Kumbu v Mann [2012] PGNC 108; N4746 (20 July 2012)

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DR NICHOLAS MANN, CHAIRMAN, COUNCIL APPEAL COMMITTEE, UNIVERSITY OF PAPUA NEW GUINEA
First Defendant

ADMINISTRATIVE LAW – student disciplinary procedures – whether errors of law committed in disciplinary process – whether disciplinary committee or appeals committee exceeded jurisdiction – whether decisions premeditated – whether decision to find plaintiff guilty or to dismiss his appeal to appeal committee was unreasonable

JUDICIAL REVIEW – remedies – circumstances in which damages can be awarded in a successful judicial review

The plaintiff was a student at a university. He was charged with a disciplinary offence, found guilty by a disciplinary committee and excluded from studies for two semesters, barred from graduating and ordered to pay 10% of the total costs of assessed damage to university property and to enter a good behaviour bond. He appealed to an appeal committee, which dismissed his appeal and upheld the disciplinary committee's decision. He sought judicial review of the decisions of the disciplinary committee and the appeal committee on five grounds: (1) error of law due to failure to adhere to procedures of student discipline statute; (2) excess of jurisdiction due to failure to serve charge and allow reasonable opportunity to defend himself; (3) the decisions were premeditated and subject to undue influence by the Vice-Chancellor; (4) unreasonableness; and (5) failure to grant an exemption from enrichment courses. The plaintiff sought declarations that the decisions of the disciplinary committee and the appeal committee were null and void and orders that the decisions be quashed, that the university allow him to graduate, that he be exempted from doing enrichment courses and damages. This was the trial of the application for judicial review.

Air Niugini Ltd v Beverley Doiwa [2000] PNGLR 347
Aita Sanangkepe v Honourable Paias Wingti (2008) N3404
Bakani and OPIC v Daipo (2001) SC659
Bau Waulas v Veronica Jigede (2009) N3781
Daipo v Bakani and OPIC OS No 489 of 2000, 17.11.00
Dale Christopher Smith v Minister for Lands (2009) SC973
Denis Donohoe v Ombudsman Commission [1985] PNGLR 348
Dopsie v Tetaga & Apeng (2009) N3722
Graham Keri v Teaching Services Commission Disciplinary Committee (1997) N1555
In the Matter of Grand Chief Sir Michael Somare (2011) N4224
Isaac Lupari v Sir Michael Somare (2008) N3476
Isidore Kaseng v Rabbie Namaliu and The State (No 1) [1995] PNGLR 481
Island Helicopter Services Ltd v Wilson Sagati (2008) N3340
Jeffrey Afozah v Police Commissioner (2008) N3300
John Nilkare v Ombudsman Commission (1996) SC498
John Unido v Commissioner of Police (2008) N3369
Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112
Karen Mek v Mann, UPNG & The State OS (JR) No 392 of 2009, 17.01.11
Kely Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534
Lawrence Sausau v Joseph Kumgal (2006) N3253
Mao Zeming v Justice Timothy Hinchliffe (2006) N2998
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
Paul Saboko v Commissioner of Police (2006) N2975
Peter Kama v Council Appeals Committee of the University of Papua New Guinea (2010) N3829)
Peter Yama v BSP (2008) SC921
Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) SC1060
Prai Ipandi v Robin Guria (2010) N3830
Richard Koki v Sam Inguba (2009) N3785
Robin Aegaiya v Gari Baki (2009) N3693
Ross Bishop v Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533
Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01
The State v Dibol Petrus Kopal (2004) N2778
The State v James Yali (2006) N2989
The State v Saul Ogeram (2004) N2780
Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718
Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018
Winmarang v Ericho and The State (2006) N3040

This was an application for judicial review of decisions of a student disciplinary committee and an appeal committee.

J S Kumbu, the plaintiff, in person
C Lari, for the first & second defendants

1. CANNINGS J: Jacob Sanga Kumbu, the plaintiff, was a final year law student at the University of Papua New Guinea in 2008 when he was charged with a disciplinary offence. He was found guilty by the Student Disciplinary Committee and excluded from studies for two semesters, barred from graduating and ordered to pay 10% of the total costs of assessed damage to university property and enter a good behaviour bond. He appealed to the Council Appeal Committee, which rejected his appeal and upheld the Disciplinary Committee's decision. He has been granted leave to apply for judicial review of the decisions of the Disciplinary Committee and the Appeal Committee on five grounds.

