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Naimo v Karella [2005] PGNC 120; N2837 (24 February 2005)

N2837

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 443 OF 2003

Between:

HENDRICK NAIMO
-Plaintiff-

And:

KELLY KARELLA
(Acting Commissioner for Correctional Service)
-First Defendant-

And:

THE INDEPENDENT STATE OF PNG
-Third Defendant-

Waigani: Injia, DCJ
2005: 24th February

JUDICIAL REVIEW – Decision of Commissioner for Correctional Services to dismiss Correctional Officer on disciplinary grounds – Decision of Commissioner based on decision of Appeal Tribunals dismissing appeal against decision of independent Statutory Disciplinary Board – Appeals Tribunal set up under the Correctional Services Act chaired by Judicial officer – Decision of Appeals Tribunal not challenged – Application incompetent –Wrong decision challenged – Application dismissed – Correctional Services Act 1995, ss.42(2), 44(1),(3), 46(6), (8); 50.

Cases cited in the judgment:
Julian Baida v Peter Kobua (2004) N2634.
Ombudsman Commission v Peter Yama (2004) SC747.

Counsel:
D. Steven for the Plaintiff
No appearance for the Respondent

24th February 2005

INJIA, DCJ: The Plaintiff applies for judicial review of the decision made on 17 July 200, by the "First Defendants and or his agents" to terminate his services as a Correctional Officer for disciplinary reasons. The pertinent parts of Notice Dismissal served on the Plaintiff states:

"CORRECTIONAL SERVICE ACT

NOTICE OF DISMISSAL UNDER SECTION 44(1)(d) OF THE CORRECTIONAL SERVICE ACT, CH. NO. 6 OF 1995. . .

TAKE NOTE, that in accordance with s.44(1)(d) of the Correctional Service Act 1995, you, having being charged under the provision of s.39(j) to wit –

"you stole an amount of K400.00 the property of prisoner Melchoir Mokul, a State prisoner serving his imprisonment term there at Vanimo C I while being placed in a position of trust as the OIC – Reception and Discharge Wing."

AND FURTHERMORE, your charge and penalty recommended by the Institution Disciplinary Board has been sustained to read: DISMISSAL from the Correctional Service of Papua New Guinea.

Your dismissal take effective January 13th, 2001.

Dated this 17th day of January, 2001.

(Signed)

.....................

RICHARD SIKANI

Commissioner"

The Respondents made no effort to defend the proceedings despite being served the application. I granted leave to the Plaintiff to proceed, ex-parte.

There are eight (8) grounds of review set out in the Statement in Support filed under O.16 r. 3(1) of the National Court Rules. He also filed a written submission which he spoke to. The grounds are:

1. The First Defendant or his agents had acted ultra vires his/their powers in terminating the Plaintiff’s employment with the Correctional Services Department on or about 17 January 2001 when no charges were preferred against the Plaintiff prior to his termination.
   
2. The First Defendant and or his agents had acted unreasonably and contrary to the principles of natural justice in terminating the Plaintiff’s employment with the Correctional Services Department on or about 17 January 2001 when the Plaintiff was not accorded the right to respond to charges, if any, that were levelled against him.
   
3. The Defendants failed to comply with the disciplinary proceedings under the Correctional Services Act prior to terminating the Plaintiff’s employment on or about 17 January 2001.
   
4. The Plaintiff was not given the right to address the issue about penalties before he was terminated from his employment on 17 January 2001.
   
5. The Defendants acted ultra vires their powers in terminating the Plaintiff over allegations that were confirmed to be untrue.
   
6. The Defendants and or their agents failed to provide reasons and or sufficient reasons for the Plaintiff’s termination on 17 January 2001.
   
7. The actions of the Defendants in terminating the Plaintiff’s employment with the Correctional Services Department on or about 17 January 2001 were contrary to Section 41 of the Constitution.
   
8. All other factual grounds as raised by the affidavit of Hendrick Naimo filed in support of the application for leave for judicial review".
   

The Plaintiff filed various affidavits which he relied upon. He also gave oral evidence.

Mr. Steven for the Plaintiff argued all the grounds of review and made submissions on the evidence and the law.

