Yareng v Kiong [2019] PGNC 431; N8152 (11 December 2019)

N8152

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 242 OF 2019

STEWART YARENG, ADRIAN HAUA & CAROL WALLAN
Plaintiffs

V

CAPTAIN DABUNG KIONG
First Defendant

BOARD OF PAPUA NEW GUINEA MARITIME COLLEGE
Second Defendant

Madang: Cannings J
2019: 5^th, 26^th September, 11^th December

HUMAN RIGHTS – disciplinary proceedings re tertiary institution students – right to full protection of the law, Constitution, Section 37 – proscribed acts, Constitution, Section 41 – principles of natural justice, Constitution, Section 59 – whether students found guilty of disciplinary offences and suspended from studies were afforded full protection of law, dealt with fairly, dealt with harshly or oppressively.

PRACTICE AND PROCEDURE – mode of commencement of proceedings – whether proceedings to challenge decision of college principal to suspend students’ studies required to be instituted by judicial review – whether proceedings should be dismissed due to failure to comply with requirements for commencement of representative proceedings.

The three plaintiffs were college students allegedly involved in an alcohol-related incident near the college campus. They were each found guilty of disciplinary offences under the student code of conduct and suspended from studies. They instituted proceedings in the National Court by an application for enforcement of human rights, claiming that their human rights were breached in three respects: denial of full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and not given a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution. The second and third plaintiffs consented to the first plaintiff being their spokesperson and principal plaintiff. The college principal (who made the decision to find the plaintiffs guilty and suspend them from studies) and the college board were named as defendants. They argued two preliminary points. First that the proceedings were an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. Secondly, that the second and third plaintiffs’cases ought to be summarily dismissed as there was a failure to comply with the requirements of representative proceedings and neither of them gave evidence. As to the merits of the claim the defendants denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the code of conduct that the students expressly agreed to be bound by when they enrolled for studies at the college.

Held:

(1) The proceedings were not improperly commenced as the plaintiffs were not applying for the type of orders that would make it necessary to commence proceedings under Order 16 of the National Court Rules. They were applying for enforcement of human rights, properly invoking the jurisdiction of the National Court under Section 57 of the Constitution.

(2) The second and third plaintiffs failed to comply with the requirements for commencement of representative proceedings, and failed to give evidence to support their cases. The proceedings, to the extent that it involved them,are frivolous and an abuse of process. Their claims were summarily dismissed.

(3) The defendants failed to adhere to the principles of natural justice enshrined in Section 59 of the Constitution in dealing with the first plaintiff in that: (a) he was not provided with a charge, setting out clearly and specifically the allegations against him; (b) there was no hearing of any charge; (c) he was not given copies of witness statements relied on by the principal; (d) he was not given the opportunity to present witnesses or witness statements to support his version of events; (e) the decision to suspend him from studies was not clear and specific as to its effect; the consequence being that the defendants did not act fairly and were not seen to act fairly.

(4) The defendants thereby failed to afford the first plaintiff the full protection of the law under Section 37(1) of the Constitution and dealt with him in a manner not warranted by the particular circumstances of his particular case contrary to Section 41(1)(b) of the Constitution.

(5) Declared: that the decision to find the first plaintiff guilty of disciplinary offences and to suspend him from studies, was an unlawful act for the purposes of Section 41(1)(b) of the Constitution. Ordered: that he be reinstated to studies.

Cases cited

The following cases are cited in the judgment:

Gene v Hamidian-Rad [1999] PNGLR 444
Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746
Manuel Gramgari v Steve Crawford (2012) N4950
National Executive Council & Luke Lucas v Public Employees Association [1993]
PNGLR 264
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Re Fisherman’s Island [1979] PNGLR 202
Simon Mali v The State (2002) SC690
Tigam Malewo v Keith Faulkner (2009) SC960
Wilson v Kekeya & Divine Word University (2018) N7613

APPLICATION

This was an application for enforcement of human rights.

