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Wases v Pokanis [2024] PGNC 326; N10996 (13 September 2024)

N10996

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 125 OF 2023

BETWEEN:
MATTHEW WASES
Plaintiff

AND:
STEPHEN POKANIS – COMMISSIONER OF PAPUA NEW GUINEA CORRECTIONAL SERVICE
First Defendant

AND:
DONALD APETI, TITUS WATIPA AND LEO PURAI as members of the Special Disciplinary Board
Second Defendant

AND:
PAPUA NEW GUINEA CORRECTIONAL SERVICE
Third Defendant

Waigani: Purdon-Sully J
2024: 6^th & 13^th September

JUDICIAL REVIEW – Disciplinary proceedings – review of decision to find correctional officer guilty of disciplinary offence and impose penalty of dismissal – whether statutory procedures followed – whether plaintiff given a fair hearing – whether decision unreasonable (Wednesbury) – all grounds made out – reliefs sought granted - Plaintiff to be reinstated with entitlements – attempts by the Plaintiff to settle the matter rejected - costs awarded on a solicitor and client basis – application for Judicial Review under National Court Rules, Order 16.

Cases Cited:

Papua New Guinean Cases
Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Tembil v Pkanis & Ors [2023] PGNC 403; N10555
Sausau v. Kumgul (2006) N3253
Nawe v Mondia [2016] PGNC; N6269
Henry Wavik v Martin Balthasar (2013) N5272
Kamuta v Sode [2006] N3067
Adventure Kokoda PNG Limited v Kilepa [2023] PGNC 488; N10630
Eremuge v Apa [2023] PGNC 421;N10572
Air Niugini Ltd v. Doiwa [2000] PNGLR 347
Marat v. Hanjung Power Limited (2014) SC1357
Mision Asiki v Manasupe Zurenuoc (2005) PGSC 27;SC797

Overseas Cases
Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223
Council of Civil Unions v Minister of Civil Service [1985] AC 374

Legislation:
Correctional Services Act 1995, ss 13, 40, 42, 44
National Court Rules, Order 16 Rule 1
Constitution, ss 42, 59
Correctional Services Regulations 1995, s 31

Counsel
Ms M Worinu, for the Plaintiff
Mr V Gonduon, for the Defendants

13^th September 2024

1. PURDON-SULLY J: This is an application for judicial review made pursuant to a Notice of Motion filed 21 March 2024 following the grant of leave on 18 March 2024 with respect to the decision of the First Defendant:
   
   1. made by letter dated 16 June 2023 dismissing the Plaintiff from Correctional Service (the decision);
   2. made by a Circular instruction letter number 28/2021 on 18 May 2021 in appointing the Second Defendants as the members of Special Disciplinary Board to hear and determine the disciplinary charges against the Plaintiff (the appointment).
      
2. The Plaintiff seeks the following relief:
   
   1. A declaration that the decision is null and void.
   2. A declaration that the appointment is void.
   100. An order in the nature of certiorari that:
        
        1. The decision be quashed;
        2. That the appointment be quashed.
           
   4. A declaration that the decision or recommendation of the Second Defendants appointed by the First Defendant on the Plaintiff’s case is null and void ab initio.
      
   5. An order that the Plaintiff be reinstated in his position as Corporal of Bui-lebi Correctional Institution in Mendi, Southern Highlands Province with full benefits and any loss of entitlement from the date of dismissal be returned to him.
      
   6. The First and Second Defendants pay the Plaintiff’s costs of the proceeding on a solicitor/client basis.
      
3. The Defendants seek the dismissal of the Notice of Motion.
   

CONTEXTUAL BACKGROUND

4. Until his termination the Plaintiff had been a correctional officer with the rank of Corporal employed with the Correctional Service for over 36 years. He was attached to the Bui-lebi Correctional Institution at Mendi in the Southern Highlands.
   
5. Disciplinary charges involving carelessness in the discharge of his duties were levelled against him arising out of events at the correctional facility on 17 July and 6 August 2019. A Disciplinary Investigation report dated 6 September 2019 found:
   
   1. That on 17 July 2019 the Plaintiff opened out two detainees after lockup and permitted them to escape (Case No 81 of 2019), and
      
   2. That on 6 August 2019 two detainees jumped the fence and fled during his shift (Case No 84 of 2019).
      
6. The Plaintiff was served with the charges and a Notice of hearing dated 6 September 2019.
   
7. On or about 16 September 2019 a Disciplinary Board, convened and presided over by the then Commander of Bui-lebi Correctional Institution, Commander Bob Omba, heard and dismissed the charges. On the evidence of Commander Omba, the outcome of the hearing was communicated to the Plaintiff.
   
8. On 12 April 2021 a complaint involving the same two incidents was made against the Plaintiff. Who made the complaint, and in what circumstance, is not in evidence.
   
9. On 12 April 2021 the Acting Commanding Officer of the PNG Correctional Service, Samson Kisa wrote to the First Defendant and requested that a Special Disciplinary Board be convened to deal with disciplinary charges involving six persons, including the Plaintiff.
   
10. On 18 May 2021 the First Defendant convened a Special Disciplinary Board and Discipline Officers appointment for the Bui-lebi Correctional Institution. He did so purportedly under powers vested in him by s 13 of the Correctional Services Act 1995 (the Act) and for the purpose of ensuring “that outstanding serious matters requested by the institution Management is (sic) dealt with under the appropriate Disciplinary process expeditiously” (underlining added for discussion purposes).
    
