Kiala v Kupo [2011] PGNC 296; N4502 (28 July 2011)

N4502

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. 324 OF 2002

BETWEEN:

RODRICK KIALA
Plaintiff

AND:

JOE KUPO as COMMISSIONER OF POLICE
First Defendant

AND

THE STATE
Second Defendant

Kundiawa: Kangwia, AJ.
2011: 18th & 28th July

ADMINISTRATIVE LAW- Application for Judicial Review- Dismissal from Police Force - Notice of dismissal served on day of termination – No address on penalty alleged – Disciplinary powers under Police Force Act discussed – Procedures complied with – Principles of judicial review considered not present - Failure of to avail to Police Force Act – Administrative remedies not exhausted – Judicial review denied – Entitled to damages with effect from date dismissal came into effect.

Cases cited

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Counsel

J.Tonge, for Plaintiff
No appearance for Respondents

28th July, 2011

1. KANGWIA, AJ; On 28 July 2011 I handed down my decision on this matter and stated that I would read from the draft copy and the final copy would be produced for pick up by parties later. This is the final copy with minor alterations to the draft that I read out in open Court.

2. This is an application for judicial review of a decision by the Police Commissioner to dismiss the Plaintiff from the Police Force. Leave was granted on 12th September 2002. Application was made pursuant to section 155 (4) of the Constitution and Order 16 Rule 1 of the National Court Rules which states as follows:

155 The National Judicial System

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to justice, in the circumstances of a particular case.

ORDER 16 APPLICATIONS FOR JUDICIAL REVIEW

(1) An application for an order in the nature of mandamus, prohibition, and certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this order.

3. The undisputed facts are covered in detail by Mr. Tonge in his submission for the Plaintiff and what was disclosed in the Plaintiff's own affidavit in support. I therefore state what I perceive are relevant to this review only.

4. The Plaintiff was a Probationary Constable attached to Kundiawa Police in 1999. On 27th January1999, he was charged by Mendi Police with being in possession of a high powered firearm without a licence. The District Court Convicted and fined him K400.00 in default 4 months in hard labour. The firearm was forfeited to the State.

5. He was later charged with a serious disciplinary offence arising out of the Court conviction and fine. When the serious disciplinary charge (charge) was served on him he denied it and gave a written explanation. The First Respondent after considering the charge and the reply from the Plaintiff recommended his dismissal to the Commissioner. The then Commissioner of Police John Wakon dismissed the Plaintiff from the Police Force by a Notice of Penalty dated 9th June 2000. More than one and half years later the Notice of Penalty was personally served on him on 8th February 2002.

6. The Plaintiff alleges that he was not served with the finding of guilt by the respondents within a reasonable time nor was he given an opportunity to address on the penalty. Based on the plaintiff's allegations it was submitted on his behalf that the respondent's failures were wrong and should be reviewed with a view to granting the relief sought.

7. The following orders were sought:

1. An order in the nature of certiorari to remove into this court and quash the decision of the first respondent, dismissing the Plaintiff from the Police Force.

2. An order that the Plaintiff be reinstated to the rank of Constable P/C No. 12360 including loss of salary from the date of suspension to the time of re-instatement.

3. Damages for hardship and inconvenience caused as a result of the suspension.

4. Such other order as this honourable Court deems fit.

8. No appearance was made for the respondents on the day scheduled for the hearing of this application. They have not filed any submission in reply apart from the various documents and affidavits filed previously.

9. Mr. Tonge submitted that the court should disregard the affidavits and documents filed earlier as the respondents have not formally presented them in court to support their case. With respect I do not propose to take the option suggested by Mr. Tonge for the simple reason that it would be akin to an entry of judgement by default. This is a review of an administrative decision and whether review lies or not, it is a discretionary matter for the court to be satisfied of the requirements of a review having been adequately met by the plaintiff.

10. The principles governing applications for judicial review are well settled. In Kekedo-v- Burns Philip (PNG) Ltd [1988-89] PNGLR 122 the Supreme Court held that:

"The circumstances under which judicial review may be available are where the decision making authority exceeds it's powers, commits an error of Law, commits a breach of National Justice, reaches a decision which no reasonable tribunal could have reached or abused its powers."

11. As to the purpose of a review the same court further held that:

"The purpose of a Judicial Review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process."

12. In order to obtain a review a plaintiff must demonstrate that one or more of the principles governing review is present. The grounds relied on by a person seeking judicial review must go towards establishing a breach of one or more of the principles of review in order to invoke the review powers of the court.

13. In the present case the grounds relied on by the Plaintiff are these:

1. The Respondents failed to afford the Plaintiff an opportunity to make a response on the penalty.
   
2. The Respondents failed to serve the notice of penalty within a reasonable time and in an appropriate manner.
   

14. In order to appreciate why the plaintiff ignited the review process, it is appropriate to show a chronology of events leading up to his dismissal given the unusual nature of the case. It is an unusual case for the reasons listed below:

• The Plaintiff was suspended on 22 March 1999 and put off the payroll on 17 July 2000.
  
