Independent State of Papua New Guinea v Elu [2016] PGSC 80; SC1599 (20 May 2016)

SC1599

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

(1) SCA 138 OF 2015

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

GARI BAKI as COMMISSIONER FOR POLICE
Second Appellant

AND:
THOMAS ELU
Respondent

(2) SCA 139 OF 2015

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

GARI BAKI as COMMISSIONER FOR POLICE
Second Appellant

AND:
TIMOTHY GITUA
Respondent

Waigani: Injia CJ, Kariko & Bona JJ
2016: 6^th May, 20^th May

STATUTORY INTERPRETATION - Police Act 1998 - Whether decision of Police Commissioner on disciplinary matter is amenable to judicial review - Whether Police Commissioner can review his own decision on disciplinary matter- Police Act 1998, ss 2, 17, 19, 23, 24, 26, 27 & 133.

Cases cited:

Air Niugini v. Joel [1992] PNGLR 132
Dominic Philip v The National Education Board (2008) N4024
Kalaivi v Arua [1999] N1922
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
State v Phillip Kapal [1987] PNGLR 417
SCR No 6 of 1984; re Provocation [1984] PNGLR 1
SCR 1 of 1980; Reference by the Principal Legal Advisor [1980] PNGLR 326
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906

Counsel:

N Tame, for the Appellants
T Lambert with M Nale, for the Respondents

20^th May, 2016

1. BY THE COURT: These are two appeals from interlocutory rulings of the National Court which raise the same issues for determination which were heard together. The appeals relate to two decisions of the National Court in two related matters in which the trial judge granted leave to apply for judicial review of decisions made by the Second Appellant (the Commissioner) to dismiss the respondents from the Police Force on disciplinary grounds. We granted leave to appeal against the interlocutory rulings, heard arguments on the substantive appeals and reserved our decision.
   

Case Background

2. The appeals stem from decisions of the trial judge to grant leave to the respondents to apply for judicial review under Order 16 Rule 3 of the National Court Rules 1987 (as amended) (NCR). In the proceedings the respondents challenged their dismissals. At the time of his dismissal, the respondent in SCA 138 of 2015 (ACP Elu) was employed under a Contract of employment (the Contract) executed between him and the Police Commissioner under s 133 of the Police Act 1998 (the Act) and occupied the position of Assistant Police Commissioner of Crimes. The respondent in SCA 139 of 2015 (Chief Insp. Gitua) was employed under the Act. ACP Elu challenged the Commissioner's decision by instituting judicial review proceedings in the National Court pursuant to Clause 8.1.4 of the Contract. Chief Insp. Gitua lodged with the Commissioner an application for review of the decision under s 25 (6) of the Act. Before the application was determined, Chief Insp. Gitua changed his mind and instituted judicial review proceedings in the National Court.
   
3. The leave applications came before the trial judge for a joint hearing and proceeded ex parte in respect of the Commissioner and inter partes in respect of the first appellant (the State) : see NCR, O 16 r 3 (1); s 8 of the Claims By and Against the State Act 1996. The trial judge applied the usual four requirements for grant of leave to determine the applications. The trial judge found that the applicants had sufficient interest to bring the proceedings, the applications were not delayed, the applicants had an arguable case and that it was unnecessary because to permit the Commissioner to review his own decision " would be inappropriate and highly irregular, not to mention a breach of the law to permit the Commissioner to review his own decision". On a preliminary point raised by the State that the Commissioner's decisions were a matter of private law for which the applicants' remedy lay in damages for breach of contract under private law, the trial judge ruled that the decisions were made under statute and therefore amenable to judicial review.
   
4. In these appeals, the appellants do not challenge the trial judge's findings on the first, second and third requirements. The appellants challenge the trial judge's finding on the fourth requirement and the ruling on the preliminary point.

Grounds of appeal and issues for determination

5. There are two grounds of appeal that challenge the trial judge's ruling on the two points referred to earlier. Those grounds raise two issues which apparently were the same issues before the trial judge. The first is whether an applicant for leave for judicial review should first exhaust the administrative review process available under s 26(5) of the Police Act 1998 before seeking judicial review relief. The second is whether the applicants' remedy lies in damages for breach of contract under private law. We deal with the issues in that order.

Exhaustion of administrative remedies

6. Order 16 rule 6 of the National Court Rules provides:
   

"(6) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired."

7. Although the wording of this Rule covers statutory appeals, it has been expansively interpreted and applied by the Courts to apply to statutory reviews, whether or not a time limit is prescribed by the enabling statute for the bringing of the appeal or review. It is settled principles that where a statutory right of appeal or review has not been exhausted, leave to apply for judicial review may be refused for this reason alone.
   
