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Kennedy v Koim [2024] PGSC 94; SC2622 (3 September 2024)

SC2622

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 9 OF 2023

BETWEEN:
JACOBUS KENNEDY
Appellant

AND
SAM KOIM, OBE, AS THE COMMISSIONER GENERAL OF INTERNAL REVENUE COMMISSION
First respondent

INTERNAL REVENUE COMMISSION
Second respondent

Waigani: Makail J, Miviri J & Wood J
2024: 28^th August & 3^rd September

SUPREME COURT – whether the Notice of Charges and Notice of Punishment contained errors that were significant enough to render them defective – whether the appellant was charged with the correct provision under the Commission Administration Order - whether the Notice of Charges provided sufficient detail to enable the appellant to understand the nature of the allegations against him – whether the respondents admitted there were defects in the Notice of Charges and Notice of Punishment, and if so, whether those defects amounted to an error of law – whether the trial Judge considered issues that were unrelated to the main issues in dispute – whether the trial Judge should have confined himself only to those matters agreed between the parties in the Statement of Relevant Facts & Legal Issues for Resolution

Held:
1. While the Notice of Charges could have been drafted with more precision, there was nothing in the Notice of Charges that rendered it defective

2. The Notice of Charges enabled the appellant to sufficiently understand the allegations against him
3. The Notice of Punishment was stated in clear terms and was not ambiguous.
4. The Statement of Relevant Facts & Legal Issues for Resolution did not confine the trial Judge to consider a limited range of factual or legal issues, and in any event, the Statement of Relevant Facts & Legal Issues for Resolution in this matter did not address all relevant issues relating to the case, including those matters pleaded in the Order 16 Statement.
5. The appeal is dismissed, and the appellant shall pay the respondents’ costs of and incidental of the appeal on a party and party basis, to be taxed if not agreed

Cases Cited:
Kae v Mondo [2020] N8681

Counsel
Mr S Phannaphen, for the Appellant
Mr W Paka, for the Respondents

3^rd September 2024

1. BY THE COURT: BACKGROUND: On 28 August 2024 we heard the appellant’s Notice of Motion filed on 9 May 2023, which is an appeal against the judgment delivered on 30 March 2023 by Acting Justice Sambua in National Court proceeding OS (JR) No. 125 of 2022 (the National Court proceeding).
   
2. The background to this matter was that the appellant commenced employment with the Internal Revenue Commission (the IRC) on 10 October 2014. In 2016 he was appointed a Team Leader in the Debt Recovery section of the IRC. By a ‘Notice of Charges under CAO 5-15 dated 16 November 2022’ (the Notice of Charges), the appellant was informed that he was charged with committing offences within the meaning of Commission Administrative Order 5-15, made pursuant to paragraph 26 (h) and (i) of the Commission Administrative Order (the CAO).
   
3. Following an investigation by the IRC, including a written reply given by the appellant, the appellant was served with a ‘Notice of Punishment under CAO 5-15’ (the Notice of Punishment) dated 6 December 2022 in which he was informed that he was dismissed from the employment of the IRC effective of the date of the notice.
   
4. Following the receipt of the Notice of Punishment, the appellant filed the National Court proceeding, which subsequently resulted in a trial on the matters and resulted in a written decision being delivered by the trial Judge on
   30 March 2023, whereby the trial Judge dismissed the judicial review proceeding and made no orders as to costs.
   

Notice of Charges, IRC Code of Ethics and Conduct & Discipline document

5. The Notice of Charges is found at pages 36 and 37 of the Appeal Book. Because the appellant in his appeal takes issue with the Notice of Charges and says it was difficult for him to understand the nature of the charges and because he says that they contains errors and defects, we consider it more appropriate to refer to the ‘Statement of Relevant Facts & Legal Issues for Resolution’, which was filed on 9 February 2023 (the Statement) in the National Court proceeding, and which Statement was signed by the lawyers for their respective clients.
   
