Magiri v Papua New Guinea Forest Authority [2009] PGNC 64; N3670 (6 March 2009)

N3670

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 460 OF 2006

BETWEEN

JERRY MAGIRI
Plaintiff

AND

PAPUA NEW GUINEA FOREST AUTHORITY
Defendant

Mount Hagen: Makail J

2008: 30th July & 2009: 06th March

JUDICIAL REVIEW - Application for judicial review - Decision to terminate plaintiff from employment - Decision based on finding of guilt arising from 3 serious disciplinary charges - Forestry Regulation 1991 - Sections 18.3, 18.16, 18.17, 18.18 & 18.19.

PRACTICE & PROCEDURE - Grounds of review must be pleaded in statement in support - Purpose of pleading grounds discussed - Submissions based on grounds not pleaded - Grounds pleaded vague, ambiguous, irrelevant and not recognized by law - Order 16, rules 3(2)(a) & 6.

Cases cited:

Papua New Guinea Cases Cited:

Rose Kekedo -v-Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122
Eddie Gabir & Ors -v- Richard Koronai [1988-89] PNGLR 406
Joseph Lemuel Raz -v-Paulus Matane [1986] PNGLR 38
Tiga Nalu -v- The Commissioner of Police & The State (1999) N1927
Valentine -v- Michael Thomas Somare & 4 Ors (No 2) [1988-89] PNGLR 241
Paul Asakusa -v- Andrew Kumbakor; (2) Paul Asakusa -v- National Housing Corporation Board; (3) Paul Asakusa -v- Andrew Kumbakor (2008) N3303
Iambakey Okuk -v- Gerald Sidney Fallscheer [1980] PNGLR 274
David Toll -v- Kibi Kara & Ors (No 1) [1990] PNGLR 71
Kim Jannanis -v- The State & Anor [1999] PNGLR 114; (1999) N1845

Overseas Cases Cited:

Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1KB 223
Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014

Counsel:

Mr. Peter Kak, for the Plaintiff
No appearance for the Defendant

JUDGMENT

6 March, 2009

1. MAKAIL J: The Plaintiff applies for judicial review pursuant to Order 16 of the National Court Rules to review the decision of the Acting Managing Director of the Defendant to terminate him from employment as the Defendant’s acting Provincial Forest Officer of Chimbu Province. That decision was made on 30th January 2006.

2. The application was filed on 30th June 2006, some 5 months after the decision and although leave was granted by the Court on 02nd August 2006, the substantive application was not heard until more than 2 years later, being 02nd June 2008 where I directed the Defendant to file and serve its Affidavits in reply on the Plaintiff by or before 27th June 2008 and both parties to file written submissions by or before 08th August 2008. I reserved my decision to a date for parties to be advised. I have only received written submissions from the Plaintiff and have considered it in my deliberations. This is my decision.

BRIEF FACTS

3. The Plaintiff was the acting Provincial Forest Officer of Chimbu Province when he was charged with 3 serious disciplinary offences by the Acting Managing Director of the Defendant on 08th September 2005 and also suspended with pay on the same date to allow for the disciplinary process to take place. Subsequently, on 21st October 2005, he was suspended without pay by the Acting Managing Director of the Defendant. The charges laid against him were as follows:

Charge 1

It is alleged that the Plaintiff collaborated with one Mr. Daniel Wiolo, the then utilization officer to enter into an agreement with the CIS, Barawagi for PNGFA to purchase their standing woodlot at K30.00 per cubic meter. Without the Managing Director’s approval, the woodlots were already cut and waiting for transportation to Kagamuga treatment plant. The whole operation cost the PNGFA a staggering K114, 000.00.

Charge 2

It is alleged that the Plaintiff moved into a new rented house at K1, 000.00 per month on 01st December 2004 without prior approval from the Managing Director. The lease agreement was signed by the Plaintiff on behalf of the PNGFA. Further, the Plaintiff lied to the acting Divisional Manager - FMD that he was sharing accommodation with one Mr. Emmanuel Kua, whilst in actual fact living in another house.

