Mond v Kiap [2021] PGNC 268; N5356 (19 September 2021)

N5356

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 74 OF 2012

PAUL MOND & 17 OTHERS
Plaintiffs

V

HONK KIAP, CHAIRMAN, STAFF APPEAL TRIBUNAL
First Defendant

LESLIE ALU, CITY MANAGER
Second Defendant

NATIONAL CAPITAL DISTRICT COMMISSION
Third Defendant

Waigani: Cannings J
2013: 24 April, 1 May, 19 September

JUDICIAL REVIEW – review of proceedings of statutory appeal tribunal – appeal against decisions of staff disciplinary committee for a governmental body – whether appellate tribunal bound to address appellants’ grounds of appeal – whether penalty of dismissal from employment was harsh or oppressive – whether any obligation to notify appellants of time limits for appealing – whether alleged innocence of employee is a proper ground of judicial review.

The plaintiffs applied for judicial review of the decision of a statutory appeal tribunal to reject their appeals against decisions of a disciplinary committee that they were guilty of disciplinary offences and were dismissed from their employment with the National Capital District Commission. There were four grounds of review: (a) that the tribunal failed to consider the grounds of appeal and in particular the ground that the plaintiffs were denied natural justice by the disciplinary committee; (b) that the penalty of dismissal was harsh and excessive; (c) that the tribunal’s decision was unreasonable, in particular because the tribunal regarded the appeals as being filed outside the time limit of two days, despite no one telling the plaintiffs that they only had two days in which to appeal; and (d) that the plaintiffs were innocent of the charges.

Held:

(1) An appellate tribunal is a creature of the law creating it, and its duties and functions are a product of its enabling law. However by the very nature of its being established as an appellate body such a tribunal will almost invariably be obliged as a matter of law to consider and determine the grounds of appeal that have been put before it.

(2) That an administrative decision was harsh or oppressive, or that a penalty was excessive, are not proper grounds of judicial review; unless such arguments are carefully framed under Section 41 of the Constitution.

(3) Unreasonableness ‘in the Wednesbury sense’ is a proper ground of judicial review, as it entails the notion that the decision maker has exceeded its jurisdiction by making a decision that was so absurd, irrational or otherwise unreasonable that no reasonable person or body in its position could have arrived at such a decision.

(4) That a person who has been found guilty of a disciplinary offence is innocent is not a proper ground of judicial review, as it is an argument concerning the merits rather than the lawfulness of the decision under review.

(5) In the present case grounds (a) and (c) of the review were upheld as the tribunal erred in law by failing without good reason to consider and determine the grounds of appeal which had in a logical and coherent way been placed before it and by making a decision that was unreasonable in all the circumstances, especially given that the appeals were dismissed because the plaintiffs had failed to appeal within two days (despite no one telling them that they should file an appeal in such a limited time frame).

(6) Grounds (b) and (d) were dismissed for being not proper grounds of judicial review.

(7) As two grounds of judicial review were upheld it became a matter of discretion as to the relief, if any, that should be granted. Reinstatement of the plaintiffs and back-dating of entitlements was an option but that relief was so strongly opposed by the defendants as to make it inefficacious and unworkable. Damages, though not expressly sought, would be a more effective and appropriate remedy. The Court awarded K10,000.00 damages to each of the plaintiffs.

Cases cited

The following cases are cited in the judgment:

Anthony John Polling v MVIT [1986] PNGLR 228
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Bau Waulas v Veronica Jigede (2009) N3781
Dale Christopher Smith v Minister for Lands (2009) SC973
Dopsie v Tetaga & Apeng (2009) N3722
Hanjung Power Ltd v Dr Allan Marat, Attorney-General (2009) N3751
Henry Wavik v Martin Balthasar (2013) N5272
Jomino Holee v Sem Vegeo (2013) N5101
Kely Kerua v Council Appeal Committee (2004) N2534
Lawrence Sausau v Joseph Kumgal (2006) N3253
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Niugini Mining Limited v Joe Bumbandy (2005) SC804
Ombudsman Commission v Peter Yama (2004) SC747
Paul Saboko v Commissioner of Police (2006) N2975
Peter Kama v Council Appeal Committee (2010) N3829

JUDICIAL REVIEW

This was a review of the decision of a statutory appeal tribunal to reject the appeals of former employees of a governmental body against the decision to terminate their employment for disciplinary reasons.

