Frank v Hawap [2023] PGNC 374; N10531 (20 October 2023)

N10531

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 32 OF 2023

BETWEEN:
KELVIN FRANK
First Plaintiff

AND
JACK HAWAP Deputy Principal, Administration of Balop Teachers College
First Defendant

AND
JERRY HENDINGAO Principal of Balop Teachers College
Second Defendant

Lae: Dowa J
2023: 21^st September & 20^th October

JUDICIAL REVIEW –Plaintiff seeking review of decision of Defendants who found him guilty on counts of disciplinary offences – four grounds of review advanced, namely error of law or procedural failures under Balop Techers College Code of Behaviour- breach of principles of natural justice -unreasonableness of decision based on Wesnesbury principles-this was an exercise of administration discretion-grounds not proved-application dismissed.

Cases Cited:

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Tau Mavaru Kamuta v David Sode (2006) N3067
Ombudsman Commission v Yama (2004) SC747

Counsel:
E. Tienare, for the Plaintiff
J Hawap, First Defendant in person for the Defendants

RULING

20^th October 2023

1. DOWA J: This is an application for judicial review pursuant to Order 16 Rule 1 of the National Court Rules. I heard the matter on 21^st September 2023 and reserved my decision which I now deliver.

2. The Plaintiff, by way of judicial review, seek an order in certiorari to remove into this Court and quash the decision of the defendants given on 7^th April 2022 in expelling the Plaintiff from his studies at Balop Teachers College.
   

Background Facts

3. The Plaintiff, Kelvin Frank, is a second-year student at Balop Teachers College. In March 2022, the Plaintiff was charged with a serious disciplinary charge under Division 3 of the Balop Teachers College Code of Behaviour 2011 for drinking and being in possession of alcohol at the College. The Plaintiff responded to the charge on 1^st April 2022. On 7^th April 2022, the College Disciplinary Committee met and decided to expel the Plaintiff from studies. The decision was communicated to the Plaintiff in a letter dated 14^th April 2022 by the second Defendant. The Plaintiff appealed the decision to the Defendants and the Evangelical Lutheran Church of PNG and the National Education Board but have not received any response.
   
4. Aggrieved by the decision of the Defendants, the Plaintiff applied for leave to apply for judicial review. Leave was granted on 24^th March 2023.
   

Grounds for Judicial Review

5. The Plaintiff relies on the following grounds for review:
   
   1. Errors of law
   2. Ultra vires/breach of Disciplinary procedure
   100. Breach of natural justice
   4. Decision unreasonable
      

Issues

6. The main issue for consideration is whether the Plaintiff has established the grounds for review.
   

Law

7. 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:

• (a) the nature of the matters in respect to which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
  
• (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
  
• (c) all the circumstances of the case,
  

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

8. The law on judicial review is settled. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, 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”.

9. The Supreme Court in that case further stated 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.”

10. Applying the above principles, I will now turn to each ground of review:

Ground 1 Errors of Law

11. The Plaintiff alleges that the Defendants erred in law when they proceeded to charge the Plaintiff with a serious disciplinary charge without first allowing the Plaintiff to go through three counselling sessions with the BTC Chaplain as required by Part 2 .1 of the Code of Behavior.

12. The Defendants submit that the procedure under Part 2 for counselling sessions is for students with minor and major offences under Part 4 Divisions 1&2. It does not apply to persons charged with serious offences under Part 4, Division 3.

13. The BTC Code of Behaviour classifies the offences into three categories, i). minor, ii) major and iii) serious offences. The minor offences are dealt with through effective counselling by the college Chaplain, Section advisors and the Deputy Principal, Administration under Part 4 Division 1. The major offences are dealt with by the Staff Discipline Committee under Part 4 Division 2. The serious offences are dealt with by the Governing Council Disciplinary Committee under Part 4 Division 3. The Plaintiff was charged with a serious charge under Part 4 Division 3.17 &18 for drinking and entering the Campus under the influence of alcohol and for being in possession of alcohol on Campus. His case was appropriately dealt with by the Governing Council Disciplinary Committee.

14. The disciplinary procedure is set out in Part 3 of the BTC Code of Behaviour. It reads:

“PART 3: DISCIPLINE PROCEDURE

1. All alleged offences whether they be minor, major or serious are to be referred to the Deputy Principal Administration in writing. In the absence of the Deputy Principal Administration, urgent matters can be reported to the Principal or the Deputy Principal Academic.
   