8. For purpose of determining the first issue it is assumed that the disciplinary procedures contained in Part IV of the Act applies to both ACP Elu and Chief Inspector Gitua.
   
9. The answer to the first issue will involve interpretation of the term "disciplinary officer" and the term "review" found in s 26(5),(6) and (7) of the Act and in the context of other related provisions appearing under Part IV of the Act. We have reproduced these provisions in the Schedule to this judgment. Those provisions are s 2 (definition of "disciplinary officer"), s 17 (Delegation), s 19 (appointment of disciplinary officer), s 23 (dealing with serious offences), s24 (Determination of charge), s 25 (Imposition of penalty where charge is sustained), s 26 (Penalties for serious offences) and s 27 (No right of appeal).

10. Several points are not in dispute between the parties. We accept them because they are consistent with the provisions of the Act in question. There is no contest between the parties that the Commissioner is a disciplinary officer pursuant to s 2 and that in that capacity the Commissioner can deal with a serious disciplinary offence and determine the question of guilt and penalty under s 25 and s 26. There is no contest that the Commissioner made the decisions on guilt and penalty in these two cases in his capacity as a disciplinary officer. There is no dispute that the Commissioner did not delegate his disciplinary powers under s 25 and s 26 of the Act. There is no dispute that the Commissioner has not had the opportunity to exercise his review powers under s 26 (5).
    

Appellants' arguments

11. The appellants contend that notwithstanding the Commissioner is a disciplinary officer who made the primary decision on guilt and penalty, s26 (5), (6) & (7) empowers him to review his own decision. These provisions are clear and leave no room for statutory interpretation. When the law is clear the Court should not give a different interpretation thereby legislate from the bench. The trial judge erred in law in concluding that "it would be inappropriate and highly irregular, not to mention a breach of the law to permit the Commissioner to review his own decision".
    
12. It is not unusual for a statute to provide for the primary decision-maker to review his own decision. For example, the Commissioner General of Internal Revenue who made the tax assessment under the Stamp Duties Act (Ch.117) can review that decision following an objection to the assessment by a taxpayer: see Stamp Duties Act (Ch.117), s 20; s 245(1), s 246 (1) and s 178. In the Courts, a judge who granted an ex parte order may review the ex parte ruling on application by a defendant.
    
13. The principles are settled that where statutory remedy is/are provided for an internal appeal or review of the decision, that administrative remedy must be exhausted first before the National Court’s judicial review jurisdiction is invoked: Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122, Dominic Philip v The National Education Board (2008) N4024. The respondents did not exhaust the administrative review process before invoking the Court's judicial review jurisdiction. The trial judge erred in not applying the principles correctly and acted in a manner inconsistent with s 26 (5), (6) & (7) of the Act.
    

Respondents' arguments

14. The respondents argued that on the face of s 26(5), it is open to be argued that the Commissioner can review his own decision on penalty that he made in his capacity as a disciplinary officer. However, that should not be the case because the primary decision-maker cannot, in law, review his own decision. By virtue of s 19(2), s26(5), by necessary modification, must be read in a way that supports this conclusion. When the phrase "the provisions ...shall apply with any necessary modification" appearing in s 19(2) is given its proper meaning, it means the Commissioner is precluded from reviewing his own decision in under s 26(5) in circumstances where he has already elected to act as a disciplinary officer by considering the investigation report, determined guilt and imposed a penalty under s 25 (2)(b). Parliament in enacting s 19(2) of the Act intended that the rules of natural justice enshrined in s 59 of the Constitution would apply so as to prevent the Commissioner from reviewing his own decision. The review by the Commissioner is subject to the principles of natural justice enshrined in s59 of the Constitution and the Commissioner is required by s 19(2) to modify the application of s 26(5),(6) and (7) so that he removes himself from dealing with a review of his own decision on guilt and penalty. If he makes the decision on guilt and penalty in his capacity as a disciplinary officer, the only recourse open to a member aggrieved by his decision is through the Courts of Law. Order 16 of the National Court Rules makes provision for judicial review of administrative decisions: Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906.
    
15. The respondents argue that the Commissioner's decision made under s 25 (2) and s 26(1) were final in that those decisions determined the respondents' rights in terms of guilt and penalty, hence the member cannot revert to the same decision-maker to review his decision. Their remedy lies in judicial review in the Courts of law.
    