Counsel

G Anis, for the plaintiffs
N Kopunye, for the defendants

19^th September, 2013

1. CANNINGS J: The plaintiffs, Paul Mond and 17 others, are former employees of the National Capital District Commission (NCDC). They were security personnel in the NCDC’s “Hotine” Security Division. They were dismissed from employment en masse in early 2010 after being found guilty by the NCDC Staff Disciplinary Committee of disciplinary offences committed by reason of their involvement in a series of incidents outside City Hall in November 2009. The Committee found that they were part of an unruly mob of 40 Hotline personnel who, being aggrieved about unpaid shift allowances, engaged in civil unrest including threats of violence against senior NCDC officers. They appealed to the NCDC Staff Appeal Tribunal against the decisions of the Disciplinary Committee but their appeals were rejected.

2. They were granted leave by the National Court to review the decisions of the Appeal Tribunal. A trial has been conducted and this is the Court’s ruling on the application for judicial review of the decisions of the Appeal Tribunal. The plaintiffs argue four grounds of review:

(a) that the Tribunal failed to consider the grounds of appeal and in particular the ground that they were denied natural justice by the Disciplinary Committee;

(b) that the penalty of dismissal was harsh and excessive;

(c) that the Tribunal’s decision was unreasonable, in particular because the tribunal regarded the appeals as being filed outside the time limit of two days, despite no one telling them that they only had two days in which to appeal; and

(d) that they were innocent of the charges.

GROUND (a): TRIBUNAL FAILED TO CONSIDER GROUNDS OF APPEAL

3. The plaintiffs argue that the Tribunal failed to consider the grounds of appeal and in particular the ground that they were denied natural justice by the Disciplinary Committee. For the purposes of determination of this ground of review I make the following findings of fact:

• The incidents outside City Hall that led to the plaintiffs being suspended and charged occurred in November 2009.
  
• The plaintiffs were suspended and charged on two occasions, first on 18 November 2009 by the NCD Governor, Hon Powes Parkop MP, secondly on 30 November 2009 by the City Manager, Mr Bernard Alu.
  
• The plaintiffs responded to the charges on 3 December 2009. They claimed that they were not involved in the incidents. Some said that they were not even present.
  
• The Disciplinary Committee deliberated on most of the plaintiffs’ cases at a meeting on 13 February 2010 and the remaining cases at a meeting on 24 May 2010. Both were closed meetings: the plaintiffs were not invited to attend. The Disciplinary Committee relevantly decided that:
  

After much deliberation on the matter, Chairman reiterates that almost every Hotline personnel was involved one way or another because this issue relates directly to their shift allowance and that they would do anything and everything under the sun to get what they want as it was publicly demonstrated on that Tuesday morning, 10 November 2009. The Committee also noted that the response made was not directly related to the charges that was being laid against him under the NCDC Staff Disciplinary Code. Therefore on the grounds of non-reply to the charges he is deemed to have admitted the truth to the charges ...

Resolution ...:

That [the plaintiff] has not directly replied to the four (4) charges as per the Staff Disciplinary Code instead has photocopied and attached the response made to the Governor’s notice of suspension which is not consistent with the charges as laid against him by the City Manager.

That [the plaintiff] be terminated from employment due to non-response within the seven (7) days period as provided for in the charges.

• The plaintiffs were dismissed (terminated from employment) together with a number of other Hotline personnel on 17 March 2010. They were not informed of the time limit for appealing against their dismissal.
  
• The plaintiffs appealed against their dismissal through a letter from their lawyers, Mawa Lawyers, to the Appeal Tribunal dated 8 April 2010. The grounds of appeal were stated as follows:
  

The appeal is made pursuant to Section 8(1) of the NCDC Staff Disciplinary Code and the following anomalies need to [be] noted:

(i) The initial suspension notice dated the 18^th November 2009 issued from Office of the Governor ‘suspended’ the personnel from their respective duties pursuant to Section 6(3) and Section 20(3) of the NCDC Act as amended. It is our opinion that neither provision empowers the Governor to suspend any employee of the Commission.

(ii) If fact Section 20(3) reads that the Commission only has power to take whatever disciplinary action being “effecting of suspension or dismissal from employment in accordance with establishment procedure”. The establishment procedure for the suspension and/or dismissal of an employee is provided for under the NCDC Staff Disciplinary Code and the only person empowered under the Code to suspend or terminate an employee is the City Manager or his delegate.

(iii) In any event all the said “allegations” raised from the Office of Governor were answered to by the personnel on the 18^th November 2009.