2. The plaintiff argues that the Appeal Committee erred in law by not upholding his appeal which, he claims, contained valid grounds relating to breaches by the Disciplinary Committee of the University's Student Discipline Statute. Specifically he argues that:

3. Further errors were made by the Appeal Committee, the plaintiff argues, in that:

4. Determination of this sub-ground requires an examination of the Student Discipline Statute, which puts the court in a quandary as two different versions of this subordinate legislative enactment, which is permitted to be made by the Council of the University under Section 32 (statutes) of the University of Papua New Guinea Act Chapter 169, have been put before the court. There is the version found in the Revised Laws of Papua New Guinea, dated 1 January 1985, consisting of nine sections, annexed to an affidavit of the plaintiff (exhibit P4). A different version, consisting of 16 sections, is annexed to an affidavit of the chairman of the Disciplinary Committee (exhibit D5).

5. I regard the Revised Laws as the correct version as it is a copy of the Statute printed by the Government Printer. It is sufficient evidence by virtue of Section 33(5) (approval and publication) of the University of Papua New Guinea Act and Section 39 (statutes published by authority) of the Evidence Act. The other version has not been printed by the Government Printer and is not under the common seal of the University and I am not satisfied that it has been printed on behalf of the University for the purposes of Section 33(5). Nor is there evidence that it has been approved "by the Head of State, acting on advice, and when so approved ... notified in the National Gazette" as required by Section 33(1) of the University of Papua New Guinea Act. I note that in Karen Mek v Mann, UPNG & The State OS (JR) No 392 of 2009, 17.01.11 (unreported) Davani J, in determining an application for judicial review by a UPNG student of a decision of the Council Appeal Committee, dealt with similar confusion regarding the Student Discipline Statute. Different versions were in evidence. Her Honour found that the University itself was not sure which version of the Statute had been applied and proceeded to grant the application for judicial review, quashing the decision to exclude the student from studies for four years. Another reason for not accepting the version of the Statute annexed to the affidavit of the Chairman of the Disciplinary Committee is that it is sprinkled with so many grammatical, spelling and punctuation errors (eg Section 4 "APPEALS AGAINST FEMALTY ['sic]; Section 8(1), a student may appeal by written notice ledged [sic] with the Registrar) I cannot believe that it has passed through the Office of Legislative Counsel.

6. Section 5(1) (procedure of disciplinary committee) of the Revised Laws version of the Student Discipline Statute provides that the Disciplinary Committee "shall meet within 21 days of the referral to it of an alleged breach of discipline". The sequence of events here was:

17 May 2008	a violent on-campus incident involving Engan students, allegedly including the plaintiff, occurred: University security personnel were assaulted and the security headquarters was damaged; it was this incident which was at the centre of the disciplinary charge laid against the plaintiff.
4 September 2008	disciplinary charge laid against the plaintiff, by letter, signed by the Pro Vice-Chancellor.
19 September 2008	plaintiff responded to the charge by letter addressed to the chairman of the Disciplinary Committee.
6 October 2008	Disciplinary Committee heard the charge, and the plaintiff attended the hearing and defended the charge.
10 October 2008	Disciplinary Committee notified the plaintiff by letter (incorrectly dated 20 September 2008) addressed to him that he had been found guilty as charged and notified him of the penalties.
24 October 2008	the plaintiff appealed to the Appeal Committee by letter addressed to the chairman of the Appeal Committee.
4 November 2008	the Appeal Committee heard the appeal.
2 December 2008	Appeal Committee notified the plaintiff by letter addressed to him that his appeal was rejected and that the decision of the Disciplinary Committee was upheld.

7. I find that the alleged breach of discipline was referred to the Disciplinary Committee on 4 September 2008 as the letter to the plaintiff containing the charge bearing that date was copied to amongst others the chairman of the Disciplinary Committee. The Disciplinary Committee had 21 days to meet. It should have met by 25 September 2008. It did not meet until 6 October 2008, exceeding the statutory time limit by 11 days.

8. The plaintiff argues that this is an error of law on the face of the record and the defendants have failed to counter the argument. Though the Statute does not expressly state that a failure to meet the time limit will invalidate the proceedings or decisions that are made, this is necessarily inferred from the language of Section 5 and the purpose of the Statute, which is to ensure that disciplinary matters regarding students are dealt with in a timely manner. The word "shall" is imposing a mandatory procedural requirement, so strict compliance was necessary (Isidore Kaseng v Rabbie Namaliu and The State (No 1) [1995] PNGLR 481, Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718). Failure to comply was an error of law, which deprived the Disciplinary Committee of jurisdiction.