16. It is further argued the evidence shows that there was no disciplinary officer appointed in these cases. The respondents were not made aware of the purported appointment of ACP of Operations Raphael Huafolo as the disciplinary officer. Mr Huafolo’s engagement of ACP Jim Wan to investigate the matters concerning the respondents was also not made known to the respondents. ACP Huafolo produced an Adjudication Report which was submitted to the Commissioner for his consideration and decision. The report was not therefore conducted by the disciplinary officer. In the circumstances, a breach of s 24(1)(b) occurred.
    
17. In the notice of penalty, the Commissioner makes no reference to any investigation report from a disciplinary officer. The Commissioner made it his own decision in saying in the notice of penalty "I find you guilty on all three (3) counts laid against you and by way of penalty...". It is for this reason that the Commissioner made the original decision and that precluded him from reviewing his own decision. In the circumstances he should have delegated the function of reviewing his decision to another officer of equal or higher rank than him under s 26 (10). That did not happen. Therefore the only recourse open to the respondents was to seek judicial review of his decision before the Courts of law.
    
18. The respondents submit whether the statutory remedy is to be invoked in a particular case is a discretionary matter for the trial judge. There is no hard and fast rule. A pragmatic approach is taken by judges: State v Phillip Kapal [1987] PNGLR 417 at 421; Kekedo v Burns Philip (PNG) Ltd (supra); Kalaivi v Arua [1999] N1922. The trial judge made the correct decision that in the circumstances, the Commissioner having made the original decision could not review his own decision for to do so "would be inappropriate and highly irregular and in breach of the law". No error can be attributed to the trial judge. The appeals should be dismissed for these reasons.
    

Decision on the first issue

19. Our decision on the first issue turns on the interpretation and meaning to be given to the term "disciplinary officer" and the term "review” " appearing in s 26 (5),(6) and (7). We consider that in order for those words to be given their proper meaning, it is necessary to consider and interpret other related provisions of the disciplinary process found in Part IV of the Act. Those provisions are s 2 (definition of disciplinary officer), s19 (appointment of disciplinary officers by the Commissioner), s23 (laying of charge for a serious offence), s24 (determination of charge), s 25 (imposition of penalty where charge is sustained), s 26 (1) and (4) (range of penalties for serious offences, notification of imposition of penalty and review of penalty), and s 27 (finality of Commissioner's decision on guilt and penalty).
    
20. The disciplinary process begins with a charge for a serious offence being laid under s 23. The charge is laid by the Commissioner or a commissioned officer authorised by the Commissioner: s 23 (2). The charge and supporting documentation are furnished to the member charged at the time the officer is furnished with the charge: s 23(3). The member is given an opportunity to reply to the charge within 14 days of service of the charge: s 23 (3)(c). If no reply is received, the member is deemed to have denied the charge: s 23(5).
    
21. Section 24 provides for the investigation of the charge. In the case of a serious offence under s 23, the Commissioner “shall” or must appoint a disciplinary officer who conducts the investigation and reports to the Commissioner. The wording of this provision is expressed in mandatory terms:
    

" 24. Determination of charge

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner"(our emphasis).

22. The disciplinary officer must be a person other than the officer who laid the charge and superior in rank to the member charged: s 24(2).
    
23. The disciplinary officer considers the report relating to the charge and the reply given by the member charged and any other relevant information (24(3) ) and compiles an investigation report for the Commissioner's consideration and decision under s 25.
    
24. Section 25 provides for determination of guilt and imposition of penalty. Section 25 (1)-(4) provides:
    

“25. Imposition of penalty where charge sustained.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2) The Commissioner after considering the report referred to Subsection (1), may, where—

(a) the disciplinary officer is of opinion that the charge has been sustained; and

(b) the Commissioner concurs with that opinion,

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26.

(3) Where—

(a) the disciplinary officer reports that in his opinion the charge has not been sustained; and

(b) after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained,

the Commissioner shall dismiss the charge.

(4) Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.” (our emphasis).

25. The disciplinary officer's investigation report covers matters relating to both guilt and penalty in the one report. The investigation report contains the disciplinary officer's statement "advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended": s25(1).
    
26. The Commissioner must then consider the investigation report submitted by the disciplinary officer and make his own decision: s 25(2). The Commissioner after considering the report from the disciplinary officer makes several decisions, as follows:
    
    • (1) if the disciplinary officer reports that in his opinion the charge has been sustained, the Commissioner concurs with the disciplinary officer that the charge is sustained. His concurrence constitutes a determination of guilt. There is no provision in s 25 for an administrative review of this decision on guilt.
      