(iv) It is our opinion that the proper Notice of Suspension – which contained the formal charges – was levelled against each of the personnel was that issued from the City Manager – Mr Leslie Alu – on the 30^th November 2009.

(v) These charges were all responded to on the 3^rd December 2009 by ALL the respective personnel whom were served the said charges.

(vi) However, on or about the 17^th March 2010, the personnel were terminated on what seem to principally be the following basis:

TAKE FURTHER NOTICE that you have not directly replied to the charges as per the Staff Disciplinary Code instead you attached photocopied response made to the charges laid by the Commission as per the Staff Disciplinary Code, we consider you have not responded to the charge which is deemed as an admission of guilt.

(vii) It would seem that the entire basis on which the Staff Disciplinary Tribunal [sic] terminated the personnel was for their purported ‘failure to respond to the charges laid by the Commission as per the Staff Disciplinary Code’ and hence, the non-response was taken as an admission of guilt.

(viii) This is an incorrect finding of fact, as ALL the personnel did respond to each of the charges levelled against them on the 2^nd December 2009 and therefore the assertion that there were no responses to the charges levelled is entirely incorrect.

(ix) Therefore in light of paragraphs (viii), (ix) and (x) the Commission’s findings that there was an admission of guilt based on the “non-response” to the charges laid is also incorrect and consequently, there was no basis for the mass termination of all 35 of the above personnel as ALL the personnel had responded to ALL of the charges levelled against them by the Commission.

Therefore:

(x) This appeal is made pursuant to Section 8(1) of the NCDC Staff Disciplinary Code in which the personnel ALL say that:

(a) They are innocent of the offence; and

(b) consequently

(c) The punishment imposed was too severe,

(xi) In that

(a) The charges laid by the Commission were ALL answered to by ALL the personnel;

(b) ALL the personnel pleaded innocent to the said charges laid by the Commission;

(c) Hence the Commission’s finding of fact that the personnel did not respond to the charges and thus implied this purported “non-response” as admission of guilt is incorrect;

(d) Therefore on that basis we say the punishment of mass termination is too severe.

(xii) We therefore appeal against the mass termination of ALL the personnel ALL ask that ALL the above personnel be re-instated to their substantive positions pending the determination of this appeal.

(xiii) We ask the Tribunal meet and decide on the appeal within fourteen (14) days of the receipt of the same and advise us accordingly.

• The Appeal Tribunal deliberated on the appeals at a meeting on 9 August 2010. Like the meeting of the Disciplinary Committee it was a closed meeting: neither the appellants nor their lawyers were invited to attend and they were given no notice of the meeting. The Appeal Tribunal relevantly decided that:
  

The Tribunal and Commission Employees are bound by the provisions of the Staff Disciplinary Code. Sections 6(5)(a), (b) [and] (c) require that disciplined employees to appeal the decision within 2 days of receipt of this (termination) notice.

The Tribunal noted that the 40 Hotline Security personnel only appealed the decision on the 8^th April 2010 by letter from Mawa Lawyers. This is well beyond the appeal period. The Tribunal notes that it is not obliged to deal with the appeal as it is out of time.

However the Appeal Tribunal went further and considered the basis of the appeal by the Hotline Security personnel. The Appeal Tribunal noted the decision of the Staff Disciplinary Committee.

The Staff Appeal Tribunal also noted that there was a memo dated 4^th April 2004 from former City Manager to the same group of Security Officers that any offences committed by these Security Officers would lead to their immediate termination as they had been terminated previously and were reinstated. ...

Resolution ...:

(1) It is resolved that the appeal lodged by the 40 Security Officers is late.

(2) The Decision of the Staff Disciplinary Committee is correct and is therefore upheld.

(3) The 15 Security Officers who received their final entitlements and signed the Deed of Release accepted their termination and cannot appeal the decision of the Staff Disciplinary Committee.

4. Those are the facts. I now return to the legal argument, which is that the Appeal Tribunal erred in law by not addressing the grounds of appeal, in particular that the plaintiffs were denied natural justice by the Disciplinary Committee.

5. It is correct that, as a matter of fact, the Appeal Tribunal did not address the grounds of appeal, the reason being that the Tribunal took the view that the appeal was filed late. The Tribunal’s reasoning was that the plaintiffs received their dismissal notices on 17 March 2010, they had two days to appeal but they did not appeal until 8 April 2010, which was “well beyond the appeal period”, the result being that the Tribunal was not obliged to deal with the appeal.

