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Pius v Ilau [2011] PGSC 25; SC1115 (25 May 2011)

SC1115

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCM 3 OF 2010

BETWEEN:

RAPHAEL PIUS
Appellant

AND:

COMMODORE PETER ILAU – COMMANDER,
PAPUA NEW GUINEA DEFENCE FORCE
First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia CJ, Gavara Nanu and Hartshorn JJ.
2010: 28th October,
2011: 25th May

SUPREME COURT - Appeal – Defence Act and Regulations – Discharge – whether Code of Military Discipline mandatory where breach of service discipline alleged

Facts:
The appellant, then a Lance Corporal in the Defence Force, applied for retrenchment. His unit commander and the Major in charge of the retrenchment office supported his application and it was sent to the Defence Council for approval. The appellant went to Kimbe to live as a civilian and waited for the approval. In 2005 he returned to Port Moresby and learned that earlier in 2005 he had been discharged from the Defence Force on the ground that his retention was not in its best interests. The appellant was subsequently informed that he had not been approved for retrenchment and had been discharged on the ground that he had been absent without leave. The appellant applied for judicial review of the defendants' decision which was refused. This is an appeal against the National Court's refusal of the application to judicially review the decision to discharge the appellant from the Papua New Guinea Defence Force (Defence Force).

Held:

1. The Defence Act does not stipulate that the only way a member can be dismissed or discharged on the ground that he was absent without leave or committed some other breach of service discipline is by following the procedure in the Code of Military Discipline (Code). The Defence Act does not expressly state that or impliedly require it.
   
2. It was open to the appropriate authority to take into account the appellant being absent without leave in determining that his retention was not in the interests of the Defence Force.
   
3. The Code and regulations provide for alternative, as opposed to complementary processes.
   
4. The trial Judge did not make an error in determining that it was not mandatory to charge the appellant with a breach of service discipline under the Code before discharging him.
   
5. The appeal is dismissed.
   

Cases cited:

Nuia v. Sabumei [1992] PNGLR 90

Counsel:

Mr. R. Uware, for the Appellant
Mr. F. Cherake, for the Respondents

25th May, 2011

1. BY THE COURT: This is an appeal against a National Court refusal of an application to judicially review a decision to discharge the appellant from the Defence Force.

Background

2. In February 2003 the appellant, then a Lance Corporal in the Defence Force, applied for retrenchment. His unit commander and the Major in charge of the retrenchment office supported his application and it was sent to the Defence Council for approval. The appellant went to Kimbe to live as a civilian and waited for the approval. In 2005 he returned to Port Moresby and learned that earlier in 2005 he had been discharged from the Defence Force on the ground that his retention was not in its best interests. The appellant was subsequently informed that he had not been approved for retrenchment and had been discharged on the ground that he had been absent without leave.

Appeal

3. The appellant listed five grounds of appeal in his notice of motion of appeal. When the appeal was heard before us, counsel for the appellant made submissions to the effect that a member of the Defence Force who is alleged to have committed a breach of service discipline, such as being absent without leave, must be dealt with under the Code (which is in the schedule to the Defence Act), thereby giving the member recourse to the procedures under the Code.

4. These submissions essentially encompass the first three grounds of appeal and we consider them first.

Whether Code of Military Discipline is mandatory

5. Counsel for the appellant submits that a member of the Defence Force who is alleged to have committed a breach of service discipline must be dealt with under the Code. This submission is made on behalf of the appellant as the reason given for it being decided that his retention was not in the best interests of the Defence Force and that he be discharged from the Defence Force, is that he had gone absent without leave. Being absent without leave is a breach of service discipline; C4 (2) (j) Code.

6. Counsel for the appellant submits amongst others, that:

1. as C3 (1) and (3) Code provide that a member and a former member of the Defence Force are subject to the Code, this requires such a member who is alleged to have committed a breach of service discipline, to be dealt with under the Code;
   

b) the Defence (Period of Service) Regulation 1977, the Code and the Manual of Personnel Administration should be construed as being complementary and not alternatives to each other;

c) the trial Judge erred in finding that it is not mandatory for the Code to be followed in respect of a breach of service discipline;

d) the trial Judge's reliance upon the case of Nuia v. Sabumei [1992] PNGLR 90 was incorrect, as that case did not involve behaviour that could constitute a breach of service discipline under the Code.

7. The starting point in considering these submissions is s. 33 Defence Act which is:

"33. Termination of Service.

A member of the Defence Force may be discharged from the Defence Force by such authority and on such grounds (if any) as are prescribed."

Section 1 Defence Act defines "prescribed" as prescribed in the Defence Act, the regulations or the Defence Council Orders, and "this Act" includes the Code, the regulations and the Defence Council Orders.

8. We respectfully agree with the trial Judge's observation that the Defence Act does not stipulate that the only way a member can be dismissed or discharged on the ground that he was absent without leave or committed some other breach of service discipline is by following the procedure in the Code. The Defence Act does not expressly state that or impliedly require it.

9. Further, we note from a perusal of the Defence Act, the Code and regulations that there is no fetter on what is to be considered by the appropriate authority for it to be satisfied that the retention of a member of the Defence Force is not in the best interests of the Defence Force; the ground relied upon for the appellants discharge. Consequently, it was open to the appropriate authority to take into account the appellant being absent without leave in determining that his retention was not in the interests of the Defence Force.

10. As to the submission that the Code and regulations are complementary and not alternative, in the Defence (Period of Service) Regulation 1977, s. 12 provides for cases where a member has been dismissed under the Code. This is in addition to s. 11 which provides for the discharge of a member in other circumstances. This is indicative of the Code and regulations providing for alternative, as opposed to complementary processes that are able to be followed.

11. For the above reasons, we are not satisfied that the trial Judge erred in determining that it was not mandatory to charge the appellant with a breach of service discipline under the Code before discharging him.

Further grounds of appeal

12. Counsel for the appellant did not address the court on the remaining grounds but we note that there are references to these grounds in the extract of argument handed to us. These grounds in essence are that the trial Judge erred in finding that the appellant did not deserve to be accorded procedural fairness as he was absent without leave, and in finding that he was absent without leave.

13. The references in the extract to the remaining grounds are not much more than that. Notwithstanding this and the fact that it cannot be said that these grounds were pursued on behalf of the appellant with any vigour, we have considered the evidence put before the trial Judge and his reasoning and are satisfied that His Honour did not make any error as submitted.

Orders

14. The orders of the Court are:

a) the appeal is dismissed,

b) the respondents' costs of the appeal are to be paid by the appellant.

____________________________________________________
Office of the Public Solicitor: Lawyers for the Appellant
Office of the Solicitor-General: Lawyers for the Respondents