    • (2) Consequent upon a decision on guilt, the imposition of the penalty follows: s 25(2). The range of penalty is provided under s 26: (s25(2). The determination on guilt and penalty are part of the one decision. An administrative review lies from the decision on penalty under s26(5).
      
    • (3) if the disciplinary officer reports that the charge has not been sustained, the Commissioner dismisses the charge. This also constitutes a decision on guilt: s 25 (3). There is no review from this decision.
      
    • (4) if the disciplinary officer reports that the charge has not been sustained, the Commissioner may reject the recommendation in the report and refer the matter to another disciplinary officer to conduct a review. The "recommendation contained in the review will be accepted without further formality": s 25(4). This also constitutes a decision on guilt. There is no provision for a further review of this decision.
      
27. Section 26 provides the penalties that range from a fine to dismissal: s 26(1). The choice of penalty is in the Commissioner's discretion. He can impose a penalty with or without the disciplinary officer's recommendation of the appropriate penalty: s 25(2).
    
28. The Commissioner must notify the member of the penalty imposed: s26(4).
    
29. Section 26 (5) provides for a review of the penalty in the following terms:
    

(5) Where a penalty is imposed under this section by a disciplinary officer, the member affected may, within seven days of notification to the member under Subsection (4) of the penalty, or within such further time as the Commissioner may allow, apply in writing to the Commissioner for a review of the decision.

(6) An application under Subsection (5) for a review may be effected by—

(a) delivery in person to a disciplinary officer; or

(b) sending the application by ordinary post addressed to the Commissioner; or

(c) delivery in such other manner as may be approved by the Commissioner,

and is deemed to have been made on the day on which it is so delivered or posted.

(7) On a review under Subsection (5), the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final.

(8) The Commissioner may direct that a penalty imposed under Subsection (1) by a specified rank of disciplinary officers shall not be put into execution until confirmed by him.

(9) The power conferred on the Commissioner for this section to confirm a penalty is deemed to include the power to increase or otherwise to vary the penalty in any way not inconsistent with this Act.

(10) The power of the Commissioner to delegate under Section 17 is limited for the purposes of Subsections (6) and (7) to a power to delegate to a member of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made.( our emphasis)

30. The Commissioner's decision "in respect to the finding of guilt and in respect to penalty for serious disciplinary charges is final": s 27.
    
31. It is clear to us that the disciplinary procedures appearing in s 23, s24, s25, s26 and s27; with regard to the laying of the charge; investigation and reporting; determination of the charge in terms of reaching a decision on guilt and determination of penalty and review; are part of a single process and of necessity interwoven and interconnected. For this reason, these provisions must be read together in order to resolve any ambiguities and gaps that may appear in each of these provisions. We have identified some significant ambiguities and gaps in the disciplinary procedures contained in these provisions which we believe this Court can, in the exercise of its statutory interpretive function, resolve. We have identified the main ambiguities and gaps in these provisions and resolved them, as follows:
    
    • (1) There is no question that the Commissioner is a disciplinary officer and can perform the duties and functions of a disciplinary officer, whether those functions relate to minor disciplinary offences (s 22 & s 22) or serious disciplinary offences (s23) : s 2, s 19 (2). The question arises in the application of s 24 (1) as to whether the Commissioner can appoint himself to be the disciplinary officer for purpose of investigating a serious offence. Technically, he can. He need not appoint another officer to be the disciplinary officer. He is a disciplinary officer by definition and he can perform the investigative function. In that situation, s 24 procedure is inapplicable because s 24 procedure is premised on a disciplinary officer other than the Commissioner himself being appointed to perform the investigative function. For if the Commissioner were the disciplinary officer for purpose of s 24, the Commissioner would conduct the investigation, reports to himself and makes his own decision on guilt and penalty under s 25, and conduct a review of his own decision on penalty under s 26(5). There is no person of equal or higher rank or authority to whom he can delegate his functions under s 25 and s 26. Such a construction sounds irregular, arbitrary, archaic and absurd. It defeats the purpose of a disciplinary process sanctioned by law that is premised on paying due regard to the principles of natural justice enshrined in s 59 of the Constitution, which in its practical application demands that there is to be a clear separation of functions between the investigation and reporting functions of a disciplinary officer, the decision-making powers on guilt and penalty and the review function.
      