11. By Notice of Investigation dated 12 July 2021, Special Discipline Officer, Inspector Barry Jaro, gave notice to the Plaintiff that he was conducting an investigation with respect to a complaint made against the Plaintiff on 12 April 2021 relating to the escape of prisoners on the 17 July and 6 August 2019, namely:
    
    1. that on 17 July 2019 he deliberately opened the cells and permitted two detainees to escape after lockup (Case No 81 of 2019) and
       
    2. that on 6 August 2019 he was careless in the discharge of his duties when two detainees escaped by jumping over a fence (Case No 84 of 2019).
       
12. A Notice of Serious Offence, signed by Inspector Jaro and dated 15 July 2021, informed the Plaintiff that the serious charges against him would be heard by a Special Disciplinary Board on 22 July 2021.
    
13. The Plaintiff asserts that:
    
    1. the further complaints involved charges that had been previously dismissed.
       
    2. there is no record of a complaint having been made against him on 12 April 2021, or at all, following the dismissal of the earlier charges;
       
    100. no investigation was undertaken by Inspector Jaro;
         
    4. he was served on the same day in July 2021 with the Notice of Investigation dated 12 July 2021, Notice of Serious Offence dated 15 July 2021 and Notice of Hearing of Disciplinary Charge dated 15 July 2021 and had no opportunity to give a reason or explanation for the alleged offences as, on his evidence, he was not responsible for the prisoners’ escape.
       
14. The Special Disciplinary Board presided over the charges against the Plaintiff on 22 July 2021.
    
15. By letter dated 16 June 2023 from the First Defendant to the Plaintiff served on the Plaintiff on 4 July 2023, the Plaintiff was informed that, with respect to Case No 84 of 2019, the Special Disciplinary Board had found him guilty in that “on 6 July August 2019” he was careless in discharging his duties by allow two juveniles out of their cells resulting in them escaping by climbing a perimeter fence and that the Special Disciplinary Board had recommended his dismissal. The First Defendant informed the Plaintiff that he had accepted that recommendation having “considered the reports relating to the offence, your reply and explanation to the charge and the evidences (sic) provided by the prosecution team”.
    
16. The complaint to which that particular charge related (Case No 84 of 2019) was incorrectly described in the letter. Further, the notification to the Plaintiff that the First Defendant had accepted the recommendation of the Special Disciplinary Board to dismiss him was made just short of two (2) years after the Special Disciplinary Board had on 22 July 2021 found the Plaintiff guilty as charged with respect to Case No 84 of 2019 and recommended dismissal.
    
17. The Plaintiff contends, and there is no evidence from the First or Second Defendants to the contrary, that he is yet to be informed of the outcome of the Second Defendant’s consideration of charge Case No 81 of 2019.
    
18. Aggrieved by the decision of the First Defendant to dismiss him from the service the Plaintiff commenced proceedings for judicial review.
    

LEGAL PRINCIPLES

19. Judicial review is a process that is available to hold public officials accountable for the correct use of their powers. It is not concerned with the decision itself, but with the integrity of the decision-making process (Hagoria v Ombudsman Commission of Papua New Guinea [2003] N2400).
    
20. If in making a decision the decision-making authority inter alia exceeds or abuses its powers, commits an error of law, breaches a principle of natural justice or reaches a decision which no reasonable authority could have reached (Wednesbury principles) then the decision may be set aside by the Court on judicial review (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122).
    
21. The Plaintiff seeks review of the decision and the appointment on three grounds as detailed in his Statement filed 2 November 2023 namely:
    
    1. Ultra vires
    2. Denial of natural justice
       
    100. Unreasonableness (Wednesbury).
         

THE ISSUES

22. The issues for consideration that arise on the grounds are:
    
    1. Whether the Special Disciplinary Board was properly constituted as required by s 42 of the Act and whether in making the appointment the First Defendant committed an error of law and/or acted beyond his powers to appoint.
       
    2. Whether in making the decision the First and/or Second Defendants failed to follow the disciplinary procedures in s 40 of the Act and as such committed an error of law and/or acted beyond their authority.
       
    100. Whether the Plaintiff was denied natural justice by reason of not being afforded the opportunity to be heard in the investigative and disciplinary process leading to the decision to dismiss.
         
    4. Whether the Defendants abused their power and acted unreasonably, the decision to dismiss harsh, unreasonable and disproportionate given the nature of the charge and in breach of s 41 of the Constitution.
       
23. My consideration of each of the above issues may touch on the other.
    

WAS THE DISCIPLINARY TRIBUNAL BOARD PROPERLY CONSTITUTED?

24. The Plaintiff contends that the Special Disciplinary Board appointed by the First Defendant to hear and determine the disciplinary charge against him was not properly constituted as the composition of the Board was not in accordance with s 42(2) of the Act which requires the Commissioner to appoint for each correctional institution a Disciplinary Board to hear a charge for a serious offence, such Board to be comprised of the Commanding Officer of that correctional institution, the Deputy Commanding Officer of that correctional institution and another senior correctional office or member of that correctional institution. In the event a member needs to disqualify himself then the Commissioner is required to appoint another member of the same or senior rank in lieu of the disqualifying member.
    
25. It is submitted on behalf of the Defendants that there was no error of law in appointing the Second Defendant to conduct the hearing as it was the Plaintiff who requested another disciplinary board to hear his matter because of a perceived conflict of interest. In consequence, the Acting Commander of the Bui-lebi Correctional Institution, the late Superintendent Samson Kisa, in a letter dated 12 April 2021 wrote to the Commanding Officer Bihute who is the Chairman of the Bihute Disciplinary Board (with others) and as named in written submissions, to hear the charges against the Plaintiff.^[1]
    
26. The Defendants rely upon a recent decision of the National Court (Tembil v Pokanis & Ors [2023] PGNC 403; N10555 (Tembil)) where it is submitted that the learned Judge concluded that it was proper, on the facts of the case before him, that a different Disciplinary Board be step up in another jail to deal with a disciplinary charge.
    

