Jimmy v Kaleva [2004] PGNC 67; N2715 (17 November 2004)

N2715

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 609 OF 2004

BETWEEN:

JEFFREY JIMMY & MEREANDI DAWAI
-Applicants-

AND:

BEVERELY KALEVA,
CHAIRPERSON, STUDENT DISCIPLINARY COMMITTEE

- First Respondent-

AND:

DR. NEMANI TAUSERE,
VICE CHANCELLOR, PACIFIC ADVENTIST UNIVERSITY
-Second Respondent-

AND:

PACIFIC ADVENTIST COLLEGE
-Third Respondent-

WAIGANI : Injia, DCJ
2004 : 17th November

JUDICIAL REVIEW – Practice and procedure – Application to dismiss substantive application for judicial review on grounds that grounds set out in Statement in Support do not disclose reasonable cause of action – Application made after leave was granted – Proper procedure - Application to be made under Order 16 rule 8 – Test to be applied in determining whether Applicants’ application discloses no reasonable cause of action- National Court Rules O.16 r.8

Cases cited in the judgment:

Attorney-General Michael Gene v The Independent State of Papua New Guinea & Another SC630 (1999).
Council of the Civil Service Unions v Minister for the Civil Service [1984] ALL ER 935
Vanderlist v Mt Hagen Golf Club [1990] PNGLR 315
Application of Gigimat [1992] PNGLR 322
Ex Parte Gurupa N856 (1990).

Counsel:
Z Gelu for the Applicants
B Frizell for the Respondents

17th November 2004

INJIA, DCJ: The Respondents apply to dismiss the Applicants’ pending application for judicial review proceedings, for failing to disclose a reasonable cause of action. The Applicants’ application was filed under O 16 of the National Court Rules (NCR). Leave to apply for judicial review was on 9th November, 2002.

The Respondents application is made under NCR, O 12 r 40 or in the alternative, NCR, O 8 r 27. These rules apply to claims for damages or declaratory relief commenced by Writ of Summons or Originating Summons.

Order 12 rule 40 provides:

"40. Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)."

Order 8 rule 27 provides:

"27. Embarrassment, etc. (15/26)

(1) Where a pleading—

(a) disclose no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)."

The Respondents object to the competency of the application on the basis that the application is misconceived because once leave is granted, the matter must proceed to a full review. Mr Frizell submits the rules relied upon in making this application are of general application but he did not cite any provisions of the rules under O 16 to support his argument.

It is settled that the procedure for judicial review commenced in the National Court is exclusively set out in Order 16: Attorney-General Michael Gene v The Independent State of Papua New Guinea & Another SC630 (1999). The procedure for the present application is found in Order 16. The relevant rule is O 16 rule 8 which provides:

"8. APPLICATION FOR DISCOVERY, INTERROGATORIES, CROSS-EXAMINATION ETC. (UK. 53/8)

(1) Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any Judge of the Court notwithstanding that the application for judicial review has been made and is to be heard by another Judge.

(2) In this sub-rule "interlocutory application" includes an application for an order under Order 9 divisions 1 and 2, or Order 11 Division 3, or for an order dismissing the proceedings by consent of the parties.

(3) This Rules is without prejudice to any statutory provision or rule of law restricting the making of an order against the State."

Order 16 rule 8 is of general application to any type of interlocutory applications made under the National Court Rules including those expressly mentioned in r 8(2). Order 9 Div. 1 and 2 covers Discovery & Interrogatories respectively, in actions commenced by Writ of Summons and Originating Summons seeking damages or declaratory orders. Order 11 Division 3 relates to affidavits. One may be mistaken by the scheme of O 16 r 3,4,5 and 6 that once leave is granted, the matter must proceed to a substantive hearing. If such interpretation were accepted, on one hand, it would restrict the parties from making interlocutory applications including those for dismissal of proceedings. On the other hand, it would also prevent the Court from exercising control over its own proceedings at an interlocutory stage to ensure that interlocutory steps are properly concluded and that only meritorious cases proceed to a full hearing. Indeed issues of procedural competency remain open for the Court to address throughout the proceedings up until final judgment. Therefore, I reject the Respondents’ submission.