Such construction of s 24(1) that gives the Commissioner the power to appoint himself as the disciplinary officer in relation to a serious disciplinary offence is also untenable on a proper construction of s 24 (1) and its related provisions. The expression "in any case" in s 24(1) is synonymous with the expression "in every case". The word "shall" means it is mandatory. It follows that in every case of an investigation for a serious offence under s 23, the Commissioner shall or must appoint a disciplinary officer other than himself to conduct the investigation and compile an investigation report for the Commissioner's consideration and decision under s 25. In that way, the Commissioner is removed from the investigation and reporting process so that he remains at bay to perform the functions of determining guilt and penalty under ss 24, 25 and 26.

(2) The determination in respect of guilt and penalty under s 25(2) are made by the Commissioner and not the disciplinary officer who compiled the investigation report. By virtue of s25(2), the decision on guilt is immediately followed by imposition of the penalty chosen from amongst the range of penalties set out in s 26(1). The decision on guilt and penalty are one in the same decision.

(3) There is no provision in s 25 for a separate notification of the member of the Commissioner's decision on guilt. The notification provision is found in s 26(4) but that is in respect of penalty only. Could it be that Parliament intended that the determination of guilt and penalty would be made in the one decision and communicated to the member in the one decision under "penalty" notification in s 26(4)? If so, should the reference to penalty in s 26(4) be construed expansively to include notification of finding in respect of guilt? The answer to these two questions must be in the affirmative. For if the word "penalty" in s26(4) is not interpreted in this way, there is an anomaly and absurdity in the law in s 25 and s 26 with regard to notification of the Commissioner's decision on guilt and penalty that will remain unresolved.

(4) There is no separate right of review against a finding of guilt provided in s25 (2) or s 25 (4). The right of review given by s26(5) is confined to "a penalty is imposed under this section"(meaning s 26)). Given that s 26(1) sets out the range of penalties and the decision to impose the penalty is made in the one decision under s 25 (2), did Parliament intend the reference to "penalty" in s 26(5) to include the Commissioner's decision on guilt? The answer to this question has to be in the affirmative. Construed in this way, this would then permit the member to seek a review by way of a single application for review that challenges the finding of guilt and imposition of the penalty contained in the one decision made under s 25(2). This interpretation makes practical sense. If the word "penalty" appearing in s 26(5),(6) (by necessary inference) and (7) are not interpreted in this way, there is an ambiguity, a gap and absurdity in the legislation that will remain unresolved.

(5) There is this reference to a disciplinary officer who imposed a penalty in s 26(5) which the Commissioner is to review. By one interpretation, if the Commissioner himself is the disciplinary officer, who investigated the charge, reported to himself and determined guilt and penalty, then he can conduct a review of his own decision. Such interpretation offends the principles of natural justice enshrined in s 59 of the Constitution. Parliament would not have intended such an archaic and arbitrary process. In our view, the word "disciplinary officer" in s26(5) means someone other than the Commissioner who imposed the penalty. The Commissioner can review a decision under this provision in respect of the decision of a disciplinary officer whom he has appointed and who makes decisions on guilt and penalty under delegated authority or otherwise: see for example s 25 (8). In a case where the Commissioner has made a decision on guilt and penalty, s 26(5) is inoperative. By virtue of s 27, the Commissioner's decision on a finding of guilt and penalty made under s 25(2) in conjunction with s 26(1) is final. The only recourse open to a member aggrieved by the Commissioner's decision on guilt and penalty under s 25 and s26 (1) is through a Court of law.

(6) In the absence of a specific meaning of the term "review" in the Act, the word "review" appearing in s25(6),(7) and (8) must be given its ordinary meaning: that is, a review involves a reconsideration of a primary decision by an authority higher than the primary decision-maker. Under the repealed Police Act, that higher authority was the Appeal Tribunal constituted by a judicial officer. The Police Act 1988 removed that higher authority. Instead, the Commissioner's decision on guilt and penalty on a serious offence was made final: s 27. The Commissioner could only review a decision of another disciplinary officer (on guilt and penalty) below him. Could Parliament have intended that the Courts of Law would replace the appeal tribunal, as the higher authority that would review the Commissioner's final decisions on guilt and penalty? It must have. To interpret the expressions "disciplinary officer" and "Commissioner" and "review" appearing in these provisions differently would lead to inconsistent, unjust and absurd results.

(7) Much of the construction and conclusions we have given in paragraphs (1) - (6) above are in our view also consistent with the purpose of s 19(2). Much of the provisions that we have construed and conclusions we have reached could also be arrived at by application of the "necessary modification" provisions in s 19(2) read in conjunction with s 59 of the Constitution.

