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Pochie v Sabuin [2023] PGNC 100; N10146 (3 March 2023)

N10146


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 368 OF 2021


BETWEEN:
ANNE POCHIE
-Applicant-


AND:
TUNOU SABUIN as the Managing Director of the Papua New Guinea Forest Authority
-First Respondent-


AND
KEN MONDIAI as the Acting Chairman of Board of Papua New Guinea Forest Authority
-Second Respondent-


AND
WIA MANDA as the Acting Manager for Human Resource of Papua New Guinea Forest Authority
-Third Respondent-


AND
PAPUA NEW GUINEA FOREST AUTHORITY
-Fourth Respondent-


Lae: Dowa J
2021: 18th November
2023: 3rd March

JUDICIAL REVIEW –Applicant seeking review of decision of Respondents who found her guilty on counts of disciplinary offences – three grounds of review advanced, namely error of law or procedural failures, breach of principles of natural justice - s.59 Constitution, breach of PNG Forest Authority HR Policy and Procedure No.3, section2, Item 4.6-this was an exercise of administration discretion-grounds not proved-application dismissed.


Cases Cited:
Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122
Selly Farapo -v- The Commissioner for Police [1996] PNGLR 17
Philip -v- National Education Board (2008) N4024
Mao Zeming v Hinchiffe (2006) N2998
Tau Mavaru Kamuta v David Sode (2006) N3067
Sabako v Commissioner for Police (2006) N2975
Ombudsman Commission v Yama (2004) SC747


Counsel:
K. Aisi, for the Applicant
L. Vava, for the Respondent


DECISION

03rd March, 2023


1. DOWA J: The Applicant applies for judicial review of the decision of the First Respondent dismissing the Applicant as Human Resource Clerk of the National Forest Research Institute, Papua New Guinea Forest Authority. This judgement is identical to the judgment in the proceedings OS(JR) No. 164 of 2021-Dr Martin Golman v Tunou Sabuin and others. This is because the facts and legal issues and submissions of the parties are the same.


Facts
2. The Applicant was at all material times employed by Papua New Guinea Forest Authority, the fourth Respondent, as Human Resource Clerk at the National Forest Research Institute. She has been in continuous employment for 11 years until her termination on 18th December 2020.


3. The Applicant was suspended from employment on 16th November 2020. On the same day she was charged under section 18 of the Public Service General Orders 18, adopted, and applied under Policy 2.3 of the Respondents own HR Policy and Procedures Manual under section 38 of the Forestry Act. She was charged with 13 counts of disciplinary offences. On 26th November 2020, the Applicant responded to all the allegations. On 18th December 2020, the Applicant was terminated from employment. On 25th January 2021, the Applicant appealed the decision to the Board of Directors of Papua New Guinea Forest Authority. The appeal was not considered. The Respondents advised the applicant that the Disciplinary Appeals Committee disbanded.


4. Aggrieved by the decision of the Respondents, the Applicant applied for leave seeking judicial review: Leave to apply for review was granted on 10th December 2021.


The Application


5. By Notice of Motion the Applicant seeks the following orders:


1. An order by way of a writ of certiorari issued to bring to this court the decision of the Second Respondent made on 18th December 2020 and quash that decision dismissing the Applicant.

  1. The Applicant be reinstated to her substantive position.
  2. All loss entitlements of the Applicant be paid forthwith backdated to date of when such benefits were ceased until to date paid.
  3. Cost of these proceedings be paid in person by the First, Second Respondents and Fourth Respondent.”

6. The Applicant relies on the following documents:


a) Notice of Motion filed 22nd December 2021

  1. Amended Statement of Facts filed 1st December 2021
  1. Affidavit of Anne Pochie filed 1st December 2021
  1. Affidavit of Anne Pochie sworn 16th and filed 17th August 2022

7. The Respondents rely on the following affidavits:


a) Affidavit of Manda Wia sworn 4th and filed 5th July 2022

b) Affidavit of John Mosoro sworn 4th and filed 5th July 2022.


Grounds for Review


8. The grounds for judicial review set out in the Statement of Facts are:


  1. Breach of Natural Justice under section 59 of Constitution
  2. Unreasonableness of decision
  3. Breach of Policy No. 3, Section 2, Item 4.6 of HR Policy, and Procedure of PNG Forest Authority.