9. The plaintiff argues that there were no student members on the Disciplinary Committee contrary to the Student Discipline Statute. Section 4(2) (powers and composition of disciplinary committees) of the Revised Laws version of the Statute provides that at the Waigani Campus a Disciplinary Committee shall consist of:

10. It is therefore necessary that two of the members of the Disciplinary Committee be students. This is also the case under the equivalent provision, (Section 6(3)) of the other (incorrect) version of the Statute.

11. What was the composition here? The minutes of the Committee meeting of 6 October 2008 at which the decisions were made to find the plaintiff guilty as charged and to impose the penalties the subject of this application for judicial review (annexed to an affidavit of the Registrar of the University, exhibit D3) record the members present as:

12. I do not think the minutes are accurate as the letter to the plaintiff notifying him of the Committee's decisions was signed by a different Chairman. Be that as it may there is no mention in the minutes or any other evidence of any of the members of the Committee being students appointed by the President of the Students Representative Council from a panel as selected by that Council, as required by Section 4(2)(a)(ii) of the Statute. I have considered the possibility that there were in fact two students who were members of the Committee but they failed to attend the meeting. If that were the case the meeting might have been able to proceed lawfully if the student members had been given due notice of it, as Section 5(2)(a) of the Statute provides that the quorum is only three members. However, the minutes do not show any apologies or absences by any members. I find that there were no students on the Committee. This is contrary to Section 4(2) of the Statute. There was an error of law as the Disciplinary Committee was unlawfully constituted.

Based on the reports I have received, I am charging you under the Student Disciplinary Statute No 169, which states that:-

is guilty of a disciplinary offence and is liable to be dealt with and punished in accordance with this Statute.

I am therefore referring this matter to the Student Disciplinary Committee (SDC) for its consideration and, if necessary, determination of appropriate penalties. Be advised that if you are currently on a "Good Behaviour Bond", these charges include a charge for breach of that bond.

You have seven (7) days to make a written response, which should be sent to the Chairman of the SDC via the Student Administration office. Be sure to include all relevant evidence in your response. In the event of an appeal, the Council Appeal Committee may reject new evidence that could have been made available when the SDC first considered the matter.

14. I uphold the plaintiff's argument and find that the charge is defective in four respects. First, it is based on the second version of the Student Discipline Statute, not on the Revised Laws version, which contains a markedly different description of proscribed student conduct. The terminology is also different as the Revised Laws version speaks of a "breach of discipline" rather than a "disciplinary offence". Section 2(1) (breaches of discipline) of the Revised Laws version, the provision that should have been, but was not, used to frame the charge states:

(a) it is a wilful breach of any Statute, by-law or Rule of the University or of any similar requirement of another institution at which he is pursuing a course of study; or

(b) it involves disobedience of a reasonable direction by a person in authority over the student; or

(d) without permission of the appropriate authority, it involves the use of the crest, title or address of the University in any communication, document, or public notice; or

(e) it involves the marking, defacing, damage or destruction of property or failure to return property moved or borrowed by him; or

(f) it obstructs the use of the facilities of the University or the conduct of its work; or

(h) it is disorderly or otherwise improper or detrimental to the interests of the University or to its good repute; or

(j) it is an incitement or encouragement to any breach of discipline referred to in Paragraph (a) to (i).

15. A disciplinary charge that is based on a wrong or irrelevant law is inherently defective and will result in unfairness and render a determination of the charge a nullity (Robin Aegaiya v Gari Baki (2009) N3693). I find that to be the case here.

16. Secondly the part of the letter that purports to recite the relevant provision of the Student Discipline Statute is inaccurate and misleading. Here is how Section 2(1) (disciplinary offences) of the second (unauthorised) version of the Statute reads:

is guilty of a disciplinary offence and is liable to be dealt with and punished in accordance with this Statute. [Underling added.]

17. The underlined paragraphs were omitted from the Pro Vice-Chancellor's letter. This is significant as some of them (eg (j) obstructing the use of facilities of the University, (k) subjecting another person to indignity by threat or abuse or to physical violence or damaging property) are the provisions that should have been used (if this were the correct version of the Statute) to frame a disciplinary charge given the nature of the actual allegation that the Pro Vice-Chancellor was trying to put to the plaintiff: that he was involved in a violent riot involving actual physical violence and malicious damage to university property. Omission of important paragraphs is not the only source of confusion. Paragraph (g) of the letter repeats the malapropism in paragraph (h) of the Statute whereby a student who "makes ... property" is guilty of a disciplinary offence. So, not only was the wrong law relied on, it was misquoted. This was an error of law.