32. In construing the provisions in question in the manner we have done, we have given effect to the legislative intention in these provisions. Parliament intended that in respect of all serious disciplinary offences in the Police Force, the investigative function, the adjudicative and review functions should be kept separate to achieve natural justice, and that the ultimate decisions made by the administrative head of the Police Force remain final for all intent and purposes and that the final decisions be reviewed by a Court of Law. In interpreting these provisions in this way, we believe this Court is in no way departing from its traditional function to interpret and apply the law to achieve a just result. Indeed dispensation of justice is the paramount consideration in every case the Courts are called upon to interpret the law: s 158 of the Constitution. We recognize that the provision in question are open to several competing interpretations that we have pointed out. In such situation, the Court is duty-bound to adopt the interpretation that will avoid unjust and absurd results: SCR No 6 of 1984; re Provocation [1984] PNGLR 1. The days when the Court was faced with such ambiguous legislation and the Court folded its hands, blamed the draftsman and asked Parliament to sort out the mess and waited for the law to be clarified before returning to complete the case, are long gone: SCR 1 of 1980; Reference by the Principal Legal Advisor [1980] PNGLR 326.
    
33. For the foregoing reasons, we are of the view that the trial judge did not commit an error in arriving at the conclusion that she reached that "it would be inappropriate, highly irregular and not to mention contrary to law for the Commissioner to review his own decision".

Employment contract - redress under private law

34. The appellant argues that the appointments of both ACP Elu and Chief Inspector Gitua were made under contractual arrangements for which their remedy in damages for breach of employment contract lies under private law.
    
35. With regard to Chief Inspector Gitua, the argument is clearly without merit. A policemen aggrieved by a decision of the Police Commissioner made under Part IV (Discipline) is made under statute. It has been long held by this Court and the National Court that a member of the Police Force holds a public office under statute and can seek review of the Commissioner's decision in the Courts of law. The National Court has indeed been exercising this review jurisdiction in respect of disciplinary decisions made by the Commissioner under the Police Act in numerous cases since Independence. It has never been suggested up till now that the policemen enters into a private contract of employment which is enforceable in private law. The submission before us borders on mischief really.
    
36. With regard to ACP Elu, the answer to the same question lies in Part IV of the Contract.
    
37. The Police Act, s 133 makes provision for a senior officer from the rank below the Deputy Commissioner to be employed on contract: see Schedule for provision. The terms and conditions of the contract are determined by the Head of State acting on advice: s 133(3). The conditions of service include termination of the contract leading to dismissal on disciplinary grounds.
    
38. The disciplinary procedure for dealing with misconduct or underperformance are found in Clause 8 of the Contract in the following terms:
    

"8. DISCIPLINARY ACTION FOR ALLEGED MISCONDUCT OR UNDERPERFORMANCE

81. Where the Commissioner of Police is formally advised or provided with evidence the Employee has been charged as having committed an act of misconduct or of underperformance by the Employee the following process shall be followed:

8.1.1 where the Assistant Commissioner is alleged to have committed a serious offence under s 28 of the Police Act, the Commissioner of Police shall suspend the officer on full pay, and the Commissioner of Police shall formally charge the officer in writing with the offence committed and enable the officer to reply to such charges.

8.1.2 the Assistant Commissioner shall formally respond to the charge in writing to the Commissioner of Police within 7 days of the charge being laid.

8.1.3 The Commissioner of Police will then determine the issue and what action will be taken in accordance with the Police Act 1998.

8.1.4 the decision of the Commissioner of Police shall be final. In the event the Assistant Commissioner is terminated the officer may seek redress through the Papua New Guinea Courts of Law if he considers the termination has been made unfairly. (our emphasis)

39. Clause 1. 1 and 1. 2 of the Contract are in the following terms:

"PART 1: GENERAL

GENERAL CONTRACT MATTERS

1.1 The terms of and conditions of employment shall be entirely regulated by this Contract.

1.2 Where the terms and conditions of employment outlined within the Contract are inconsistent with legislative Regulations then the provisions contained within the Contract shall apply".

40. We accept the appellants' submission that the Contract complements the disciplinary procedures provided in the Act and if there were any inconsistency between the provisions of the Act and the Contract, the latter would prevail: Clause 1.2. The appellants then went on to qualify that statement by saying that Clause 1.2 when read with clause 8, is ambiguous because the latter erroneously refers to s 28 of the Act, which is the wrong provision. The correct provision is s20 of the Act. Clause 8 is therefore void for ambiguity and unenforceable. Consequently, a contract officer should be dealt with for breach of discipline under the disciplinary procedure contained in the Act.
    
