Tupa v Inguba [2006] PGNC 141; N3171 (25 August 2006)

N3171

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 448 OF 2006

BETWEEN:

PETER TUPA
Plaintiff/Applicant

AND:

SAM INGUBA (QPM)
Commissioner for Police
First Defendant/Respondent

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Defendant/Respondent

Madang: Davani, J
2006: 24, 25 August

Counsel:

A.Turi, for Plaintiff/Applicant

25 August, 2006

DECISION

1. DAVANI .J: The Plaintiff/Applicant (‘applicant’) applies for leave to judicially review a decision of the first defendant made on 3 May, 2004, effectively dismissing him from the Police Force.

2. The matter proceeded ex parte because such is the nature of these applications.

BACKGROUND

3. The Originating Summons, Statement in Support Notice of Motion and affidavit in support were all filed by the Office of the Public Solicitor for and on behalf of the applicant on 27 June, 2006. An additional affidavit of the applicant sworn on 21 August, 2006 was later filed.

4. It is necessary that I set out chronology of events leading up to the applicant’s termination.

5. The applicant was then employed as a sergeant in the Police Force based at the Ambunti Police Station, Ambunti in the East Sepik Province. He held the rank of Sergeant, Registration No. 8337. Nine (9) charges were levelled against him by the Provincial Police Commander of East Sepik, Chief Superintendent Leo Kabilo. These charges termed as ‘Serious Disciplinary Offence Report’ (‘SDOR’), were all dated 2 September, 2002.

6. All nine SDORs alleged that the applicant had by false pretences and with an intent to defraud, taken from various people, cash and properties in excess of K5,000.00

7. The applicant responded to these charges within fourteen (14) days as he was required to do. But he was suspended from official duties on 20 August, 2002. Subsequently, after considering his response, the chief superintendent uplifted the suspension on 18 September, 2002.

8. But despite the uplifting of the suspension, the first defendant proceeded to consider the same charges and served a Notice of Penalty upon the plaintiff on 3 March, 2004. The Notice of Penalty advised the applicant that he had been found guilty of all charges and he was effectively dismissed from the Police Force upon his receipt of the Notice of Penalty (on 3 March, 2004). The applicant was also criminally prosecuted, in relation to the same matter, which charges were dismissed after the State failed to call evidence to prove these charges.

The application

9. The law on grant of leave for judicial review is firmly established in this jurisdiction.

10. The question of whether or not leave should be granted is discretionary. In order for the applicants to succeed in this application, they must establish to the satisfaction of this Court certain factors to which I shall shortly refer to. First, they must establish they have locus standi. For a person seeking declaratory or injunctive orders, it was required that a person must be a member of the public who has suffered or is at risk of suffering particular direct and substantive damages other than and different from that which was common to the rest of the public: (Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch. 109). The applicants in the instant application must also show that they have a sufficient interest, (see Order 16 r 3 (5) of the National Court Rules (‘NCR’)).

11. The second relevant consideration is whether the applicant has an arguable case. This involves the question of whether an application raises any fundamental or serious legal issues. The decision of Wilson J in NTN Pty Limited v The Board of the Post & Telecommunication Corporation and 2 Others [1987] PNGLR 70 is relevant to this discussion. His Honour Wilson .J said at page 74:

"Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O16, 4 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, 4 3(1). In exercising its discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] ACT 617, Lord Diplock set out the principles upon which the court should act and I respectfully adopt them. Lord Diplock said at 644:

‘If, on a quick perusal of the material then available, the court...thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for judicial relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.’"

12. A third consideration that may be also involved at this stage and which is not based on O.16 is a common law principle involving the question of exhaustion of administrative remedies. This principle raises the question of whether administrative remedies have been exhausted and whether a party should be required to pursue a further appeal.