18. The charge's third defect (which was one of the plaintiff's grounds of appeal to the Appeal Committee) is that it was not expressed in the language of the Statute. The Pro Vice-Chancellor's letter makes three allegations, states that the plaintiff is being charged and that the matter is being referred to the Student Disciplinary Committee for its consideration and provides seven days to make a written response, however it does not state the disciplinary offence he is alleged to have committed. It is part of the principles of natural justice that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy the person charged will not know the case that he has to answer. The person laying the charge (here, the Pro Vice-Chancellor), the body determining the charge (the Student Disciplinary Committee) and the body determining an appeal (the Council Appeal Committee) will not have a clear mind on the real issues to be decided (Bakani and OPIC v Daipo (2001) SC659; Daipo v Bakani and OPIC OS No 489 of 2000, 17.11.00, National Court, Sevua J, unreported; Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, National Court, Los J, unreported; Winmarang v Ericho and The State (2006) N3040; The State v James Yali (2006) N2989; Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112); Prai Ipandi v Robin Guria (2010) N3830. Those requirements were breached in this case.

19. Davani J pointed out a similar error in Mek's case: allegations were put to the student and the provision of the Statute being relied on was recited, but the particular paragraph of the provision being relied on was not stated. Her Honour held that it is unacceptable to make allegations of fact and generally recite the law under which the person is charged and leave it up to the student to work out what charge he or she is facing. I agree with her Honour that the parts of the law that are alleged to have been infringed must be precisely stated. It was important to do that here as Section 2(1) of the version of the Statute attempted to be relied on by the Pro Vice-Chancellor actually creates approximately 35 different disciplinary offences. So which ones was the plaintiff charged with committing?

20. Fourthly, even if the three allegations are regarded as constituting the charge they are themselves ambiguous. Allegation (a) refers to "an incident caused by a student from Enga" that occurred on a particular date at a particular time but does not state the place of the incident or provide any further details. Allegation (b) states that the plaintiff "mobilised and led the students who assaulted the Uniforce Security officers" but does not state where or when these acts are alleged to have been committed. Allegation (c) – "you were actively involved in current threats and intimidation" – does not make grammatical sense as it mixes past tense ("were actively involved") with present tense ("current threats and intimidation") and is confusing as it is not clear whether it is alleged that the threats and intimidation were committed during the incident referred to in allegation (a) or at some other time.

21. Any allegation of wrongdoing, to have legal effect and to give rise to an obligation on the part of the recipient to respond, must be clear and precise, comprehensible by a reasonable person and not require the recipient to speculate on what is alleged (Ross Bishop v Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533, The State v Dibol Petrus Kopal (2004) N2778, The State v Saul Ogeram (2004) N2780). These allegations failed to meet that standard.

22. So poorly and ambiguously drafted is the Pro Vice-Chancellor's letter, it must be said that it did not contain a charge sufficient to oblige the plaintiff to respond or to enliven the jurisdiction of the Student Disciplinary Committee. This was a major error of law.

23. Ms Lari, for the first and second defendants, submitted that if the charge were found to be defective, this is of no consequence as the plaintiff did not raise the defects with the Student Disciplinary Committee. I reject this submission for two reasons. First it is the duty of the Committee to ensure that it has jurisdiction in a matter referred to it (Denis Donohoe v Ombudsman Commission [1985] PNGLR 348). One of the prerequisites to a disciplinary tribunal being seized of jurisdiction is that the charge it is asked to determine is clear and lawful, not ambiguous and defective. That duty was not discharged. Secondly, the plaintiff did argue that there were defects in the charge in his appeal to the Appeal Committee but the argument was ignored. I conclude that there were four errors of law that rendered the charge defective and a nullity.

24. The plaintiff argues that there was an abundance of evidence before the Disciplinary Committee that he was not on campus at 4.30 am on 17 May 2008 and no evidence that he participated in the violence that took place between 8.00 and 8.30 am. Therefore he should have been found not guilty.

25. It is correct that the Disciplinary Committee found as a fact, recorded in a report prepared following its determination of the charge against the plaintiff and other students charged over the 17 May 2008 incident (annexed to an affidavit of the chairman of the Disciplinary Committee (exhibit D5)), that at 4.30 am the plaintiff was not on campus. He was at home, asleep, in off-campus accommodation. The Disciplinary Committee found, however, that he was on campus between 8.00 and 8.30 am and actively involved in the violence that occurred then at the Uniforce office. The Committee rejected the evidence of the plaintiff and that of another student who said that the plaintiff only came on to the scene after the violence and that his only involvement was to make a speech to the large crowd of students criticising the behaviour of the University administration and the security guards who were alleged to have inflicted grievous bodily harm on the drunken student who had sparked the violence by attempting to gain entry to the campus at 4.30 am. The Committee accepted the evidence of the security chief and other security personnel who identified the plaintiff as being the one who mobilised and led the violent students.