Charge 3

It is alleged that the Plaintiff let the National Forest Service Chimbu motor vehicle a Toyota landcruiser, RAA-773 to be hired out to the Electoral Commission during the Chimbu Regional By Election and payment for the hire of the motor vehicle was used by the Plaintiff.

4. The Plaintiff was asked to response to these serious disciplinary charges and on 26th December 2005, the Plaintiff did so. He denied these serious disciplinary charges and also gave full explanation for doing what he did in respect of each of the charges. On 30th January 2006, the Acting Managing Director of the Defendant found that each of the charges were established and returned a verdict of guilty for each of them and proceed to terminate him from office. But after being informed of the decision of termination, on 25th March 2006, the Plaintiff appealed to the Acting Managing Director against that decision. But the Acting Managing Director did not response to his appeal as there was no right of appeal against the Acting Managing Director’s own decision.

EVIDENCE

5. In terms of evidence, the Plaintiff relies on his Affidavit sworn on 20th June 2006 and filed on 30th June 2007 and also an Additional Affidavit sworn on 20th June 2008 and filed on 25th June 2008.

6. As for the Defendant, although it had all the time in the world since leave was granted by the Court to the Plaintiff to seek judicial review of its decision on 02nd August 2006 to file Affidavits in reply to the evidence of the Plaintiff, albeit the further time given by the Court by its directions on 02nd June 2008, it did not.

GROUNDS OF REVIEW

7. This Court is vested with power under section 155(3) (a) of the Constitution and also Order 16 of the National Court Rules to review decisions of inferior decision making authorities exercising legislative powers and where a Plaintiff having being affected by the decision has no right of appeal or has lost the right of appeal under the enabling legislation. In this case, the Plaintiff is affected by the decision of the Acting Managing Director of the Defendant who has purportedly exercised legislative powers under the Forestry Act 1991 and the Forestry Regulation 1991 to terminate his employment as acting Provincial Forest Officer of the Chimbu Province.

8. From the Statement in Support made pursuant to Order 16 rule 3(2)(a) of the National Court Rules filed on 30th June 2006, the Plaintiff relies on the following grounds of review:

"3(a) There was no strong, sufficient and credible evidence to substantiate Charge One (1) and therefore, the decision to terminate the plaintiff was harsh, oppressive and arbitrarily exercised.

3(b) The actions of the Plaintiff giving rise to Charge One (1) were not new acts. They were already past acts in which timber was transferred from Barawagi to Kagamuga and those transfers have been authorized.

3(c) The actions of the Plaintiff from which Charge One (1) emanated were not serious enough or greatly detrimental to the Defendant so as to sustain the Charge and Warrant termination of the Plaintiff’s employment and therefore the powers exercised to terminate the Plaintiff were harsh, oppressive and unlawful.

3(d) The evidence clearly indicate that the Plaintiff paid the rents of his accommodation from his own money and therefore Charge Two (2) could not have been sustained. Thus, the termination of the Plaintiff was not sustained in the circumstances and as such the decision was harsh, oppressive and arbitrary.

3(e) General Damages.

3(f) The evidence clearly shows that the plaintiff did not benefit as alleged in Charge Three (3). The Plaintiff admits transporting ballot boxes and few officials and in return fuel was provided. The decision to terminate the Plaintiff was harsh, oppressive and arbitrary.

3(g) Also, the Plaintiff was an employee of the Defendant which is funded by the National Government. His decision to assist in the General Elections was done for the good of the Electoral Commission of Papua New Guinea and the Independent State of Papua New Guinea".

9. It is important to take note of these 7 grounds of review because they form the basis of the application for judicial review. I say this because Order 16, rule 6 of the National Court Rules states that unless leave is granted to amend the grounds or add new grounds of review, a Plaintiff is not entitled to rely on any new or different grounds other than those set out in the Statement in Support at the hearing of the application for judicial review. Order 16, rule 6 reads as follows:

"6. Statements and affidavits. (UK. 53/6)

(1) Copies of the statement in support of an application for leave under Rule 3 must be served with the summons and, subject to Sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.

(2) The Court may on the hearing of the summons allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.

