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Kiap v Gena [2023] PGNC 22; N10117 (8 February 2023)

N10117

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 121 OF 2022

BETWEEN:
AMANDA KIAP & ANOTHER STUDENT OF THE PNG UNIVERSITY OF TECHNOLOGY
First Plaintiff

AND
PROF KAUL GENA in his capacity as the CHAIRMAN OF THE STUDENT DISCIPLINARY COMMITTEE OR AND ON BEHALF OF HIMSELF & MEMBERS OF THE STUDENT DISCIPLINARY COMMITTEE
First Defendant

AND
ANNA WISSINK in her capacity as the CHAIRLADY OF THE STUDENT APPEALS COMMITTEE FOR AND ON BEHALF OF MEMBERS OF THE APPEALS COMMITTEE
Second Defendant

AND
DR ORA RENAGI in his capacity as the VICE CHANCELLOR OF THE PNG UNIVERSITY OF TECHNOLOGY
Third Defendant

AND
THE PNG UNIVERSITY OF TECHNOLOGY
Fourth Defendant

Lae: Dowa J
2022: 05^th December
2023: 08^th February

JUDICIAL REVIEW – review by plaintiffs of administrative decision by the defendants to suspend plaintiffs from studies for one year after grant of leave – substantive hearing of judicial review - grounds of review – error of law, denial of natural justice and unreasonableness – whether the plaintiffs have established grounds of review – whether plaintiffs are entitled to the relief sought - Order 16, rule National Court Rules

JUDICIAL REVIEW –purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion - judicial review is concerned not with the decision but with the decision-making process – university applied penalties that fall under Category C for Category B offences– error of law committed by defendants - erroneous laying of multiple charges and the application of wrong penalty Category also renders decision unreasonable in the wednesbury sense – no breach of natural justice – substitution of penalty – imposition of fine – judicial review granted

Cases Cited:
In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122
Dwayne Job & Ors v Dr Kaul Gena & Ors (2020) N8737
Mao Zeming v The State (2006) N2998
Tau Kamahuta v Sode (2006) N3067

Counsel:
R. Geoctau, for the Plaintiff
S. Kesno, for the Defendants

RULING

8^th February, 2023

1. DOWA J: The Plaintiffs apply for judicial review of a decision made by University of Technology Student Disciplinary Committee suspending them from studies for a term of one year.
   
2. By Notice of Motion, the Plaintiffs seek the following orders:
   
   1. Pursuant to Order 16 Rule 5 of the National Court Rules, the decision of the Defendants made on the 19^th of April, 2022 and the 30^th of May, 2022 to suspend the Plaintiffs from their studies for a period of one (1) year be brought before this honourable Court and quashed forthwith for breach of procedure.
      
   2. An order that the decision of the Defendants made on the 19^th of April, 2022 and the 30^th of May, 2022 to suspend the Plaintiffs from their studies for a period of one (1) year was in breach of Natural Justice therefore both be quashed and declared null and void.
      
   3. An order that the decision of the Defendants made on the 19^th of April, 2022 and the 30^th May, 2022 to suspend the Plaintiffs from their studies for a period of one (1) year was harsh and oppressive hence the decisions of the Defendants be declared null and void.
      

Background

3. The Plaintiff Amanda Kiap is a fifth-year student studying Bachelor of Architecture and Building. The Plaintiff Claudia Solok is a fourth-year student undertaking Bachelor of Mineral Processing. Both Plaintiffs are students at the PNG University of Technology.
   
4. The Plaintiffs were charged by the Unitech Student Disciplinary Committee for drunkenness and disorderliness contrary to Category B and C vi of the Revised Student Rules 2019. The alleged incident took place on 18^th March 2022. The Plaintiffs provided their written responses to the Disciplinary Committee on 20^th April 2022. The Disciplinary Committee met, deliberated on the charge, and found them guilty, and suspended them for one year from studies. The Plaintiffs appealed the decision to the Students Appeal Committee. The Appeal Committee considered the appeal and rejected same.
   
5. Aggrieved by the decision of the Disciplinary Committee and the Appeal Committee, the Plaintiffs applied for leave seeking judicial review. Leave to apply for review was granted on 23^rd June 2022.
   
