Counsel: S.
Manetoali for the Applicant;
Mr. Kirkpatrick for the Respondent
JUDGMENT
class="MsoNormal" style="margin-top: 1; margin-bottom: 1">
LUNGOLE-AWICH J: The Applicant's Case. The applicant was a student at
Goldie College, a missionary sary school in the Western Pern Province of
Solomon Islands.
On 16.8. 1996 he was expelled from the school for alleged
breach of college rule No. 7. About 9 months later, on 8.4.1997,
he
commenced proceedings; he filed application for leave to apply for writ of
certiorari to issue quashing the decision of the college's Board of
Governors expelling him from the college. The reasons given by the
applicant
in support of his application were that: he was not afforded, "fair
hearing”, he had not been cautioned as the result of earlier misconduct
and that other students had breached college rules, but had
not been
expelled from the college. The applicant, in his Notice of Motion, prayed
for order quashing the decision of
the Board of Governors expelling him from
the college and for damages. He did not pray for costs, maybe inadvertently.
The
Respondent's Case.
The
respondent's case was that one evening in May 1996, a member of staff found
the applicant lying on top of a female
student in dark corner. The applicant
had no shirt on, and that he had to pull his pair of shorts up before he
could
run away. The Deputy Principal interrogated the applicant as well as
the girl. It was said that the applicant admitted some
of his acts such as
lying down with the girl and kissing. His case was taken before the
college's disciplinary committee.
The applicant was invited and attended the
Committee's meeting where at the charge was stated to him. He did not reply
and may have nodded his head in admission of the allegation. The committee
suspended him and recommended to the Board of
Governors that the applicant
be expelled. The applicant never attended any meeting of the Board of
Governors that followed,
he was not invited to attend. The Board of
Governors was said to have investigated the matter and decided to expel the
applicant from the college.
Non
Disclosure by the Applicant.
The applicant's
account of the events of that fateful evening was not disclosed to Court and
remains unknown. The applicant
did not it in the affidavit he hase has
filed. He simply relied on the grounds that he was denied right to "fair
hearing", he had not been cautioned for prior misconduct and that other
students who had breached the rules of the college had not been
expelled.
The Law in
the Grounds Raised.
Firstly, I
shall state that it is not valid ground that because other members of a
private entity, have breached rules
and have not bisciplined, another
m member who has subsequently breached rules is entitled to have disciplinary
decision
against him set aside. Secondly, the applicant cannot demand that
before disciplinary penalty is meted out to him he ought
to have been
cautioned for an earlier misconduct, unless that was included in the
disciplinary code of the college. There
is no general requirement in law
that one cannot be disciplined with more than a caution on one's first
occasion of misconduct.
class="MsoNormal"rmal" style="margin-top: 1; margin-bottom: 1">Goldie College
is a private missionary school, it is not
a public statutory entity.
Nheless rules of natural justice apply to it. In this jurisdurisdiction two
recent cases cited
by learned counsel, Mr. S. Manetoali, for the applicant,
are appropriate examples. In the case of Clement Kakano v Attorney-General, HHC.CC 214 of 1991, Ward CJ. granted
certiorari quashing the decision of King George VI School, expelling the
applicant because the applicant was never given opportunityunity to
be heard. In
Desmimepo v. Premier of Guaf Guadalcanal Province, HC.CC 379 of
1995, Sir John Muria CJ, reviewed the decisions of the Deputy
Principal and Dlinary Committee of Ruavatu Provincial Secondary School,
l,
suspending the applicant, and the Chief Justice quashed them. He awarded
compensation of $1,000 to the applicant.
By that time, the applicant had
already taken up employment and was no longer interested in going back to
school. Damages
might have been higher. The Chief Justice remarked:
<
"The right to be heard is so fundamental in a citizen's
nstitutional right that an t an adjudicating authority must strive
to accord it
to a person brought before such authority. A student is in no less position
than any other citizen.”
I suppose
learned Chief Justice had the provisions of section 10(1) and (8) of the
Constitution in mind, and of course,
the general rules of natural justice
adopted from the English Common Law by authority of section 76 of the
Constitution
under which Schedule 3; Application of Laws, was made. I
must, however, with great respect to Ward CJ, mention that it appears to me
that he dealt with the case as
if it were an appeal other than a review case
which the case was. I say so because Ward CJ stated this passage on page 2:
"Bodies concerned with dlinary matters are empowered
to make decisions of wide and serious effect on studentsdents. Cases
brought
before them must be dealt with properly and carefully. The careless,
superficial and cavalier way in which they
reached their conclusions here
based on an allegation of drunkenness that had never been proved in the
first place is
little short of appalling."
<
The first part
of the quotation no doubt states review approach, the latter part,
states, "……on allegation of drunkenness that that had never been proved in the
first place is little short of appalling", is appropriate utterance when
exercising appellate jurisdiction.
Examples of
English cases in which rules of natural justice have been applied to non
public entities are Young v. Ladies Imperiab Ltd [1920] 2 KB 525,
a case about expulsion from ladies social club, General Medical
Council v. Spaceman [1943] AC.627, a case about expulsion from
professional association, R v. Senate of University of Aston., ; Ex Parte
fey and Another [1969] 2 All ER 964 and Glynn v. Keele University
[1971] 1 WLR 487.
The applicant
states that he was denied "right to a fair hearing". I take that to
that he was denied natural justice. As we know, natural jusl justice
comprises the well established two
elements; the rule against bias and the
rule to be heard if affected, and now the third recent rule about legitimate
expectation - see Schmidt v. Secretary of State for Home Affairs
[1969] 2 Ch. 149, Attorney General of Hong Kong v. Ng Yuen Shiu
[1983] 2 AC 2 AC 629 and the Australian case of FAI Insurance Ltd v.
