Kisau v Kola [2005] PGNC 118; N2838 (8 March 2005)

N2838

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 514 OF 2003

Between:

WESLEY KISAU
-Plaintiff-

And:

EVA KOLA, STANLEY HARU, KWAPENA RAKA
-First Defendants-

And:

NATIONAL CAPITAL DISTRICT COMMISSION
-Second Defendant-

Waigani : Injia, DCJ
2004 : 15 September
2005 : March 8th

JUDICIAL REVIEW – Decision of Statutory Staff Appeals Tribunal – Ground – Excess of jurisdiction – Tribunal sat and heard matter outside of time period fixed by National Court - Whether Tribunal lacked jurisdiction to hear because matter heard outside of time period fixed by Court Order - Jurisdiction of Tribunal conferred by statute or sub-ordinate legislation and not by Court Order – Breach of Court Order enforceable by contempt proceedings – Proceedings and decision made still valid - Application dismissed.

There are no cases cited in the judgment.

Counsel:
P. Kingal for the Applicant
No appearance for the Respondents

8th March 2005

INJIA DCJ: The Applicant is an employee of the Second Respondent (NDC). On 15 May 2003, the Second Respondent’s Staff Appeal Tribunal constituted by the First Respondents, decided to uphold the City Manager’s decision to terminate the Applicant’s employment, for disciplinary reasons. The Applicant applies for judicial review of that decision. Leave to apply for review was granted on 11 February 2004.

The Applicant claims a total of thirteen (13) relief which are set out in the Statement in Support. Essentially he seeks an order of certiorari to bring up to this Court the said decision and quash it. He then seeks an order re-instating him to his previous position and injunction to prevent the NCDC from interfering with the performance of his duties. He also seeks damages with all entitlements back-dated to 21 July 2000.

There are 5 grounds of review set out in the Statement. They are:

"1. The Tribunal erred in law when it failed to constitute and deliberate on the appeal in compliance of the Order of the National Court of 19th February 2003, which required the appeal of the plaintiff to be reheard within 30 days.

2. The Tribunal erred in law when it failed to constitute within the 30 days and rehear the plaintiff’s appeal as required by the Order of the National Court of 19th February 2003, which lapsed on 19th March 2003 and or 21st April 2003 thereby committing an error of law.
3. The Tribunal lacked jurisdiction when it purported to convene on 15th April 2003 and proceeded to rehear the appeal and failing to deliver a decision within (2) days in accordance with the National Capital District Commission Staff Disciplinary Code Part 4 Section 10(6) and or before 21st April 2003 within the 30 days period thereby committing an error of law.
4. Further to rehear, the tribunal lacked jurisdiction when it purported to make a decision on 15th May 2003 which decision was made after notice of contempt charges was given thereby committing an error of law as there existed an apprehension of bias contrary to principles of natural justice.
5. The members of the Tribunal have failed to consider that in the circumstances where they lacked jurisdiction and or are having been charged with contempt should not have dealt with the appeal, giving rise to bias and prejudice contrary to principles of natural justice.
   

The main issue is one of jurisdiction. Did the Appeals Tribunal lack jurisdiction when it sat and re-heard the matter and made a decision outside the period allowed by order of the National Court on 19 February 2003? This is a question of law.

The short facts are as follows: The Plaintiff was employed as a Rates and Information Technology Project Manager with the NCDC for some eighteen (18) years. On 1 March 2000 he was suspended on disciplinary grounds. The disciplinary proceedings resulted in the dismissal. He appealed to the Appeals Tribunal. The Tribunal confirmed the dismissal. On 19 February 2003 upon application for judicial review of that decision, the National Court granted the application. The pertinent parts of Court’s published judgment in Wesley Kisau v NCDC N2324 (2003) appears on p.13 of the judgment:

"The Second Defendant (Bernard Kipit) considered the Plaintiff’s reply (to the charges) and terminated him from employment. The Plaintiff then appealed to the Staff Appeals Tribunal. The Tribunal instead of making a decision on its own made a recommendation to the Second Defendant to uphold the termination.

"It is not proper in my view that the Staff Appeals Tribunal should recommend to the same authority that originally terminated the Plaintiff. In my view the Staff Appeals Tribunal erred in making the recommendation to the Second Defendant. It must make its own decision, either to confirm or termination or quash the termination.