(4) Each party to the application must supply to every other party on demand and on payment of the proper charges copies of every affidavit which he proposes to use at the hearing, including, in the case of the applicant, the affidavit in support of the application for leave under Rule 3". (Underlining is mine).

10. I will return to discuss Order 16, rule 6 of the National Court Rules in more detail later on when I discuss the grounds relied upon by counsel for the Plaintiff to support the application for judicial review. This is where I consider one of the issues which I have to decide in this application for judicial review is whether the Plaintiff did plead grounds of review recognized by law to support his application for judicial review. In this respect, I have perused the grounds of review pleaded by the Plaintiff in the Statement in Support and I must say that quite apart from their vagueness and ambiguity, they are not grounds recognized by law.

11. The Plaintiff has pleaded grounds that go to challenge the merits or otherwise of the findings of guilt of each of the serious disciplinary charges and decision of the Acting Managing Director of the Defendant to terminate the Plaintiff from employment. As it is settle law in this jurisdiction that a Court reviewing a decision of an inferior decision making authority is not concern with the merits or demerits of the decision but rather the process by which the inferior decision making authority arrives at its decision, I am of the view that it is not open for me to review the evidence of the Plaintiff and the Defendant and substitute the decision of the Acting Managing Director of the Defendant with that of mine.

12. A judicial review is not the same as an appeal and the difference between the two is that in an appeal, the appeal Court hears the case a fresh by considering the evidence by way of a rehearing and it can substitute its own findings whereas in a judicial review, the Court only looks at the procedures or processes used by the inferior decision making authority to arrive at the decision and it is not concern with the decision itself. The authority for this principle of law is the case of Rose Kekedo -v-Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122. But it appears that litigants and counsel these days misunderstand or simply do not know the distinction between these two processes. That is why far too many judicial review cases end up before this Court as appeals and often than not are dismissed by the Court for that reason alone.

13. It is well established in administrative law that there are four main grounds upon which judicial review is based and these are:

(a) Substantive ultra vires.

It is to review "excess of power" or "jurisdictional facts" as well as constitutionality of administrative acts.

(b) Procedural ultra vires.

It is to review compliance of administrative decisions with statutory procedural requirements.

(c) Natural Justice.

It is to review the fairness and reasonableness of those administrative decisions including review of open motive and abuse of discretion.

(d) Error of Law.

It is to review administrative decisions that are wrong in law.

14. And so returning to the grounds of review in this case, I can see none of the grounds referred to above pleaded in the Statement in Support of the application for judicial review by the Plaintiff. On the other hand, what the Plaintiff did plead as grounds of review are matters touching the merits or otherwise of the findings of guilt of the serious disciplinary charges and decision of the Acting Managing Director of the Defendant to terminate him from employment. I find that what the Plaintiff is asking the Court to do is to treat the application for judicial review as an appeal which I will not allow. This is a classical example of a case where a litigant and counsel have misunderstood or confused themselves as to the two processes I have laboured to distinguish above.

15. Take for example, grounds 3(a), 3(b) & 3(c) of the Statement in Support. These grounds talk about sufficiency and credibility of evidence to substantiate Charge 1. I have also perused the two Affidavits of the Plaintiff and I must say that the Plaintiff gives a detail explanation for denying Charge 1. He points to the lack of evidence to substantiate the charge because what he did by organizing the cutting down of woodlot trees at Barawagi CIS was in accordance with past standard practice, therefore there was nothing wrong. In any case, he says that it did not cost the Defendant K114, 000.00 as alleged but only K31, 561.10 and out of the whole operation, the Defendant made an income of K142, 940.00. Hence, it was wrong for the Defendant to say that his actions cost the Defendant a lot of money.

16. This is where I distinguished the case of Eddie Gabir & Ors -v- Richard Koronai [1988-89] PNGLR 406 which counsel for the Plaintiff cites in his written submissions at p 11 to support his argument that there is no evidence to support Charge 1. That case does not stand for that proposition. What it does stand for is that, an inferior decision making authority when relying on evidence before it to determine a disciplinary charge must rely on sufficiently cogent evidence to convince and prove the allegations (disciplinary charges), especially if they are very serious, like allegations of sexual intercourse. It is not sufficient to rely on hearsay evidence to make a finding of guilt in serious allegations of sexual nature. Thus, that case is not relevant. Nonetheless, I am of the view that questions of sufficiency and credibility of evidence are not matters for a reviewing Court to consider and decide. Therefore, I reject these grounds of review.