Mr Frizell relies on the affidavits filed by Mr Peter T Alu sworn 8th November (Registrar), Mr Flurian Bola sworn 10th November (Director of Student Services) Mr Frizell sworn 8th November. Mr Gelu relies on the same affidavits relied upon in the application for leave and these are the affidavits of Mr Jeffrey Jimmy sworn on 3rd November and another one sworn on 29th October.

On the issue of reasonable cause of action, Mr Frizell made five (5) main submissions, which are:-

1. Leave should not have been granted because the Applicants misled the Court on the arguable nature of the proposed grounds of review. He submitted the affidavits of Mr Jimmy relied upon in the application for leave were incomplete and they deliberately omitted the material on the contractual nature of the documents signed between the University and the Applicants when they were first admitted to the University. They also omitted documents on the completed disciplinary process which involved an initial disciplinary hearing and an appeal process. Copies of those documents and records are now before the Court. If these documents have been placed before the Court, then leave would not have been granted.
   
2. A full disciplinary hearing was conducted followed by an appeal. The Disciplinary Committees conducted a proper and fair hearing and reached a fair decision.
   
3. The students signed to and agreed to abide by Code of Conduct set out in the Student Hand Book and not be dealt with under the disciplinary procedure set out in the Hand Book. In the absence of any Student Discipline Statute made by the Council under s.20 of the Pacific Adventist University Act 1997, the Hand Book is applicable. The disciplinary procedure set out in the Hand Book was correctly followed.
   
4. The relationship between the students and the University was contractual in nature. The University is not a public institution. The University‘s disciplinary actions are of a contractual nature are not subject to judicial review: Council of the Civil Service Unions v Minister for the Civil Service [1984] ALL. E. R. 935 at 945.
   
5. The Applicants are complaining of the penalty of suspension from studies for one year. The harshness or otherwise of a penalty is not a matter for judicial review: Vanderlist v Mt Hagen Golf Club [1990] PNGLR 315, Application of Gigimat [1992] PNGLR 322, Ex Parte Gurupa N856 (1990).
   
6. Even if the Applicants were successful in the substantive application, the University would have difficulty in fitting them in at this time of the year when exams are only a week away. In fact they have not been coming to the University after commencing these proceedings and issue of interim restraining orders. The University will have difficulty making special arrangements to accommodate them.
   

Mr Gelu submits the application is pre-mature. These arguments raise matters which should be raised at the substantive hearing. They need time to respond to the affidavit material. The grounds of review are arguable as the Court decided at the leave stage. The disciplinary procedure employed under the Hand Book is invalid because it is not provided for in the Act and in the absence of any University Discipline Statute, the validity of the Hand Book and the procedure in the Hand Book applied is in serious question. Although the University is a Church-run private school, it is a creature of Statute. Also, there is representation in the Council by the National Government’s Commission for Higher Education. It is a public body whose actions in student discipline are subject to judicial review.

Mr Frizell submits the Commission of Higher Education’s representation is for the government’s recognition of degrees issued by the University and that fact alone does not render the University into a public institution.

In my view, the question of whether the Applicants have a reasonable cause of action to warrant a full hearing after leave has been granted under O 16 r 3 is to be primarily determined with reference to the grounds pleaded in the Statement in Support filed under O 16 r 1(a) and any affidavits filed by the parties to support or contest those grounds. The applicable test is whether upon a close examination of the grounds of review set out in the Statement and the evidence, if any, placed before the Court, the grounds are clearly untenable that the substantive application based on those grounds is unlikely to succeed.

In my view, all the arguments raised by the parties are legitimate arguments which require a full and proper determination based on full and proper evidence from both parties. They also raise substantive issues of public law, public administration of Church-run Universities or colleges established under Statute and their compliance with principles of natural justice in student disciplinary matters. I consider that it would be unfair to both parties and also not in the interest of justice, to determine these issues in a summary manner as the Respondents have invited me to. A proper determination of these issues can only take place at a full hearing of the substantive application for judicial review. I am satisfied that the Applicants have reasonable and arguable grounds to warrant a full hearing. In the circumstances, I am not satisfied that the grounds are clearly untenable.

For these reasons, I dismiss the application.

Cost of this application shall be in the cause. I will now hear parties on issuing further directions to expedite the substantive hearing, to take place before the Court vacation, which commences on December 20th.
___________________________________________________________
Lawyers for the Applicants : Patterson Lawyers
Lawyers for the Respondents : Warner