6. Was that, as a matter of law, a proper process of reasoning? I determine that it was not, for the following reasons. The provision of the Staff Disciplinary Code on which the Tribunal relied – Section 6(5)(b) simply states:

the employee may, within two (2) days of receipt of the notice pursuant to this subsection, appeal to a Staff Appeal Tribunal constituted under Part 4.

7. That provision does not state that if the employee fails to appeal within two days, the Tribunal has no jurisdiction. It is properly regarded as a guideline, not a prescription of jurisdiction. That means that the Tribunal had a discretion to exercise as to whether a ‘late’ appeal should be heard; a discretion which had to be exercised reasonably, taking account of such things as:

• the extent to which the appeal was ‘late’;
• the length of the appeal period;
• whether the appellants had been informed of their appeal rights and the need to comply with a time limit;
• whether the appeal appeared to be a genuine grievance or a frivolous or vexatious proceeding;
• whether the appeal complied with the requirements of Section 9(1) of the Staff Disciplinary Code, which requires that an appeal be on the grounds of innocence or excessive severity of the punishment;
• whether the appeal, when it was filed, had been accepted by the Tribunal;
• whether other provisions of the Staff Disciplinary Code had been complied with.
  

8. Fair consideration of those matters would have led the Tribunal to see that:

• the appeal was ‘late’ by a relatively short period of 20 days (19 March to 8 April 2010);
• the appeal period of two days is very short;
• the plaintiffs were not informed of their appeal rights and the need to comply with a time limit of two days;
• the appeal was a carefully drafted document, aimed at prosecuting genuine grievances of the plaintiffs;
• the appeal complied with the requirements of Section 9(1) of the Staff Disciplinary Code;
• no notice was given, when the appeal was filed, that it was going to be rejected for the reason that it was filed late: the appeal was accepted and the decision that it was rejected for being late was made without notice to the plaintiffs or their lawyers;
• other provisions of the Staff Disciplinary Code were not complied with by the Tribunal.
  

9. The final matter is a critical consideration, in light of Section 10 of the Code, which states:

(1) Upon receipt by the Manager of a written notice of appeal pursuant to Section 6(5) of this Code the Manager shall within two (2) days of receipt of the notice of appeal appoint a Staff Appeal Tribunal and the Staff Appeal Tribunal shall convene and hear the appeal within two (2) days of being so appointed by the Manager.

(2) On the hearing by the Staff Appeal Tribunal in relation to a charge against him, an employee may be represented by a lawyer, who may examine and cross examine witnesses and address the Tribunal on his behalf.

(3) The charging authority may be represented at any hearing by a lawyer.

(4) The Staff Appeal Tribunal shall make a thorough investigation without regard to legal forms or solemnities or the rules of evidence, and may inform itself on any matter in such manner as it thinks proper.

(5) The employee charged shall be notified in writing of the time and place of the hearing of the appeal.

(6) The Staff Appeal Tribunal may adjourn the hearing to a time and place to be then appointed but such adjournment shall not be for more than two (2) days unless the employee charged and the charging authority consent to a longer adjournment period.

10. Section 10 requires that the Appeal Tribunal conduct a hearing at which the employee and his lawyer are entitled to appear. The employee must be notified of the time and place of the hearing. Provision is made for cross-examination of witnesses and an appellant’s lawyer is entitled to address the Tribunal on behalf of the appellant. The Tribunal must “make a thorough investigation without regard to legal forms or solemnities or the rules of evidence”. All of those requirements were breached. No notice of the meeting was given to the plaintiffs or their lawyers. No opportunity was given for any evidence to be called or for any submissions to be made by anybody on behalf of the plaintiffs. The Tribunal did not make a thorough investigation. It made its decision to reject the appeal (or more precisely all the appeals of the plaintiffs) on a narrow point of law – the appeal was late – without giving notice to the plaintiffs or their lawyers of its intention to do so. There was no hearing of any appeal. The closed meeting that took place was in direct breach of the requirements of the Staff Disciplinary Code.

11. I find therefore that the Appeal Tribunal erred in law by deciding that it was not obliged to deal with the appeal. It was obliged to deal with the appeal at a proper hearing.

12. An appellate tribunal is a creature of the law creating it, and its duties and functions are a product of its enabling law. However by the very nature of its being established as an appellate body such a tribunal will almost invariably be obliged as a matter of law to consider and determine the grounds of appeal that have been properly placed before it (Kely Kerua v Council Appeal Committee (2004) N2534, Peter Kama v Council Appeal Committee (2010) N3829). In its determination of the appeal, the Appeal Tribunal had a duty to consider the grounds of appeal and to give good, proper and sufficient reasons for its decision. 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).