17. I give the same reasons for ground 3(d) in respect of Charge 2 and as for ground 3(e), it states absolutely nothing except "general damages". In my view "general damages" is not a ground of review. It is irrelevant. I also reject these grounds of review. As for grounds 3(f) and 3(g), they seem to raise the question of reasonableness of the finding of guilt in relation to Charge 3 and the decision of the Acting Managing Director of the Defendant to terminate the Plaintiff when considering the Plaintiff’s explanation that he simply assisted the Electoral Commission’s officials by transporting ballot boxes and officials in return for fuel on the motor vehicle of the Defendant. Further, he says it was an act of goodwill to the people of Chimbu Province.

18. The principle of reasonableness of the decision was developed in the English case of Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1KB 223. It is said that:

"The exercise of a discretion must be real, matters which ought to be considered must be; conversely irrelevant collateral matters must be disregarded. Where the discretion is exercised within the ambit of considering what is relevant the court cannot intervene, except where the conclusion nevertheless reached is so unreasonable, "... in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether": see Lord Greene MR in Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230". Per McDermott AJ (as he then was), in Joseph Lemuel Raz -v- Paulus Matane & Ors [1986] PNGLR 38 at 53.

19. Further on, at p 53 of Joseph Lemuel Raz’s case (supra) His Honour McDermott AJ (as he then was), referred to another English case of Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064 where this principle of reasonableness was further expounded by Lord Diplock where His Lordship said:

"My Lords, in public law ‘unreasonable’ is descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt".

20. The case of Tameside Metropolitan Borough Council (supra) involved ministerial intervention in the adoption and implementation of a new policy proposed by a local education authority. Contrary to the view of the authority, the Minister came to the conclusion that the time available before the commencement of term was insufficient to permit its implementation without considerable difficulties. There, His Lordship said:

"It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, per Lord Greene MR, at 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly? ..." (at 1064-1065.)

21. And so, bearing in mind these principles, the question I ask is where in the pleadings in the Statement in Support did the Plaintiff plead the ground of unreasonableness or the irrelevant matters that the Acting Managing Director of the Defendant took into account in determining the question of guilt of the Plaintiff for Charge 3 and also where in the Statement in Support can I find the pleadings setting out the relevant matters which the Defendant failed to take into account? I find there is none in either case. So how can the Court be certain as to what the Plaintiff relies upon to say that the decision of the Acting Managing Director of the Defendant to find him guilty of Charge 3 and subsequently terminating him from employment is a ground upon which the Plaintiff relies upon at the hearing of this application for judicial review? I find grounds 3(f) and 3(g) do not precisely raise the ground of unreasonableness, hence I cannot rely on them.

22. It is no wonder I can see no submissions based on the ground of unreasonableness in the written submissions of the Plaintiff pin pointing the irrelevant matters that the Acting Managing Director of the Defendant took into account or the relevant matters that the Acting Managing Director of the Defendant failed to take into account.

23. I also find the grounds are not succinctly pleaded and make no reference to the well established grounds of review recognized by law. As His Honour Injia J, (as he then was) said in Tiga Nalu -v- The Commissioner of Police & The State (1999) N1927;

"At the outset let me say that the grounds of review purporting to challenge the finding of guilt as they are pleaded are vaguely worded and not sufficiently particularized, to demonstrate the error on the face of the record. Judicial review is a discretionary remedy which is exercised in favour of an applicant on proper cause being shown. The exercise of the judicial discretion is governed by established principles, some of the pertinent ones being reflected in Order 16. It is not an open forum for disgruntled plaintiffs and /or their lawyers to stage an all out attack on the day of the review hearing on every conceivable error extracted from a post mortem examination of the disciplinary records provided by the disciplinary authority".

24. Therefore, I am not satisfied that the Plaintiff has established grounds 3(f) and 3(g) of the application for judicial review and I dismiss them.