2. The Deputy principal Administration will interview the offender and collect data. He will process the data and compile necessary documents and refer the case to appropriate channels.
   

100. The quorum at the Discipline Committee meeting is 2/3 of the total number of members. The motion of the committee is deemed to have if 50% of the members present vote in favour.
     

4. The Deputy Principal Administration will refer other cases to police directly whenever it is necessary, depending on the severity.
   
5. When the alleged case lacks evidence, then Deputy Principal will refer the matter to the Chaplain’s office for Pastoral Counselling.
   
6. All decision of the Discipline committee is subject to appeals. The convicted students lodge their appeals to National Education Board within one week. If the appeals is successful they continue, otherwise they will have to withdraw and return after their term as sanctioned.
   
7. All appeals are to be lodged with seven days of notification.”
   

15. There is evidence that the disciplinary procedure prescribed above is followed by the Defendants. The Plaintiff was charged with a serious offence. He was given a chance to respond which he did on 1^st April 2022. The Disciplinary Committee considered the evidence and the response of the Plaintiff before they decided on penalty.

16. However, the Plaintiff contends that he did not go through counselling sessions with the College Chaplain as prescribed by Part 2.1 before being charged and dealt with by the Governing Council Disciplinary Committee. Reading Part 2.1 (Counselling) in conjunction with Part 4, Division 1 (Minor Offences) and Division 3 (Serious Offences) it seems counselling is primarily reserved for minor offenders and those charged with of serious offences must be dealt with by the Governing Council Disciplinary Committee.

17. In the present case, the minutes show the Plaintiff was a repeat serious offender. There is undisputed evidence that he was previously charged with a serious offence of taking illicit drugs in 2020. He was found guilty and was suspended for one year. There is no evidence that the Plaintiff had undergone counselling during the suspension. Despite that he was allowed to enrol as a student for the 2022 academic year. Again, at the start of the academic year, the Plaintiff committed the second offence. He was reported to the first Defendant who referred the matter to the Governing Council Disciplinary Committee for disciplinary action, The Plaintiff was then charged. In response to the charge, the Plaintiff admitted being drunk and pleaded for mercy. Given the seriousness of the offence charged with and being repeated, it is not difficult to understand the defendants’ contention that prior counselling was not a prerequisite in the disciplinary process. I find no procedural breach of the disciplinary procedure prescribed by the BTC Code of Behaviour 2011.

Ultra Vires/abuse of Power

18. The second ground is that the second Defendant, the Principal of BTC acted ultra vires his powers in deciding to expel the Plaintiff. Contrary to the Plaintiff’s submissions, the Court notes the decision to lay the disciplinary charge and impose a penalty was made by persons who were authorised by the rules governing the disciplinary process. The decision was not made by the second Defendant, the Principal of BTC alone, but by the College Governing Council Disciplinary Committee who are not named in this proceeding. The second Defendant is just one of the members of the Disciplinary Committee as provided by Part 2.3 of the Code of Behaviour. The minutes of the BTC Governing Council Disciplinary Committee meeting of 7^th April 2022 show the Council decided to expel the Plaintiff from the College. The Disciplinary Committee had the power to hear the charge and expel the Plaintiff as empowered by Part 4 Division 3 of the Code of Behaviour. The decision of the Disciplinary Committee was then communicated to the Plaintiff by the second Defendant as Principal in his letter of 14^th April 2022.

19. In the circumstances, I find there is no evidence of the second Defendant acting ultra vires his powers in expelling the Plaintiff and thus the ground for review is not made out.

Ground 3. Breach of Natural Justice

20. The Plaintiff alleges that the Defendants committed a breach of natural justice when they proceeded to charge the Plaintiff with a serious disciplinary charge without first giving the Plaintiff an opportunity to go through three counselling sessions with the BTC Chaplain as required by Part 2 .1 of the Code of Behavior. The Plaintiff submits further that the decision was unfair because some of the Plaintiff’s colleagues who were charged with the same offence were suspended, while others were allowed to continue their studies.

