N3828
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 688 OF 2007

JOSHUA HAINA
Plaintiff

V

COMMODORE PETER ILAU,
COMMANDER, PAPUA NEW GUINEA DEFENCE FORCE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2009: 16th June,
2010:  22nd January

STATE SERVICES – Defence Force – whether member of Defence Force allegedly absent without leave must be charged under Code of Military Discipline before being discharged.

JUDICIAL REVIEW – natural justice – whether member of a disciplined force must be afforded natural justice prior to being discharged.

A member of the Defence Force was discharged on the ground that he was absent without leave for two months. He sought judicial review of the decision to give him a dishonourable discharge on the grounds that the procedures in the Code of Military Discipline, which provide for a member being charged with a breach of service discipline and given a hearing, were not followed and that he had been denied natural justice.

Held:

(1)	The Defence Act provides alternative procedures for discharging a member from the Defence Force, eg under the Code of Military Discipline or under the Defence (Period of Service) Regulation.

(2)	If it is proposed to discharge a member on the ground of an alleged breach of service discipline (eg being AWOL) it is not mandatory for the Code of Military Discipline to be followed. Alternative procedures under the Defence (Period of Service) Regulation may be used, provided that the member is treated fairly.

(3)	The requirements of the duty to act fairly depend on the nature of the allegation against the member and whether he or she is available to be given a right to be heard.

(4)	In this case the plaintiff was absent on approved recreation leave on his date of discharge and had only been absent for two months. In these circumstances he was entitled to a right to be heard on the question of whether he should be discharged.

(5)	He was denied his right to be heard. Therefore, the decision to give him a dishonourable discharge was made contrary to the principles of natural justice and was unlawful.

(6)	The question of what remedies should be granted is a matter of discretion. The plaintiff had no right to be reinstated. In view of his age, the lapse of time (almost 13 years) since he was discharged and doubt about his physical and mental fitness, reinstatement was not a viable option. Instead an order was made that he was entitled to damages subject to agreement or assessment.

Cases Cited

The following cases are cited in the judgment:

Clement Kilepak v Ellison Kaivovo (2003) N2402
Diro v Ombudsman Commission (1991) N1385
Gegeyo v Minister for Lands [1987] PNGLR 336
Lae Rental Homes Ltd v Viviso Seravo (2003) N2483
Leo Nuia v Benias Sabumei, Minister for Defence [1992] PNGLR 90
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Donohoe [1985] PNGLR 348
Raphael Pius v Commodore Peter Ilau and the State (2009) N3833
The State v Toroken, Ex Parte Perera (1981) N281
Tony Vagi Heni v Guba Idau Maima (1994) N1201

Counsel

R Uware, for the Plaintiff
G Korei, for the Defendants

22nd January, 2010

1.      CANNINGS J: Joshua Haina, the plaintiff, was enlisted in the Defence Force in August 1990. He was for some time on a tour of duty in the Bougainville Crisis. He was discharged with effect from 31 March 1997 for being absent without leave (AWOL). At that time he held the rank of Private and was attached to Alpha Company, Second Royal Pacific Island Regiment (2RPIR), Moem Barracks, Wewak.

2.     Aggrieved by this dishonourable discharge the plaintiff applied for and was granted leave to seek judicial review of the decision to discharge him. This is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

3.     The plaintiff set out three grounds of review in his supporting statement but they can be boiled down to two. He is arguing that his discharge was defective in two respects:

•	the procedures in the Code of Military Discipline, which provide for a member being charged and given a hearing, were not followed; and
•	he was denied natural justice.

4.     They are the two grounds of review. If either or both are upheld the plaintiff wants the Court to declare that his discharge was unlawful and null and void and to order that it be quashed and that he be reinstated and paid back-pay or that he is entitled to damages.

The defendants do not dispute that the plaintiff was not charged under the Code of Military Discipline and was not given a right to be heard. They argue that it was not necessary to follow those procedures.

ISSUES

5.     There are three issues before the Court:

1	Did the procedures in the Code of Military Discipline have to be followed?

2	Was the plaintiff denied natural justice?

3	What declarations or orders should the Court make?

1	DID THE PROCEDURES IN THE CODE OF MILITARY DISCIPLINE HAVE TO BE FOLLOWED?

6.     The Code of Military Discipline is set out in the Schedule to the Defence Act (Chapter No 74). All members of the Regular Force other than the Commander are subject to it. A member who commits an act or omission that is prejudicial to good order and military discipline or is unbecoming a member of the Defence Force is guilty of a breach of service discipline (Section C4(1)). Examples of breaches of service discipline are provided by Section C4(2) and include “(j) to be absent without leave”.

7.     The Code provides for the appointment of disciplinary officers and prescribes the procedures to be followed in disciplinary proceedings. Section C9 states that as far as operational requirements allow, disciplinary proceedings must be conducted in such a manner as to give the person charged a full and fair opportunity of presenting his defence or explanation. The person charged is entitled to have the charge reduced into writing, to have a copy of the charge before the proceedings commence, to have the charge explained to him by the disciplinary officer at or before the commencement of the proceedings and to examine and cross-examine witnesses called against him. Disciplinary officers have the power to impose a range of punishments including dismissal from the Defence Force (Sections C7 and C8). A member who is dismissed has a right of appeal to the National Court constituted by the Defence Force Judge (Section C10).

