Raga v Kari [2022] PGNC 91; N9485 (14 March 2022)

N9485

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 813 OF 2019

BETWEEN:
GILBERT RAGA
Plaintiff

AND:
FRANCIS KARI, Chief of Personnel
and Commanding Officer for Murray Barracks
First Defendant

AND:
GILBERT TOROPO, Brigadier-General, PNG
Defence Force
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2022: 14^th March

JUDICIAL REVIEW - Member of the Defence Force administratively discharged pursuant to Section 11(2) (2) (ii) of the Defence (Period of Service) Regulation – no hearing or reasons provided – whether a member of the disciplined force must be afforded natural justice prior to being discharged – held – a discharging authority acting in terms for the Regulation is bound to act fairly.

Cases Cited:
Papua New Guinean Cases

Anthony Corema v Thomas Ponjom (2019) N7996
Raphael Pius v Commondore Peter Ilau and the State (2011) SC1115
Leo Nuia v Benias Sabumei, Minister for Defence [1992] PNGLR 90
Mision Asiki v Manasupe Zurenuoc (2005) SC797

Overseas Cases

Defence Force Gaynor 2017 FCAFC 41
Minister for Immigration v Li [2012] HCA 61; (2013) 249 CLR 332
Cooper v Wandsworth Board of works [1863] EngR 424; (1863) 14 CBNS 180
Ridge v Baldwin [1963] UKHL 2; (1964) AC 40
Amalgamated Engineering Union (1971) (2) QB 175 CA
Smith v Texas, [1914] USSC 156; 233 US 630 at 641
Arnett v Kennedy, [1974] USSC 124; 416 U.S. 134 (1974)
Perry v Sindermann, 4008 U.S. 593 (1972)
Bell v Burso, 402
Martincevic v Commonwealth and Others (2007) FCAFC 164 Chief of
Massachusetts B D of Retirement v Murgia 427 US (1970)
Lloyd v McMahon [1987] UKHL 5; (1987) AC 625 at 702
Doody v Secretary of State for the Home Department and Other Appeals [1993] UKHL 8; [1993] 3 All ER 92 (HL)
John v Rees 1970 cth, 345, 402

Counsel:

Mr. Thomas Ilaisa, for the Plaintiff
Mr. Newman Yamo, for the Defendants

14^th March, 2022

1. DINGAKE J: The main issue that falls for determination in this matter is whether an administrative discharge taken pursuant to s.11(2), particularly s.11(2) (e) (ii) thereof, of the Defence (Period of Services) Regulation 1977 is subject to the principles of natural justice – including the duty to give reasons?
   
2. The facts of this matter are largely common cause mainly because the Defendants have not filed any Affidavits to counter or contradict the averments of Gilbert Raga (Doc. 3 and 7 and 16 filed of record), with the result that the said factual averments by Gilbert Raga, stands as the truth.
   
3. The Plaintiff was at all material times a soldier serving in the PNG Defence Force (hereinafter referred to as PNGDF or the Force) since 2013, until his employment was terminated through an administrative discharge taken by the First Defendant pursuant to s.11(2) (e)(ii) of the Defence (Period of Service) Regulation 1977, on the 17^th of January 2019.
   
4. After his discharge the Plaintiff appealed against his dismissal from the Second Defendant, which appeal does not seem to have borne any fruits.
   
5. It is common cause that no disciplinary proceedings were held prior to the Plaintiff being administratively discharged; nor is there any evidence that the principles of natural justice were observed in any form whatsoever.
   
6. The Plaintiff’s Affidavits are not a model of clarity and the manner in which he outlines the chronology of events may be confusing especially when it comes to the dates of key events.
   
7. The Plaintiff seems to attribute his dismissal to his absence from work around January 2018 and soon thereafter following the passing away of his mother. However, a consideration of the totality of his affidavit sworn on the 20^th of August 2021, Document 16, seems to suggest that by November 2018, the Plaintiff was still in the employ of the PNG Defence Force because at that time he even applied for re-posting by filling Form PE 21.
   
8. It is not probable that his discharge relates to his absence in January 2018, or thereabout when he was attending to the bereavement of his mother.
   
9. On the Affidavit material before me it is clear that on the 24^th of November, 2018, the Plaintiff travelled on an Australian Defence Force C 130 airplane to Port Moresby to sort out his pay issues. He avers that when he returned to Moem Barracks on the 4^th February, 2019, he was served with a discharge signal notifying him of his discharge from the Force with effect from the 17^th of January 2019.
   