CONSIDERATION

27. The Plaintiff was charged with a serious offence under s 39(i) of the Act.
    
28. Pursuant to s 42(1) of the Act, a charge for a serious offence is required to be heard by the Disciplinary Board.
    
29. Section 42(2) which provides for the composition of the Disciplinary Board is in these terms:
    

42. Serious Offences.

(1) A charge for a serious offence shall be heard by the Disciplinary Board.

(2) The Commissioner shall appoint for each correctional institution a Disciplinary Board which shall be comprised of the Commanding Officer of that correctional institution, the Deputy Commanding Officer of that correctional institution and another senior correctional officer or member of that correctional institution.

(3) A member of a Disciplinary Board may disqualify himself or herself and

the Commissioner shall appoint another member of the same or senior rank to the disqualifying member.

(4) In hearing the offence, a Disciplinary Board shall–

(a) if not satisfied on the evidence, dismiss the matter; or

(b) if satisfied on the evidence, find the charge proven and apply one of the penalties prescribed under this Act.

(5) A Disciplinary Board shall not be bound by the rules of evidence in the conduct of a hearing under this section, but shall conduct the hearing in accordance with the rules of natural justice and the procedures prescribed

[Underlining mine]

30. It is clear from the use of the word “shall” in s 42(2), that it is a mandatory requirement that the Disciplinary Board comprise:
    
    1. a Commanding Officer of that Correctional Institution
    2. a Deputy Commanding Officer of that Correctional Institution, and
    100. another senior correctional officer or member of that Correctional Institution.
         
31. It is also clear from the wording of the sub-section, that can leave no room for doubt, that “each correctional institution” and “that correctional institution” refers to the correctional institution where the officer alleged to have committed a disciplinary offence is attached and the Disciplinary Board in that institution is required to hear the disciplinary charge against the officer so charged.
    
32. It is also clear from the wording of s 42(3) that if a member of the Disciplinary Board disqualifies themselves then the Commissioner has the power to appoint another member of the same or senior rank as the disqualifying member.
    
33. The Plaintiff was attached to the Bui-lebi Correction Institution. As such it was only the Disciplinary Board of that correctional institution that could hear his charge, not the Second Defendants as a Special Disciplinary Board convened and appointed by the First Defendant.
    
34. There is no provision in the Act or the relevant regulations that provides for the convening of a Special Disciplinary Board. None was advanced on behalf of the Defendants.
    
35. There is no reference to a Special Disciplinary Board in the interpretation section of the Act. The only reference in that section (s 2) is to a “Disciplinary Board” which is then defined to mean a Disciplinary Board appointed under Section 42 of the Act.
    
36. If it was intended that the First Defendant have the power to appoint a Special Disciplinary Board then it would have provided for in the Act together with its composition and procedures.
    
37. While the First Defendant in his Circular Instruction dated 18 May 2021 appointing the Special Disciplinary Board, purports to exercise his powers to do so by virtue of s 13 of the Act, that section (which details his duties and responsibilities) does not, on a plain reading, provide him with authority to do so. It reads:
    

13. DUTIES AND RESPONSIBILITIES OF THE COMMISSIONER.

(1) The Commissioner–

(a) is the head of the Correctional Service; and

(b) subject to this Act and to any directions of the Minister, has the responsibility–

(i) for the superintendence and efficient organization and management of the Service; and

(ii) for the proper performance by the Service of its functions; and

(iii) for the welfare and safe custody of all detainees; and

(iv) for ensuring that correctional institutions are inspected on a regular basis.

(2) The Commissioner shall report to the Minister, wherever the necessity arises–

(a) any alterations in the organization, staffing or management of the Service that are, in the opinion of the Commissioner, necessary or expedient for the more economical, efficient or convenient working of the Service or any division of it; and

(b) any alterations that are, in the opinion of the Commissioner, necessary in the salaries or allowances of members.

38. In making the appointment the First Defendant committed an error of law and/or acted ultra vires, namely outside his authority. The submissions advanced on behalf of the Defendants to the contrary were not persuasive.
    
39. Even if, as submitted on behalf of the Defendants, it was Plaintiff who requested that another Board hear the charges (denied by the Plaintiff), the First Defendant had no authority to accede to such a request or refer the hearing of the charge elsewhere. The provisions of s 42(2) are clear.
    
40. That the convening of a Special Disciplinary Board may be in breach of the Act was a circumstance to which the Commissioner of Correctional Services was made aware by the Acting Commanding Officer, Mr Kisa, in his communication of 12 April 2021 (Annexure A to the Affidavit of Mr Anton Baa filed 14 June 2024).
    
41. With respect to the decision of Tembril and in particular [12] of that decision to which the Court was referred by Counsel for the Defendants, it is unclear, respectfully, how the decision supports the Defendants’ case. The learned trial Judge quashed the decision before him, namely one made by the Second Defendant to appoint a Special Disciplinary Board on the basis inter alia that the First Defendant Commissioner of Corrections had no power to create it. In that regard, the reference in the Headnote of the decision to the effect that the Notice of Motion was dismissed appears to be incorrect. The orders sought in the Notice of Motion before His Honour as detailed at [1] of the Judgment were granted (see [16] and [17] of the Judgment).
42. I set out below what I view as the relevant parts of the Judgment:
    
    11. This is not the situation here of the plaintiff. He has formal charges that have been served recorded against his name. No doubt that versed of the Commissioner who is by section 13 of the CS Act in his superintendence of the Correctional Services well aware of the disciplinary matters against the Plaintiff Commander of the Jail Mukurumanda. In my view that is sufficient notice and upon which the Commissioner acted as he did to appoint a disciplinary board as he did here. It is not necessary for a formal disqualification before the constituted Disciplinary Board in Mukurumanda. It is sufficient in my view that plaintiff has been charged notice already to the Commissioner who has reacted as here. But accord with section 42 (2) of the CS Act in the appointment he made of the Special Disciplinary Board is not to the letter of that law. The consequence is that they do not draw life in law. And they do not have lawful basis to sit and hear the disciplinary matters against the plaintiff. Here there is no evidence of them sitting and hearing the matter. It means that decision of the Commissioner in their appointment is an error of law on the face of record. It will as a result be brought into Court and quashed. Effectively meaning that they do not have the legal capacity to hear the serious offences of the plaintiff. But that the Commissioner can task that upon a Board properly constituted within the terms of subsection 2 from the other Correctional Institutions to come and hear.
        