13. Apart from the requirement of a party having a sufficient interest, the only other criterion for determining whether to grant or refuse leave which criterion is specifically mentioned in O.16 R.4 is the time limit for bringing an application. Order 16 Rule 4 states;

"1. Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Subsection (2) applies, the application for leave under rule (3) is made after the relevant period has expired, the Court may refuse to grant:

(a) leave for the making of the application; or
(b) any relief sought on the application if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

2. In the case of an application for an order of certiorari to remove any judgment order, conviction or other proceedings for the purpose of quashing it, the relevant period for the purpose of Sub rule (1) is four months after the date of proceedings."
   

14. As can be seen from Rule 4 of O.16, there are two distinctive issues. The first is the question of "undue delay". The second is the effect of granting the leave sought and whether the grant of leave would be likely to cause substantial hardship to, or that would prejudice the rights of any person or it would be detrimental to good administration.

15. Having said that, it is necessary that I set out the grounds relied on by the applicant in this application to then decide whether they do fall within the requirements set out above.

16. These are set out in the applicant’s Statement in Support under grounds for relief which are basically that the first defendant breached s.24 and s.25 of the Police Force Act by not appointing a disciplinary officer, by not conducting an investigation and by not furnishing a disciplinary report with recommendations for punishment to the applicant for him to respond to.

17. It is also necessary that I set out below, s.24 and s.25 of the Police Force Act 1998. These provisions including s.23 read;

"23. Dealing with serious offences.

(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.

(3) On a charge being laid against a member of the Force that member shall-

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports

that are to be considered in relation to the charge; and

(c) be invited -

(i) to reply within 14 days, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it.

(4) A charge or other documentation is deemed to have been furnished to a member under this section-

(a) where it has been personally served on the member; or

(b) where, it being unreasonable because of distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.

(5) Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4)(a) or within 28 days after posting in accordance with Subsection 4(b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24.

24. Determination of charge.

(1) In a case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be –

(a) a person other than the person who has charged the member; and

(b) of superior rank to the member charged.

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.

25. Imposition of penalty where charge sustained.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the commissioner a report advising whether in his opinion the charge has been sustained, and where sustained what punishment is recommended.

(2) The Commissioner after considering the report referred to in Subsection (1), may, where –

(a) the disciplinary officer is of opinion that the charge has been sustained;

and

(c) the commissioner concurs with that opinion,

impose a penalty (whether or not the penalty is recommended by the disciplinary officer) specified in Section 26.

(3) Where -

(a) the disciplinary officer reports that in his opinion the charge has not been sustained; and

(b) after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained,

the Commissioner shall dismiss the charge.

(4) Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.

(5) Where the Commissioner imposes a penalty under Section 26(1), other than a penalty in terms of Paragraph (g) of that subsection, the Commissioner may, in addition to such penalty direct that the offending member complete a course of retraining in accordance with Section 26(2).

(6) A retraining course for the purposes of Section 26(2) shall comprise such course of training and instructions as the Commissioner determines, and may include an examination or examinations.

(7) Where, at the conclusion of such time as the Commissioner may allow, the offending member has satisfactorily completed the retraining course, and passed any examinations connected therewith-

(a) the penalty in the case of a fine, or forfeiture of pay, may, in the discretion of the Commissioner be remitted in whole or in part, and the proportion so remitted shall be repaid to the offending member; and

(b) any reduction in rank or salary may be reversed in whole or in part as from the date of satisfactory completion of the retraining course, and the passing of the examination."

18. And it is also worth mentioning s.26 of Police Force Act which are the penalties the Commissioner may impose, which includes a dismissal from the Police Force. Section 26(4) also states that the aggrieved member can apply for a review of the decision within seven (7) days of notification (of the penalty) to the aggrieved member. And only after that review, will the Commissioner then confirm or annul the decision (s.26(7) of the Police Force Act).

19. I now discuss the various principles in relation to the grant of leave. These are;

1. Whether the applicant has sufficient interest in the matter to bring the application;

20. Clearly he has. Because he is a former policeman, the first defendant’s decision directly affects him in that the termination from the Police Force has now left him without a job.