10. The above narrative reinforces the contents of annexures attached to his Affidavit filed on the 12^th of November, 2019, especially annexure F to F5, that seems to suggest that he was initially discharged and reinstated and that the second discharge, the subject matter of this litigation may have been on account of his alleged absence from work from 24^th of November, 2018 to the date of discharge, being the 17^th of January, 2019.
    
11. The Discharge signal he was served with, Annexure “E”, to document 3, filed of record, does not disclose the reasons for the discharge.
12. The evidence also seems to suggest that the Plaintiff was “a hard-working soldier with nil disciplinary offences committed within the last four (4) years of his service”, according to the Investigation Report by Nelson L Rapola, Lieutenant Colonel, Commanding Officer, who recommended that the Applicant be reinstated, after writing a proper Letter of Grievance to Chief of Personnel.

Submissions of the Parties

13. The Plaintiff submits that the First Defendant decision to administratively discharge him was an act of dictation. He faults the First Defendant for failing to accord him the opportunity to show cause why he should not be administratively discharged as opposed to going through the disciplinary process.
    
14. It is the Plaintiff’s submission that the decision of the First Defendant to discharge the Plaintiff in the manner he did violated the principles of natural justice and was unreasonable.
    
15. The Plaintiff also contends that the First Defendant’s failure to give reasons for his discharge violated the principles of natural justice resulting in the discharge decision be unfair and or unlawful.
    
16. The Defendants on the other hand argue that an administrative discharge is not amenable to the principles of natural justice and that it was not unreasonable. They rely on the case of Anthony Corema v Thomas Ponjom (2019) N7996, in which the Court held that the administrative discharge procedure was distinct and highly discretionary.
    
17. The Defendants contend that the Plaintiff was discharged for being absent without leave. They argue that the Plaintiff was initially discharged in January 2018, and he was reinstated, but was absent without leave again from the 24^th of November, 2018 until he was discharged. They argue that the discharge was necessitated by the Plaintiff being absent from work without leave.

Consideration

18. It is not in dispute that the Plaintiff was dismissed without a hearing and that no reasons for his discharge were furnished to him.
    
19. I have considered the case of Corema cited above, and the attempt by counsel for the plaintiff to distinguish it from the present case. Although the case of Corema dealt mainly with the question whether it is competent to dismiss an officer without following the disciplinary code; it cannot be gainsaid that on the facts of the case the Court rejected the argument that the principles of natural justice were violated.
    
20. There was no holding in the Corema case that as a matter of principle, the discharge of an officer in terms of Section 11 (2) (e) (ii) is not amenable to the principles of natural justice.
    
21. In any event, Corema case was not fought on identical grounds as the present case. For instance, in the Corema case, the Plaintiff in that case did not take issue with the failure of the decision maker to give the reasons for his decision. In Corema the reasons for dismissal was not in dispute.
    
22. I have also considered the case of Raphael Pius v Commondore Peter Ilau and the State (2011) SC 1115 brought to the Court’s attention by counsel for the defendants. The ratio of the case is that the Defence Act provides alternative procedures for discharging a member from the service of the Force, namely, under the Code of Military Discipline or Under the Defence (Period of Service) Regulation, and that either of the alternative procedures may be used.
    
23. Put differently, the case of Raphael Pius cited above held that the Defence Act does not stipulate that the only way a member can be dismissed or discharged on the ground that he was absent without leave or committed some other breach of service discipline is by following the procedure in the Code of Military Discipline. In the result the court further held that it was not mandatory to charge the appellant with a breach of service discipline under the code before discharging him.
    
24. It is also worth noting that in the Raphael Pius case the reason for the dismissal was that he had been absent from work without leave for two years and this was not in dispute.
    
25. On the question whether an employee discharged in terms of the Regulation is entitled to be heard or whether the principles of natural justice should be observed Cannings J, in the National Court, in the Raphael Pius case held that a member should be treated fairly.
    
26. In the case of Leo Nuia v Benias Sabumei, Minister for Defence (1992) PNGLR 90, the Court held that an officer discharged in terms of the Regulation is entitled to be heard, and because the officer in the case, Colonel Nuia was not afforded the right to be heard, the termination of his employment was declared unlawful.
    
27. I have also read the two Australian cases of Martincevic v Commonwealth and Others (2007) FCAFC 164 and Chief of Defence Force Gaynor 2017 FCAFC 41 that deal with termination of service in the Defence Force for guidance.
    
28. I notice though that the legal framework in Australia is fundamentally different from the one in Papua New Guinea (PNG) in that the equivalent to Section 11(2) (e)(ii) of the Defence (Period of Service) Regulation in Australia is Regulation 85 (1) (d) of the Defence (Personnel) Regulations, made under s 124 (1) (a) of the Defence Act.
    