8.     Mr Uware for the plaintiff submitted that because the Code expressly refers to AWOL as a breach of service discipline the procedures of the Code must be followed if it is proposed to discharge a member for that reason. The member must be charged by a duly appointed disciplinary officer, the charge must be reduced into writing, there must be a disciplinary hearing, he must be given a full and fair opportunity of presenting his defence or explanation and all other procedures in the Code must be followed.

9.     I dealt with the same argument in a similar case, decided last month in Kimbe, Raphael Pius v Commodore Peter Ilau and the State (2009) N3833. I rejected the argument in that case and I reject it again in the present case. The Defence Act does not stipulate that the only way a member can be dismissed or discharged – on the ground that he was AWOL or committed some other breach of service discipline – is by following the procedure in the Code. The Act does not expressly state that. Nor does it impliedly require it.

10.    The Act allows for an alternative method of discharge: where the “appropriate officer” is “satisfied that the retention of the member of the Defence Force is not in the best interests of the Defence Force”.

11.     Section 33 (termination of service) of the Defence Act states:

A member of the Defence Force may be discharged from the Defence Force by such authority and on such grounds (if any) as are prescribed.

12.     Section 11(2)(e)(ii) (termination, etc, of service of member) of the Defence (Period of Service) Regulation states:

A member of the Defence Force, other than an officer, may before the end of his period of service, be discharged by the appropriate authority [ie the Chief of Personnel] … where the appropriate authority is satisfied that … the retention of the member of the Defence Force is not in the best interests of the Defence Force.

13.     It was confirmed by Los J in Leo Nuia v Benias Sabumei, Minister for Defence [1992] PNGLR 90 that there are at least two alternative ways by which a member of the Defence Force can have his service as a member terminated: under the Code or under the Regulation. In that case the National 14.     Executive Council relied on the Regulation. There was nothing intrinsically wrong with adopting that procedure but his Honour held that whichever procedure was followed Colonel Nuia had a right to be heard – which was denied him – and therefore the termination of his service was unlawful.

Conclusion re ground 1

15.     I agree with Los J’s reasoning in Nuia’s case, the correctness of which has not been questioned in any subsequent decision of the National Court or the Supreme Court, and adopt it for the present case.

16.     The plaintiff was alleged to be AWOL and the decision was made to discharge him for that reason. It was not mandatory to charge him with a breach of service discipline and follow the procedure in the Code of Military Discipline before discharging him. The first ground of review is therefore dismissed.

2	WAS THE PLAINTIFF DENIED NATURAL JUSTICE?

17.     This is a more general ground of review that rests on the proposition that though it may not be essential to follow the procedure in the Code of Military Discipline a procedure must be adopted that is fair and complies with the principles of natural justice. That is what Los J decided in Nuia’s case and in Pius’s case I adopted the same approach.

18.     A member has the right to be treated fairly and the appropriate authority has a duty to adopt fair procedures when deciding whether to discharge a member. Exactly what the procedures have to be depends on the facts of the case. The duty to be fair is constant but what must be done to comply with the duty can vary (Ombudsman Commission v Donohoe [1985] PNGLR 348, Diro v Ombudsman Commission (1991) N1385, The State v Toroken, Ex Parte Perera (1981) N281).

19.     In Pius I held that what must be done depends on the nature of the allegation against the member and whether he or she is available to be given a right to be heard. If a member is alleged to have been absent without leave and is still absent when it is proposed to discharge him, the principles of procedural fairness do not, in my view, require that he be given a right to be heard. I held that the principles of natural justice work in two directions. A person whose position or livelihood is at stake generally has a right to be heard before being removed from office (Gegeyo v Minister for Lands [1987] PNGLR 336). But he must himself act fairly to retain that right. If he acts unfairly, eg by going AWOL, he foregoes his right and extinguishes the duty of the decision-maker to provide a hearing.

20.    In Pius the plaintiff had been absent without leave for two years, his unit reported him AWOL to Defence Force headquarters at Murray Barracks and he was still absent when the decision was made to discharge him. He had abandoned his post. I held that it became incumbent on him to prove that in fact he was not absent without leave. He could have done that by proving either that he was not absent or that he had leave to be absent. He was unable to prove either, so I concluded that he by his own conduct forewent his right to be heard and extinguished the duty of the appropriate authority to give him a hearing. That is, he was treated fairly.

21.     On the basis of the affidavits that have been admitted into evidence I make the following findings of fact:

•	The plaintiff was granted recreation leave from 31 January to 16 April 1997.

•	His date of discharge was 31 March 1997, so on that date he was on approved recreation leave – he was not AWOL.

•	He was told orally by his company clerk, a Corporal, during March 1997 in Port Moresby that he was being discharged but he was never given a right to be heard on the allegation that he was AWOL.

•	He was not issued with a return ticket for travel to Wewak at the end of the leave period and for that reason he reported for duty at 1RPIR, Taurama Barracks, on 17 April 1997.

