan J

13 March 1990
7 May 1990

ADMINISTRATIVE LAW - Judicial review of administrative acts - Grounds for - Alleged default of lawyer in prosecuting administrative appeal - Police Appeals Tribunal - Not ground going to decision of Tribunal - Appeal dismissed for want of prosecution - Dismissal within power - Judicial review refused.

Held:

A police officer who, following disciplinary proceedings, appealed to the Police Appeals Tribunal, which afforded him an opportunity to present his case and which dismissed his appeal for want of prosecution (allegedly through default of his legal advisers) could not complain of procedural impropriety (in that he had not been given an opportunity to present his case) or breach of the rules of natural justice in the decision of the Police Appeals Tribunal which it had power to make.

Al-Mehdawi v Secretary of State for the Home Department [1989] 3 WLR 1294; [1989] 3 All ER 843, followed.

Cases Cited

The following case is the only case cited in the judgment:

Al-Mehdawi v Secretary of State for the Home Department [1989] 3 WLR 1294; [1989] 3 All ER 843.

Judicial review

This was the hearing of an application for judicial review of a decision of the Police Appeals Tribunal which dismissed an appeal to it from a disciplinary order for dismissal from the Police Force.

Counsel:

M Gene, for the applicant.
J Pambel, for the defendant.
Cur adv vult

7 May 1991

SHEEHAN J.: The applicant is a former police officer who seeks this Court’s review of a decision of the Police Appeals Tribunal made on 21 August 1989 which dismissed his appeal against dismissal from the Police Force. The ground advanced for this review is that he was not given an opportunity to argue his case before that Tribunal.

At the beginning of 1986 the applicant was a police officer serving in Port Moresby. On 3 March 1986, he appeared before the Boroko District Court and pleaded guilty to an information which charged him with unlawful assaults of three other police officers. He was convicted, fined K50 and ordered to pay compensation of some K40.

Following his appearance in court the applicant became the subject of disciplinary proceedings within the police force and on 7 November 1986 was dismissed for the unlawful assaults on his fellow police officers. He appealed against that decision to the Police Appeals Tribunal, lodging his appeal on 30 November 1986. The applicant instructed counsel to act for him on his appeal but on 21 August of that year the Police Appeals Tribunal notified his counsel that the appeal had been dismissed.

The letter advising of the dismissal is in fact lodged as an exhibit in this application. It is not dated. It is simply noted in the statement in support of the application that the letter was received on 21 August 1987. It reads as a follow-up letter setting out the consequences of failure to comply with the Tribunal’s procedure. It states —

"Re Police Appeal — Constable 9101 Tandali

In view of your failure to let me have written submissions on behalf of your client by 7th May 1987 as directed on 30th April 1987, I advise that I have now dismissed this appeal for want of prosecution.

Yours faithfully

J E Byrne

Police Appeals Tribunal"

There was no further body to whom the applicant could appeal and he states that he was unable to obtain any real advice from his then lawyer. He subsequently turned to the Public Solicitor’s Office who lodged this application for judicial review in August 1989. Leave to apply was granted that same month and the full application has now come before this Court for decision.

The application must fail. In the first place this Court’s powers of judicial review are only available to consider the validity of a decision of a tribunal and to interfere with that decision only if it can be shown that it was made unlawfully, unfairly or contrary to the principles of natural justice.

In this case the decision of the Police Appeals Tribunal was one within its powers to make. The appeal was dismissed for want of prosecution, though, according to the statement in support of the application, the appeal was heard by the Tribunal at Port Moresby. In an affidavit made on 5 December 1989 the applicant himself states that on an unspecified date he appeared before the Tribunal with his lawyer and the decision was made. He says further that while driving home from attending that Tribunal hearing he was told by his counsel that his appeal had been dismissed.

It may be the appeal was heard except for final submissions but as no comment or submission was made clarifying this, the Court is left with only the applicant’s original assertion that he was not heard and with the Police Tribunal’s notice of having given him opportunity to be heard and the notice of dismissal of the appeal for failure to prosecute that appeal. The Court accepts that the applicant’s appeal was finally dismissed for want of prosecution and that, in that sense, the applicant did not present his case.

It is the applicant’s case that he was prevented from presenting his case through the default of his lawyer. But that claim does not in fact reveal any fault in the decision of the Police Appeals Tribunal. Essentially the applicant was granted the opportunity of presenting his case on appeal before the Police Appeals Tribunal and failed to do so. He engaged counsel and whether the failure to take advantage of the appeal procedure open to him is his own fault or that of counsel it is certainly not a fault of the Tribunal. It has only made a decision it was empowered to make; namely to dismiss an appeal not followed through.

I am not aware of any claims for relief being made in this Court based on the failure of counsel to ensure proper conduct of a claimant’s case. The matter was recently decided in the United Kingdom.

In Al-Mehdawi v Secretary of State for the Home Department [1989] 3 All ER 843, the House of Lords decided that a party to a dispute who had been afforded an opportunity to present his case but who had lost the opportunity to have his case heard through the default of the legal advisers to whom he had entrusted the conduct of the dispute on his behalf, could not complain that there had been procedural impropriety or that natural justice had been denied to him, and it made no difference whether the matter in dispute raised private law or public law issues. This conclusion is one which is to my mind in accord with the general principles of Papua New Guinea Law, one with which I agree and which adopt.

There are two further reasons to my mind why this application cannot succeed. First, the obvious delays in pursuing this application for review. From at least August 1987, the applicant was aware of the dismissal of his appeal and, even taking into account the supposed fault of his legal advisers, an inordinate delay has elapsed in making this application for review. Here, to my mind there has been no indication of a vigorous pursuit of the application for review.

The second reason is that the lapse of time since the applicant’s dismissal from the Police Force is such that even if his application were found to have merit, to now order the Police Tribunal to rehear the matter four years later, is neither practical or reasonable. In terms of O 16, r 4 of the National Court Rules it would be quite detrimental to good administration.

The essence of this matter is that the applicant, convicted of a criminal assault on fellow police officers, sought to mitigate the penalty that the disciplinary proceedings imposed on him. Now, some four years after the event, this Court could not reasonably order the whole matter to be reviewed to enable the applicant to repeat his case for reinstatement in the Force. The administration of the Police Force has moved on since then and in this case the clock cannot be put back. Accordingly, the application is dismissed.

Application dismissed

_____________

Lawyer for the applicant: Public Solicitor.
Lawyer for the defendant: Public Prosecutor.