6. In this regard, in paragraphs 2 and 3 of the Statement it is stated as follows:
   
   

‘2. On 16 November 2022, the plaintiff was charged with two counts of disciplinary offences, based on an allegation that on 3 September 2020, he bribed one Ruth Banag with K450 in exchange to process an interim Certificate for a taxpayer, Security Assistance Services Ltd.
3. On 23 November 2022, the plaintiff responded to the Charges. The gist of the plaintiff’s response was, he did gave the said Ruth Banang, a sum of K800 and not K450 as claimed. And that money given to Ruth Bang was in a form of medical assistance, since she was diagnosed with Covid-19 then and not for illegal purpose as claimed.’

7. A further ground of the appeal is that the appellant submits the Notice of Charges are defective because he was never charged under paragraph 26(q) of the CAO, however, he says the Notice of Charges makes reference to paragraph 26(q) of the CAO on the second page. For this reason, it is necessary to refer to the ‘IRC Code of Ethics and Conduct’, which is located at pages 46 to 56 of the Appeal Book as well as the IRC document entitled ‘Discipline’, which is located at pages 58 to 85 of the Appeal Books. Both documents are stated to form part of the CAO.
   

8. In the ‘Discipline’ document, it states at paragraph 26 under the heading ‘Disciplinary Offences’ as follows:

‘26. A staff member commits a disciplinary offence (of a minor or serious nature), if he or she:

a) commits any act of fraud; or

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

h) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his or her official duties (other than their official remuneration); or

i) is guilty of disgraceful or improper conduct in his or her official capacity or otherwise; or

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

q) commits a breach of the Act (including the Commission Administrative Orders and the IRC Code of Ethics and Conduct.’

9. Prior to the Notice of Charges being served on the appellant, two Records of Interview were conducted with him by members of the IRC’s Internal Investigations Division, which are located at pages 112 to 120 and 121 to 140 respectively of the Appeal Book.

10. Following the service of the Notice of Charges on the appellant, he wrote a ‘Reply’ dated 23 November 2022, which is located at pages 138 to 140 of the Appeal Book. For the purpose of our judgement, we consider it necessary to note some of the responses in the Reply, namely:

1. the appellant noted he was ‘... charged with committing offences within the meaning of Commission Administrative Order 5-15, made pursuant to Paragraphs 26(h) & (i)’;
   
2. ‘The money claimed to be given to Mrs Ruth Banang as bribery to lure her printing of CoC was not received from the Taxpayer as claimed. There is no evidence to prove this to be correct. It was my private money. The question begging answered is “where I got the Money? During the time of the incident, I had K25,000 in my bank account after obtaining a loan from TISA. Funds were disbursed to my account on the 2^nd of September 2019 which was the day before giving money to Ruth’;
   

100. ‘And the amount in question of k800 given to Ruth was solely from my pocket and not from anyone else’;
     

4. ‘The intention of giving money to Ruth was to assist her when she was infected with COVID’;
   
5. ‘So I gave a total amount of K800 in cash with good fate and intention knowing that she would definitely need ti to use while in isolation. She thanked me with her heart after receiving money from her hand and put it into her hand bag. Therefore, I find it very discomforting to know that she (Ruth) had misunderstood my gesture of good will and turned it against me. If she did not want the money than why did she take my money? All she could have done was given back my money’;
   
6. ‘I distinctively made known of the above total amount given, in an interview and not K450 as reported by Ruth. Money was not given as bribery to fast fascinate (sic) printing of CoC as alleged. It was rather given again for a nobler cause as it is our Melanesian Culture to relieve financial needs that she may incur while in isolation’;
   
7. ‘I don’t own that company, Security Assistance Services Ltd, nor I do have any relation with the owner of that company. I am not even employed by them but I am employee of IRC, colleague of Mrs Ruth Banang’;
   