9. During the submissions, the Applicant abandoned grounds (2) Unreasonableness, and proceeded with grounds (1) and (3) only.


Issues

  1. The issues for consideration are:

1. Whether there is a breach of Natural Justice pursuant to Section 59 of the Constitution.

  1. Whether the Respondents breached Policy No.3, Section 2 Item 4.6 of the HR Policy and Procedure of PNG Forest Authority.

Plaintiff’s Evidence


11. This is the summary of the Applicant’s evidence. The Applicant was employed by the fourth Respondent as a Clerk-Human Resources at the Forest Research Institute. She has been in employment for 11 years since 2009. On 8th October 2020 an Investigation Team was sent from the Head Office to investigate the applicant on certain allegations. The investigation was done, and the team returned to Port Moresby. On 16th November 2020 the Applicant was suspended and thereafter charged with 13 counts of disciplinary offences ranging from neglect of duty to disgraceful conduct. The Applicant denied the charges and responded to the allegations on 26th November 2020. The Applicant says she responded to the allegations without the benefit of studying the Investigation Report as she was not given a copy. She received the Notice of Punishment dated 18th December 2020 whereby she was terminated from employment. On 25th January 2021 she lodged an appeal to the Chairman of the PNG Forest Authority Board. She was advised by the Acting Chairman to channel her appeal to the Disciplinary Appeals Committee. Since then, the Disciplinary Appeals Committee delayed meeting to hear her appeal. She then consulted the Human Resources Policy and Procedure, Policy Number 3 section2, clause 2.10 which provides that employees dismissed for disciplinary offences may seek administrative review in the Court. She then decided to institute the current proceedings.


Respondents’ Evidence


12. The Respondents rely on the affidavits of Wia Manda, the Acting Manager for Human Resources and John Mosoro, the Acting Managing Director of PNG Forest Authority. This is the summary of their evidence. They depose PNG Forest Authority has established disciplinary procedures ranging from investigations, laying of charges to imposition of penalties. The Respondents say they followed every step of the disciplinary process under the PNGFA HR Policy and Procedures established under section 38 of the Forest Act before terminating the Applicant. A complaint was made against the Applicant in 2019. An Investigation Team comprising of 5 senior officers was set up with Terms of Reference. The team who travelled to Lae and conducted the investigations in October 2020. After receipt of the Investigation Report, the Managing Director suspended the Applicant and charged her with 13 counts of disciplinary offences. On 26th November 2020, the Applicant responded denying the charges and provided detail explanations for each of the allegations. After receipt of the Applicants response to the allegations the Management met and considered the responses. On 18th December 2020 the Management reached a decision upholding the charges. Thereafter the Managing Director signed the Notice of Punishment under the General Order 18, advising the Applicant of the termination of employment and the reasons for decision. The Applicant appealed the decision to the Board. She was asked to redirect the Appeal to the Disciplinary Appeals Committee. The Disciplinary Appeals Committee did not meet due to an ongoing restructure. The Committee was eventually disbanded. On 18th March 2021 all aggrieved and terminated employees including the Applicant were advised to pursue their matters in Court to seek redress if they wish. The deponents conclude their evidence saying they have professionally and fairly dealt with the Applicants case in accordance with the principles of natural justice and standard disciplinary process.


Law
13. The relevant law for judicial review is Order 16 of National Court Rules. Order 16 Rule 1 of the National Court Rules caters for cases appropriate for application for judicial review and provides in this manner:


(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that, having regard to:

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”


14. The law on judicial review is settled. The question of whether the First Respondent’s decision ought to be quashed by way of judicial review of certiorari for non-compliance of procedures, breach of natural justice or errors of law is discretionary. See: Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, Mao Zeming v Hinchiffe (2006) N2998, Tau Mavaru Kamuta v David Sode (2006) N3067. Sabako v Commissioner for Police (2006) N2975, and Ombudsman Commission v Yama (2004) SC 747.


15. In Kekedo v Burns Philip the Supreme Court stated that:


“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.


16. The Supreme Court in that case stated further that:


“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.”


