Sarei v Correctional Service Appeal Tribunal [2013] PGNC 126; N5226 (29 May 2013)

N5226

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 461 OF 2010

NOEL SAREI
Plaintiff

V

CORRECTIONAL SERVICE APPEAL TRIBUNAL
First Defendant

RICHARD SIKANI, COMMISSIONER OF PAPUA NEW GUINEA CORRECTIONAL SERVICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2013: 19 April, 29 May

JUDICIAL REVIEW – dismissal of member of Correctional Service – role of Correctional Service Appeal Tribunal – whether Tribunal decision to dismiss appeal against dismissal was unreasonable, biased or in excess of jurisdiction.

The plaintiff, who was a member of the Correctional Service, applied for judicial review of the decision of the Correctional Service Appeal Tribunal to dismiss his appeal against his dismissal by the Commissioner from the Correctional Service. The plaintiff argued three grounds of judicial review: (1) the Tribunal's decision was unreasonable; (2) the Tribunal was biased; and (3) the Tribunal exceeded its jurisdiction.

Held:

(1) The plaintiff failed to prove that the Tribunal's decision, finding that he was properly found guilty of the disciplinary offence of disregarding a lawful order of the Commissioner and that the penalty of dismissal was appropriate, was unreasonable.

(2) The plaintiff failed to prove bias, either actual bias or reasonable apprehension of bias, on the part of the Tribunal.

(3) The plaintiff failed to prove that the Tribunal acted in excess of jurisdiction.

(4) All relief sought by the plaintiff was refused.

Case cited

The following cases are cited in the judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Paul Dopsie v Jerry Tetaga (2009) N3720
Paul Saboko v Commissioner of Police (2006) N2975

JUDICIAL REVIEW

This was a review of the decision of the Correctional Service Appeal Tribunal to dismiss an appeal by a member of the Correctional Service against a decision to dismiss him from the Correctional Service.

Counsel

J Posi for the plaintiff

1. Cannings J: The plaintiff Noel Sarei, who was a member of the Correctional Service, applies for judicial review of the decision of the Correctional Service Appeal Tribunal constituted by senior Magistrate Mr Stephen Oli to dismiss his appeal against his dismissal by the Commissioner from the Correctional Service. The plaintiff argued three grounds of judicial review: (1) the Tribunal's decision was unreasonable; (2) the Tribunal was biased; and (3) the Tribunal exceeded its jurisdiction.

GROUND 1: UNREASONABLENESS

2. The plaintiff argues that the Tribunal's decision was 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 decision was so unfair and unreasonable no reasonable tribunal could have made it (Paul Saboko v Commissioner of Police (2006) N2975, Paul Dopsie v Jerry Tetaga (2009) N3720). To test the argument it is necessary to explore the history of the disciplinary proceedings taken against the plaintiff.

3. In 2005 he was charged with a disciplinary offence under Section 39(g) of the Correctional Service Act 1995, being guilty of disgraceful conduct in his official capacity, the allegation being that he had misappropriated a sum of public money that was under his control in his capacity as a Rehabilitation Officer at Correctional Service headquarters Port Moresby. The Commissioner, Mr Richard Sikani, found him guilty as charged and on 1 November 2006 dismissed him from the Correctional Service. The plaintiff appealed against his dismissal (this was his first dismissal) to the Correctional Service Appeal Tribunal (constituted also on this occasion by Mr Oli), exercising the right of appeal available under Section 46 (appeals) of the Correctional Service Act. The Tribunal on 7 November 2007 dismissed the appeal against the guilty finding but upheld the appeal against the penalty of dismissal, which was found to be manifestly excessive, and substituted it with a fine of K200.00 payable forthwith and ordered that the plaintiff 'be reinstated back to his substantive position'.

4. On 21 November 2007 the Commissioner wrote to the plaintiff and told him that he was reinstated as from the date ordered by the Tribunal, 7 November 2007, and directed him to "resume official duties at Bomana Correctional Institution as Custodial Officer". The plaintiff failed to comply with the Commissioner's direction. He took the view that transferring him to Bomana was a demotion and that the Commissioner was acting contrary to the Tribunal's decision, which was that he be reinstated to his substantive position at Correctional Service headquarters. The plaintiff failed to report for duty at Bomana and wrote a series of letters to the Commissioner pointing out his position and stated that he was fully prepared to resume duties at headquarters in accordance with the Tribunal's decision. The Commissioner ignored the letters and the plaintiff remained off the payroll.