Counsel

S I Asivo, a personal representative, with leave, for the plaintiffs
D F Wa’au, for the defendants

11^th December, 2019

1. CANNINGS J: The three plaintiffs were PNG Maritime College students allegedly involved in an alcohol-related incident on or near the college campus in Madang on 25 June 2019. They were each found guilty of disciplinary offences under the student code of conduct and suspended from studies. They instituted proceedings in the National Court by an application for enforcement of human rights, claiming that their human rights were breached in three respects: denial of full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and not given a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution.

2. The second and third plaintiffs consented to the first plaintiff being their spokesperson and principal plaintiff. The college principal (who made the decision to find the plaintiffs guilty and suspend them from studies) and the college board were named as defendants. They argued two preliminary points. First that the proceedings were an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. Secondly, that the second and third plaintiffs’ cases ought to be summarily dismissed as there was a failure to comply with the requirements of representative proceedings and neither of them gave evidence.

3. As to the merits of the claim the defendants denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the code of conduct that the students expressly agreed to be bound by when they enrolled for studies at the college.

ISSUES

(1) Should the proceedings be dismissed as an abuse of process?

(2) What allegations did the plaintiffs face and how were they dealt with?

(3) Was there any breach of the human rights?

(4) What orders should the court make?

1. SHOULD THE PROCEEDINGS BE DISMISSED AS AN ABUSE OF PROCESS?
   

4. Mr Waáu, for the defendants, submitted that the proceedings are an abuse of process as what the plaintiffs are trying to do is obtain judicial review of the administrative decisions of the defendants to charge them, find them guilty and terminate their studies, which can only be done by making an application for judicial review under Order 16 of the National Court Rules.

5. For two reasons I am not impressed by that argument. First, the Order 16 procedure is only the exclusive procedure for commencing proceedings when two conditions apply: (a) the plaintiff is applying for orders in the nature of prerogative writs (those described in Order 16, Rule 1(1) of the Rules); and (b) the decisions reviewed are those of a public or governmental body (National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Gene v Hamidian-Rad [1999] PNGLR 444). Condition (a) does not apply as the plaintiffs are not seeking any of the orders prescribed by Rule 1(1): mandamus, prohibition, certiorari or quo warranto. So they were not obliged to invoke the Order 16 procedure.Secondly, the present proceedings have been commenced by the plaintiffs directly under Section 57(1) of the Constitution, which allows any person with an interest in protection and enforcement of human rights to apply to the National Court for enforcement of those rights. The plaintiffs are applying for enforcement of their individual rights, so, clearly, they have a sufficient interest and they have properly invoked the jurisdiction of the Court. Therefore the defendants’ first preliminary point fails.

6. As to the second preliminary point, I am persuaded by Mr Wa’au’s submission that these are representative proceedings as the interests of the second and third plaintiffs are represented by the first plaintiff. Therefore it was necessary for the plaintiffs to comply with the requirements for commencement of representative proceedings set out in the leading Supreme Court cases of Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960:

(a) all intended plaintiffs (including those the lead plaintiff claims to represent) must be named in the originating process;

(b) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers or their personal representative to represent them;

(c) all persons in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that they were authorised by them to file proceedings as a class representative.

7. Here requirement (a) has been met and an attempt has been made to comply with (b) to (c). But the vague and loosely worded “consent and authority” statement given by the second and third plaintiffs is not sufficient. Not only that, the second and third plaintiffs have not given any evidence to support their cases. The genuineness of their interest in the proceedings has been called into question. I am satisfied that the proceedings, to the extent that it involves the second and third plaintiffs, are frivolous and an abuse of process. The claims of those plaintiffs are summarily dismissed. I will deal with this case as an application by Stewart Yareng only.

2. WHAT ALLEGATIONS DID THE PLAINTIFF FACE AND HOW WERE THEY DEALT WITH?
   

8. The plaintiff Stewart Yareng has given evidence that he was not given prior notice of the disciplinary charge against him. He was asked to make a statement re the incident on 25 June; he did so on 27 June. But he was given no charge and not invited to comment on witness statements. He was just given a notice of suspension in the following terms:

NOTICE OF SUSPENSION

TO: STEWART YARENG

Take notice that you have been found to have violated the College Standing Orders in that, during the evening of Tuesday 25^th June 2019 had illegally entered a PNG Maritime Staff residence without his permission, consumed alcohol there and stayed there until the early hours of Wednesday morning at approximately 0130 hours when you left with Carol and went away.