17. In Mao Zeming, Injia DCJ (as he then was) said at page 12 of his judgment.


“At the same time, the question of whether the tribunals decision ought to be quashed by way of judicial review of certiorari for this fundamental breach of procedure is discretionary. This discretion is exercised with caution and in appropriate cases, taking into account the sum effect of all relevant considerations. In relation to application for judicial review of decisions of leadership tribunals on grounds of breach of prescribed procedure designed to afford natural justice to parties, the decision should not be readily quashed unless the procedural manner in which the entire proceedings were conducted by the tribunal resulted in some real and substantive injustice caused to the Plaintiff in terms of denying natural justice.
18. In Taumata Kamuta v Sode (2006) N3067, Injia DCJ as the then was, again at paragraph 35 of his judgment said:


“35. The answer to the second part of the question depends on what one considers to be good reason(s) for decision. The public authority has wide discretion in formulating the reasons for its decision which it considers relevant and appropriate to the case before it. There is an element of subjective assessment on the part of the public authority in forming a judgment as to what constitutes sufficient reasons for a decision in the case before it. The nature and extent of reasons given for a decision will depend on the nature and scope of the discretionary power vested by law in the public authority and its application to the facts of the case. The facts of each case are always different and it is difficult to lay down any general principles applicable to every case. Generally speaking, in my view, a good reason(s) is one which is acceptable as being logically sound, relevant to the subject at hand, constructive, rational, sensible and above all, one which is proper and reasonably sufficient having regard to the nature and scope of the discretionary power vested in the decision-making authority and a proper application of that power to the relevant circumstances of the case before it, in a fair and objective manner. The rationality or reasonableness of the reasons given for a decision traditionally falls under the common law principle of unreasonableness laid down in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 (Wednesbury principles) which has been adopted and applied in many cases in this jurisdiction.


19. His Honour then referred to the case of Ombudsman Commission v Peter Yama (2004) SC747 where the Supreme Court summarized the Wednesbury principles at page 15 of the judgement:


1. It must be a real exercise of the discretion;

  1. The body must have regard to matters which it is expressly

or by implication referred by the statute conferring the

discretion;

  1. It must ignore irrelevant considerations;
  2. It must not operate on the basis of bad faith or dishonesty;
  3. It must direct itself properly in law; and
  4. It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

20. His Honour continues at paragraph 36 and 37 of his judgment:

“36. The sixth and last sub-principle best sums up the Wednesbury principle. The decision is so unreasonable and absurd and one which no reasonable decision-maker could have made in the circumstances: Paul Saboko v Commissioner for Police (2006) N2975, per Cannings J. The test of reasonableness under the Wednesbury principle is a high and restrictive one, for several reasons:

(1) Judicial review is an equitable remedy and very much discretionary. The exercise of this jurisdiction is guided by principles of equity adopted under Schedule 2.2 of the Constitution. Two of those principles of equity which I consider to be relevant in the instant case are that equity follows the law and he who seeks equity must come with clean hands: see Mainland Holdings v Paul Stobbs & Ors (2003) N 2522;

(2) Judicial review is not available to examine the reasoning of the authority which is empowered to make the decision, with a view to substituting the court's own decision but it is concerned with the decision-making process: Burns Philp v Rose Kekedo [1988-89] PNGLR 122;

(3) The decision is largely an administrative one and the administrative decision-maker is in a good position to form a judgment on matters of an administrative nature. The Court must pay greater deference to the reasons for decision given by the decision-maker and more reluctant to interfere with the reasons given except in special cases which call for the exercise of judicial discretion; and

(4) The court must be reluctant to interfere with the administrative decision which is supported by reasons except where the reasons given for the decision are so untenable, so unreasonable and so absurd that they amount to an abuse of power and offend established principles on proper exercise of statutory power and public interest in good administration. In other words, the reasons given are so unthinkable and absurd that "no sensible person could ever dream that it lay within the powers of the authority": Wednesbury's case, per Lord Green. In Peter Peipul v Justice Sheen & Others, (2002) SC706, Kapi DCJ (as he then was), after referring to Lord Green's statement in Wednesbury's case adopted and applied the principles in R v Hillington London Borough Council [1986] UKHL 1; [1986] AC 484 at 518 as follows:

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity (for example, breach of natural justice), or unreasonableness in the Wednesbury sense - unreasonableness verging on absurdity...Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and the fact involves a broad spectrum ranging from the obvious to the debatable to the conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely".