• The suspension was lifted on 7 August 2001 and he was put back on the payroll with effect from 17 July 2001.
  
• Notice of dismissal was not served on him despite the dismissal on 17 July 2000 as recorded on the notice of penalty.
  
• Unaware of the dismissal on 17 July 2000 he had performed normal police duties at Kagua Police station. His performance was reported as commendable.
  
• In 2001 the Police Force selected him to attend C.A.P training in Mendi which he passed.
  
• He was promoted to Constable Rank on 14 May 2001 by John Wakon, the same Police Commissioner who dismissed him on 9 June 2000.
  
• He received the advice of dismissal from the Police Station Commander for Kagua through the Police Station Commander at Ialibu on 19 September 2001.
  
• The Notice of penalty dismissing him from the Police Force was personally served on him on 8 February 2002.
  

15. The events highlighted above demonstrate a clear lack of communication and administrative structures devoid of cohesion within the Police Force. It defeats common sense to discover the same Police Commissioner John Wakon selecting and promoting the plaintiff well after dismissing him from the Police Force. The plaintiff performed normal duties and attended to a selected promotion course despite records showing him to have been dismissed. The unusual nature of the case needs to be taken into account in determining whether the grounds relied on can attract a review or whether other determinations ought to be made.

16. There are two closely related issues.

17. First is whether review is available on the failure to give the plaintiff an opportunity to address on penalty and on the delayed service of the notice of penalty.
Second is whether other remedies are available from the failure to address on penalty and delayed service of the Notice of penalty?

18. The facts show that the Plaintiff was charged with a serious disciplinary offence. The charge was served on the Plaintiff who denied the allegations and responded to it. The response or explanation by the Plaintiff was considered in light of the serious disciplinary charge and a decision to dismiss him from the Police Force was made. The reasons for the decision to dismiss him were clearly set out in the notice of dismissal.

19. The Plaintiff did not show adequately why he sought the review nor did he establish what the breach was that give rise to this application for review. He did not plead wrongful dismissal or breach of natural Justice etc. All he asked the Court to do was to determine the identified failures by the respondents as reviewable and order that he is reinstated inclusive of the other orders sought. It was left to the Court to discover what the Respondent's actions amounted to from the facts of the matter. That in my view is an odd way of seeking a judicial review. The onus is on the Plaintiff to show the Court what the failures or errors of the Respondent's decision amounted to. He must show in some material form that he was unfairly treated by the respondents through their decision making process.

20. It seems to me that a lot of unanswered questions remain with the plaintiff. Questions like; was the respondent's failures wrong in law and if so what law was breached? Or do the failures that were identified amount to a breach of natural justice? Or are the failures an excess or abuse of the powers the respondents have? Answers to these questions are pertinent to the determination of whether a review lies from the grounds relied on by the plaintiff.

21. The respondents exercised their powers under the Police Force Act 1998. The relevant parts of the Act are:

Division 3 – Serious Offences.

S.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)...

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

a) be furnished with a copy of the charge, which shall where the member so desires be explained to a member.

b)...

c) be invited –

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

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

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

a) Where it has been personally served on the member;

b)...

(5) Where a reply is not given 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.

S. 24 Determination of Charge

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

S. 25 Imposition of Penalty Where Charge Sustained

(The penalties under this section range from a fine of K200: 00 to dismissal.)

S. 26 Penalties for Serious Offences

(4) The Commissioner shall notify a member of a penalty imposed on that member.

(5) where a penalty is imposed under this section by a disciplinary officer the member affected may within 7 days of notification to the member under subsection (4) of the penalty, or within such further time as the commissioner may allow, apply in writing to the commissioner for a review of the decision.

(6) An application under subsection (5) for a review may be effected by –

(a) delivery in person to a disciplinary officer; or

(b) sending the application by ordinary post addressed to the commissioner; or

(c) delivery in such other manner as may be approved by the commissioner...

(7) On a review under subsection (5), the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final.

22. According to the Plaintiff's affidavit dated 11th June 2002 he was served with the charge on 22nd March 1999. He replied by denying the charge to the officer who served on him the disciplinary charge document. He later sent a detailed reply to the Commissioner of Police. That was all he did as far as it related to the charge.

23. The charge contained what the plaintiff was entitled to do if he chose to act on it. The relevant parts of the charging officer, CSP S. Mapi's notice of charge dated 06 February 2000 stated as follows:

" you are invited to provide a response to this charge within 14 days if the charge has been served personally on you or within 28 days if the change has been posted to you as per subsection 4 (b) of section 25 of the Police Force Act. You should provide in this response any explanation you desire in regard to the charge and should also provide a submission you may wish to make in relation to the penalty should the charge is sustained." (Underlining mine)

24. The disciplinary charge accorded the plaintiff the right to be heard on the charge itself and on penalty. He availed himself of the right to reply on the charge only and made no submission on penalty. It is far belated to now say he was not given a chance to address on penalty. He chose not to or failed to make a statement or submission on penalty when the opportunity became available.