22.     The facts in the present case can be distinguished from those in Pius in that here, although the plaintiff was physically absent when the decision was made to discharge him, he had not abandoned his post. He was not absent without leave. He had neither given up his right to be heard nor extinguished the duty of the appropriate authority to give him a hearing. He therefore had a right to be heard on the questions whether he was AWOL and whether his retention was not in the best interests of the Defence Force. He was denied a right to be heard on these matters, which means that he was treated unfairly.

Conclusion re ground 2

23.     The Commander and the appropriate authority had a duty to be fair but failed to comply with that duty. The discharge of the plaintiff was made in violation of the principles of natural justice and was unlawful. Ground 2 is upheld.

3 	WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

24.     It is now time to consider the consequences of the finding that the plaintiff’s discharge was unlawful. It does not necessarily follow that he should be reinstated. This is a judicial review, which is a two-stage decision making process. First the plaintiff must establish one or more grounds of judicial review. If he succeeds, the second stage of the process is persuading the court that he should be granted a remedy (Mision Asiki v Manasupe Zurenuoc (2005) SC797).

25.     Deciding on what remedies should be granted is a matter of discretion. The court must consider whether there has been any delay on the part of the plaintiff and if there has been, whether it would be detrimental to good administration to grant the relief sought by the plaintiff (Tony Vagi Heni v Guba Idau Maima (1994) N1201; Clement Kilepak v Ellison Kaivovo (2003) N2402; Lae Rental Homes Ltd v Viviso Seravo (2003) N2483).

26.     The issue of delay is to be considered under Order 16, Rule 4(1) (delay in applying for relief) of the National Court Rules, which relevantly provides:

… where in any case the Court considers that there has been undue delay in making an application for judicial review … the Court may refuse to grant … any relief sought on the application, if, in the opinion of the Court, the granting of the relief sought … would be detrimental to good administration.

27.     Mr Uware for the plaintiff concedes that the delay between the date of the plaintiff’s discharge (March 1997) and the time of filing the application for leave to seek judicial review (December 2007) is substantial but submits that there are good reasons for it and that this was explained to the satisfaction of the Court at the leave hearing.

28.    The fact that it was satisfactorily explained at the leave hearing is neither here nor there. A higher standard applies at the substantive hearing, especially where, as here, the defendants are taking issue with the delay.

29.     So, what is the explanation? The plaintiff has given evidence that since he learnt of his discharge in March 1997 he has approached and written correspondence to various senior members of the Defence Force including the Commander on many occasions. He has also complained to the Ombudsman Commission which has had carriage of the matter over a number of years. He first approached the Public Solicitor in 2004 and was initially refused legal aid. He was bedridden for large periods of 2005 and 2006. He commenced judicial review proceedings in May 2007 which resulted in an order compelling the Commander of the Defence Force to make a decision on the plaintiff’s request for a review of his discharge. The Commander made his final decision in October 2007.

30.     I am satisfied that in the special circumstances of this case the explanation is satisfactory. Therefore the delay does not warrant refusal of all relief. However, it does justify a refusal to order the principal relief that the plaintiff is seeking: reinstatement to the Defence Force. Too much time has passed since the plaintiff was discharged (almost 13 years) to make it a viable proposition for him to be reinstated. He is almost 40 years old and there is doubt arising from the evidence about his physical and mental fitness. It would be detrimental to good administration of the Defence Force in these circumstances to order reinstatement and I refuse to do so.

31.     The most appropriate remedy is damages, an alternative remedy sought in paragraph 42(i) of the plaintiff’s supporting statement under Order 16, Rule 3(2)(a) of the National Court Rules and paragraph 5 of the notice of motion  filed on 28 February 2008.

32.      As to the appropriate amount of damages there is insufficient material before me to make an assessment. So I will give the parties time to negotiate settlement of an appropriate amount. This will be presented to the Court for ratification by a consent order, failing which the matter can be set for trial. The defendants are liable for damages in respect of the two heads of damages claimed: (a) loss of entitlements; and (b) inconvenience, distress, hardship, embarrassment and difficulty caused to the plaintiff by reason of his being discharged unlawfully.

ORDER

(1)	It is declared that the discharge of the plaintiff from the Defence Force was unlawful.

(2)	The plaintiff is entitled to damages in respect of the two heads of damages claimed:

(a)	loss of entitlements; and
(b)	inconvenience, distress, hardship, embarrassment and difficulty caused to the plaintiff by reason of his being discharged unlawfully.

(3)	The parties shall use their best endeavours to reach a settlement on the amount of damages and shall present the court with a proposed award of damages, subject to ratification by the Court; failing which the Court will give directions for a trial on assessment of damages.

(4)	For the purposes of order No (3) the parties shall attend before the trial judge for a status conference at Waigani in the week commencing 23 February 2010.

(5)	Other relief sought in the notice of motion filed on 28 February 2008 is refused.

(6)	The question of costs is reserved.

(7)	Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.
_____________________________________________________________
Public Solicitor: Lawyer for the Plaintiff		
Solicitor-General: Lawyer for the Defendants