  1. These principles underpin the fundamental principle of public administration that the Court should not interfere in the day to day running of a public body unless it is clearly wrong and the decision for the reasons given should not be allowed to stand in the public interest in good administration and in the interest of justice.”

21. I will adopt and apply the above principles to the present case when considering the grounds of review.


Ground 1. Whether there is a breach of Natural Justice pursuant to Section 59 of the Constitution.


22. The decision to charge and terminate the Applicant was arrived at after considering an Investigation Report and the responses to the charges. The Respondents raised multiple and serious allegations of negligence, and incompetence, misuse of finance and disgraceful conduct against the Applicant. The Applicant responded to each of the allegations which was considered before the decision was made to terminate her.


23. Mr. Aisi, counsel for the Applicant, submits that the 13 counts or allegations contained in the Statement of Charge were laid because of an internal investigation conducted by PNG Forest Authority Investigation Team. The Applicant was not given a copy of the Investigation Report in order to respond to each of the allegations. Counsel for the Applicant relies on the case Selly Farapo -v- The Commissioner for Police (1996) PNGLR 17, in support of his submission. In that case the trial Judge held that a failure by the Respondent to make available copies of all witness statements and evidence relied on by the Police Commissioner to the Applicant to answer disciplinary charges he was facing was a procedural breach of section 45 of the Police Force Act as well as a breach of natural justice.


24. In response, Mr Vava, counsel for the Respondents, argues that the Respondents have not breached the principles of natural justice for two reasons: i) the Investigation Report is a confidential report and is only available to persons directly involved in managing the disciplinary process under clause 9.2 of the Disciplinary Investigation Guidelines. ii) There is no law requiring that a copy of the Investigation Report must be presented to the Applicant. Counsel refers to the case of Philip -v- National Education Board (2008) N4024, in support of his submissions.


25. In Philip -v- National Education Board (supra), His Honour, Injia DCJ, (as he then was) said this at paragraph 24 of the judgment:


“24. The plaintiff’s case is based on denial of natural justice under s 59 of the Constitution and the common law principles of natural justice. I know of no principle under the twin principles of natural justice, nemo judex in sua causa and audi alteram partem, which says a public officer charged with a disciplinary offence must be furnished with a copy of the department’s internal investigation file or report on the matter on which charges are drawn up, in order for officer to reply to or adequately reply to the charge. The requirement is to put the charge with which he or she is accused of and be given an opportunity to reply, anything further would require clear and express statutory prescription.”


26. There is no dispute that a copy of the Investigation Report was not made available to the Applicant at the time when she was charged. A copy of the Investigation Report has been filed in Court, as Annexure ‘C’ to the Affidavit of Manda Wia. It is termed: Confidential Document. The Investigation Report: Bulolo/Wau and Forest Research Institute, dated 21 October 2020.


27. It is a comprehensive report compiled by five officers appointed to investigate the allegations of misconduct against the Applicant. The Report contains witness Statements, documentary evidence, photographs, findings, and recommendations of the Investigation Team. It is expressly termed as a confidential report. Under clause 9.2 of the Disciplinary Investigation Guidelines, the report remains confidential. Clause 9.2 reads:


“9.2 Confidentiality”


Information and evidence relating to disciplinary process are confidential and records should be secured appropriately in order to maintain this confidentiality. Only persons with a direct involvement in managing the disciplinary process should have access to such records.”


28. I accept the explanation given by Mr Wia, the third Respondent, that this report is a confidential report, and the Respondents were not obliged to make available a copy to the Applicant. I am of the same view as expressed in the case Philip -v- National Education Board (supra) that there is no requirement of law on the part of the Respondents to furnish a copy of the Investigation Report to the Applicant.


29. I note from the Notice of Charge dated 20th November 2020 that the allegations contained in the Statement of Charge were comprehensive. It contains five (5) pages. The facts supporting each allegation were in detail and clearly spelt out for the Applicant to answer. The Applicant responded to the charges on 26th November 2020. Her response is contained in a two paged response, denying, and responding to each of the allegations levelled against her. The Notice of Charge clearly stated that the disciplinary charges were laid after a preliminary investigation conducted in early October 2020. There is no evidence of the Applicant requesting the Respondents to provide copies of the investigation report prior to forwarding her responses. Her responses are in detail, and it appears she clearly understood the allegations and was able to answer them. Later in her appeal to the Chairman of the Board, the Applicant complained that she was not given a copy of the Investigation Report to adequately answer the charges.