29. Regulation 85 (1) (d) empowered the Chief of the Army if satisfied that it was not in the interests of the Defence Force, or in the interest of the Army to terminate the services of an officer. However, Regulation 85 (2) to (4) set out the process of termination that included giving the officer an opportunity to put forward reasons why her or his services should not be terminated. It seems clear therefore that the Australian legislative framework accommodates acting fairly as it gives an officer an opportunity to put forward reasons why her or his services should not be terminated.
    
30. The two cases may therefore be only relevant to the extent that they deal with the notion of “administrative discharge” and also in shedding light into the rationale behind regulation 85, being to instil high standards of discipline necessary for any armed force and to enable those in control of the army to be confident that they only retain the service of the army officers who are honest and committed to the interests of the Defence Force.
    
31. It bears stating however that the case of Gaynor was different on the facts to the present one.
    
32. The case of Martincevic although different on the facts dealt with the principle of natural justice and termination of service in the Australian Defence Force.
    
33. The brief facts were that the appellant service with the Australian Defence Force was terminated on the basis that he was medically unfit. The appellant requested and was granted an extension of twenty-one (21) days in order to obtain medical evidence to assist his case. A second request for an extension did not attract any response from the authorities.
    
34. The question before the primary judge was whether there was denial of natural justice occasioned by failure to hear the appellant’s request for another extension. The primary judge held there was no denial of natural justice. On appeal, the court agreed with the primary judge that there was no breach of natural justice. However, the court held that the decision-maker failed to take into account a relevant consideration which was not insignificant. The appeal was allowed.
    
35. Whilst the Australian case authorities are not without significance, it is important for this court in deciding this matter to pay close attention to the PNG legislative framework, in the context of the constitutional architecture and the case law on point.
    
36. Counsel for the Plaintiff spent some time arguing that amongst other grounds that support his submission that the decision of the First Defendant should be reviewed and set aside is that the First Defendant acted under dictation. I did not find this argument clear and or coherent and it is my view that this ground was not established.
    
37. I turn now to consider whether the decision of the first defendant attracted the principles of natural justice as contended by the Plaintiff.

The legal framework

Defence Act 1974

“33. TERMINATION OF SERVICES

A member of the Defence Force may be discharged from the Defence Force by such authority and on such grounds (if any) as are prescribed under Code of Military Discipline.

Defence (Period of Service) Regulation 1977

11. TERMINATION, ETC, OF SERVICE OF MEMBER

(2) A member of the Defence Force, other than an officer, may before the end of his period of service, be discharged by the appropriate authority –

(e) where the appropriate authority is satisfied that -...

(ii) the retention of the member of the Defence Force is not in the best interests of the Defence Force;...”

38. I have considered the governing legal framework under which the First Defendant acted. It is plain that the legislature created at least pathways to administratively discharge an officer. A member of the Force may be discharged under the Code of Military Discipline or under the Defence (Period of Service) Regulation.
    
39. Disciplinary proceedings under the Code of Military Discipline expressly require the discharging authority to act fairly; whilst the Defence (Period of Service) is silent on the observance of the principles of natural justice. It is also important to note that the observance of the principles of natural justice is not prohibited by the aforesaid Regulation.
    
40. For purposes of Comparison Section 1 C9 (4) of the Code of Military Discipline, under the Defence Act, provides:

(4) As far as operational requirements allow disciplinary proceedings must be conducted in such a manner as to give the person charged a full and fair opportunity of presenting his defence or explanation (if any), and for that purpose and to that extent –

(a) the disciplinary officer dealing with a charge should not proceed with that charge where in his opinion it is in the interests of justice that the charge should be dealt with by another disciplinary officer; and

(b) a person charged is entitled –

1. to have the charge reduced into writing; and
2. to have a copy of the charge before the proceedings commence; and
3. to have the charge explained to him by the disciplinary officer at or before the commencement of the proceedings; and
4. to examine and cross-examine witnesses called against him and persons whose statements are used against him; and
5. to call and examine witnesses on his behalf; and
6. to be represented by a person subject to this Code (not being a member for the Defence Force who is the superior officer of the disciplinary officer conducting the proceedings) of its own choice.

41. The question that may arise at this stage is whether the fact that s.11(2) (e) (ii) of the Defence (Period of Service) Regulations 1977 is not framed to expressly grant the right to natural justice, as does Section 1 C 9(4) of the Code of Military Discipline mean that officers discharged or dismissed under Section 11(2) (e) (ii) of the Defence (Period of Service) Regulations can be dismissed arbitrarily, with fair process.
    