Winneke [1982] 151 CLR392. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
[1947] EWCA Civ 1; [1948] 1 KB 223 is a nct ground ound for review of administrative
decision, not to be taken as a rule of natural justice.
Although the
question of denial of hearing, a denial of naturstice, in this case
arises from a decision taken by a non
public statutory entity, thy, the approach
in it to determine whether there has been denial of natural justice is the
same as in cases in which the decider is a public statutory body. In the
English Common Law, the duty of a decider not to
take decision without
offering opportunity to someone whose interest is affected to be heard, is
implied. The duty is
implied even when it is abundantly clear that the duty
has been omitted in the empowering legislation. In Cooper -v Wandsworth
Board of Works [1863] EngR 424; [1863] 14 CB (N.S) 180, the applicant commenced building
his house without giving notice to the Board as required by statute. He
built up to
the second floor. One evening the Board demolished the building
without asking him to explain his omission to give notice.
The Board had
statutory power to demolish if notice had not been given. The Court at first
instance upheld the submission
of the applicant that although the Board had
power under the statute, that power was qualified by the requirement of
natural justice that a person whose proprietary interest is affected is to
be afforded opportunity to be heard. Appeal Court
confirmed. After
Coopers' case, English courts seemed to have decided inconsistently, the
approach to determining requirement of opportunity to be heard, but
since
1964 in the case, of Ridge -v- Baldwin [1963] UKHL 2; [1964] AC 40, confirming
Coopers' case, the rule requiring implying the duty to afford
opportunity to be heard has been firmly restored.
Was the
Applicant Denied Natural Justice?
In this case
the applicant was afforded opportunities to be heard in the preliminary
investigation stages and before the
college's Disciplinary Committee.
Learned counsel, Mr. S. Manetoali most logically, submitted that the
teachers who made
the allegation and had earlier interrogated the applicant
were wrongly allowed to sit on the committee, thereby suggesting
that there
has been breach of one of the rules of natural justice, the rule against
bias, namely that no one who has
interest in a matter should sit in
adjudication over the matter. The rule is expressed in the Latin phrase;
nemo judex in re sua. Certainly it would have been better if the teacher
who found the applicant on top of a girl had merely been allowed the role
of
a witness. We must, however, remind ourselves that the court is considering
a decision of an administrative private
entity, a decision which is quasi
judicial in nature. It cannot be expected that administrative bodies
will conduct their disciplinary meetings in the same meticulous
way courts
of Justice conduct hearing. They are not expected to have the expertise, and
moreover, the method by which
administrative tribunals gather evidence
cannot be like that of courts - see the judgments of the House of Lords in
Local Government Board Arlidge [1915] AC 120 and Board of
Education v. Rice [1911] UKLawRpAC 18; [1911] AC 179, especially the following passage
in the judgment of Lord Lorebum LC. At page 182 he said:
&quspan>……they
mu must act in good faith and fairly listen to both sides, for that is a duty
lying upon everyone who decides anything.
But I do not think they are bound
to treat such a question as though it were a trial. They have no power to
administer
an oath and need not examine witnesses. They can obtain
information in any way they think best always giving a fair opportunity
to
those who are parties in the controversy for correcting or contradicting any
relevant statement prejudicial to their
view."
Learned
Counsel, Mr. Kirkpatrick, for the respondent, conceded that the applicant
was not afforded opport to be heard
by the Board of Governors, the
authorityority empowered to and did expel the applicant, and that the omission
amounted
to breach of a rule of natural justice. He submitted that because
the applicant admitted guilt the court was to exercise discretion
and refuse
to order certiorari and damages. In view of the admission, I need not
state the rule about opportunity to be heard, but for clarity sake, I do so.
The rule expressed in Latin as audi alteram Partem requires that the
eci decision maker must afford an opportunity to be heard to a person whose
interest is or may be adversely
affected by the decision. The person
affected must have reasonable notice of the case he has to meet, and he must
be
given opportunity to state his case. In this case the respondent admits
and the facts support it, that the applicant was not
afforded such
opportunity before the Board of Governors took its decision. Should the
court proceed to exercise its discretion,
and grant the relief of
certiorari and award damages as prayed by the applicant?
The Decision
and Discretion.
I have decided
to exercise my discretion against granting order of certiorari and
damages to the applicant. He did not disclose his account of events of that
evening nor did he disclose whether the
girl was also punished. I inquired
in court and was informed that the girl was also expelled from the college.
The applicant
also did not disclose whether he has since joined another
school or what he now does. Further I considered that the applicant
unduly
delayed in applying for certiorari - see Public Service Commission; Ex
Parte Taiore [1984] SILR 80 and Evangelical Church of
Papua New Guinea v. Evangelical Rutheran Church of Papua New Guinea
[1995] PNG W 276. Two people who were on the Board, Miss
M. Tuke and Dr. T.J. Cowland are now overseas, Dr. Cowland's whereabouts are
unknown.
I have also considered that at earlier stages when the applicant
was confronted with the allegation and asked about it, he
is said to have
either hoisted his admission or simply remained silent. In the circumstances
I do not think that the
Board's decision would have been different had the
applicant been invited to the meeting of the Board and given opportunity
to
state his case. English cases in point are R v. As University Senate;
Ex Parte Rofffey [1969] 2 QB 538, R v. Knightsbridge Crown Court;
Ex Parte Marcrest Properties Ltd [1983] 1WLR300 and an Australian
case, R -v- O'Sullivan, Ex Parte Clarke [1967] W.A. R168.
In view of the fact that the Board of Governors acted
without observing the rule of natural justice in that they denied the
applicant opportunity, I have decided to order that parties bear their own
costs.
Delivered this
2nd day of November 1998.
At the High
Court Honiara
Lungole-Awich
JUDGE.
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