Kotapu v Manning [2025] PGNC 158; N11282 (12 May 2025)

N11282

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 14 OF 2025 (IECMS)

BETWEEN:
DANLEY KOTAPU
Plaintiff

AND
DAVID MANNING, MBE, OStJ, DSP, QPM, Commissioner of Police
First Defendant

AND
ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: DOWA J
7, 12 MAY 2025

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – application to review decision of Commissioner of Police who dismissed the Plaintiff exercising his powers under Section 33 (2) of the Police Act after conviction by the National Court- whether grounds exist for leave- -Section 33 (2) is directive and once acted upon it leaves little room for discretion. No arguable case disclosed- application for leave refused.

Cases cited
NTN -v- PTC [1987] PNGLR 70
Asakusa -v- Kumbakor (2008) N3303
Kuringin v Baki (2004) SC2592

Counsel
A Rake for the plaintiff
Z Rakeken for the defendants

RULING

1. DOWA J: This is an application for leave to apply for judicial review pursuant to Order 16, Rule 3 (1) of the National Court Rules.
   
2. The Plaintiff applies for leave to file an application for judicial review of the decision of the Commissioner of Police made on 27^th October 2021 dismissing the Plaintiff from the Police Force.
   

Brief Facts

3. The Plaintiff aged 33 years old is a former police constable. He joined the PNG Royal Constabulary after graduating from the Bomana Police Training College in 2014. He was attached to Alotau Police Station until his termination in October 2021. Late 2015, he was arrested and charged with three counts of Dangerous Driving Causing Grievous Bodily Harm. He was tried and convicted by the National Court in Alotau and sentenced to 18 months imprisonment on each count on 20^th February 2019. The whole sentence of 18 months imprisonment was suspended with conditions of good behavior.
   
4. On 27^th October 2021, a Dismissal Notice was issued by the Commissioner of Police dismissing the Plaintiff from the Police Force. The Plaintiff denies being served with the Dismissal Notice until 31^st May 2023. The Plaintiff sought administrative review of the Dismissal decision on 14^th June 2023. The Plaintiff was advised by letter dated 18^th July 2024 that his application for review was refused and the Dismissal decision upheld.
   
5. Aggrieved by the decision, the Plaintiff applies for leave to apply for judicial review of the Dismissal decision of the first Defendant.
   

Documents

6. The Plaintiff relies on the following documents:

1. Originating Summons filed 12^th March 2025.
2. Order 16 Statement filed 12^th March 2025

100. Affidavit in Support filed 12^th March 2025.

4. Notice of application for leave to apply for judicial review filed 12^th March 2025
5. Further Affidavit of Danley Kotapu filed 12th March 2025
   

The Hearing

7. The application was heard on 7^th May 2025. The State opposed the application on the basis that the Plaintiff does not have an arguable case as he was terminated when he was convicted of three counts of a serious crime, and the first Defendant correctly exercised his powers under Section 33 (2) of the Police Act to dismiss him after conviction.

Issue

8. The issue for consideration is whether the Plaintiff be granted leave to apply for judicial review.

Law

9. The principles applicable to an application for leave to apply for judicial review are settled in this jurisdiction: refer NTN -v- PTC (1987) PNGLR 70 and Asakusa -v- Kumbakor (2008) N3303. The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:

1. The applicant must have sufficient interest.
2. The applicant must have an arguable case.

100. There must be no undue delay.

4. The applicant must have exhausted all other statutory/administrative avenues for appeal or review.
   

10. On the use of discretion, the Court in NTN v PTC, said this at page 7 of the judgment:

“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).

In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):

"If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

11. I will now turn to the present case to consider whether the Plaintiff has met the prerequisites for leave to apply for judicial review.

1. Sufficient Interest
   

12. The Plaintiff is directly affected by the decision of the first Defendant; therefore, he has sufficient interest.

b) Undue delay

13. The Dismissal decision was made on 27th October 2021 which the Plaintiff says was not served on him until 31st May 2023.The Plaintiff filed these proceedings on 12th March 2025 well outside of the four months prescribed by Order 16, Rule 3 (5) of the NCR. Counsel for the State argues that there is undue delay of more than three years since the termination decision and thus the application be refused.

14. The Plaintiff submits that the last of the administrative decision was made in July 2024 and he needed to raise funds for legal fees for the last few months which resulted in the delay, but it is not unreasonable delay.

15. The National Court Rules prescribes 4 months within which an application for judicial review can be filed. However, the National Court has a discretion to extend that period provided the applicant provides a reasonable explanation for the delay. Although the decision was made in October 2021, the Plaintiff was not served until 31st May 2023. He was put off the pay roll thereafter. The Plaintiff sought administrative review of the decision in June 2023. No decision was made until a year later, on 18th July 2024. He filed the proceedings on 12th Marh 2025, seven (7) months later. I accept the explanation provided by the Plaintiff and note that the delay is not unreasonable. It is not as though the Plaintiff did nothing. He was actively doing something to protect his interest.

c) The applicant must have exhausted all other statutory/administrative avenues for appeal or review.