13. Mr Kopunye for the defendants submitted that if the Court is critical of the way in which the Appeal Tribunal made its decision, ground (a) of the review should nonetheless not be upheld. He submitted that ground (a) is based on the proposition that the Tribunal did not consider the argument put before it that the plaintiffs had been denied natural justice by the Disciplinary Committee, but that was not amongst the grounds of appeal in the notice of appeal constituted by the 8 April 2010 letter from Mawa Lawyers. I disagree. All grounds of appeal set out in the Mawa Lawyers letter were predicated on the argument that the plaintiffs were not fairly heard by the Disciplinary Committee: they were denied natural justice. The plaintiffs had each responded to the charges in writing but the Disciplinary Committee took the view that they had not responded in a proper form, as they only responded to the Governor’s suspension notice and did not respond to the charges laid by the City Manager, so they were deemed to have accepted the truth of the charges.

14. I find that ground (a) is properly before the Court and that the Appeal Tribunal erred in law by, amongst other things, ignoring the grounds of appeal that were properly placed before it and that it was obliged at a proper hearing to determine. Ground (a) is upheld.

GROUND (b): PENALTY OF DISMISSAL WAS HARSH AND EXCESSIVE

15. The plaintiffs argue that the penalty of dismissal was harsh and oppressive as they had not previously been found guilty of disciplinary offences.

16. This argument is not based on any recognisable and proper ground of judicial review. It would have been acceptable, in my view, to argue as a ground of judicial review a breach of Section 41 (proscribed acts) of the Constitution, which provides that even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case, amongst other things, harsh or oppressive (Hanjung Power Ltd v Dr Allan Marat, Attorney-General (2009) N3751). But there is no mention of Section 41 in the plaintiffs’ originating statement and their counsel, Mr Anis, did not raise it in submissions. Ground (b) is dismissed.

GROUND (c): TRIBUNAL’S DECISION WAS UNREASONABLE

17. The plaintiffs’ argument is that the decision of the Appeal Tribunal was unreasonable according to the ‘Wednesbury principles’: 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:

• is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision? (Paul Saboko v Commissioner of Police (2006) N2975, Dopsie v Tetaga & Apeng (2009) N3722.)
  

18. 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.

19. In responding to this ground of review Mr Kopunye submitted that the plaintiffs have fallen well short of establishing that the Appeal Tribunal’s decision was so unreasonable or absurd that it should be quashed. The plaintiffs are trying through this judicial review to raise matters that were not raised in their appeal.

20. I disagree, for the same reasons I gave for upholding ground (a). The appeal filed on behalf of the plaintiffs by Mawa Lawyers was a well constructed and cogent set of grounds of appeal and underpinning the grounds of appeal was a fundamental argument about denial of natural justice: denial of procedural fairness. It appears to me that the Appeal Tribunal had no proper appreciation of its powers, functions, duties and responsibilities. It was supposed to conduct a hearing, only after giving notice to the plaintiffs – or preferably their lawyers – of the time, place and venue. Instead the Tribunal had a closed meeting. It did not conduct a hearing. The Tribunal made a legally flawed and unreasonable decision – ignoring the injunction not to observe “legal solemnities” – that it was not obliged to hear the appeal, for the reason that the appeal was not filed within the two-day time limit. It was an administrative abomination to deal with the appeal in this way. The Appeal Tribunal showed no regard to the humanitarian dimensions of the matters concerning the livelihood of many former employees of the NCDC that was before it. I find that the decision of the Appeal Tribunal was so unreasonable, having regard to the serious errors of law that were made, no reasonable decision-maker would have made the decision. Ground (c) is upheld.

GROUND (d): INNOCENCE

21. That a person who has been found guilty of a disciplinary offence is innocent is not a proper ground of judicial review, as it is an argument concerning the merits rather than the lawfulness of the decision under review. Ground (d) is dismissed.

WHAT ORDERS SHOULD THE COURT MAKE?

22. An application for judicial review proceeds in two stages. First the plaintiff must establish good grounds for judicial review. Secondly if one or more grounds are established the plaintiff must make a case for a remedy, which is a matter of discretion (Mision Asiki v Manasupe Zurenuoc (2005) SC797, Dale Christopher Smith v Minister for Lands (2009) SC973). Here the plaintiffs have established two grounds of review so the case is ripe for consideration of appropriate relief.