During the course of your presence in the staff residence, you were consuming alcohol in the company of Carol Wallan and Adrian Haua both students of PNG Maritime College and engaged in an argument and scuffle with Adrian Haua over Carol Wallan after Adrian took Carol to the back of Mr Yaking’s residence resulting in Mr Yaking’s brother chasing you all out.

As a senior student, you blatantly regarded the measures put in place however decided to influence the junior students to take part in your selfish and inconsiderate scheme taking advantage of your seniority that turned out bad for the whole lot of you that were involved. With that you foolishly have subjected the female student to harm and danger and caused her to miss her Ship Construction examination the following day.

As you are aware, you have signed the student’s Code of Conduct and fully understood the ramifications should you breach the Code(s) and since you have disregarded and ignored these Codes the following paragraphs will enlighten you of the rationale behind this notice.

Foremost, there was a distinct breach of Section 6. Major breaches of discipline of the Students Code of Conduct, sub-paragraph ii) illegal entry into residential areas, which clearly states: “Students are not to enter any private residence other than their own except by express invitation. Note that private residences are deemed to include areas where houses or staff married quarters are situated”. Still under Section 6 of the Students Code of Conduct, the following breaches occurred under sub-paragraph viii) Drunkenness and Disorderliness, which clearly states: “It is a serious breach of discipline for anyone to be drunk, disorderly, under the influence of alcohol or narcotics anywhere on the campus of which causes him or her to be physically incapable of control. Students under the influence of drug or alcohol will be summarily dismissed”.

You have deliberately disregarded the College rules and regulations governing students’ behaviour.

You are hereby SUSPENDED from further studies in the College and your Head of Department have been advised hence you are to immediately commence your clearance and for you to vacate the College as soon as practicable from today the 8^th day of July 2019

______________________

CAPTAIN DABUNG KIONG

PRINCIPAL

9. The defendants have not rebutted the plaintiff’s allegation that he was not given a charge. This is significant. It is reasonably expected that that sort of evidence would have been presented by the defendants, as the fairness of the procedures that they deployed in the course of deciding that the plaintiff was suspended from studies is a critical issue. It is reasonably expected that the defendants would want to reveal what evidence there was that the plaintiff had committed serious disciplinary offences, and show how he was given that evidence before a hearing and given the opportunity to respond to it; and show who prepared the incident report and show what it contained and how it was given to the plaintiff before the hearing, and show how the Principal made his decision. But there is no evidence of that sort before the court.

10. This is not the defendants’ case and it is not them who has the legal burden of proof. The plaintiff always bears the legal burden of proving his case on the balance of probabilities. But there comes a point when a plaintiff produces so much evidence on a question of fact, that the evidentiary burden of proof shifts to the defendants.

11. That point has been reached. The evidentiary burden has shifted to the defendants: to disprove the allegation that they did not provide the plaintiff with a charge or give him a hearing. They have not discharged that burden.

12. At this point another fact-finding principle is relevant: if one side of a case presents evidence of a fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by the evidence presented, unless that evidence is so incredible that it would not be reasonable to accept it (Re Fisherman’s Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Manuel Gramgari v Steve Crawford (2012) N4950). I don’t think the plaintiff’s evidence is incredible or far-fetched, so I accept his evidence and make the following findings of fact:

• the plaintiff was not provided with a disciplinary charge;
  
• he was not asked to respond to the proposal that he be suspended;
  
• the Principal made his decision to find the plaintiff guilty of a disciplinary offence and to suspend him from studies on the basis of witness statements, the contents of which were unknown to the plaintiff and he was given no opportunity to test (and the contents of which are unknown to the court).
  