    12. Because it remains that the Composition is incomplete as the initial is the Commanding Officer of the Correctional Institution, in this case Mukurumanda. That is specific language and therefore it cannot be constituted without the commanding officer. The alternative reading of the language of subsection 1 is for a disciplinary Board from another Jail. Because it is composed comprised as subsection 2 instructs. So, it could be the disciplinary Board from Bomana, or Lakiemata, or Buimo or any other at the discretion of the Commissioner to elect and assign to hear the four serious offences against the plaintiff. This in my view will give effect to compliance of section 42 (2) (3) of the CS Act. And would be hand in hand with the powers of the Commissioner under Section 13 under the CS Act. The Disciplinary Board Mukurumanda cannot be constituted composed because the chairman is an accused in the matter. It is proper that a Disciplinary Board set up in another jail come to deal with the matter.
        
    13. There is no provision under the CS Act warranting giving the jurisdiction to set up the Special Disciplinary Board in this manner. In the case here there are four serious offence that shall be heard by the Disciplinary Board. It says shall be heard by the Disciplinary Board. And reading subsection 2 appoint for each correctional institution a Disciplinary Board would mean each individual Jail established throughout the Country would have its own disciplinary Board appointed. But it is the Disciplinary Board that Shall hear a charge of a serious offence. In this regard there are also other disciplinary Board that are established following the dictate of subsection 2.
        
    14. These appointments made by the Commissioner in the Special Disciplinary Board show that each of the members comprising it are not from Mukurumanda Corrective Institution. All cannot constitute the disciplinary board for Mukurumanda. Because not one of that is the Commanding Officer of Mukurumanda Corrective Institution. Or the Deputy Commanding officer or a member within. It means section 42 is not heeded by the Commissioner in the appointment of the Disciplinary Board to hear the charges of the Plaintiff. They do not have the power to hear the charges against the plaintiff. And any attempt to hear the charges of the plaintiff will not follow and sustain in law. They are not properly constituted comprised satisfying the requirements of section 42 in the composition of the Disciplinary Board for Mukurumanda. The Disciplinary Board as it is constituted must be disbanded and reconstituted comprising all from Mukurumanda not without to give effect to section 42 of the CS Act set out above. There has and must be a commanding officer of that Jail to make that Disciplinary Board complete. Otherwise, it can be dealt with heard in the manner set out above.
        
    15. There is therefore cause demonstrated discharging the balance in his favour by the plaintiff within Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 that error has been demonstrated to review that decision as pleaded set out above. To bring it before this Court to have that decision in the terms set out above quashed forthwith. It means that the Special Disciplinary Board does not exist in law. It will be reconstituted within the terms of Section 42 (2) derived from the other disciplinary Boards in the other Correctional Institutions, for example from Buimo, or Bomana, or Lakiemata, of Giligili as discretion by the Commissioner, but not on the terms he has commissioned here.
        
    16. The orders are granted in the terms of the Notice of motion set out above. It need not be repeated in view of the fact that certiorari lies because there is error in the process taken: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192.
        

[Underlining mine]

43. When the contents of [12] are considered in the context of the other paragraphs, as outlined, and the ultimate orders made by the learned Trial Judge quashing the decision of Board, it is clear that His Honour determined there to be an error of law by reason of the Special Disciplinary Board before him not being properly constituted and thus without authority to hear the relevant charge.
    
44. The discussion by the learned trial Judge at [12], respectfully, appears to do no more than find that if, as was the case before his Honour, the Plaintiff charged was the Commanding officer of the relevant institution, and thus unable to sit on a Disciplinary Board hearing a charge against himself, then he would disqualify himself, at which time it would be open to the Commissioner to appoint a Commanding Officer from another correctional institution to replace him as provided by s 42(3) of the Act. It would be a circumstance that would meet the intent of the Act, if not the dictates of common sense, given that a person of that rank was required to be a member of the convened Board and given that it would be unlikely that the one correctional institution would have two commanding officers.
    
45. In the present case, in failing to follow the statutory requirements to properly constitute the Disciplinary Board to hear the Plaintiff’s charges the First Defendant committed an error of law and/or acted ultra vires his authority.
    

WHETHER THE DISCIPLINARY PROCEDURES IN SECTION 40 OF THE ACT WERE FOLLOWED?

46. It is submitted on behalf of the Plaintiff that the statutory procedural requirements in s 40(2) of the Act were not met when the charges against the Plaintiff were found to be proved.
    
47. It is submitted on behalf of the Defendants that proper procedures were followed, that the Plaintiff knew that he would be charged with a disciplinary offence as he deserted Bui-lebi Correctional Institution and caused the delay himself when he failed to cooperate by assisting the discipline officers and the investigators to complete his hearing within a reasonable time. Those submissions, made in written submissions relied upon by the Defendants, are not supported on the evidence. They appear to confuse the facts of this case with another judicial review matter, listed the same day before this Court, heard following this matter where the parties in both matters were represented by the same Counsel. It was a confusion brought to the attention of Counsel for the Defendants by opposing Counsel for the Plaintiff.
    

