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Kerua v Council Appeal Committee of University of Papua New Guinea [2004] PGNC 240; N2534 (2 June 2004)

N2534

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 299 of 2003

BETWEEN:

KELY KERUA
-Plaintiff-

AND:

COUNCIL APPEAL COMMITTEE OF THE UNIVERSITY OF PAPUA NEW GUINEA
-Fist Defendant-

AND:

UNIVERSITY OF PAPUA NEW GUINEA
-Second Defendant-

Waigani Injia Dep. CJ
2004: March 24th June 2nd

CIVIL LAW – Practice and Procedure – Judicial Review – Review of University Student Disciplinary body’s decision to exclude final year student - Application under Order 16 of National Court Rules –Grant of Leave and stay order issued pending determination of substantive application issued allowing student to continue and complete studies – Essence of time – Purpose of application achieved by passage of time due to delay in fixing substantive application for hearing – Duty of Registrar and Applicant to fix date for substantive hearing within the time period stipulated by Order 16 r 5(3) and (4) of the National Court Rules.

JUDICIAL REVIEW – Student Disciplinary body – Duty to observe principles of natural justice – Decision to exclude student – Business Economics student in final year of studies – Failure to consider Student’s case – Failure evident on face of record of decision - Decision unreasonable – Decision quashed – Constitution, S.59.

Cases cited:
Application of Honk Kiap v Board of Governors of Kerevat National High School & Others N1381 (1995).
Graham Kevi v The Teaching Services Commission Disciplinary Committee N1555 (1997);
Jimmy Gwaitep v Harbours Board N1309 (1994);
Associates Provincial Picture Houses v Wednesbury Corporation [1974] 2 ALL ER 680.
Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1994).

Counsel:
B Meten for the Plaintiff
D Sirae for the Defendant

2nd June 2004

INJIA, DEP.CJ: This is an application for judicial review filed under O16 of the National Court Rules.

The Applicant is a student at the University. He seeks a review of the decision of the University Council’s Disciplinary Appeal Committee (Appeal Committee) made on 8th May 2003 to reject his appeal against the decision of the University’s Student Disciplinary Committee (SDC) to terminate his studies for disciplinary reasons. Leave to apply for review was granted on 13 June 2003.

The grounds upon which the Relief are sought are as follows:-

(1) That the First Defendant wrongly decided that the Plaintiff raped the student, (named), in that based on the evidence before the First Defendant a reasonable Tribunal could not have held that the Plaintiff raped the student, (named).

(2) That the First Defendant wrongly decided that the Plaintiff was illegally on campus and illegally using Rom K13, Toa 6 as he was a registered student and had paid 95% of the total fee for the year and was allocated the said Room by the Student Services Department of the Second Defendant.

(3) That the First Defendant wrongly found the Plaintiff guilty of being under the influence of alcohol in that based on the evidence that was before the First Defendant a reasonable tribunal would not have found the Plaintiff guilty.

(4) That the penalty of permanent exclusion from UPNG to be effective immediately was too excessive.

At the time of grant of leave, the Court granted an order staying enforcement of the decision. This allowed the Plaintiff to continue his final year studies in Business Economics. At the hearing of the substantive application, I was informed by counsel for the Plaintiff, Mr Meten that the Applicant had qualified for a degree and was to have graduated on the Graduation ceremony scheduled for 30th March but the Defendants would not allow him without an order from this court. For this reason, on 23rd March 2004 he sought assistance from the Registrar for an expedited hearing of the application. The Registrar referred the matter to me and I made special arrangements to hear this matter. I heard it on March 24th and reserved my decision. If he is successful in this review, he will be given his degree. This position I understand is accepted by counsel for the Defendants.

The purpose of this application has been achieved by default, by reason of passage of time. In a judicial review application, time is of the essence. The rules recognize and emphasize this point by requiring the Registrar to fix a date for hearing the substantive application within a fixed time frame, after the grant of leave. Order 16 rule 5(3) & (4) provides:-

"(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the notice of motion and the day named in the hearing.

(4) Within 21 days after the grant of leave the notice of motion shall be allocated a date for hearing by the Registrar after consultation with the parties."