25. Secondly I should also mention that the Plaintiff cites in a number of grounds (grounds 3(a), 3(c), 3(d) & 3(f)) that the decision to terminate him was harsh, oppressive and arbitrary. I am of the view that the phrase "harsh, oppressive and arbitrary" has been loosely used here or made out of context. It does not make any sense at all in the context of judicial review. It is irrelevant as far as judicial review is concern but it may be relevant if the Plaintiff is seeking some kind of enforcement order for breaches of his constitutional rights under section 41 of the Constitution which is not the case here.

26. One case where the Court found the action of an inferior decision making authority harsh and oppressive is Valentine -v- Michael Thomas Somare & 4 Ors (No 2) [1988-89] PNGLR 241. In that case, His Honour Los J, heard an application for judicial review of the decision of a Committee of Review appointed under the Migration Act Ch 16, to cancel an entry permit of the Plaintiff. His Honour found that the decision was an unlawful act (harsh and oppressive, not warranted by and disproportionate to the particular circumstances) under section 41 of the Constitution. And in order to establish harsh and oppressive, His Honour said that the issue of whether or not the rules of natural justice have been observed is a relevant consideration, in particular the right to be given reasons for the cancellation of the entry permit by the Defendants under section 59 of the Constitution, even though the Migration Act Ch 16 did not require the Defendants to give reasons for their decision to cancel the Plaintiff’s entry permit.

27. In this case, the Plaintiff did not plead breach of principles of natural justice as a ground of review, hence he is not entitled to rely on the harsh, oppressive and arbitrary ground here. Further, it seems to me that harsh, oppressive and arbitrary ground is not a ground of review alone so as to give a basis for the argument that the decision of the Acting Managing Director to find the Plaintiff guilty of the 3 charges and terminate him from employment is harsh, oppressive and arbitrary. It must be connected to the breach of principles of natural justice in order to establish that the actions or decisions of the interior decision making authority is harsh, oppressive and arbitrary.

28. For example, the right to be heard before a decision is made and in this case, I find that the Plaintiff was given an opportunity to respond to the 3 serious disciplinary charges which he did in writing the Acting Managing Director of the Defendant on 26th December 2005. So I reject the Plaintiff’s application for judicial review based on the harsh, oppressive and arbitrary ground.

29. Finally, I return to Order 16, rule 6 of the National Court Rules. Here, I note that in his written submissions, counsel for the Plaintiff relies on three grounds of review. They are:

1. Ultra vires;

2. Breach of principles of natural justice; and

3. Unreasonableness.

30. My reading of Order 16, rule 6(a) of the National Court Rules cited earlier makes me hold the view that a Plaintiff is prohibited from relying on any grounds not pleaded or set out in the Statement in Support at the hearing of the application for judicial review. In other words, it is mandatory to plead the appropriate grounds of review in the Statement in Support before a Plaintiff is entitled or permitted to reply upon them. If not, he is not entitled or permitted to reply upon them at the hearing of the judicial review.

31. I hold this view because in applications for judicial review, the grounds on which a Plaintiff seeks to rely upon are pleaded in a document called "Statement in Support" made pursuant to Order 16, rule 3(2)(a) of the National Court Rules. This is the document that sets out the nature and details of the grounds of review. The grounds of review are not found in any other documents like the Originating Summons, Notice of Motion or Notice of Application for leave for Judicial Review to Secretary for Justice. See Order 16, rule 3(2)&(3) of the National Court Rules.

32. The purpose of pleading the grounds of review in the Statement in Support in my view is two fold. First, to inform the Defendant of the grounds upon which the Plaintiff will be relying on to apply for judicial review. Secondly, to lay the foundation upon which the evidence and submissions maybe led and made at the hearing respectively. The rational behind all these requirements is that, our system of justice is not based on trial by ambush but of openness and fairness. Hence, a Plaintiff who seeks to apply for judicial review must be frank and fair to the Defendant by clearly spelling out his or her grounds of review in detail in the Statement in Support to enable the Defendant to prepare his or her case in response. If that is not done, the Defendant is left in the dark so to speak as to the grounds of review and is prejudiced in his or her defence of the application. A Plaintiff who fails to observe these requirements stands the risk of having the grounds of review struck down and the entire application for judicial review dismissed.