CONSIDERATION

48. The Court accepts that the relevant statutory procedures were not followed.
    
49. The procedures for disciplining a correctional officer are detailed in s 40 of the Act.
    

40. Procedure for dealing with offences

1. A person who believes that an offence has been committed by a member may make a complaint to the Discipline Officer.
   
2. The Discipline Officer shall make an investigation of a complaint under Subsection (1).
   
3. An investigation under Subsection (2) shall include an opportunity for the member alleged to have committed the offence to give an explanation or reason for the alleged offence.
   
4. Following an investigation under Subsection (2), the Discipline Officer shall–
   

(a) dismiss the matter as trivial; or

(b) charge the member with a minor or serious offence.

5. A member charged with an offence under this Part shall be given at least 72 hours’ notice of the hearing of a minor offence and 7 days’ notice of the hearing of a serious offence unless the member and Commanding Officer or Disciplinary Board agree to a lesser period.
   
6. All procedures and proceedings shall, except where provision is made for a specific period of time, be conducted as expeditiously as possible.
   

[Underlining mine]

50. The further investigation and laying of the charges against the Plaintiff should not have occurred as the charges had already been heard and dismissed by an earlier, properly constituted, Disciplinary Board. There is no persuasive evidence of significant change or fresh evidence to warrant re-charging the Plaintiff.
    
51. Putting to one side the critical issue that the Special Disciplinary Board had no authority to conduct any hearing or make any recommendation with respect the charges for the reasons earlier outlined, the procedures followed in its investigation, hearing and determination were flawed involving a lack of procedural fairness and/or a denial of natural justice on the part of the First and/or Second Defendant. This is because:
    
    1. there was no proper investigation of the complaint undertaken by the Discipline Officer as required under s 40(2),
       
    2. the Plaintiff was afforded no opportunity to be heard during the investigation stage to enable the Discipline Officer to inform himself as to whether to dismiss the complaint as one that was trivial or charge the Plaintiff with a minor or serious offence, a crucial part of the investigation process and a serious procedural failure,
       
    100. the Plaintiff was afforded no opportunity to be heard during the hearing of the charges before the Board, thus denying him the opportunity to call witnesses to support his case, a serious breach of the principles of natural justice, the Plaintiff entitled to expect adherence to the provisions of s 31 of the Correctional Service Regulations 1995 with respect to the hearing of the charges,
         
    4. the period of time between the hearing before the Special Disciplinary Board and notification of the decision to dismiss arising from one of the charges was 22 months and 2 weeks, a period of time that could not, on any reasonable measure, be viewed as other than inordinate delay, unexplained on the evidence, a delay that failed to meet the statutory requirement under s 40(6) requiring all procedures and proceedings dealing with offences to be conducted as expeditiously as possible except where provision was made for a specific period of time (none in evidence). It was a period of time at odds with the First Defendant’s Circular Instruction dated 18 May 2021 appointing a Special Discipline Board “to ensure that outstanding serious cases ... (are) dealt with under the appropriate Disciplinary process expeditiously” (see also paras 3.51 and 3.52 of Standing Order 7 of the Act).
       
    5. the service on the Plaintiff of the Notice to Dismiss with respect to charge 84/2019, a decision made by the First Defendant on 12 June 2023, was not effected until 4 July 2023, a period of 22 days, that delay also unexplained and inordinate, the Plaintiff yet to receive a decision with respect to Charge No 81/19. some 3 years and 2 months after it was heard by the Second Defendant.
       

[Underlining mine for discussion purposes]

52. The basis upon which the Court makes these findings is as follows.
    
53. As earlier recounted, on 6 September 2019, allegations were made against the Plaintiff for carelessness in discharging his duties. He was charged under section 39(i) of the Act for incidents that took place on two different dates, namely:
    
    1. on 17 July 2019 at Bui-lebi Correctional Institution, the Plaintiff assisted two (2) detainees to escape the institution by opening the gate after the gates were locked, the charge registered as Case No. 81 of 2019, and
       
    2. on 6 August 2019 the Plaintiff at Bui-lebi Correctional Institution was careless in discharging his duties as two (2) juvenile detainees escaped by jumping over the fence and the escape was not noticed, the charge registered as Case No. 84 of 2019.
       
54. Both cases (No. 81 of 2019 & 84 of 2019) were heard on 16 September 2019 by the Disciplinary Board at Bui-lebi and the charges dismissed pursuant to section 42(4) of the Act by reason of lack of evidence.
    
55. Despite that dismissal a new investigation was undertaken by a second Discipline Officer, on a complaint laid against the Plaintiff on 12 April 2021 over the same incidents (17 July and 6 August 2019) with the complaints registered under the same case numbers (No. 81 of 2019 & 84 of 2019).
    
56. The investigation then took three (3) months to complete, not within the one (1) month required under Standing Order 7, paragraph 3.10 of the CS Local Orders which provides:
    

3.10 The Discipline Officer must complete his/her investigation of a complaint and submit a report on his/her findings within one month from the date the complaint is made.

57. There is no evidence that during the course of the second investigation the Plaintiff was afforded the opportunity to be heard. The only evidence filed in the Defendants’ case was an affidavit by Mr Anton Baa on 16 June 2024. His deposition, albeit one largely based on hearsay and assertion, went to the issue of the Plaintiff’s purported request to have a Special Discipline Board hear the charges.
    
58. Relevantly, there was no affidavit by the investigating officer, Inspector Jaro, the person best placed to give evidence of his investigation to assist the Court on matters in issues in these proceedings.
    