6. The Plaintiffs rely on the following documents in the application for review:
   
   1. Originating Summons filed 10/6/22
   2. Statement of Facts filed 10/6/22
   3. Affidavit of Amanda Kiap filed 10/6/22
   4. Affidavit giving consent by Claudia Solok filed 10/6/22
   5. Notice of Motion filed 11 July 2022
      
7. The Respondents rely on the affidavit of Alen Gaun sworn 9^th and filed 12^th September 2022.
   

Grounds for Review

8. The grounds for judicial review set out in the statement of facts are:
   
   1. Errors of law
   2. Denial of Natural Justice
   100. Wednesbury principles of Unreasonableness
        

Issues

9. The issues for consideration are:
   
   1. Whether the Plaintiffs have established grounds for review
   2. Whether the Plaintiffs are entitled to the reliefs sought
      

Law

10. The relevant law for judicial review is Order 16 of National Court Rules. Order 16 Rule 1 of the National Court Rules caters for cases appropriate for application for judicial review and provides in this manner:

(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that, having regard to:

• (a) the nature of the matters in respect to which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
  
• (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
  
• (c) all the circumstances of the case,
  

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

11. The law on judicial review is settled. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:

“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

12. The Supreme Court in that case further stated that:

“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.”

13. Applying the above principles, I will now turn to each ground of review:

Ground One: Errors of Law

14. The Plaintiffs were charged under Category C (vi) and Category B vii of the Rules Governing Student Behaviour. The relevant charges read:

“11. Category C vii offences committed as a consequence of consumption of alcohol and illicit drugs.

19. Category B vii Drunkenness and Disorderliness

“It is an offence for anyone to be drunk, disorderly, under the influence of narcotics or physically incapable of controlling himself/herself as a result of alcohol or drugs anywhere in the University Campus.”

15. Both Plaintiffs were found guilty of breaching Category ‘C’ offence that is “offences committed as a consequence of Consumption of Alcohol and Illicit Drugs.” In the letter of advice to the Plaintiffs, the University advised them that the Plaintiffs committed the offence of Drunkenness and Disorderly.

16. Mr Geoctau, counsel for the Plaintiffs, submit that the Plaintiffs were charged and penalized for an offence not clearly defined in the Student Handbook Revised 2019.

17. The facts show, the Plaintiffs drank outside of the campus. In their drunken state, they played music that was loud, disturbing others. The Plaintiff, Amanda Kiap, displayed her drunken state when confronted by the security officers. The Plaintiff Claudia Solok though drunk played no major dismal behavior except for the loud music.

18. Clearly, their offence fits into the Category B vii for Drunkenness and Disorderliness. The penalties for this offence under Penalties for Category B (a) is a fine of K200.00 and for the offender to be placed on good behavior bond.

19. The University applied the penalty under Category C a. ii (i) for committing Category B offences as a consequence of consumption of alcohol and drug abuse.

20. What was the Category B offence the Plaintiffs committed. Was it the loud music or speaking harshly to the security officers. If the offence is for loud music, it would come under the penalty for Category ‘A’. For Category ‘A’ offence being committed as a consequence of consumption of alcohol. The Category A offence would be for nuisance and disturbance under Category A 2(ii).

21. Although the rules provide for penalties for Category C offences, the Category C offences are not defined and clearly prescribed in the Rules itself. This is a difficult area of the Disciplinary Rules which brings alot of confusion. It makes it difficult for students to plead to the charges, not knowing what the penalties they are facing.

22. In a similar case, Dwayne Job and Ors v Dr Kaul Gena & Ors (2020) N8737, I made the similar remarks at paragraph 35 – 41):

35. I note Rule 2 of the Student Rules provide two Categories of offences. Category A provides for minor offences, and Category ‘B’ provides for major offences. Rule3 of the Student Rules is a penalty provision providing penalties for both Category ‘A’ and ‘B’ offences. They prescribe penalties starting from reprimand to 3 (three) years suspension.
    
36. However, there is lack of clarity and inconsistency in the rules, the prescription of offences and the penalties ascribed to each provision. For example, if a student is a first-time offender in Category B, he can be fined K200.00. If the offence is repeated, he stands to be suspended for 4 semesters.
    
37. In this case, the Plaintiffs, assuming they have committed Category ‘B’ offence of consuming alcohol, as first-time offenders, they can be fined K200.00 under Rule 3, Category B penalty.
    
38. Inconsistent with the above scenario, under type 2 offence, the Plaintiffs can also be fined K500.00 for swearing while under the influence of alcohol. A further inconsistency in the rules is that the Plaintiffs can also find themselves suspended for 3 (three) years for consuming alcohol and swearing.
    
39. The ambiguity relating to the disciplinary charges is probably the reason why the University Student Disciplinary Committee chose to use different rules with alternative charges in their Statement of Charge dated 22^nd July 2020.This in turn, makes it even more difficult for a student, as in the present case, to plead to the charge.
    
40. I find this to be in breach of Section 37 (2) of the Constitution which provides for the right to protection of law where it states:
    

“2. Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”

41. In the present case, the Plaintiffs did not appreciate the charges and the penalties that were to be imposed on them in the event of a guilty verdict. They were caught by surprise and the decision in my view is harsh and oppressive. A person charged with a disciplinary offence has been told in no uncertain terms what charge he is being charged with and the penalty to be imposed. For these reasons, I find this ground is made out.”
    