It is incumbent on the Registrar to consult with the parties within the prescribed twenty-one (21) days and fix a date for the substantive hearing to take place as soon as it is practicable for the parties and the court. The date for hearing will be fixed on the Notice of Motion filed by the Applicant under O 16 r 5(1). A reasonable or practical time frame is not infinite number of weeks or months and even a year or years, as my own experience in some judicial review cases show. I am speaking of a week to a few weeks or perhaps, and in exceptional cases a month or two at most. It is equally incumbent on the parties, Applicants in particular, to enquire with the Registrar within the twenty-one (21) days to fix a date for the hearing. In a case where there is a stay order issued, the onus is even heavier on the Registrar and the parties with the Registrar in particular, the Applicant, who is the beneficiary of the stay order, to consult and take the appropriate action. If for some good reason, it is not practicable for the Registrar to fix a date for the hearing within the twenty-one (21) days, he must seek directions from the Court.

In the present case, there is no record of any Notice of Motion being filed by the Plaintiff under O16 r 5(1) and being served on the Defendants under O 16 r 5(2). After the grant of leave, the matter came before the National Court on two (2) occasions, on 28th July and 1st August 2003 respectively, but it is not clear how the matter got listed on those two dates and whether the matters were fixed for the substantive hearing.

It is now more that nine (9) months since leave was granted and the position of the parties have changed significantly. The purpose of the application has been achieved. The Plaintiff has completed his studies and earned his degree. He is entitled to receive his degree. This Court’s judicial review exercise may be after all an academic exercise in futility.

The fault in not promptly bringing this matter for a hearing cannot be solely put on the Registrar. The Plaintiff is the first to blame because he starts the process with the filing of the Notice of Motion. He should have filed the Notice of Motion first in order for the Registrar to fix a date on it. Equally so, it was incumbent on the Defendant to seek a date for the hearing or even apply for summary disposal of the application for want of prosecution. If neither party acted, the Registrar could have referred the matter to the Court for summary determination.

Under O16 r 4 (1), in a case where there has been undue delay in making an application, the Court may refuse any relief sought in the application "if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration". In the present case, apart from the delay in fixing a date for the hearing by both parties and the Registrar, the other situations do not exist. As for the delay, I am not prepared to penalize the Plaintiff because he is not solely at fault.

This brings me to the substantive issues raised before me. The Plaintiff seeks a review of the decision of the Appeal Committee of the University Council. The Plaintiff’s appeal letter to this Committee runs into some seven (7) pages. The Applicant raised substantive issues of the evidence and weight of the evidence in the form of his own statement and some eight (8) witnesses’ statements which supported his case that he did not rape this girl, that he was a registered student who was allocated that room and he was not illegally residing on campus and that he was not drunk. The allegation of rape was not referred to the police and no action was taken by police. He said there was no medical evidence to support the victim’s complaint of actual rape.

The Appeal Committee deliberated on the matter and the Committee simply advised the Applicant, in writing, that the Committee "thoroughly considered your appeal" and the Committee "agreed to reject your appeal and uphold the decision of the Student Disciplinary Committee". No further reasons for decision were given. There is no affidavit from someone from the Appeals Committee to show the Committee arrived at its decision. Much of the focus in the submissions by Mr Meten and Mr Sirae before me was on the only affidavit filed by the Defendants, and that is the affidavit of Dr Lawrence Kalinoe who is the Chairman of the SDC. But in my view Dr Kalinoe cannot answer for the Appeals Committee and he has quite correctly not done so.

Faced with the brevity of the Appeal Committee’s decision, the Applicant has resorted to criticizing the SDC’s decision to show that no reasonable student disciplinary body would have made such decision and therefore, no reasonable Appeal Committee would have simply endorsed such decision. In his affidavit Dr Kalinoe explains how the SDC conducted the proceedings and refers to the Minutes of the meeting. The proceedings on this matter is recorded in item 4.13 of the Minutes of the meeting, which simply refers to the charges and its findings. The Minutes reads:

"Charge (dated 25th March 2003): Between 5pm on February 22nd and 11a.m. on February 23rd 2003, Mr Kerua raped a student (named) in Room K13, Toa 6. It was' alleged that Mr. Kerua was under the influence of alcohol, illegally on campus Room K13, Toa 6.