8. ‘What is the benefit of giving money to Mrs Ruth Babnang to facilitate printing of COC? There is none. There is no evidence provided to prove the claim to be true and correct. Therefore it is merely a false allegation’:
   
9. ‘The money given to her is not bribery but it was medical assistance. There is no CAO in place at IRC that prevents employees from giving and sharing money and food with colleagues’;
   
10. ‘After the allegation against me, I established from the system that COC for the said Taxpayer was printed by Naomi Pissai and not Ruth Banang’;
    
11. ‘Since Ruth felt that the money given to her was bribery, why would she decide to declare K450 than to declare full amount? What did she do with the balance of k350 (sic)? Her conduct in nature is trickery and is questionable. The real motive behind her reporting need to be established.’
    

11. We also note in paragraph 17 of the appellants ‘Statement Pursuant to Order 16 Rule 3(2)(a) of the National Court Rules 1983’ (the Order 16 Statement), which was filed in the National Court proceeding on 19 December 2022, it is stated that as follows:

‘Clearly the allegation was that the plaintiff who was a staff got bribery from a taxpayer and bribed a fellow colleague staff. That means, the plaintiff was accused of soliciting and accepting bribery, which is a serious disciplinary and criminal offence under Paragraph 26(h) of the CAO 5-15 and Paragraph 11(b) of the CAO 1-07.’

12. From our analysis of the Notice of Charges, including the above extracts from the Reply and the Order 16 Statement, we consider the appellant clearly understood the nature of the allegations against him. This is reinforced by paragraphs 2 and 3 of the Statement, which we have extracted in paragraph 6 above.

13. While we note the second page of the Notice of Charges refers to paragraph 26(q) of the CAO, we do not consider this constitutes any significant issue which renders the Notice of Charges defective or incapable of being misunderstood. The reason is because we consider that the reference to paragraphs 26(h) and (i) of the CAO to relate to specific alleged disciplinary offences by the appellant, whereas paragraph 26(q) is a more general provision or a ‘catch-all provision’. This is because paragraph 2 of the IRC Code of Ethics and Conduct states, in part, as follows:

‘Officers must perform their duties legally, impartially, effectively and responsibly and must display personal integrity, honesty and truthfulness that cannot be regulated by legislation. All Officers must have a commitment and conviction to behave ethically within the guidelines set out in this Code.’

14. Accordingly, we consider it appropriate that paragraph 26(q) of the CAO was cited. The allegation was effectively that the appellant had committed an act of bribery and in doing so had acted in a disgraceful or improper manner. Based on the terms of the allegation, we also consider it appropriate that if that charges were indeed made out, it would follow that a person’s conduct in the circumstances could indeed to be categorised as issues reflecting on their integrity, honesty and ethical conduct.

Claim by the appellant that paragraph 26(i) of the CAO was the wrong charge

15. The appellant submitted that paragraph 26(i) of the CAO was the wrong charge because the reference to ‘guilty’ should be interpreted to mean that the appellant had already been found guilty by a Court, and if so, only then would it be appropriate for an allegation to be made under paragraph 26(i) of the CAO. We do not agree. Firstly, the charges against the appellant were clearly administrative or disciplinary charges and we consider it unnecessary that any finding of guilt be first made by a Court. Neither do we consider that the word “guilty” infers that the Commissioner as the decision-maker has pre-determined the guilt of the appellant or any officer for that matter.

16. Secondly, the appellant’s lawyer did not refer us to any legal or dictionary definitions of the word ‘guilty’ and we consider the reference to that word does not necessarily mean that a person must have first been found guilty of a Court of an offence. For example, and in the absence of any express reference to paragraph 26(i) to a judicial finding of guilt, we consider in the current facts, that the word ‘guilty’ could also be interpreted to mean that there was an allegation that a person was responsible for disgraceful or improper conduct or had behaved disgracefully or improperly.