41. We have already concluded that to the Act applies to ACP Elu and that the trial judge did not err in finding that the Commissioner had no power to review his own decision.
    
42. We are of the view that the clause 1.2 of the Contract was deliberately placed in the contract to resolve any inconsistencies that might arise in the application of any provisions in the Contract and the Act. Clause 8.1.4 does come into conflict with s 26 (5) in which case the former takes precedence. Clause 8.1.4 recognises the finality of the Commissioner's decision to terminate the contract on disciplinary grounds, precludes the Commissioner from reviewing his own decision to terminate the contract, and allows the aggrieved officer to seek redress in a Court of law - the same theme that runs through the disciplinary procedures in the Act in question that we have construed.
    
43. Clearly, we see no ambiguity in the words found in clause 8.1.4. The reference to s 28 of the Police Act is an obvious drafting error of no consequence. The correct provision is s 20.
    

Conclusion

44. For the foregoing reasons, we agree with the trial judge that the Commissioner cannot review his own decision on guilt and penalty for a serious disciplinary offence under the Police Act 1988 and to do so would be contrary to law. We also agree with the trial judge's reasoning on the preliminary point.
    
45. Having reached these conclusions, it is unnecessary for us to consider the other arguments raised by the respondents with regard to how the disciplinary process was applied in this case to the respondent's detriment. Those are matters for the trial proper in the court below.
    

Orders

46. The formal order of the Court are as follows:
    
    • (1) The appeals proceedings in SCA 138 of 2015 and SCA 139 of 2015 are both dismissed.
    • (2) The substantive application for judicial review shall proceed before the National Court in an expedited manner in accordance with this decision.
    • (3) The appellants shall pay each respondent's costs of the appeal.

________________________________________________________________

Nicholas Tame Lawyers: Lawyer for the Appellants

Jema Lawyers: Lawyer for the Respondents

Schedule

Section 2:

"disciplinary officer" means—

(a) the Commissioner; or

(b) a commissioned officer appointed under Section 19 to act as a disciplinary officer;

Section 17. Delegation

Subject to the provisions of this Act in relation to any specific power of function, the Commissioner may delegate in writing all or any of the Commissioner’s powers and functions under this Act (except the power of delegation).

PART IV.—DISCIPLINE.

Division 1.—Introductory.

18. Application of this part....

19. Disciplinary officers.

(1) The Commissioner may from time to time and at any time appoint commissioned officers to act as disciplinary officers for the purposes of this Part.

(2) Where the Commissioner acts as a disciplinary officer the provisions of this part shall apply with any necessary modifications.

20. Disciplinary offences....

Division 2.—Minor Offences....

21. Dealing with minor offences.

22. Penalties for minor offences....

Division 3.—Serious Offences.

23. Dealing with serious offences.

(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.

(3) On a charge being laid against a member of the Force that member shall—

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge; and

(c) be invited—

(i) to reply within 14 days, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it.

(4) A charge or other documentation is deemed to have been furnished to a member under this section—

(a) where it has been personally served on the member; or

(b) where, it being unreasonable because of distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.

(5) Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4)(a) or within 28 days after posting in accordance with Subsection 4(b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24.

24. Determination of charge.

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be—

(a) a person other than the person who has charged the member; and

(b) of superior rank to the member charged.

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.

25. Imposition of penalty where charge sustained.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2) The Commissioner after considering the report referred to Subsection (1), may, where—

(a) the disciplinary officer is of opinion that the charge has been sustained; and

(b) the Commissioner concurs with that opinion,

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26.

(3) Where—

(a) the disciplinary officer reports that in his opinion the charge has not been sustained; and

(b) after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained,

the Commissioner shall dismiss the charge.

(4) Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.

(5) Where the Commissioner imposes a penalty under Section 26(1), other than a penalty in terms of Paragraph (g) of that subsection, the Commissioner may, in addition to such penalty direct that the offending member complete a course of retraining in accordance with Section 26(2).

(6) A retraining course for the purposes of Section 26(2) shall comprise such course of training and instructions as the Commissioner determines, and may include an examination or examinations.

(7) Where, at the conclusion of such time as the Commissioner may allow, the offending member has satisfactorily completed the retraining course, and passed any examinations connected therewith—

(a) the penalty in the case of a fine, or forfeiture of pay, may, in the discretion of the Commissioner be remitted in whole or in part, and the proportion so remitted shall be repaid to the offending member; and

(b) any reduction in rank or salary may be reversed in whole or in part as from the date of satisfactory completion of the retraining course, and the passing of the examination.