59. Absent that direct evidence, and given that the Defendants were on notice as to the Plaintiff’s complaints as early as 21 August 2023 (see Annexures to the Affidavit of Ms Worinu filed 14 March 2024; see also [36] of the Plaintiff’s Statement filed 2 November 2023 and Extract of Argument on the leave application filed 15 March 2024), the Court is entitled to infer that what evidence Inspector Jaro could give on the matter, including the opportunity afforded to the Plaintiff to be heard. was unlikely to assist the Defendants’ case.
    
60. How the investigation was conducted and whether it was one conducted in accordance with the Act. and what information Mr Jaro had available to him is relevant. On the unchallenged evidence of the Plaintiff, all the relevant notices, namely the Notice of Disciplinary Investigation dated 12 July 2021, Notice of Serious Charge dated 15 July 2021 and Notice of Hearing of the Disciplinary Charge dated 15 July 2021, were served on him on the same day in July 2021. The Plaintiff was charged on 15 July 2021, only two (2) days after the Notice to Investigate was issued. Further, on the Plaintiff’s evidence the investigation was undertaken in Port Moresby notwithstanding the incidents occurring in Mendi where on his evidence there were likely witnesses. No evidence was adduced by the Defendants in this regard notwithstanding the Defendants being on notice since the filing of the Plaintiff’s affidavit on 2 November 2023.
    
61. Both charges (Cases 18 and 84 of 2019) then went before the Special Disciplinary Board on 22 July 2021. There is no evidence that the Plaintiff was afforded the opportunity to be heard at that hearing, a constitutional requirement (s59(2)) or that the Special Disciplinary Board adhered to the procedural requirements of s 31 of the Correctional Services Regulations 1995 which relevantly provide:
    

HEARING OF DISCIPLINARY OFFENCES.

(1) The Commanding Officer or Disciplinary Board hearing a charge of a disciplinary offence against a member shall conduct the hearing in the following manner: –

(a) ensure that the member is informed of the procedure for the hearing;

(b) have the charge read, including–

(i) the name of the informant; and

(ii) the details of the place of the alleged disciplinary offence; and

(iii) the details of the provision of the Act, Regulation or Standing Orders allegedly contravened;

(c) ensure that the member is given an opportunity to state a plea;

(d) where the member does not plead guilty, then–

(i) the informant shall present the evidence in support of the charge and call relevant witnesses; and

(ii) following the presentation of the evidence of the charge, the member shall be given a reasonable opportunity to present his case and call relevant witnesses; and

(iii) the informant and the member shall be given an opportunity to cross-examine, including cross-examination of witnesses; and

(iv) the Commanding Officer or Disciplinary Board shall either dismiss the charge because there is insufficient evidence to support the charge or determine that the member is guilty of the offence; and

(v) where the Commanding Officer or Disciplinary Board determines that the charge is proven, impose a penalty under the Act;

(e) where the member pleads guilty then–

(i) the informant shall present the evidence in support of the charge and call relevant witnesses; and

(ii) give the member an opportunity to give an explanation; and

(iii) impose a penalty pursuant to Section 43 or 44 of the Act;

(f) the Commanding Officer or Disciplinary Board shall–

(i) inform the member of the decision; and

(ii) record the finding in the Disciplinary Hearings Register.

(2) A hearing by the Commanding Officer or Disciplinary Board under this Regulation shall be conducted with as little formality and technicality and as expeditiously as the requirements of the Act and this Regulation and a proper consideration of the matters before the hearing and natural justice permit.

(3) The Commanding Officer or Disciplinary Board conducting the hearing is not bound by the rules of evidence but may be informed on any matter in such manner as they think appropriate.

62. I have earlier addressed the delay between the date of the hearing and the date of notification to the Plaintiff of his dismissal.
    
63. In failing to follow the disciplinary procedures in s 40 of the Act the First Defendant and/or the Second Defendant committed an error of law and/or acted ultra vires its authority and/or breached the Plaintiff’s right to fair procedure and natural justice.
    

WHETHER THE PLAINTIFF WAS DENIED NATURAL JUSTICE IN NOT BEING AFFORDED THE OPPORTUNITY TO BE HEARD OR BY REASON OF A FAILURE TO CARRY OUT AN INVESTIGATION

64. The Plaintiff relies upon submissions earlier made as far as they touch on the Plaintiff’s opportunity to be heard. It is submitted on behalf of the Plaintiff that his right to natural justice was breached including his right to a fair and impartial hearing because:
    
    1. the Plaintiff was not given the opportunity to give an explanation or reason for the alleged offence during the investigation, where the investigation report formed the basis of the charge and subsequent dismissal;
       
    2. no investigation was carried out by the Special Discipline Officer, who was based in CS Head-Quarters, Port Moresby and not in Bui-lebi Correctional Institution, before charging the Plaintiff;
       
    100. during the disciplinary hearing, there was no witness on the part of the institution to support the allegations against Plaintiff;
         
    4. no opportunity was given to the Plaintiff to call his own witnesses during the disciplinary hearing.
       
    5. the decision by the First Defendant to dismiss the Plaintiff involved inordinate delay and there was no reasonable explanation for the delay in making that decision, the Plaintiff’s right to have the charge heard within reasonable time breached.
       
65. The oral and written submissions relied on by the Defendants did not address this ground in any meaningful way.
    

CONSIDERATION

66. The Court accepts the submissions on behalf of the Plaintiff and finds that the First and/ or the Second Defendant breached the principles of natural justice.
    
67. The Court repeats and relies upon its earlier findings relevant to this ground.
    
68. Section 59 of the Constitution states:
    

PRINCIPLES OF NATURAL JUSTICE

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

[Underlining added]

69. The Plaintiff was entitled to a fair hearing during the investigative process and, once charged, a fair hearing before a Disciplinary Board lawfully convened.
    