26. I find no error in the manner in which the Committee made those findings of fact, which appear to have been reasonably available to the Committee in light of the evidence placed before it.

27. However, I consider that there is a problem connecting the findings of fact to the allegations, which goes back to the manner in which the allegations were drafted. Allegation (a) alleged that the plaintiff was involved in an incident "at 0430 hours". It is clear that he was not, so the allegation should not have been sustained. Allegation (b) alleged that he "mobilised and led the students". The Committee found that he did. If the allegation had been specific, the guilty finding might have been lawful. However, the allegation was too vague to be sustained. Allegation (c) alleged that he was actively involved in current threats and intimidation. The Committee found that he was involved in threats and intimidation. If the allegation had been specific, the guilty finding might have been lawful. However, the allegation was too vague to be sustained.

28. I find that there was an error of law, though not entirely in the terms advanced by the plaintiff. There was insufficient evidence to sustain the three allegations that were put to the plaintiff and he should have been found not guilty by the Disciplinary Committee.

29. The plaintiff takes issue with the part of the penalty imposed by the Disciplinary Committee that related to damage to University property done in the incident in which he was found to have been involved. The Chairman's letter notifying the plaintiff of the Committee's guilty finding and the penalties to which he was subject stated:

That you are hereby ordered to pay 10% of the total cost of the actual assessed damage done to the University properties during the Enga students rampage. These costs will be assessed by the University and be provided to you.

That these costs are to be paid before you graduate. If the assessed costs are not paid then your exclusion form [sic] studies for the four (2) [sic] semesters is extended and will continue until you pay the 10% cost of the damage. If the 10% cost [sic] are paid early then your exclusion will expire after the (2) semesters.

30. I uphold the plaintiff's argument that it is an irrational penalty as he was neither charged with damaging nor alleged to have damaged University property. A person cannot properly be found guilty by a disciplinary tribunal of something with which he has not been charged (In the Matter of Grand Chief Sir Michael Somare (2011) N4224). There were three allegations at the beginning of the Pro Vice-Chancellor's letter: that he was involved in an incident, that he mobilised and led the students who assaulted security officers and that he was actively involved in threats and intimidation. No mention was made of damage to property. I find that the only reasonable interpretation of the version of the Statute that the Pro Vice-Chancellor was attempting to rely on – which does allow, in Sections 3(4)(c)(i) and 6(1)(a), the Disciplinary Committee to "order the student ... to make good any damage to property he has caused" – is that for a student to be visited with a penalty of making good damage to property he must be charged with and found guilty of such an offence. Here, that logical connection between the charge, the finding of guilt and the penalty was absent. There was an error of law constituted by imposition of a penalty in relation to an offence with which the plaintiff was neither charged nor found guilty.

31. The plaintiff argues that the Chairman of the Appeal Committee was not legally qualified contrary to the Student Discipline Statute. Section 6(3) (appeals) of the Revised Laws version of the Statute provides that in the case of an appeal by a student against a penalty imposed by a Disciplinary Committee:

... the Council shall constitute an Appeal Committee consisting of four of its members, of whom at least one shall be a member of the academic staff and one a student, and a Chairman who shall be a person legally qualified and appointed by the Chancellor. [Emphasis added.]

32. It is therefore necessary that the Chairman be legally qualified. This is not the case under the equivalent provision (Section 8(3)) of the other version of the Statute. It provides that the Appeal Committee shall consist of five members of the University Council but does not say that the Chairman must be legally qualified. That provision does not apply in this case.

33. What was the case here? The letter from the Appeal Committee to the plaintiff notifying him that his appeal had been dismissed was signed by the second defendant, Dr Nicholas Mann CMS. The minutes of the meeting of 4 November 2008 (annexed to an affidavit of the Registrar of the University, exhibit D3) confirm that Dr Mann was the Chairman. There is no mention in the minutes or any other evidence that Dr Mann is legally qualified. The plaintiff bears the legal burden of proving that Dr Mann is not legally qualified, but having raised that allegation of fact on something that is reasonably expected to be in the knowledge of Dr Mann, I consider that the evidentiary burden of proof passed to Dr Mann. It has not been discharged, and I find that the Chairman was not legally qualified. This is contrary to Section 6(3) of the Statute. There was an error of law as the Appeal Committee was unlawfully constituted.