42. There are authorities of respectable lineage that suggest that any adverse decision by an administrative body attracts the requirement to be heard. In this case, it is not in dispute that the Plaintiff was not invited to show cause why he should not be administratively discharged.
    
43. The courts attach a lot of importance to the need to hear another party before an adverse decision is taken, to the extent that where a statute is silent on the applicability of natural justice, the courts would imply it.
    
44. It was observed in the Australian case of Minister for Immigration v Li [2012] HCA 61; (2013) 249 CLR 332 that a statute determines whether the exercise of public power is conditioned on the observance of natural justice and that where the statute is silent on the observance of natural justice the courts are generally inclined to construe the statute on the footing that: “the justice of the common law will supply the omission of the legislature”.
    
45. In the celebrated case of Cooper v Wandsworth Board of works [1863] EngR 424; (1863) 14 CBNS 180 the court held that “demolition powers vested in the Board were subject to notice and hearing requirements”.
    
46. The principle that no person should be condemned unheard is one of the oldest principles of natural justice, it was inscribed in ancient times upon images in places where justice was administered; it is enshrined in the scriptures and traceable to the garden of Eden and in time found its way into the Constitution of many civilized nations, including that of Papua New Guinea.
    
47. It was held in the case of Ridge v Baldwin [1963] UKHL 2; (1964) AC 40, that has been cited with approval by our courts on many occasions that the audi alteram partem rule would apply whenever a statute empowers a public body or official to take a decision that prejudicially affects the rights and interests of the other.
    
48. In the famous English case of Amalgamated Engineering Union (1971) (2) QB 175 CA at page 190 Lord Denning MR stated as follows: “It is now well settled that a statutory body which is entrusted with statute with a discretion must act fairly...”.
    
49. It seems to me, that having regard to the constitutional architecture of PNG, where the principle of natural justice is constitutionally entrenched, its courts should routinely apply and enforce the precepts of natural justice to adverse decisions by public authorities, unless for some compelling reason, to do so is not practical or tenable. Section 59 of the Constitution provides:
    59. Principles of natural justice.

(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.

50. A decision by a public authority to terminate employment of an individual, whether it comes under the appellation, administrative discharge, even in an institution such as PNGDF with its unique characteristics and discipline requirements, involving termination of a person’s livelihood must be subject to a fair process unless it can be shown that there were compelling circumstances to deny the applicability of the principles of natural justice.
    
51. To terminate any person’s employment is a serious matter because of the adverse and natural consequences of being rendered unable to support oneself economically.
    
52. It is not a decision that must be taken lightly.
    
53. In the case of Smith v Texas, [1914] USSC 156; 233 US 630 at 641, the court stated that:

“In so far as a man is deprived of the right to labor his liberty is restricted, his capacity to earn wages and acquire property is lessened and he is denied the protection which the law affords those who are permitted to work. Liberty means more than freedom from servitude, and the constitutional guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling.” (See also Arnett v Kennedy, [1974] USSC 124; 416 U.S. 134 (1974); Perry v Sindermann, 4008 U.S. 593 (1972); Bell v Burso, 402)

54. It was further held in the case of Massachusetts B D of Retirement v Murgia 427 US (1970), Marshall J, Dissenting that:

“The lack of work is not only economically damaging, but emotionally and physically draining. Deprived of his status in the community and of the opportunity for meaningful activity, fearful of becoming dependent on others for his support, and lonely in his new-found isolation, the involuntarily retired person is susceptible to physical and emotional ailments as a direct consequence of his enforced idleness. Ample clinical evidence supports the conclusion that mandatory retirement poses a direct threat to the health and life expectancy of the retired person, and these consequences of termination for age are not disputed by appellants.”

55. It follows from all the above that, the view I take is that the decision of the First Defendant to discharge the Plaintiff from the force violated the principles of natural justice that required the Plaintiff to state his side of the story before his services were terminated.
    
56. In an employment setting natural justice must entail some or all of the following requirements depending on the circumstances of each case:
    • An employee who is alleged to have engaged in misconduct or who faces disciplinary enquiry must be given reasonable notice of the time and place where the employer intends to hold the disciplinary enquiry
    • The employee must be told the nature of the misconduct or omission he or she is alleged to have committed.
    • The employee must be given the option to be assisted by a co-employee at the hearing
    • The employer or decision maker must place before the enquiry and or the employee sufficient evidence to prove that the employee committed the alleged misconduct
    • The employee should be entitled to question the witnesses called to testify against him or her
    • The employee must be given an opportunity to give evidence himself or herself or call his own witnesses.
    • In the event the employee is found guilty as alleged, he or she must be given further opportunity of putting forward facts in mitigation before a sanction is decided upon.
57. The above constitutes what it means to act fairly, in so far as the procedure is concerned. The above factors are not exhaustive and every case would turn on its own circumstances.
    