16. The first Defendant made it clear in his decision of 27^th October 2021 that if the Plaintiff is not happy with the decision, he can seek review in the National Court, signifying that the decision was final. Although the decision was final, the Plaintiff sought further review of the decision administratively until 18^th July 2024 when his plea for review was refused. In the circumstances, the application is properly before this Court.

d) The applicant must have an arguable case.

17. Mr. Rake, counsel for the Plaintiff, argues that the Plaintiff has an arguable case in that:

i) the first defendant failed to dismiss the Plaintiff forthwith as prescribed under Section 33(2) of the Police Act and breached his statutory duty for more than four (4) years.

ii) the first Defendan’s decision to terminate the Plaintiff after four (4) years is unreasonable under the Wednesbury principles.

.
18. Ms. Rakeken, counsel for the Defendants, argues that the Plaintiff has no arguable case, submitting that the first Defendant correctly exercised his powers under Section 33 (2) of the Police Act to dismiss the Plaintiff from the Police Force after he was convicted of three counts of dangerous driving causing grievous bodily harm and sentenced 18 months imprisonment on each count to be served concurrently.

19. The relevant law is Section 33 of the Police Act, which reads:

“33. PERSON CONVICTED OF CRIMINAL OFFENCE.

(1) Subject to Section 34, no person who has been convicted in any court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or reappointed to the Force.

(2) A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.”

(underling mine)

20. The law on termination of employment under Section 33 (2) of the Act is settled by the Supreme Court in Kuringin v Baki (2004) SC2592 that the Commissioner for Police has mandatory power to dismiss a member from the Police Force where a member is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed. Section 33 (2) is a directive order or mandatory instruction from the Legislature to the Commissioner for Police to act, that is, to immediately dismiss a member where the later is convicted for an offence involving dishonesty or for which a term of imprisonment is imposed.

21. The Court notes the submission by the Plaintiff that Section 33 (2) of the Act imposes a duty on the Commissioner of Police to act forthwith, and the first Defendant committed an error of law in delaying the dismissal decision by four years. This submission is, however, misconceived. The Police Act does not prescribe a timeline or period within which the Commissioner for Police can act following the conviction and sentence of a member by a Court. The word “forthwith” denotes immediate action without further ado rather than to act within any time frame. That is, the Commissioner of Police does not have to take any further administrative action or follow any disciplinary procedure except to act upon the findings and decision of the Court in dismissing the member concerned. The fact that the first Defendant’s dismissal decision in the present case was made several years later from the date of decision of the Court does not necessarily make it erroneous in law. The delay in acting on the Court decision is rather inconsequential.

22. The next submission by the Plaintiff is that the dismissal decision is unreasonable under the Wednesbury principles. The Plaintiff submits the decision of the Court was made in February 2019. Although the dismissal decision was made on 27th October 2021, he was not served and advised of same until 31st May 2023. Given that he was on official duties when he had the road accident (which gave rise to the court proceedings resulting in the conviction) and that he had the support of the Alotau Police Station Commander for his continuity in the Police Force, the dismissal decision is unreasonable.

23. In my view the factual circumstances are rather unfortunate. Here is a young officer doing his duties on the fateful day. There is no dishonesty or evidence of criminal intent. Nevertheless, dangerous driving which results in death and grievous bodily harm are indictable offences with serious consequences. That is the unfortunate reality the Plaintiff must bear. As for the Commissioner of Police, he is duty bound to comply with the law and decided as allowed by law to give effect to the legislative intent of the Police Act. There is nothing to indicate his decision was unreasonable.

24. Finally, the Court is mindful that the Plaintiff should not be driven from the judgment seat prematurely. This is especially so in applications for leave to apply for judicial review. If there is a shred of argument that the Plaintiff might have and which, with the filing of additional documentation, improve his chances in a substantive hearing, the Court would and should allow for him to present his case. However, if it becomes clear and obvious that the Plaintiff is unlikely to succeed in his substantive application, the Court should not give a false impression that the Plaintiff will somehow succeed. Unfortunately, in the present case the conviction and sentence which triggered the action taken by the first Defendant remains effective and binding. It is unlikely for the Plaintiff to succeed in a substantive judicial review.

Conclusion

26. In the end, for the reasons given, I have reached a conclusion that the Plaintiff does not have an arguable case. I am not inclined to grant leave to the Plaintiff to apply for judicial review of the Dismissal decision of the first Defendant as sought in the Originating Summons.

ORDERS

27. The Court orders that:

1. The Plaintiff’s application for leave to apply for judicial review of the decision of the first Defendant made 27th October 2021 dismissing the Plaintiff from the Police Force is refused.
   
2. The Parties bear their own costs.
   
3. Time be abridged.
   

Lawyers for the plaintiff: Rake Lawyers

Lawyer for the defendants: Solicitor General