23. I adopt and apply the reasoning in that case to the present case. I find the Unitech Disciplinary Committee committed a procedural error and uphold the ground for review.

Ground 2 Wednesbury Principle of Unreasonableness

24. Is the decision unreasonable. I do not find the University was unreasonable in finding the Plaintiffs guilty of drunkenness and disorderliness. The Plaintiffs admitted the offence. They made loud noises and disturbed others. However, the erroneous laying of multiple charges and the application of wrong penalty Category renders the decision unreasonable.

Ground 3: Denial of Natural Justice

25. The Plaintiffs submit they were not accorded an opportunity to properly respond to the charges. The evidence clearly show the Plaintiffs were accorded their rights to be heard. They were given the charges. They responded in writing and made appearance at the hearing. Although there were errors in the framing, of the charges and the penalties imposed, I find the disciplinary process was followed and there is no breach of Natural Justice.

Conclusion

26. The facts show the Plaintiffs committed a disciplinary offence which offends the University’s Zero Tolerance Policy. They should be punished to show the University Community’s displeasure and a deterrence to others. It seems the University, is still grappling with this issue. To appropriately deal with these issues, the offences and penalties for drunkenness and other offences be clearly defined. A Category C offence with corresponding penalties be clearly prescribed to avoid ambiguity.

27. Turning to the present case, I find the Plaintiffs were charged with multiple charges, one of which is not defined. Secondly the Plaintiffs were not appropriately penalized for an offence that was prescribed under Category ‘B’ vii for drunkenness and disorderliness. I find the Disciplinary Committee made errors in the application of its disciplinary law. As a result, they imposed a penalty that is disproportionate to the offence.

28. As for penalty, it appears the Plaintiffs were not properly heard on the penalty. The penalty of 1 year suspension is harsh and oppressive in the circumstances especially where the following considerations were not considered: i) the Plaintiffs are first time offenders. ii) the Plaintiffs are final year students. iii)the Plaintiffs apologised and have shown remorse. For these reasons, I find the Plaintiffs have successfully established grounds for review.

What orders should the Court make?

29. What orders should the Court make. A favourable finding on the grounds for review does not automatically entitle the Applicants to the orders they seek. The Court has a discretion and can refuse the relief on equitable grounds or make such other orders it deems fit to do justice in the circumstances. Refer: Mao Zeming v The State (2006) N2998 and Tau Kamahuta v Sode (2006) N3067.

30. Accordingly and in the exercise of my discretion, I will firstly quash the decision of the University Students Disciplinary Committee made on 20^th April 2022 and confirmed in writing on 29^th April 2022. Whilst I set aside the guilty verdict for drunkenness and disorderliness under the Category C of the Student Discipline Statute, I find the Plaintiffs were drunk at the campus. The Plaintiffs have admitted to the charge of drunkenness and disorderliness. I will therefore return a guilty verdict against the Plaintiffs for that charge under Category B (vi) of the Student Rules which carry a lessor penalty. For penalty, I will impose a penalty that is fitting the offence. Drunkenness is a detestable offence by the University community. Monetary penalty must be heavy enough to provide deterrence. The first Plaintiff played an active role in the commission of the offence and will receive a higher penalty than the second Plaintiff.

31. In my view, the following penalties be imposed on each of the Plaintiffs for the role they played.

(1) Amanda Kiap be imposed a fine of K2,000.00
(2) Claudia Solok be imposed a fine of K1,000.00

32. In respect of cost, I propose to order that cost to be borne by each party. The Plaintiffs have succeeded in part. Cost is a matter of discretion and in the exercise of my discretion, I make no order as to cost against any party.

ORDERS

33. The Orders of the Court are:

1. The decision of the University Students Disciplinary Committee made on 20^th April 2022 finding the Plaintiffs guilty of drunkenness and disorderliness under Category C offence and suspending them from studies for a period of no less than three (3) years is hereby reviewed and quashed.
   
2. The first Plaintiff Amanda Kiap is found guilty on the charge of drunkenness and disorderliness under Category B vii of the Rules Governing Student Behaviour and is fined K 2,000.00
   

100. The second Plaintiff Claudia Solok is found guilty on the charge of drunkenness and disorderliness under Category B of the Rules Governing Student Behaviour and is fined K 1,000.00.
     

4. The Plaintiffs shall pay the fines before they continue their studies.
   
5. The parties shall pay their own cost.
   
6. Time be abridged.
   

Valorem Attorneys Lawyers: Lawyers for the Plaintiffs

Kesno Lawyers: Lawyers for the Defendants