21. The Defendants submit that the Plaintiff’s actions in 2020 and repeated in 2022 were serious and had criminal connotations. He could have been referred to police for prosecution, but the BTC proceeded with the internal disciplinary action. He was suspended for the previous offence and the Plaintiff demonstrated that he did not learn from his past mistake. The Defendants did not consider it an appropriate matter for counselling and proceeded with the disciplinary charge and followed due process as prescribed by the Code of student Behaviour.
    
22. Natural justice is a common law principle that ensures fairness, impartiality, and protection of rights of individuals. It is also enshrined in our National Constitution in section 59 which provides that “...the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly “by those in control of judicial and administrative proceedings affecting individual rights.
    
23. I have carefully considered the evidence and submissions of the parties and find no evidence of breach of natural justice. I accept the submissions of the Defendants that the requirement for prior counselling by the College Chaplain is for minor offences in Division 1. The Plaintiff was charged with a serious offence under Division 3. He was also a repeat offender and thus not an appropriate matter for counselling prior to being dealt with by the main Disciplinary Committee. The Disciplinary Committee has followed the minimum requirements of the disciplinary procedure prescribed by the Code of student Behaviour by giving the Plaintiff an opportunity to respond to the allegations which he did in writing. The Disciplinary Committee considered the Plaintiff’s response before deciding to expel him. Although it seems unfair that some of the students who were charged with the same offence were given a lesser penalty of suspension only while the Plaintiff was expelled, it was open to the Disciplinary Committee to arrive at that decision. The Plaintiff was charged with an offence under the category of serious offences which prescribes expulsion as one of the penalties. Given that the Plaintiff was a repeat offender of the same category from which he was previously suspended, there is nothing to suggest that the Disciplinary Committee acted unfairly or impartially.
    
24. For the foregoing reasons, I find this ground not proved and dismiss same.
    

Ground 4 Unreasonableness/Wesnesbury Principles

25. Based on the same arguments presented in Grounds 1,2 and 3 above, the Plaintiff submits that the decision to expel the Plaintiff from studies is unreasonable. In response, the Defendants maintain that the decision was not unreasonable. They submit that the Plaintiff was found guilty of a serious disciplinary offence previously in 2020. He was suspended for one year and was given a second chance to complete his studies. He committed another serious offence which left the Disciplinary Committee little choice except to expel him.
    
26. The law is settled. One of the circumstances under which judicial review may be available is where the decision-making authority reaches a decision which no reasonable tribunal could have reached. See: Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, Tau Mavaru Kamuta v David Sode (2006) N3067 and Ombudsman Commission v Yama (2004) SC 747.
    
27. In Taumata Kamuta v Sode (2006) N3067, Injia DCJ (as he then was), 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.

28. 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 judgment:

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

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

or by implication referred by the statute conferring the

discretion;

3. It must ignore irrelevant considerations;
4. It must not operate on the basis of bad faith or dishonesty;
5. It must direct itself properly in law; and
6. 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.
   

29. 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".

37. 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.”
    
30. Turning to the present case, the issue to be considered is whether the Defendants’ decision to expel the Plaintiff is so unreasonable and absurd and one which no reasonable decision-maker could have arrived at in the circumstances: In my view the decision is not unreasonable for same reasons I have given when dealing with first three grounds. The Plaintiff was previously charged for a serious offence. He was found guilty and got suspended for one year. He returned to college and was allowed to enrol. He committed another serious offence and was charged. The Plaintiff admitted the offence. The category of offence he was charged with carry amongst others a penalty of expulsion. Given the repeat of a serious offence it is within the discretion of the Disciplinary Committee to arrive at the decision they made. This Court is therefore reluctant to interfere with the administrative decision of a public body which has not clearly manifested an injustice being done to the Plaintiff in its decision. This ground will be refused.
    

Conclusion

31. In conclusion, I find the Plaintiff failed to establish all the grounds of review and therefore shall be dismissed.
    

Costs

32. 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 Plaintiff lodged an appeal to the National Education Board and the Morobe Provincial Education Board. Prior to that the Plaintiff made a request to the first Defendant for reconsideration of the penalty. The Plaintiff received no responses from both the National Education Board and the Provincial Education Board. For this reason, it is not just to award cost against the Plaintiff. I will order that the parties pay their own cost.

ORDERS

33. The Court orders that:

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

Public Solicitor: Lawyer for the Plaintiff

Jack Hawap: First Defendant for the Defendants