34. The plaintiff argues that the Appeal Committee erred in law by not considering his grounds of appeal. It is correct that as an appellate tribunal the Appeal Committee had a duty to consider the grounds of appeal and to give good, proper and sufficient reasons for its decision (Kely Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534, Peter Kama v Council Appeals Committee of the University of Papua New Guinea (2010) N3829). Failure to do so amounts to a denial of natural justice (Ombudsman Commission v Peter Yama (2004) SC747, Mision Asiki v Manasupe Zurenuoc (2005) SC797).

35. Here, the plaintiff's 10-page appeal letter contained numerous grounds of appeal. How were they dealt with? The letter from the Chairman of the Appeal Committee to the plaintiff notifying him of the rejection of his appeal, after summarising the charge and the penalties imposed by the Student Disciplinary Committee, stated:

Having carefully considered your appeal and related documents, the Committee has concluded that you have not provided any new evidence in your appeal to support your claim of not being physically present on campus on Saturday 17th May 2008.

Given the above, the Committee resolved to reject your appeal and uphold the SDC decisions together with the penalties imposed on you as given above.

36. It is apparent that the grounds of appeal were ignored and that the only reason given for dismissing the appeal – that the plaintiff had not provided any new evidence – was irrelevant and insufficient. Denial of natural justice, which may be categorised as an error of law, has been proven.

37. Seven errors of law appear on the face of the records of the Student Disciplinary Committee and the Appeal Committee. Ground 1 of the review is upheld.

38. The plaintiff argues that there was an excess of jurisdiction by both the Student Disciplinary Committee and the Appeal Committee in that:

39. These arguments would perhaps better be labelled as denial of natural justice but this is of no consequence as grounds of judicial review alleging a denial of natural justice fall within the rubric of excess of jurisdiction (Denis Donohoe v Ombudsman Commission [1985] PNGLR 348, John Nilkare v Ombudsman Commission (1996) SC498).

40. The plaintiff argues that he was not given adequate notice of the hearings of the Student Disciplinary Committee or the Appeal Committee contrary to the Student Discipline Statute. Section 7(1) (procedure generally) of the Revised Laws version of the Statute states:

Notice to a student on any disciplinary matter shall be adequately served by means of a letter signed by an authorised officer of the University –

41. Thus it is necessary that a student be given adequate notice of a hearing. What is "adequate" will depend on the circumstances of a case (Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) SC1060).

42. The plaintiff was served with the disciplinary charge on 4 September, he responded in writing on 19 September and the hearing of the Student Disciplinary Committee was on 6 October. He had more than a month's notice, which I consider adequate.

43. He was given notice of the Disciplinary Committee's decision on 10 October, he lodged his notice of appeal on 24 October and the appeal hearing was on 4 November. He had more than three weeks notice, which was adequate.

44. I find no inadequacy in the manner in which the plaintiff was served with notice of the hearings of the Student Disciplinary Committee or the Appeal Committee. He was given adequate notice of both hearings. There was no breach of Section 7(1) of the Student Discipline Statute.

45. The plaintiff argues that he was not given a reasonable opportunity of defending himself. Specifically he argues that he was not given access to all documents considered by the Student Disciplinary Committee and the Appeal Committee and he was not permitted to cross-examine witnesses.

46. Sections 7(2) and 7(3) (procedure generally) of the Revised Laws version of the Statute state:

47. It is thus necessary that all documents "presented to" the Student Disciplinary Committee or the Appeal Committee be made available to the student. Documents "presented to" a committee would include all documents such as witness statements, investigation reports, police reports and university records that are before a committee and considered by it when determining the matter before it. It is also necessary that the student be given a reasonable opportunity of answering a charge. These are fundamental requirements of natural justice which would apply even if the Student Discipline Statute made no provision for them (Graham Keri v Teaching Services Commission Disciplinary Committee (1997) N1555, Jeffrey Afozah v Police Commissioner (2008) N3300, John Unido v Commissioner of Police (2008) N3369, Richard Koki v Sam Inguba (2009) N3785). I do not consider, however, that it is a necessary component of the student's right to be given a reasonable opportunity of answering a charge that he be allowed to cross-examine witnesses. A Student Disciplinary Committee hearing is not intended to be a public hearing that adopts an adversarial procedure. A student has no right to legal or other representation. This is according to Section 7(4) of the Student Discipline Statute a matter of "absolute discretion" for the Disciplinary Committee or the Appeal Committee. Such Committee hearings are unlike, for example, Leadership Tribunal hearings, which are held in public and adopt an adversarial procedure by virtue of the role of the Public Prosecutor (Mao Zeming v Justice Timothy Hinchliffe (2006) N2998). The question of whether a student is permitted to cross-examine witnesses is in my view a matter of discretion for the Disciplinary Committee and the Appeal Committee to determine.