70. Having been charged with a serious discplinary offence the principles of natural justice also demanded that the charges be determined within a reasonable time and the result communicated to the Plaintiff immediately during his term of employment (Lawrence Sausau v. Jospeh Kumgul (2006) N3253; Nawe v Mondia [2016] PGNC; N6269 citing at [17] Sausau v Kumgal (2006) N3253, Henry Wavik v Martin Balthasar (2013) N5272).
    
71. In this case, the minimum requirements of natural justice were not met. They were compounded by a failure to observe the procedures relevant to natural justice as prescribed by s 40 of the Act and s 31 of the Correctional Service Regulations.
    
72. The Plaintiff’s right to fair treatment in accordance with the principles of natural justice was further infringed by the First Defendant’s failure to ensure that before any penalty was metered out the First Defendant had observed the provisions of s 44 of the Act. That failure was not only a breach of the principles of natural justice but amounted to an error of law. It was a circumstance also relevant to a consideration of the ground of review based on unreasonableness, later discussed.
    
73. The ground of review based on a breach of the principles of natural justice is upheld.
    

WHETHER THE DEFENDANTS ABUSED THEIR POWER AND ACTED UNREASONABLY IN DISMISSING THE PLAINTIFF IN CIRCUMSTANCES WHERE THE DECISION WAS HARSH, UNREASONABLE AND DISPROPORTIONATE

74. It is contended on behalf of the Plaintiff that the Defendants acted unreasonably in the Wednesbury sense in dismissing the Plaintiff. It is submitted that by virtue of s 44(3) of the Act the First Defendant was vested with powers to accept or vary the recommendation of the Disciplinary Board and that there was no evidence that before imposing the punishment of dismissal the First Defendant considered any of the material required by s 44(4). It is further submitted that the circumstances did not warrant the penalty of dismissal, a penalty that was disproportionate, harsh and unreasonable in the circumstances.
    
75. It is submitted on behalf of the Defendants that the decision was not harsh or oppressive, the First Defendant’s decision based on a recommendation of the Board and within the law following a hearing as provided in s 44 of the Act.
    

CONSIDERATION

76. The assessment the Court undertakes when considering this ground of review is whether the decision reached is so unreasonable, absurd or irrational that no reasonable decision-maker could have arrived at the decision (Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223; Council of Civil Unions v Minister of Civil Service [1985] AC 374 ).
    
77. While the test is a high one, applying to only a limited class of cases (Kamuta v Sode [2006] N3067), the Court finds that the process leading to the decision was so flawed, involving a litany of error, a process that presented with all the hallmarks of a rubber stamp, that no decision-maker, properly informed and acting, could have reasonably or rationally made it. No proper consideration appears to have been given to the Board’s legality. No proper consideration appears to have been given to the earlier dismissal of the charges. There was no evidence of any careful analysis of the evidence to support the charges, nor any input from the Plaintiff, a near four-decade veteran of the service, whose livelihood and reputation demanded fair treatment at a minimum. These were relevant factors that a reasonable decision-maker, properly advised, should have been alert to and considered.
    
78. It was a level of unreasonableness that was underscored by the First Defendant having been warned by Mr Kisa in his letter dated 12 April 2021 that the establishment of the Special Disciplinary Board was a possible breach of the Act. There is no evidence that that warning was a “flag” that suggested a cautious approach on the part of the First Defendant with respect to how he should proceed. Prudence suggested an assessment of the legality of his approach before proceeding.
    
79. The First Defendant then failed to comply with the provisions of s 44 of the Act which provide:
    

44. PENALTIES FOR SERIOUS OFFENCES.

(1) One of the following penalties may be imposed under this section

in respect of a serious offence: –

(a) a fine not exceeding K200.00;

(b) a recommendation to the Commissioner that the member

be reduced to a rank having a lower classification, and to a salary within that classification;

(c) a penalty referred to in Section 43(a) or (b);

(d) a recommendation to the Commissioner that the member

be dismissed from the Service.

(2) Apart from any penalty imposed under Subsection (1), a member

may also be required to make restitution for loss or damage by way of payment of compensation to an injured party including, where applicable, the State.

(3) Where the Disciplinary Board makes a recommendation to the

Commissioner under Subsection (1)(b) or (d), the Commissioner may accept or vary that recommendation.

(4) Before imposing the punishment recommended by the

Disciplinary Board or varied by the Commissioner, the Commissioner shall consider–

(a) the reports relating to the offence and the charge; and

(b) the reply and explanation of the member charged; and

(c) the evidence given before the Disciplinary Board.

[Underlining mine]

80. Vested with the powers to accept or vary the recommendation of the Disciplinary Board (s. 44(3)), the First Defendant had a discretion under s 44 of the Act to impose one of a number of penalties as detailed in s 44(1), including fine, demotion in rank or dismissal. He was not legally bound to accept the recommendation of the Disciplinary Board. The terms of s 44(3) are clear. He may “accept or vary that recommendation”. In exercising that discretion however, the First Defendant was obliged by s 44(4) to consider certain material. There is no persuasive evidence to conclude that before imposing or varying the punishment recommended by the Special Disciplinary Board the First Defendant did so. In the Notice of dismissal dated 16 June 2023 the Commissioner asserts that he had considered the matters in s 44(4). Assertion is not evidence. The material relied upon was not in evidence, in circumstances where the Plaintiff denied any investigation had been undertaken and that he had been given the opportunity to give an explanation or reasons for the offence either at the investigative stage or before the Board. The reasons given by the First Defendant for accepting the recommendation to dismiss were deficient, the Plaintiff, a long-term employee, known to the First Defendant, professionally and personally (“...my squad mate and my brother”).^[2] In the circumstances the Plaintiff was entitled to know with some specificity what material was taken into account by the First Defendant in accepting a recommendation to dismiss him after over 36 years of service.
    