33. That is why I think, Order 16, rule 6(a) was placed in the National Court Rules to ensure that a Plaintiff is prohibited from relying on grounds of review to support an application for review if he has not pleaded them in the Statement in Support and if he wishes to rely on them, he must seek and obtain leave of the Court to do so in accordance with Order 16, rule 6(b) of the National Court Rules.

34. His Honour Injia DCJ, (as he then was) put what I have discussed above in this way in the context of an application for leave to apply for judicial review in the cases of Paul Asakusa -v- Andrew Kumbakor; (2) Paul Asakusa -v- National Housing Corporation Board; (3) Paul Asakusa -v- Andrew Kumbakor (2008) N3303:

"18. The Statement is equivalent to a Statement of Claim in a Writ of Summons: Lawrence Sasau -v- PNG Harbours Board (2006) N 3253. It must set out, amongst other matters, an accurate description of the decision under review, a succinct statement of the relevant facts alleged which give rise to the grounds for review, the relief sought and the grounds upon which the relief is sought. Consistent with the need to prevent abuse of court process by busybodies with misguided or trivial complaints over administrative error, the Statement must plead in a separate paragraph, in clear and concise terms, the grounds relied upon. The grounds must contain reference to some established grounds recognized by law as proper grounds upon which judicial review relief is available and the statutory provision or common law duty alleged to have been breached. The grounds on which judicial review is available are also settled. Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesbury principles of unreasonableness) or abuses its powers: Kekedo -v- Burns Philip [1988-89] PNGLR 122 at 124, per Kapi DCJ (as he then was). Also see Independent State of Papua New Guinea -v- Kapal [1987] PNGLR 417. These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court.

19 In my view, the appropriate test is whether the grounds pleaded in the Statement contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached with reference to established grounds of review which the law recognizes as proper grounds for review. I would refer to this test as the proper and sufficient pleading test". (Underlining is mine).

35. Bearing in mind the purpose of pleading the grounds of review in the Statement of Support, it is necessary to determine whether or not the Plaintiff did plead the three grounds counsel relies upon in his submissions before me. In this regard, the problem I see with these grounds of review is that, the Plaintiff did not plead them in the Statement in Support of the application for judicial review. They are completely new grounds of review. Hence, as the Plaintiff did not plead the above grounds in the Statement in Support, that means he is prohibited from relying upon them to support his application for judicial review.

Ultra vires

36. Lets take for example, the ultra vires ground. Counsel for the Plaintiff in his written submissions on pp 6 to 8 submits that the Acting Managing Director of the Defendant did not have the requisite authority to charge the Plaintiff with 3 serious disciplinary charges and suspend him with pay and subsequently without pay and ultimately terminate him from employment. He submits on the other hand that the authority to discipline an officer of the Defendant like the Plaintiff vest with the Managing Director of the Defendant under sections 18.16, 18.17, 18.18 and 18.19 of the Forestry Regulation 1991. As such the Acting Managing Director of the Defendant acted without authority to lay the 3 serious disciplinary charges against him and subsequently terminate him after sustaining the 3 charges.

Alternatively, he submits that if the Acting Managing Director did have the requisite authority, then there is no evidence of delegation of that authority by the Managing Director to the Acting Managing Director as required by section 35 (Functions, etc of the Managing Director) of the Forestry Act 1991 and section 18.3 of the Forestry Regulation 1991 to authorize the Acting Managing Director to lay the 3 serious disciplinary charges against him to determine them on behalf of the Managing Director in accordance with sections 18.16, 18.17, 18.18 and 18.19 of the Forestry Regulation 1991.

37. Those arguments maybe sound and meritorious to support the application for judicial review but the glaring omission is, this ground has not been specifically pleaded in the Statement in Support of the application for judicial review. In addition to that as the Plaintiff did not seek and obtain leave of the Court to add this ground in the Statement in Support pursuant to Order 16, rule 6(2) Of the National Court Rules, he is not entitled to rely on it to support the application for judicial review. That means that there is no such ground before the Court, therefore I reject the Plaintiff’s counsel’s submissions on this ground.