4.13.1 Found: The evidence was overwhelming, giving a full detail account in sequential orders from the time of pickup to the eventual rape (two counts) of the victim (a student).

4.13.2 Verdict: Guilty as charged.

4.13.3 Penalty: Permanent exclusion to take effect immediately."

This was the decision of the SDC which was before the Appeals Committee to review. But the question is: How did the Appeals Committee went about deliberating on the Applicant’s appeal. I am left with no explanation. The Appeals Committee’s decision superseded the SDC’s decision and it is incumbent on the Appeals Committee to provide some meaningful explanation of how it went about addressing the issues raised by the Plaintiff and exercised its mind to it and arrived at its decision. The reasons for decision given by the Appeal Committee, is brief and it does not provide any such explanation.

In the absence of any explanation from the Appeals Committee explaining how they dealt with the fairly substantive matters raised by the Plaintiff, questions still remain as to the reasonableness of the Appeal Committees’ decision. The only reasonable inference or conclusion open is that the Appeal Committee’s decision was not arrived at through a fair process and it is unreasonable.

Having said this, it would be devoid of the merits of the case to strike down the Appeal Committee’s decision solely for the reasons given above, without considering the case before the SDC whose decision the Appeal Committee considered and endorsed.

The explanation given by Dr Kalinoe as to how the SDC deliberated on the matter is contained in paras. five (5) and eight (8) of his affidavit. In para. five (5), he says the SDC deliberated on the case by receiving statements from the parties and oral representations and decided that the Plaintiff was guilty of the charges and imposed a penalty of permanent exclusion from the University. Para. eight (8) is specific on what materials were considered by the SDC in arriving at its decision. He says the "SDC made its decision based on the following statements which were before the SDC at the hearing" and lists eight (8) statements and reports provided by the victim and the University, copies of which are annexed to his affidavit. He makes no reference to the eight (8) statements by the Plaintiff and his witnesses including one from an employee of the University, which the Plaintiff relied upon in his defence. In these statements, the Plaintiff denied all the charges and gave specific defences. He said he was not drunk, that he did not rape the victim, there was no medical evidence to support the allegation of rape, there was no action was taken by police on any complaint of the rape and that he was a registered student and was permitted to occupy the dormitory.

Mr Meten submits the SDC to Dr. Kalinoe’s affidavit in para. eight (8) shows that the SDC did not consider the Plaintiff’s case and the materials and statements provided by him. If they have considered the Plaintiff’s case, he would not been found guilty on all three (3) charges. He submits no reasonable student disciplinary tribunal would have arrived at the decision in the circumstances. Mr Sirae submits the SDC properly considered all the material placed before it including those of the plaintiff and made its decision and the decision should not be disturbed. This he submits is made clear in para. five (5) of Dr. Kalinoe’s affidavit. The Plaintiff also had a record of disciplinary offences. The decision was reasonable in circumstances.

Based on the explanation given by Dr. Kalinoe, I accept Mr Meten’s submission that the SDC only considered and accepted the complainant’s side (the victim and the University) and gave little or no regard and weight to the Plaintiff’s case. Dr. Kalinoe’s reference in para five (5) of his affidavit is a broad statement of procedure adopted by the SDC generally. His explanation in para. eight (8) of his affidavit is the key indicator of the things considered by the SDC.

I accept Dr Kalinoe’s explanation that the SDC relied on statements and submissions from both sides and it does not carry out "an adversary style hearing". But this Committee, like other disciplinary bodies established under Statute, is subject to the principles of natural justice adopted in S.59 of the Constitution. The principles of natural justice require a fair hearing in which the case for both sides is considered in a fair manner and a decision made and reasons and good reasons for decision given: see Graham Keri v The Teaching Services Commission Disciplinary Committee N1555 (1997); Jimmy Gwaitep v Harbours Board N1309 (1994); Honk Kiap v Board of Governors of Kerevat National High School & Others N1381 (1995). The academic life of a final year University student lays the foundation for his career in life and any decision made by a reasonably neutral student disciplinary body, which is likely to deny him the opportunity to continue and complete his studies successfully, must be made carefully, through a process which is fair to both parties. The decision given by the disciplinary body as recorded, must reflect a fair deliberation of the case for both sides and a fair decision reached.