23. The plaintiffs (through an amended originating summons and an amended statement under Order 16, Rule 3(2)(a) of the National Court Rules, both filed on 22 October 2012) apply for two substantive remedies, as well as costs:

1. an order in the nature of certiorari quashing the decision of the Appeal Tribunal;
   
2. an order that they all be reinstated with full entitlements backdated to the date on which they were dismissed from employment.
   

24. Number 1 follows as a matter of course from the Court’s findings that the Appeal Tribunal erred in law and that its decision was unreasonable. Number 2 is more contentious. The defendants strongly oppose the idea of the plaintiffs being reinstated. They argue that the plaintiffs’ positions have been filled and time has moved on and it would disrupt the operations of the NCDC to have to re-employ 18 personnel. I think that these are reasonable concerns and that it would be inefficacious and unworkable for the plaintiffs to be reinstated.

25. I reiterate that the plaintiffs have no right to be reinstated, even though they have succeeded in proving that they have been wronged. This is a judicial review and the remedies in such cases are always at the discretion of the Court.

26. In deciding how that discretion should be exercised the Court must comply with its duty to dispense justice, which is reinforced by Section 155(4) (the national judicial system) of the Constitution:

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 do justice in the circumstances of a particular case.

27. I consider that in the circumstances of this case justice would be most effectively dispensed by an award of damages in favour of each of the plaintiffs. It is surprising that such a remedy has not been expressly claimed. However that does not mean that the Court cannot award damages as it has an overarching responsibility under Section 155(4) of the Constitution to make such orders as are necessary to do justice in the circumstances of a particular case. I think it is necessary to award damages in this case and to invoke Order 16, Rule 7 of the National Court Rules, which provides for an award of damages in judicial review proceedings.

28. As I recently held in Jomino Holee v Sem Vegeo (2013) N5101 and Henry Wavik v Martin Balthasar (2013) N5272 normally the court would insist on a statement of claim and particulars before considering awarding damages. However, as I did in Holee and Wavik I dispense with those requirements under Order 1, Rule 7 of the National Court Rules. I have had regard to the leading cases on dispensation, including Anthony John Polling v MVIT [1986] PNGLR 228 and Niugini Mining Limited v Joe Bumbandy (2005) SC804 and I consider that the interests of justice require that the severity of the Rules be relaxed. There is good justification for non-compliance with the Rules.

29. I have considered the cases of Lawrence Sausau v Joseph Kumgal (2006) N3253 and Bau Waulas v Veronica Jigede (2009) N3781, where 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. I consider that the suffering and inconvenience of the plaintiffs is greater than that in those cases. I will award damages of K10,000.00 to each of the 18 plaintiffs. Liability for payment of damages will rest with the third defendant, the NCDC, as the other defendants (the Chairman and Members of the Appeal Tribunal and the City Manager) have been joined to the proceedings in their official capacity and there is no suggestion that they made decisions in bad faith, so it is not appropriate that they be fixed with personal liability.

30. Costs will follow the event and be payable on a party-party basis, there being no detectable justification for awarding costs on any other basis.

ORDER

(1) The application for judicial review is substantially granted.

(2) The relief sought as to reinstatement of the plaintiffs and back-payment of entitlements is refused.

(3) The decisions of the NCDC Staff Appeal Tribunal of August 2010 are subject to an order in the nature of certiorari and are accordingly quashed, for being wrong in law.

(4) The third defendant shall pay damages of K10,000.00 to each of the plaintiffs, which shall be paid within a reasonable time after entry of this order, those plaintiffs being:

• (a) Bulake Pastor Gena
• (b) Boi Wapi
• (c) Boso Sox
• (d) Dakal Jacob
• (e) Gare Korale
• (f) Humania Don
• (g) Inugu Luke
• (h) John Ruben
• (i) Kape Chris
• (j) Kawa Eric
• (k) Mokson Peter
• (l) Niseva Daniel
• (m) Obiia Steven
• (n) Paul Mond
• (o) Waru Steven
• (p) Wemin Bilken
• (q) Yakepa Kui
• (r) Yule Thomas.
  

(5) The third defendant shall pay the costs of these proceedings to the plaintiffs on a party-party basis, which shall if not agreed be taxed.

(6) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.
___________________________________________
Mawa Lawyers: Lawyers for the plaintiffs
Bradshaw Lawyers: Lawyers for the Defendants