81. The ground of unreasonableness (Wednesbury) is upheld.
    
82. With respect to the argument of proportionality of the decision, in Adventure Kokoda PNG Limited v Kilepa [2023] PGNC 488; N10630 I noted the controversy on the authorities as to whether proportionality could be viewed as an independent ground of judicial review and whether s 41 affects private rights and not public rights and interests. It was a controversy in respect of which I was not prepared to engage at that time. It is one that does not require a determination in the present matter given that I have otherwise upheld the Plaintiff’s grounds of review.
    
83. Further, it is one where the Court would benefit from more fulsome submissions on the topic including the recent decision of the National Court in Eremuge v Apa [2023] PGNC 421;N10572 (10 November 2023). In that case the learned Judge observed that he was aware that the ground of proportionality as a separate ground for judicial review was still evolving and not universally accepted in this jurisdiction, as the cases of Air Niugini Ltd v. Doiwa (2000) PNGLR 347 and Marat v. Hanjung Power Limited (2014) SC 1357 illustrate. He noted however that given the general trend in other Commonwealth jurisdictions, such as United Kingdom and Australia to accept “proportionality” as a separate ground for judicial review, in his view the time had come to follow suit in Papua New Guinea. He was fortified in that view by the provisions of s 41(1)(b) of the Constitution that provides that an act is unlawful if it is disproportionate to the circumstances of a particular case.
    

CONCLUSION

84. Having upheld the grounds of review as detailed, I turn to what remedies should be granted.
    
85. In Asiki v Zurenuoc, Provincial Administrator (2005) PGSC 27;SC797 the Supreme Court (Jalina J, Cannings J, Manuhu J) said:
    

It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Muggier (No 2) [1990] PNGLR 479, National Court:

... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.....

.....

The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified.

86. In this case the First Defendant’s decision to dismiss the Plaintiff and to appoint the Second Defendant as members of the Special Disciplinary Board to hear the charges against the Plaintiff has been found to have been infected by error, in breach of the principles of natural justice and unreasonable in the Wednesbury sense. The decision and appointment were wrong in law. They were significant errors. They cannot stand and should be quashed. Order 3 as sought in the Plaintiff’s Notice of Motion is made out.
    
87. It follows then that the declarations sought at 1, 2 and 4 of the Notice of Motion should also be made given the findings of this Court.
    
88. With respect to Order 5 which concerns the Plaintiff’s reinstatement as Corporal at Bui-lebi and back-pay, in my discretion I am satisfied that the order to reinstate and be compensated for the loss of salary should be made. In this case the disciplinary proceedings miscarried from the start. The Plaintiff had already been dealt with and the charges dismissed. The charges were then resurrected in circumstances where there were flagrant breaches of due process and errors by the First and/or Second Defendants in reaching a decision, and where the First Defendant was on notice by the Acting Commander that the Special Disciplinary Board to be convened may be illegal.
    
89. The Court acknowledges that it is over 12 months since his dismissal, however that is no fault of the Plaintiff. His lawyers wrote to the First Defendant by letter dated 21 August 2023, outlining in detail various errors of law and due process failures with the discplinary process and requesting that he reconsider the matter and reinstate the Plaintiff. In his reply letter dated 28 August 2023, the First Defendant refused to reinstate the Plaintiff suggesting that the Plaintiff exercise his constitutional right to seek redress before the National Court. The Plaintiff has done so, successfully. The Plaintiff’s dismissal was unlawful. He should be fully reinstated with full benefits and any loss of entitlements.
    
90. Costs should be awarded to the Plaintiff on a solicitor and client basis as sought by the Plaintiff. No submissions were advanced on behalf of the Defendants to the contrary.
    

ORDERS

91. I make the following orders:
    
    1. A declaration that the decision of the First Defendant in a letter dated 16 June 2023 in dismissing the Plaintiff in the correctional service is null and void.
       
    2. A declaration that the appointment by the First Defendant of the Second Defendants (Chief Inpsector Donald Apeti, Commanding Officer Bihute Correctional Institution, Goroka, Easten Highlands Province, Inspector Titus Watipa, Commanding Officer, Ningerum Correctional Institution, Kiunga, Western Province and Inspector Leo Puri, Officer, Bundaira Correctional Institution, Kainantu Eastern Highlands Province) to sit as the “Special” Disciplinary Board on the case against the Plaintiff of Bui-lebi Correctional Institution Mendi, Southern Highlands Province is void.
       
    100. An order in the nature of certiorari that:
         
         1. the decision of the First Defendant in a letter dated 16 June 2023 in dismissing the Plaintiff from correctional service be quashed, and
            
         2. that the appointment of the Second Defendants as the Special Disciplinary Board by the First Defendant be quashed.
            
    4. A declaration that the decision or recommendation of the Second Defendants (Special Disciplinary Board) appointed by the First Defendant on the Plaintiff’s case is null and void ab initio.
       
    5. An order that the Plaintiff be reinstated to his position as Corporal of Bui-lebi Correctional Institution in Mendi, Southern Highlands Province with full benefits and any loss of entitlement from the date of dismissal be returned to him.
       
    6. The First and Second Defendants pay the Plaintiff’s costs of the proceeding on a solicitor/client basis to be agreed or taxed.
       
    7. Time be abridge.

________________________________________________________________
Kopunye Lawyers: Lawyers for the Plaintiff
PNG Correctional Service: Lawyers for the Defendants

^[1] The letter referred to is not in evidence, the only communication from Mr Kisa in evidence being a letter of that date to the First Defendant which makes no reference to the gentlemen named in submissions.

^[2] Annexure B to the Affidavit of Melisha Worinu filed 14 March 2024