Judicial review is about the fairness of the process by which the decision by an administrative body is reached and not the correctness of the decision itself. The SDC and the Appeals Committee are constituted under provisions of the Student Disciplinary Statute Chapter No. 165. I accept that the SDC and the Appeals Committee have wide powers to deal with student disciplinary matters, and they should not be required to and expected to operate under strict rules of practice and procedure in an adversary style hearing/trial process that is adopted by the Courts and other statutory tribunals. They are under no duty to act judicially or quasi-judicially. Disciplinary rules are part of a student’s education and these rules are there for good reasons. Student disciplinary rules are an integral part of student academic life and breach of those rules may be the sole reason for their exclusion from studies. Students of course have a right to receive an education which will qualify them for a future career or job in life but that right is qualified – the student must adhere to the disciplinary rules. In matters of student discipline, they are the best judges and arbitrators of disputes affecting the academic and social welfare of the University students, teachers and staff and the Court must pay greater deference to their judgment on these kind of matters. When a Court of law is requested to interfere in the decision-making process of a student disciplinary body, the Court will only do so where the body has committed an error of law, has failed to follow the prescribed procedures, exceeded its jurisdiction or exercise of power in decision-making is so irrational. That principle of irrationality has come to be known in the common law as the Wednesbury principle of unreasonableness – that no reasonable student disciplinary body would have reached such decision on the materials placed before it: Associated Provincial Picture House v Wednesbury Corporation [1974] 2 ALL ER 680.

In the present case, there is no challenge to the SDC or Appeal Committee’s jurisdiction, compliance with the laws governing student discipline or adherence to prescribed procedures. Their decisions are challenged under the Wednesbury principle of unreasonableness. The principle is summarized by Doherty J in Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996) at as follows:-

(a) It must be a real exercise of the discretion;
(b) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(c) It must ignore irrelevant considerations.
(d) It must not operate on the basis of bad faith or dishonesty;
(e) It must direct itself properly in law; and
(f) 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.

A reasonable tribunal which is considering the career fate of a final year University Student of a public school who is nearing the end of his studies would have carefully considered the matter and given a fair decision on both issues of guilt and penalty. The decisions recorded should reflect a proper consideration of all relevant matters placed before it and a fair decision arrived at through a fair process.

I am satisfied on the material placed before the SDC that the SDC failed to consider the Plaintiff’s case and arrived at a decision based principally on the material put before it by the victim and the University. The affidavit of Dr. Kalinoe and the brevity of the decisions recorded by both Committees all of which make no reference to the Plaintiff’s case and materials but only make reference to the complainant’s case and evidence, is clear testimony of the failure by the two Committees. I am satisfied that the two decisions on the question of guilt on all three (3) charges are both so unreasonable and they cannot stand. It follows that the decision on penalty also cannot stand.

For these reasons, I quash the decisions of the Appeals Committee and the SDC on both convictions and penalty under the Wednesbury principle of unreasonableness. The Respondent shall pay the Applicant’s costs of these proceedings.

The formal Orders I make are as follows:

1. The Application for judicial review of the First Defendant’s decision made on 8 May 2003 is granted.
   
2. The decision of the First Defendant dismissing the Plaintiff’s appeal against the decision of the Student Disciplinary Committee of permanent exclusion from studies, is quashed.
   
3. The Plaintiff having completed his studies in Business Economics, be awarded his degree, if he has met all the requirements to qualify him for that degree.
   
4. The Defendants pay the Plaintiff’s costs of the application.
   
5. The Entry of these orders is abridged to the time of settlement by the Registrar which shall take forthwith.

____________________________________________________________________
Lawyer for the Applicant : Narakobi Lawyers
Lawyer for the Defendants: Nonggorr & Associates