30. In my view, the minimum requirements of giving a fair opportunity to answer the charges according to the principles of natural justice was followed. The Respondents after receiving the Applicants response, deliberated, and considered same before the decision was made for her termination. The termination letter entitled NOTICE OF PUNISHMENT UNDER GENERAL ORDER 18 dated 18th December 2020 is comprehensive. It has 5 pages and contains detail reasons for decision. It is clear the disciplinary process was followed. I am not convinced that there was a breach of natural justice as enshrined under section 59 of the Constitution. I find this ground is not proved.


Ground 2. Whether the Respondents breached Policy No.3, Section 2 Item 4.6 of the HR Policy and Procedure Manual of PNG Forest Authority.
31. The Applicant pleads that the Respondent failed to follow the disciplinary procedure under Item Policy No. 3, Section 2 Item 4.6 of the HR Policy and Procedure. Item 4.6 reads:


“When the investigation report is completed, it is to be submitted to the Director, Corporate Services as soon as possible for necessary action. The Director, Corporate Services will review the report and will make a recommendation to the Managing Director of whether any disciplinary action is to be taken as a result of the investigation.”


32. Mr. Aisi, counsel for the Applicant, submits that the Director-Corporate Services was not given a copy of the Investigation Report to make a recommendation to the Managing Director for any disciplinary action. The Managing Director proceeded to formulate the charges without following the set procedure.


33. Mr Vava, counsel for the Respondents, submits that a breach of Item 4.6 of the HR Policy does not affect or negate the decision of the Managing Director to terminate the Applicant.


34. The evidence shows, the terms of reference for the investigation were formulated by the Acting Director, Corporate Services. It was sanctioned by the Managing Director, who appointed a five (5) men Investigation Team. The Investigation Team sent their Report to the Management Team with their recommendations. It was the Managing Director who after receipt of the Report and laid the charges and eventually terminated the Applicants employment contract.


35. Part 5 of the HR Policy and Procedure provides that when an investigation report is completed and the Managing Director has determined there are disciplinary charges to be laid as a result of the investigation, written charges will be prepared.


36. There is strong evidence showing that both the Director-Corporate Services and the Managing Director were involved in the commencement of the investigation. Any subsequent failure in presenting the Report to the Director- Corporate Services is not a fatal breach of procedure as the ultimate power to decide whether to lay charges lies with the Managing Director. The investigation was carried out by senior management team with recommendations for disciplinary action. The Managing Director acted on the recommendations. It was an exercise of administrative discretion for the good administration of the fourth Respondent. This is not a case where the reasons given for the decision are so untenable, so unreasonable and so absurd that they amount to an abuse of power and offend established principles on proper exercise of statutory power or that the reasons given are so unthinkable and absurd that no sensible person could ever dream that it lay within the powers of the authority: Refer Ombudsman v Peter Yama (supra). I am therefore reluctant to interfere with the decision of the Respondents.


37. I am not satisfied that this ground is made out and therefore be dismissed.


Conclusion


38. In conclusion, I find the Applicant failed to establish any of the grounds for review. I will therefore dismiss the entire application for judicial review.


Costs


39. The Court has a discretion to award cost. Generally, a successful party is entitled to the costs of the proceedings. However, where the Court finds it is not just to award cost in favour of the successful litigant, it will refrain from making an order for costs. In the present case, prior to filing these proceedings, the Applicant lodged an appeal to the PNG Forest Authority Board as per suggestion of the Respondents. It was then referred to the Disciplinary Appeals Committee to deal with the appeal. If that Appeals Committee sat to consider the appeal it is arguable that the matter would have been resolved there and then, irrespective of the outcome. The Appeals Committee disbanded without dealing with the Applicant’s appeal, resulting in the Applicant filing these proceedings. For this reason, it is not just to award cost against the Applicant. I will order that the parties pay their own cost.


ORDERS

40. The Court orders that:

  1. The Applicant’s proceeding is dismissed.
  2. The Parties bear their own cost of the proceedings.
  3. Time be abridged.

Kelly Naru Lawyers: Lawyers for the Applicant
Vava Lawyers: Lawyers for the Respondents

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