The disciplinary procedure is prescribed by Part V of the Correctional Service Act 1995 ("the Act"). All serious disciplinary charges are dealt with by the Disciplinary Board ("the Board"). The Board is appointed by the Commissioner: S.42(2). The Board hears and determines the charge. If it finds the charge proven, it imposes a penalty of a fine up to K200, a reprimand or caution. It can only recommend punishment of reduction in rank or dismissal, to the Commissioner: S.44(1).

The Commissioner may vary or accept the recommendation of the Board. If an officer is aggrieved by the decision of the Commissioner to confirm or vary the recommendation, he has a right of appeal to the Appeals Tribunal ("Tribunal"). A person aggrieved by a decision of the Board may also appeal to the Appeals Tribunal.

The Tribunal is established under S. 45. It is constituted by the Minister for Correctional Services. It consists of a Magistrate nominated by the Minister or the Judicial and Legal Services Commission. It is an independent tribunal because unlike the disciplinary board, the Commissioner has no say in its appointment process and it is constituted by a judicial officer as Chairman.

The procedure of the Tribunal is elaborately spelt out in ss. 46 – 51. In particular, S.50 is worth noting. Amongst other provisions designed to ensure a fair hearing, it recognizes the right of the officer to be represented by an advocate. The Tribunal may confirm, or vary the decision and where it varies the decision, it may impose a penalty specified in s. 44(1). In the case of dismissal under S. 44(1)(d) (dismissed), the Tribunal makes a recommendation to the Commissioner: S. 46(6). However, the ultimate decision to dismiss a member for serious disciplinary offences under S .44(1)(d) rests with the Commissioner.

A recommendation for dismissal made to the Commissioner may either come from the Board or the Appeals Tribunal in the case of an appeal. If the recommendation comes from the Board the Commissioner "may accept or vary the recommendation": S. 44(3). If the recommendation comes from the Appeals Tribunal, the Commissioner "may dismiss the member": (S. 44(6). The Commissioner’s decision is final: S. 46(8).

In this review, the Plaintiff’s case is based on the decision of the Commissioner to approve the Disciplinary Board’s recommendation to dismiss the Plaintiff after finding him guilty of the charge.

In this review, the Plaintiff does not challenge the decision of the Appeals Tribunal. Nowhere in the Plaintiff’s evidence, the grounds in the Statement in Support and the written submissions by his counsel, is there any challenge to any decision of the Appeals Tribunal either. There is evidence that on 21 November 2001, the Appeals Tribunal constituted by Magistrate Steven Oli, heard the Plaintiff’s appeal and dismissed it. There is reference in para.16 of Mr. Steven’s written submission of the Tribunal not giving copies of documents or reports from the Commissioner presented before the Appeals Tribunal and also no written reasons for decision given to the Plaintiff, but these are not part of the grounds in the Statement in Support. Under O.16 r.6(1), the Plaintiff is confined to the grounds pleaded in the Statement in Support. He also made submissions on a requirement in S. 50(1) of the Act for the Appeals Tribunal to give written decision on appeal, but I do not read any such requirement in that Section.

In my view, the Application is misconceived. Leave to apply for judicial review should not have been granted in the first place to review the decision of the Disciplinary Board and the Commissioner to dismiss him. The decision of the Appeals Tribunal superceded the decision of the Board’s recommendation. This is an independent decision by the Tribunal, as it appears on the face of the Order made by presiding Tribunal Chairman, Mr. Steven Oli on 21 November 2001. (see Annexure "I" of Plaintiff’s affidavit sworn on 31 July 2003). This decision was made on the merits of the case, as presented to it, by way of a lengthy submission by the Plaintiff’s lawyer and other materials before it. Those proceedings should be the proper subject of judicial review: see Ombudsman Commission v Peter Yama (2004) SC747. A proper challenge to the decision of the Appeals Tribunal, would involve proper pleadings of the Tribunal as a Respondent and proper grounds set out in the Statement in Support. At the hearing of such ground, it would become necessary for the Tribunal’s full certified record of proceedings to be provided to this Court, for review: Julian Baida v Peter Kobua (2004) N2634. If the challenge is successful, the Tribunal’s decision would be quashed and consequently, the Commissioner’s decision to dismiss the member. That review process has not been able to take place here because the Plaintiff’s case is confined to what transpired before the Commissioner and the Board.

For these reasons, I dismiss the Application. I make no order as to costs.
_________________________________________________________

Lawyer for the Plaintiff : Stevens Lawyers