5. This stalemate remained for 15 months until on 10 March 2009 the plaintiff was charged with a disciplinary offence under Section 39(c) of the Correctional Service Act for disregarding the Commissioner's order to resume duty at Bomana. On 27 March 2009 the charge was sustained by the Bomana Disciplinary Board. Each correctional institution is required by Section 42(2) of the Act to have a Disciplinary Board that hears disciplinary charges and in the case of finding a member guilty of a serious disciplinary offence may recommend to the Commissioner that the member be dismissed from the Correctional Service. In this case the Board recommended dismissal and the Commissioner on 20 May 2009 accepted the Board's recommendation and dismissed the plaintiff (for the second time) from the Correctional Service. The plaintiff appealed against that decision to the Tribunal which on 27 November 2009 dismissed the appeal and confirmed the plaintiff's dismissal. It is the Tribunal's decision of 27 November 2009 that is the subject of the application for judicial review.

6. The Tribunal rejected the plaintiff's three grounds of appeal (abuse of process, innocence and excessive severity of punishment). It rejected the primary argument that the Commissioner failed to comply with its order of 7 November 2007. The Tribunal found that the plaintiff was not demoted as there was no evidence that the position at Bomana to which he was transferred was of a lower classification than his previous position at headquarters or that he was to be paid any less salary. The Tribunal noted that pursuant to Section 13 of the Correctional Service Act the Commissioner is the head of the Correctional Service and has responsibility for the superintendence and efficient organisation of the Correctional Service. The Commissioner has the prerogative to post any member of the Service to any correctional institution where the Commissioner considers the interests of the institution and the Correctional Service will be best served. That is what he did by transferring the plaintiff to Bomana. The Commissioner's direction to the plaintiff to resume duty at Bomana was a lawful order and the evidence was clear that the plaintiff wilfully disregarded it. The plaintiff was not innocent of the charge. The Tribunal also rejected the grounds of appeal relating to abuse of process and severity of penalty and in regard to the latter concluded that as the plaintiff had a prior conviction no penalty less than dismissal was appropriate.

7. The Tribunal's decision was in the form of an 11-page written statement of reasons which in my view provides a cogent and convincing explanation for rejection of the plaintiff's appeal. I cannot detect a scintilla of absurdity or irrationality in the Tribunal's decision. The plaintiff's primary argument that a transfer to Bomana amounted to a demotion and a failure by the Commissioner to comply with the first Tribunal decision was carefully considered by the Tribunal and rejected. The plaintiff has fallen well short of proving that the Tribunal's decision was unreasonable, let alone that it was so unreasonable no reasonable tribunal could have made it. On the contrary the Tribunal's decision was entirely reasonable. Ground 1 of the judicial review is dismissed.

GROUND 2: BIAS

8. The arguments in support of the bias ground of review are a rehash of those raised in support of ground 1. They are not proper arguments. There is no evidence of actual or apprehended bias on the part of the Tribunal. Ground 2 is dismissed.

GROUND 3: EXCESS OF JURISDICTION

9. The arguments in support of the excess of jurisdiction ground of review are particularly vague. It is argued that the Tribunal arrived at its decision 'without a proper consideration of the plaintiff's submissions ... and hence amounted to an abuse of the exercise of discretion'. With respect to the plaintiff's counsel Mr Posi who appears to have done the best he can in running a case with little merit such arguments are so general and contrary to the facts as to be meaningless. Ground 3 is dismissed.

CONCLUSION

10. As none of the grounds of review succeeded the application for judicial review must be dismissed. Costs normally follow the event: the party that loses pays the costs of the winning party. In this case the defendants failed to appear at the trial and this is disappointing. The Solicitor-General was the lawyer on the record and a lawyer from the Office of Solicitor-General was present at the pre-trial status conference. The Correctional Service employs qualified and competent counsel and perhaps they should be given carriage of matters such as this. Perhaps there is a good reason for the Court not being assisted by those whose duty it was to assist but I am not aware of any. The defendants do not deserve their costs.

ORDER

(1) The application for judicial review is refused.

(2) All relief sought in the amended statement pursuant to Order 16, Rule 3(2)(a) of the National Court Rules filed on 21 October 2010 and the notice of motion filed on 14 March 2011 is refused.

(3) The parties will bear their own costs.

Judgment accordingly.

____________________________

Rageau Manua Kikira Lawyers: Lawyers for the plaintiff
Solicitor General: Lawyer for the defendants