48. The plaintiff has not proven that he was denied access to documents that were considered by the Disciplinary Committee or the Appeal Committee. He has also not proven that he was not given a reasonable opportunity of answering the charge or defending himself. It is no consequence that he was not permitted to cross-examine witnesses. I find no breach, in the manner contended for by the plaintiff, by the Disciplinary Committee or the Appeal Committee of Sections 7(2) or 7(3) of the Student Discipline Statute and no breach of the principles of natural justice.

49. There was no excess of jurisdiction in the manner contended for by the plaintiff. Ground 2 is dismissed.

50. The plaintiff argues that the decisions of the Disciplinary Committee were premeditated by the actions of the Pro Vice-Chancellor in two respects:

51. I find no merit in these arguments for three reasons. First, 'premeditation' is not a proper ground of judicial review. This sort of argument could perhaps have been advanced as a denial of natural justice or excess of jurisdiction ground as it is part of the right to natural justice that a decision making body be free of actual or apprehended bias (Peter Yama v BSP (2008) SC921). However, the arguments have not been advanced in those terms and for that reason alone this ground of review will be dismissed. Secondly, there is no credible evidence on which the court could find as a fact that the Pro Vice-Chancellor acted in the manner alleged. Thirdly even if it were proven that the Pro Vice-Chancellor had acted in the manner alleged, he was not a member of the Disciplinary Committee or the Appeal Committee and there is no evidence that he attempted to influence either Committee in its deliberations or that either Committee acted in a way suggesting that it was being influenced unduly by him.

52. Premeditation is not a proper ground of judicial review and even if the arguments raised in support of it were properly before the court there is no evidence to support them. Ground 3 is dismissed.

53. The plaintiff's argument is that the decisions of the Disciplinary Committee and the Appeal Committee were unreasonable in two respects:

54. The plaintiff argues that he was the victim of trumped up charges as the evidence was clear that he was not involved in the violence on 17 May 2008 and the University authorities had taken a set against him due to his previous conflicts with the University authorities and used the violence of 17 May 2008 as an opportunity to stop his graduation.

55. I reject this argument. I find that the disciplinary proceedings commenced by the Pro Vice-Chancellor represented a genuine attempt on the part of the University authorities to respond to a dramatic student incident involving physical violence and damage to University property. There was evidence from University security personnel identifying the plaintiff as being involved, which was considered credible by the Student Disciplinary Committee. The disciplinary proceedings were not motivated by bad faith. I find no evidence of mala fides on the part of the Pro Vice-Chancellor, the Student Disciplinary Committee, the Appeal Committee or any other University authority. Mistakes were made throughout the disciplinary process but they were genuine mistakes, not a manifestation of an attempt to persecute the plaintiff by trumping up charges or other means.

56. The more weighty argument of the plaintiff is that the decisions of the Disciplinary Committee and the Appeal Committee were unreasonable according to the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test to apply is:

57. If the answer is yes, the decision may be labelled unreasonable, the decision-maker will have exceeded jurisdiction and the decision is susceptible to judicial review. If the answer is no, the decision is not unreasonable and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure.

58. I consider that the test is satisfied in this case in regard to the decisions of both the Disciplinary Committee and the Appeal Committee.

59. There were five errors of law committed by the Disciplinary Committee, detailed in ground 1. The Disciplinary Committee erred by:

60. Though I have rejected grounds of review alleging other errors on the part of the Disciplinary Committee (that it proceeded without the plaintiff being given adequate notice, that it did not give him reasonable opportunity to defend himself and that its decision was premeditated) and concluded that the Committee complied in a number of respects with the principles of natural justice, the number of errors committed by the Disciplinary Committee and the fact that they were committed not only at the outset of its deliberations but in its guilty finding and in its decision on penalty mean that the Committee's decision to find the plaintiff guilty and to penalise him in the manner it did was unreasonable. One error of law by a disciplinary tribunal does not necessarily render a decision unreasonable. But there comes a point when the cumulative effect of so many errors of law results inevitably in unreasonableness. That point was reached here.