3. WAS THERE ANY BREACH OF HUMAN RIGHTS?
   

13. I uphold the submissions of Mr Asivo that the plaintiff was dealt with in a manner that was procedurally unfair, in the following respects:

1. the plaintiff was not given a disciplinary charge;
   
2. he was given only two day to make a statement;
   

100. he was not given copies of witness statements or the incident report relied on by the principal;
     

4. he was not given the opportunity to present witnesses or witness statements to support his version versions of events;
   
5. the Principal made his decision to find the plaintiff guilty of a disciplinary offence and to suspend his studies on the basis of witness statements, the contents of which were unknown to the plaintiff and he was given no opportunity to test;
   
6. the Principal’s decision to suspend him from studies was not clear and specific as to its effect: when would the plaintiff be able to return? In his evidence, the Principal stated that the plaintiff would be able to apply to resume studies in 2020. But that scenario is not contemplated in the notice of suspension, which reads more like a notice of expulsion from studies (with no prospect of returning) than a notice of suspension (which suggests a temporary ceasing of studies).
   

14. The Principal was making decisions of immense significance, which had a direct bearing on the plaintiff’s education and life. He was obliged to make his decisions in compliance with the principles of natural justice: he had to be unbiased and impartial and conduct his decision-making process fairly. Section 59 (principles of natural justice) of the Constitution enshrines the principles of natural justice in the law of Papua New Guinea in the following way:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

15. I find that the Principal failed in his duty to the plaintiff to act fairly and also in its duty to be seen to act fairly. This finding has immediate consequences under two of the key human rights provisions of the Constitution: Section 37(1) (protection of the law) and Section 41(1) (proscribed acts).

16. Section 37(1) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

17. Section 41(1) states:

Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

18. I find that the Principal, by failing to adhere to the principles of natural justice, infringed the plaintiff’s human rights by:

• failing to afford to him the full protection of the law under Section 37(1) of the Constitution; and
  
• acting in a manner not warranted by the particular circumstances of the particular case contrary to Section 41(1)(b) of the Constitution.
  

4. WHAT ORDERS SHOULD THE COURT MAKE?
   

19. The plaintiff seek declarations that his human rights were breached and orders for his reinstatement, and damages. Such relief is available under Sections 57(3) (enforcement of guaranteed rights and freedoms) and 58(2) (compensation) of the Constitution.

20. Section 57(3) states:

A court that has jurisdiction under Subsection (1) [Supreme Court or National Court] may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

21. Section 58(2) states:

A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

22. I consider that it is necessary and appropriate to make declarations that the plaintiff’s human rights were breached by the defendants and an order that he be reinstated. I decline to award damages or costs.

REMARKS

23. Nothing in this judgment should be taken as a criticism of the College’s zero tolerance policy on alcohol. That is a matter for the College. However, the College must understand that when it seeks to enforce the policy it remains under a duty to at all times protect and enforce and not undermine the human rights of its students. The College and its functionaries must act fairly, adhere to the principles of natural justice, follow due process, ensure that students are given the full protection of the law and not act harshly or oppressively or in a way that is not warranted by the circumstances of a particular case.

ORDER

(1) The proceedings, to the extent that claims for relief are made by Adrian Haua and CarolWallan, are,pursuant to Order 12, Rule 40(1)(b) and (c) of the National Court Rules, dismissed for being frivolous and an abuse of process.

(2) It is declared under Section 57(3) of the Constitution that the defendants breached the human rights of plaintiff Stewart Yareng by failing to adhere to the principles of natural justice enshrined in Section 59 of the Constitution and thereby failing to afford him the full protection of the law under Section 37(1) of the Constitution and dealing with him in a manner not warranted by the particular circumstances of his particular case contrary to Section 41(1)(b) of the Constitution.

(3) It is further declared under Section 57(3) of the Constitution that the decisions made by and on behalf of the defendants, to find plaintiff Stewart Yareng guilty of disciplinary offences and to suspend him from studies, were unlawful acts for the purposes of Section 41(1)(b) of the Constitution.

(4) It is ordered under Section 57(3) of the Constitution that the defendants shall take all necessary steps to ensure that plaintiff Stewart Yareng is reinstated as a student at the earliest available opportunity.

(5) Other claims for relief are refused.

(6) The parties shall bear their own costs.

(7) The proceedings are thereby determined and the file is closed.

Judgment accordingly.
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Ninerah Lawyers: Lawyers for the Defendants