26. Penalties for serious offences.

(1) Subject to Subsection (2), any one or more of the following penalties may be imposed under this Division:—

(a) a fine not exceeding K200.00;

(b) reduction of the member's salary;

(c) forfeiture of not more than four weeks' pay;

(d) reduction of the member to a rank having a lower classification, and to a salary within that classification;

(e) in addition to or instead of a punishment specified in Paragraph (d), the transfer of the member to other duties;

(f) in addition to or instead of a punishment specified in Paragraph (d) or (e), the transfer of the member to some other locality;

(g) dismissal of the member from the Force.

(2) In addition to any penalty imposed under Subsection (1)(a) to (f) inclusive, the Commissioner may also require the member to undergo a course of re-training.

(3) The penalty specified in Subsection (1)(f) shall not be imposed on a member of the Community Auxiliary Police or on a Special Constable.

(4) The Commissioner shall notify a member of a penalty imposed on that member.

(5) Where a penalty is imposed under this section by a disciplinary officer, the member affected may, within seven days of notification to the member under Subsection (4) of the penalty, or within such further time as the Commissioner may allow, apply in writing to the Commissioner for a review of the decision.

(6) An application under Subsection (5) for a review may be effected by—

(a) delivery in person to a disciplinary officer; or

(b) sending the application by ordinary post addressed to the Commissioner; or

(c) delivery in such other manner as may be approved by the Commissioner,

and is deemed to have been made on the day on which it is so delivered or posted.

(7) On a review under Subsection (5), the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final.

(8) The Commissioner may direct that a penalty imposed under Subsection (1) by a specified rank of disciplinary officers shall not be put into execution until confirmed by him.

(9) The power conferred on the Commissioner for this section to confirm a penalty is deemed to include the power to increase or otherwise to vary the penalty in any way not inconsistent with this Act.

(10) The power of the Commissioner to delegate under Section 17 is limited for the purposes of Subsections (6) and (7) to a power to delegate to a member of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made.

27. No right to appeal.

The Commissioner's decision in respect to the finding of guilt and in respect to penalty for serious disciplinary charges is final.”

PART IX.—EMPLOYMENT CONTRACTS.

133. Employment contracts.

(1) In this section "appointee" means a person employed under a contract of employment under Subsection (2).

(2) Notwithstanding any other provision in this Act a person promoted or appointed to a commissioned rank in the Regular Constabulary Branch below the rank of Deputy Commissioner may be employed under and hold office in accordance with the terms and conditions of a contract of employment between the Commissioner and that person.

(3) The terms and conditions of a contract of employment shall be such terms and conditions as are approved by the Head of State, acting on advice, provided however that no contract of employment shall provide for the termination of the contract before the expiry of its term except upon one or more of the following grounds:—

(a) conviction of the appointee of any offence involving dishonesty or for which a term of imprisonment may be imposed;

(b) failure by the appointee to comply with any essential term or condition of the appointment;

(c) negligence or dereliction of duty by the appointee;

(d) misconduct of the appointee;

(e) incapacity of the appointee due to infirmity of mind or body;

(f) failure by the appointee adequately to perform the duties required of a person holding the rank to which he is appointed;

(g) the resignation or retirement of the appointee from the Force;

(h) in the interests of the State.

(4) The provisions of Part V (except Section 37) shall not apply to an appointee to the extent that they are inconsistent with the terms and conditions of the contract of employment to which that appointee is a party.

(5) Employment under contract under this section constitutes service in the Force for all of the purposes of this Act.

(6) Where an appointee who immediately prior to his appointment was a person to whom Sections 94 to 107 inclusive applied, is required by his contract to contribute to a superannuation fund operated under the Public Officers Superannuation Fund Act 1990, neither that contract nor the participation in that fund extinguishes the application of Sections 94 to 107 inclusive to the appointee unless the contract explicitly provides for adequate benefits to compensate the appointee for the extinguishment of his rights under that Division.

(7) Notwithstanding the provisions of this Act, where—

(a) a contract of employment under Subsection (2) terminates or is terminated and is not subsequently renewed; and

(b) the appointee under that contract of employment is not re-appointed as a member of the Force under this Act, his appointment as a member of the Force is terminated.

(8) Where a contract under Subsection (2) is renewed the appointee is re-appointed to the Force upon the termination of the contract and his continuity of service is deemed not to have been interrupted.

(9) Sections 4(2), 43(1) and 43(3) do not apply in the case of a person re-appointed to the Force upon the termination of his contract.

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