25. I am unable to find that the Respondent made an error under the Police Force Act on the issue of submission on penalty. The Act makes no provision on submission on penalty. Despite that the Plaintiff was adequately invited to respond to penalty in anticipation of the charge being sustained. It was a requirement under S. 24 that the plaintiff exercise his right to respond to the charge and that right in my view applied to penalty simultaneously. Under those circumstances he could not wait for a finding of guilt before addressing on penalty as is the practice in a formal Court proceeding.

26. The plaintiff's response to the charge without any submission on penalty was considered when the respondent determined the penalty imposed on him. The respondents were quite entitled to form the view that an address on penalty had not been received or declined by the Plaintiff. The respondent's actions therefore did not amount to a breach of natural justice or any of the other considerations that would attract a review of their decision. Even if the principles of natural justice were breached the applicability of the principle would depend on the Police Force Act.

27. On the issue of ineffective service of the notice of penalty, the records clearly show that the respondents served the notice of penalty four months short of 2 years after the Police Commissioner dismissed the Plaintiff from the Police Force. Does that give rise to a breach of any of the circumstances which would invite a review? I think not. The notice of penalty was to be effective or come into operation on the day it was served on the Plaintiff. Police Commissioner J. Wakon's Notice of penalty for serious discipline offence to the plaintiff clearly states in the last paragraph as follows;

"The serious disciplinary charges sustained and by way of penalty you are dismissed from the Constabulary, effective from the date of service of the penalty." (Underlining mine)

28. The words of the Police Commissioner are succinct and unambiguous. The Plaintiff's dismissal is effective from 8th February 2002, which is the day he was served the notice of penalty. The delay in the service of the Notice of penalty was not in my view an error of Law, in excess of Jurisdiction or breach of natural Justice. The enabling Act makes no provision for the time frame when a notice of penalty would be served. Under those circumstances the respondents were quite entitled to serve the notice when they saw fit. Based on those considerations the allegation of ineffective service of penalty is unable to form an adequate basis for a review.

29. One further matter that I consider important to this application needs to be mentioned also.

30. The Police Force Act under S. 26 (5) as referred to above gives a member seven (7) days from service of the notice of penalty to ask the Commissioner to review his decision. He could also ask the Commissioner for more time to apply for a review of his decision. It seems the plaintiff did not avail himself of those statutory entitlements before seeking this review. He failed to exhaust all available options open to him. It is far belated to do that now.

31. Having examined the decision making process of the respondents, I have not been able to see any breach of the process and or actions which were ultra vires the powers prescribed under Division 03 – Serious Offences, of the Police Force Act. I find no basis for a Review of the Respondents decision making process from the plaintiff's grounds.

32. At this juncture I consider it fitting to state what was held in Kekedo v Burns Philp (supra);

"Save in the most exceptional circumstances the rule is that judicial review jurisdiction will not be exercised by the court where other remedies are available."

What other remedies are available to the plaintiff?

33. He did not exercise the statutory options open to him under the Police Force Act and came to this court. He should have exercised those options a decade ago. The court would do grave injustice to both parties to send this matter back now as it would be deemed a remedy not available anymore owing to great time lapse.

34. In my view the Plaintiff's remedy here would be in damages. Having determined that the plaintiff would be entitled to damages and as a consequence of damages sought as a remedy in the application for review it is most appropriate in the circumstances of this case that damages should be awarded here from.

35. The unusual nature of the case as referred to above shows that the plaintiff's dismissal on paper commenced on 17 July 2000. The actual dismissal commenced on 8 February 2002. In between those times the plaintiff performed duties as a policeman. This is evidenced from the commendation reports from his immediate superiors. His selection and attendance to a course and eventual promotion also attest to this. It seems that no one told him to stop being a policeman until 19 September 2001.

36. It has taken a very long time for this matter to have come this far. It would serve no good purpose to both parties to pursue litigation in a new damages claim by the plaintiff. This is likely to take a long time again. The plaintiff has been hard done by in the Police administrative inefficiency. He would be entitled to damages in loss of entitlements up to 8 February 2002 and should be awarded damages. I have authority under S. 155 (4) of the Constitution (see above) and Order 12 rule 1 to make such orders as in this case. Order 12 Rule 1 is in the following terms;

"The Court may at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process."

37. In my view it is only just and necessary under the circumstances of this case that judgement for loss suffered between 17 July 2000 and 8 February 2002 be entered for the plaintiff for assessment. The formal orders are:

1. Application for review with a view to being reinstated is refused.

2. Judgement is entered for assessment for loss suffered between 17th July 2000 and 8th February, 2002.

3. Each party shall bear their own costs.

________________________________________________________________
Tonge Lawyers: Lawyers for the Applicant
No Appearance for the Respondent