Breach of principles of natural justice

38. In respect of the ground of breach of principles of natural justice, counsel for the Plaintiff submits that after the Acting Managing Director of the Defendant found the Plaintiff guilty of each of the serious disciplinary charges, he should have given the Plaintiff an opportunity to address him on the question of penalty for each of the serious disciplinary charges. As he did not, he breached the principles of natural justice, namely the minimum requirement to be seen to act fairly and that is to give the Plaintiff an opportunity to address him on penalty for each of the serious disciplinary charges before he made the decision to terminate him.

39. In support of this submission, he cites a number of well known case authorities in this jurisdiction at pp 8-10 of the written submissions. These cases of Iambakey Okuk -v- Gerald Sidney Fallscheer [1980] PNGLR 274, David Toll -v- Kibi Kara & Ors (No 1) [1990] PNGLR 71 and Kim Jannanis -v- The State & Anor [1999] PNGLR 114; (1999) N1845 stand for the proposition that after a finding of guilt against a Plaintiff, a decision making authority must give the Plaintiff an opportunity to address the decision making authority on the question of penalty. It seems to me that, that protection is accorded to every persons living in this country under section 59 of the Constitution.

40. Again, those arguments maybe sound and meritorious to support the application for judicial review but the glaring omission is, this ground has not been specifically pleaded in the Statement in Support of the application for judicial review. In my view, the omission by the Plaintiff is fatal to the entire application for judicial review. In addition to that, as the Plaintiff did not seek and obtain leave of the Court to add this ground in the Statement in Support pursuant to Order 16, rule 6(2) of the National Court Rules, he is not entitled to rely on this ground to support his application for judicial review. That means that there is no such ground before the Court, therefore I reject the Plaintiff’s counsel’s submissions based on this ground.

Unreasonableness

41. As for the ground of unreasonableness, at p 12 of his written submission counsel for the Plaintiff submits that no reasonable tribunal would have arrived at the decision made by the Acting Managing Director of the Defendant to find the Plaintiff guilty of the 3 serious disciplinary charges and thereafter terminating him. He submits that there is simply no evidence to support each of the serious disciplinary charges for the Acting Managing Director to find him guilty and further still, penalty of termination for each of the charge was against the weight of evidence.

42. Once again, those arguments maybe sound and meritorious to support the application for judicial review but the glaring omission is, this ground has not been specifically pleaded in the Statement in Support of the application for judicial review. I also repeat what I said earlier where I discussed the question of unreasonableness of the finding of guilt and decision to terminate the Plaintiff from employment in respect of grounds 3(f) and 3(g) for Charge 3 that the Plaintiff did not either plead the irrelevant matters or the relevant matters which the Acting Managing Director of the Defendant either took into account or failed to take into account in his deliberation on the question of guilt and penalty for Charge 3.

43. In my view, the omission by the Plaintiff is fatal to the entire application for judicial review. In addition to that as the Plaintiff did not seek and obtain leave of the Court to add this ground in the Statement in Support pursuant to Order 16, rule 6(2) of the National Court Rules, he is not entitled to rely on this ground in support of the application for judicial review. Once more, that means that there is no such ground before the Court, therefore I reject the Plaintiff’s counsel’s submission based this ground.

CONCLUSION

44. This leads me to conclude that the entire application for judicial review suffers from bad pleadings in respect of the grounds of review which has proven fatal to the Plaintiff’s case. Accordingly, I find that the Plaintiff has failed to establish a case where the Court should disturb the findings of guilt of the 3 serious disciplinary charges and the decision of the Acting Managing Director of the Defendant to terminate him from employment. The application for judicial review must therefore fail.

45. As to the question of costs of the proceeding, since the Defendant did not show any interest at all in defending the application for judicial review, I do not believe I should award costs in its favour.

ORDERS

46. Accordingly, it is the judgment of the Court that:

1. The application for judicial review is dismissed.

2. Each party shall bear their own costs of the proceeding.

3. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

_________________________________________
Paulus Dowa Lawyers: Lawyers for the Plaintiff
No appearance for the Defendant