58. It is important to note that there are exceptions to the requirement to act fairly. And the requirements set out above are not to be rigidly or mechanically followed. The content of procedural fairness is quite flexible. As Lord Bridge once remarked: “the so-called rules of natural justice are not engraved on tablets of stones”. (Lloyd v McMahon [1987] UKHL 5; (1987) AC 625 at 702).
    
59. There may be cases of emergency in which observance of the principles of natural justice may be impossible or they may be situations where an employee conducts himself in a manner as to frustrate a hearing being conducted or in a manner that he or she may be said to have waived his or her right to natural justice.
    
60. Other than a few exceptions fairness requires a party who stands to be disadvantaged by a decision to be heard.
    
61. In the case of Doody v Secretary of State for the Home Department and Other Appeals [1993] UKHL 8; [1993] 3 All ER 92 (HL), Lord Mustill stated the following in a speech concurred in by the remaining members of the Court (at 106 D-H):

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the Courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive the following. (1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances...”

62. It is trite law that judicial review is only concerned with the decision-making process not the merits of the decision taken. Fair process helps reduce the potential of arbitrariness in decision making. It is not good practice or policy to pre-judge any possible response of one who stands to be disadvantaged as likely to be hopeless, untrue or without merit.
    
63. Case law is replete with cases that appeared hopeless at the beginning but once the full story is told the case that was initially considered weak gained in strength.
    
64. Mergarry J once said, in the case of John v Rees 1970 cth, 345, 402, that:

“the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges, which in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered change...”

65. The above timeless and poignant remarks are always worth considering by decision makers before taking an adverse decision against any person or entity.
    
66. In summation it is fair to say that the rules of natural justice, in particular, the audi alteram partem rule is part of our law, and are to be observed in all cases in the exercise of statutory power unless such rules are expressly excluded, in any event, not in a manner that is inconsistent with the Constitution, recalling always that Section 10 (a) of the Constitution provides that all written laws shall be read and construed in accordance with the constitution.
    
67. The label of the decision whether administrative discharge or dismissal, is not what is important; what is critical is that the impugned decision of the First Defendant terminated the Plaintiff’s livelihood.
    
68. In my considered view, the First Defendant, in making a decision whether the Plaintiff’s discharge was in the interest of the Force was obliged to act fairly – in particular he was obliged to obey the principles of natural justice. The Court should not readily accept the denial of natural justice on considerations of convenience, when a person’s livelihood is at stake.
    
69. Having regard to all the above, I hold that the discharge of the Plaintiff without being heard or being asked to show cause why he should not be discharged violated the principles of natural justice and renders the decision of the First Defendant liable to be reviewed and set aside, as I shall do in due course.
    
70. The next related question still concerning the applicability of the principles of natural justice is the First Defendant’s failure to give reasons for its adverse decision.
    
71. It is trite learning that the failure to give reasons for an adverse decision may violate the principles of natural justice.
    
72. In the case of Mision Asiki v Manasupe Zurenuoc (2005) SC797, the Supreme Court held that the duty to give reasons is an integral part of the duty of public officials to accord natural justice to those affected by official’s decisions.
    
73. In all the circumstances of this case, the First Defendant’s decision to terminate the employment of the Plaintiff without affording him the opportunity to be heard and without advancing reasons, was in all the circumstances of this case unreasonable and unfair.
    
74. In the result, for all the reasons stated above the decision of the First Defendant is liable to be quashed for violating the principles of natural justice as discussed earlier and also for being unreasonable.
    
75. In the result, the Court orders as follows:
    1. An Order in the nature of Certiorari to bring to this Court and quash the discharge signal # 06/2019 which dismissed the Plaintiff from the PNG Defence Force.
    2. An Order that the Plaintiff be reinstated to the position he occupied immediately prior to his discharge, or a similar position.
    100. A consequential order that the Plaintiff’s lost salaries and emoluments be backdated and paid to him from the time of his termination up to the date of decision of the Court.
    4. Costs of this application.

_______________________________________________________________

Office of the Public Solicitor: Lawyers for the Appellant
Office of the Solicitor General: Lawyers for the Respondents