62. A similar failure to give reasons by the Appeal Committee was found in Kely Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534 to be sufficient cause for an unreasonableness finding. There is no reason to reach a different conclusion here. Any doubt is removed by the aggravating feature of this case: that the Appeal Committee was unlawfully constituted.

63. There is no basis for the view that the plaintiff was a victim of persecution. However, the decisions of both the Student Disciplinary Committee and the Appeal Committee were unreasonable in the Wednesbury sense. Ground 4 is substantively upheld.

64. This is a curious ground of review. The plaintiff argues that the University is preventing his graduation unless he does a number of enrichment courses. He argues that he has an exemption from these courses because he was part of the 1998 student intake and the requirement to do the enrichment courses was introduced after that and cannot be made retrospective.

65. This is not a proper ground of judicial review. Furthermore the argument (whatever its legal or academic merit) has no place in these proceedings as the deliberations and decisions of neither the Student Disciplinary Committee nor the Appeal Committee addressed the question of whether the plaintiff should be granted an exemption from enrichment courses.

67. Two of the grounds of review have been upheld. The decisions of the Student Disciplinary Committee and the Appeal Committee were affected by errors of law and were unreasonable. The decisions are susceptible to judicial review. It does not necessarily follow that the court will make the declarations and orders sought by the plaintiff. In any judicial review the court's determination of the review proceeds in two stages: (a) determining whether the plaintiff has proven one or more grounds of review, and if he has (b) deciding as a matter of discretion what remedies, if any, should be granted (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).

69. The Student Disciplinary Committee made five errors of law and its decisions to find the plaintiff guilty and impose an irrational penalty have been proven to be unreasonable. No good reason has been advanced to depart from the natural conclusion that its decisions should be quashed and declared a nullity. The relief sought will be granted.

70. The Appeal Committee was unlawfully constituted and it ignored the plaintiff's grounds of appeal and failed to give good, proper and sufficient reasons for its dismissal of the appeal, thus rendering its decision unreasonable. No good reason has been advanced to depart from the natural conclusion that its decision should be quashed and declared a nullity. The relief sought will be granted.

71. The court is in no position to order that the plaintiff be allowed to graduate. The evidence suggests that he is yet to complete all course requirements. He deposed that he could not sit for a taxation law examination or submit a paper due to the disciplinary proceedings. There is an argument that he should be allowed to graduate given the inconvenience and stress caused by the disciplinary proceedings, which he has proven were unlawfully conducted. However, I think that is an academic argument, in the sense that it is best considered by the University authorities rather than the court. I decline to grant relief in the form of a writ of mandamus.

72. As indicated earlier the question of whether the plaintiff should be granted exemption is a matter for the University authorities. I decline to grant the relief sought.

73. The question of whether the court should award damages arising from a successful application for judicial review must be determined according to Order 16, Rule 7 of the National Court Rules, which states:

(1) On an application for judicial review the Court may, subject to Sub-rule (2), award damages to the applicant if -

(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

(2) Order 8, Division 2, shall apply to a statement relating to a claim for damages as it applies to a pleading.

75. The first two requirements are satisfied but not the third. The Order 16, Rule 3(2)(a) statement is cast in inappropriately emotive terms and is in a number of respects embarrassing. It is fair to say that pleadings rules are not applied as strictly in judicial review proceedings as they are in proceedings commenced by writ of summons under Order 4, as demonstrated by Lawrence Sausau v Joseph Kumgal (2006) N3253 and Bau Waulas v Veronica Jigede (2009) N3781, cases in which successful judicial review applicants who established that they had been unlawfully dismissed from public employment were awarded damages of K3,000.00 and K5,000.00 respectively. However, for the court to seriously consider awarding damages in a judicial review it must be satisfied that there is substantial compliance with the pleadings rules, and I am not satisfied. The plaintiff's claim for damages would be better prosecuted by commencement of fresh proceedings, which would appear to be a viable course in light of the comments in Aita Sanangkepe v Honourable Paias Wingti (2008) N3404 and Isaac Lupari v Sir Michael Somare (2008) N3476. I decline to award damages.

76. There is a case for the court awarding costs to the plaintiff on a solicitor-client basis in view of the fact that the University has committed a number of errors of law of the same type that have been found in at least three recent National Court cases to have invalidated student disciplinary proceedings. However, an application for solicitor-client costs should be prosecuted by notice of motion (Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018, Island Helicopter Services Ltd v Wilson Sagati (2008) N3340). I will reserve the question of costs and allow the plaintiff 14 days to apply by notice of motion for costs.

National Court of Papua New Guinea

Kumbu v Mann [2012] PGNC 108; N4746 (20 July 2012)