2. Whether the application raises any fundamental or serious legal issues to be tried that would or is an arguable case;
   

21. The facts supporting the applicant’s case show prima facie that procedure under the Police Force Act may not have been complied with. The applicant was charged, suspended, reinstated then a penalty (of dismissal) issued in relation to the same charges that had apparently been already dealt with. And even after the dismissal, the applicant, on the face of it, may not have been accorded the right of review.

22. I find that to be an arguable issue and must got hearing.

3. Whether 1 applicant should be required to pursue further administrative remedies;

23. Section 22(4) of the Police Force Act states that a member can apply for a review of the commissioner’s decision within seven days after the member receives notification of the decision or within such further time as the commissioner allows.

24. The commissioner then confirms or annuls the decision and his decision is final.

25. And after the review and the commissioner’s decision, the member cannot lodge an appeal against the decision because the commissioner’s decision is final. (S.27 of Police Force Act).

26. In this case, the applicants affidavit sworn on 21 June, 2006, deposes that he did request for a review of the commissioner’s decision to dismiss him (on 3 March, 2004) by his letter of 6 March, 2004, a copy of which is attached to his affidavit, marked "O". his additional affidavit sworn on 21 August, 2006 also confirms that. (par. 2).

27. After numerous and constant written and verbal follow-ups, which the applicant deposes to in both his affidavits, the Deputy Commissioner finally responded by facsimile of 11 August, 2005, but only advising that the letter seeking review of decision was forwarded to the first defendant commissioner (par.19 of 21 August, 2006 affidavit).

28. Again, the applicant had to continue to follow up with the first defendant and the lawyer for the Police Force, (Director-legal) Mr Hodges Ette. With assistance from the Assistant Registrar, Madang, he finally received from Mr Hodges Ette, a copy of fax dated 22 August, 2005 addressed to the Deputy Commissioner administration recommending against the applicant’s reinstatement and signed by Mr Ette. But the letter does not speak of a review. It only refers to Sawong .J’s decision of 23 March, 2005 ordering the dismissal of all criminal charges against him and ordering his reinstatement. However, I do not have a copy of His Honour’s decision ordering the reinstatement nor do I have a copy of the court order ordering the reinstatement. All I can say is that it would be most unusual for a criminal court to order reinstatement but of course that is subject very much to a court sighting a copy of the court’s reason and the court order.

29. So, as it is, the review may not have been conducted or it may have. It has been two (2) years and several months since the request for review was made. The first defendant has not responded. But the correspondence from Mr Ette suggests that the first defendant has decided not to reinstate. And it would be most unfair for the first defendant to say the process under the Police Force Act has not been completed yet because it has taken the first defendant nearly two (2) years to provide a response and all the while, the plaintiff is suffering, matters he has deposed to in his affidavit material. This is a court of justice and it must ensure that justice is meted out in the most humane way possible.

30. The plaintiff has complied with process under the Police Force Act by requesting a review. The first defendant, although having sat on a response, finally through his legal officer, has although not directly, confirmed the termination. The letter in part reads;

"...I am inclined to advise the commissioner to refuse the application for reinstatement and advise the said Peter Tupa that as far as the Constabulary Records are concerned, he remains dismissed...". (my emphasis)

31. Again, although there is no letter from the Commissioner to that effect, the application for leave has proceeded this far and it would be most unfair to the applicant if he were told to wait for a response from the Commissioner himself. He has waited long enough. The first defendant has shown little or no interest in his plight.

32. I am satisfied that although the review process under the Police Force Act not to have been completed, that considering the above, the court can still proceed to make orders in relation to leave and further orders in relation to the review.