In the circumstances, I order that the NCDC Staff Appeals Tribunal deliberate on the matter and make a decision on the Applicant’s appeal."

No time frame was fixed in the above judgment for the Tribunal to meet and decide. However, an order settled by the Registrar on 19 February 2003, states:

"The matter is remitted back to the NCDC Staff Appeal Tribunal within 30 days from today’s date to deliberate on the matter and make a decision on the Applicant’s appeal. Failure to comply would result in Contempt proceedings."

On 18 March 2003, the NCDC gave notice to the Applicant that the Tribunal would re-hear the matter on 21 March 2003 at a.30pm in the Board Room. This did not eventuate. On 24 March 2003, the Chairman wrote to Mr Kipit asking him to re-constitute the Committee to hear the matter. By this time, the thirty (30) days period fixed by the Court Order had expired. The Chairman, Mr Tom Gills confirmed this in his memo to Mr Kipit. On 31 March 2003, the Tribunal gave further notice of hearing to Applicant, for the hearing of the matter on 3 April 2003. The Applicant’s lawyers wrote back suggesting 8 April 2003 at 2pm as 3 April was inconvenient to them. On 8 April 2003, the Tribunal wrote to the Applicant re-scheduling the meeting to 15 April 2003. The matter was heard on that date and a decision reached. There is no clear evidence to show if the Applicant attended the Tribunal hearing on 15 April 2003 and was heard. The Applicant does say in his affidavit sworn 12 September 2003, para. 9, p.3, that his lawyer on 15 April 2002 (sic) submitted to the Tribunal that a decision was required of the Tribunal under the NCDC Staff Disciplinary Code, within two (2) days of the hearing. >From this evidence, I infer that the Applicant’s case was put to the Tribunal.

One other development worth noting is that because of the Tribunal’s delay in hearing the matter, contempt proceedings were instituted by the Plaintiff on 12 May 2003 and fixed for hearing on 19 May 2003. It is pending determination to this day.

On 15 May 2003, the Tribunal advised the Applicant of the decision by forwarding a 2-page decision signed by all three (3) members and giving reasons for decision. The Tribunal upheld the decision for the reasons given.

The issue that I posed to counsel for the Plaintiff at the hearing was whether the National Court order of 19 February 2003, conferred "jurisdiction" on the Tribunal to hear the matter and make a decision within the thirty (30) day period stipulated in the order. He submitted, the order did. He submitted where a Tribunal sat outside the 30 days fixed, it lacked or exceeded its jurisdiction. I then asked him to find some case authorities to support the proposition. He was unable to do so.

My understanding is that jurisdiction is conferred by legislation or subsidiary legislation, not by order of the Court. When one speaks of jurisdiction it refers to conferring of decision-making, power on a specific subject matter, on a Tribunal, duly constituted by law, for that purpose. The Statute may also fix time-frames within which a person may invoke the jurisdiction of the Tribunal and the Tribunal is to act on the subject matter. The conferring of jurisdiction cannot occur by judicial act. The Court’s prescription of time limits within which an action is to be taken or done, is enforceable by contempt proceedings. The decision made outside the time limit prescribed by Court order should not be validated for the reasons that the decision was made outside the jurisdiction the time period prescribed by the Court Order. The decision is valid having been made within jurisdiction.

On the ground that the decision was not handed down in two (2) days the Minutes show that a decision was reached on 15 April 2003, but was not communicated to the Applicant until 15 May 2003. This constitutes a breach under S.10(6) of the Disciplinary Code. In my view, this breach alone is not a good basis to mount a challenge. In the exercise of my discretion, the delay by the Respondents in hearing the matter and communicating the decision to the Plaintiff can be appropriately addressed by an order for costs against the Respondents.

As for the other relief sought such as under Wednesday principles, this is not a ground of the application and on its own does not arise for consideration. In any case, I have studied the affidavit material relied upon and the reasons given by the Appeals Tribunal on 15 April 2003, and I have no reason to disagree with their analysis of the evidence and the reasons for the decision they made.

For these reasons, I dismiss the Application with costs to the Applicant.

_____________________________________________________________

Lawyer for the Applicant : Pius Kingal & Associates
Lawyer for the Respondent : John W. Palek