4. Whether the application is brought within the prescribed or other wise reasonable time.

33. Order 16 rule 4 of the National Court Rules is relevant in considering this issue of delay. It provides in clear terms that where in any case the court considers that there has been undue delay in making an application for judicial review or in a case to which Sub Rule 2 applies, the application for leave under Rule 3 is made after the relevant period has expired, the court may refuse to grant leave for the making of the application if in the opinion of the court, the granting of the relief sought would be likely to cause substantial hardship to or substantial prejudice to the rights of, any person or would be detrimental to good administration. Sub Rule 2 provides that in the case of an application for order of certiorari the relevant period of the purposes of Sub Rule 1 is 4 months. There is ample judicial authority that delay is a bar to leave being granted. See NTN Pty Ltd (supra) The Application of Eric Gurupa, Unreported judgment No. N856 dated 9th January, 1990.
The applicant’s reasons for the delay are deposed to in his affidavit sworn on 21 August, 2006. He deposed;

i. 3 March, 2004 - He was advised of his dismissal;

ii. 6 March, 2004 - He applied for a review of the decision;

iii. Whole of 2004 and 2005

- He was charged for those offences and spent those two (2) years appearing before the National Court Madang.

- He continued to follow-up on the results of the review.

- On 23 March, 2005, the criminal charges against him were dismissed by Sawong .J.

- 13 April, 2005 letter, the applicant asked to be reinstated.

- After the National Court Wewak dismissed the criminal case, the applicant continued to request for a review and reinstatement. He sent letters to the Police Station Commander in Wewak and also asked the Assistant Registrar, Madang for his assistance. But the Provincial Police Commander Wewak refused to assist him. The assistant Registrar did assist him by sending letters dated 13 July, 2005 and 15 August, 2005 to the Police Force’s Legal Officer and the Solicitor-General respectively.

- These letters were followed by further correspondence to the first defendant and the Police Force’s Lawyer,

- By letter of 22 August, 2005, Mr Hodges Ette advised the applicant that he was recommending against a reinstatement.

- By letter of 8 November, 2005 to Mr Ette the applicant requested a reinstatement pointing out the irregularities be perceived and which affected his termination.

- With no response from the first defendant or his employed lawyer, the applicant then decided to seek the services of a lawyer. But he could not afford the services of a private lawyer.

- From January, 2006 to March 2006, his search for a private lawyer was futile. In April 2006, he learnt that the Public Solicitors office in Madang could give legal aid for civil cases but the lawyer would be based in Port Moresby. He lodged an application for legal aid.

- On 19 May, 2006, he was advised that his application for legal aid was successful. The documents for an application for Judicial Review were drafted and filed on 27 June 2006.

34. I do not consider this delay to be excessive because although he was terminated on 3 March, 2004 and he immediately applied for a review of that decision, that neither the first defendant nor his nominees, gave a constructive response, despite the many follow-ups, until Mr Hodges Ette’s letter of 22 August, 2005. But that letter was not even addressed to him. It was copied to him. And despite that, the applicant continued to follow up. But the first defendant has to date, not responded, hence the application for leave for Judicial Review.

35. I find that this is not excessive delay and that the Police Force will not be prejudiced by this matter ‘resurfacing’. That it is through their inadvertence and inability to respond to correspondence that has resulted in this long wait.

36. I find there is no delay and that the application was made promptly after the applicant learnt of the recommendation not to reinstate him. In fact, about 6 months after the applicant learnt of the recommendation, did he then file this application, about 2 weeks outside the 4 months prescribed time period, which has been sufficiently explained.

5. Should leave be granted.

37. On the face of it, yes. Because the procedures under s.23, s.24 and s.25 of the Police Force Act appear not to have been complied with. There is an arguable issue. And with leave, must come an order that the first defendant give a decision under s.22(6) of the Police Force Act as to whether he will confirm the decision to terminate, or annul it. After this decision is given, can the matter then proceed to substantive hearing or the applicant can then take the appropriate step, after consideration of the first defendant’s decision.

ORDERS

38. The court’s formal orders are;

1. The applicant be granted leave to judicially review the first defendant’s decision to terminate him of 3 March 2004;
   
2. That the first defendant shall, within 30 days from today, respond to the applicants request for a review of his decision of 3 March, 2004;
   
3. That after receipt of that response, the applicant shall, on 14 days notice to all defendants, file appropriate applications, if any;
   
4. The first and second defendants shall pay the applicants costs of this application.
   
5. Time is abridged to time of settlement, to take place forthwith.
   

_____________________________

Public Solicitor: Lawyer for the Plaintiff/Applicant