17. Thirdly, the word ‘guilty’ can be used in a range of contexts, including as cited by the Collins on-line dictionary, which gives the below following examples, namely:

1. If you feel guilty, you feel unhappy because you think that you have done something wrong or have failed to do something which you should have done.
2. I feel so guilty, leaving all this to you.

100. When she saw me she looked guilty.

Appellant’s claim that defects in the Notice of Charges & Notice of Punishment were admitted by the respondents

18. The appellant claims that defects in the Notice of Charges and Notice of Punishment were admitted by the respondents in the Statement. In the appellant’s written submissions, there was considerable analysis regarding case law decisions on Statements of Relevant Facts and Legal Issues for Resolution, including the submission that the Statement was akin to a Consent Order or a contract.

19. On that basis, the appellant’s lawyer argued because of those alleged errors, the agreed primary issue for the trial Judge was whether those defects amounted to an error of law ‘... which are susceptible to judicial review’. As part of that issue, the appellant argued that the trial Judge failed to determine that issue and proceeded to determine the grounds of review, without setting aside the Statement. In response to the appellant’s claim, we note the respondents’ position at the hearing of the appeal was that any alleged errors or defects in the Notice of Charges were typing errors and did not affect the substance of the allegations against the appellant.

20. The respondents’ position was also that the trial Judge did not commit any errors in his decision, including as to what factual or legal issues the trial Judge ought to have considered.

21. In order to consider the issue fully, it is necessary to consider paragraph 6 of the Statement, which states as follows:

‘The respondents agrees that there is error and defects on the Notice of Charge, but maintains that those errors and defects are merely typing errors and such do not amounts to errors that forms part of the Disciplinary process.’

22. We do not consider the respondents conceded in the Statement that there were any material defects in the Notice of Charges. Also, having heard the oral submissions of the appellant’s lawyer, we are inclined to believe that the appellant’s alleged position on this matter was overstated. Moreso, the appellant’s lawyer was not able to demonstrate where in the Statement or other Court document that the appellants had agreed that the Statement contained any material defects. The same applies to any such claim by the appellant on this issue regarding the Notice of Punishment.

Claim by appellant that the trial Judge had considered issues that were unrelated to the main issues in dispute and had considered the issue of natural justice, which was not an issue in dispute

23. The issue raised here by the appellant was essentially that the trial Judge had considered the issue of natural justice, which was not an issue in dispute and had considered issues that were unrelated to the main issues in dispute. We consider there is clearly no merit in this argument. We consider the matters under the heading in the Statement entitled ‘Legal Issue for Resolution’, contained very scant or cursory issues for determination by the Court. Furthermore, the three issues listed for determination were lacking in detail and/or particulars. Ordinarily, we would expect that a Statement of Agreed and Disputed Facts and Legal Issues would be comprehensive and cover all relevant matters. In this case, the Statement fell well short of that standard.

24. For example, paragraph 1 of the Legal Issue for Resolution stated, ‘Whether or not the defects and errors on the Notice constituting Charge dated 16 November 2022, amounts to an error of law on the Disciplinary Process administered against the plaintiff’. The problem for the appellant in this regard is that the so-called defects and errors were not particularised or agreed by the parties in the Statement, nor did the respondent agree that any errors or defects were of material significance.

25. We note the appellant relies on the National Court decision of Kae v Mondo [2020] N8681, and if we understood the submissions of the appellant’s lawyer correctly, it was argued that the trial Judge was solely confined to those matters that were agreed in the Statement. It is also apparent that the appellant’s submission on this issue was that the decision of Kae v Mondo (supra) and other cases referred to in the appellant’s written submissions that a Statement of Agreed and Disputed Facts and Legal Issues for Determination is akin to a Consent Order or a contract. We do not agree that the decision of Kae v Mondo (supra) stands for that principle, nor was the appellant’s lawyer able to take us to any part of the decision which stands for that proposition. Our reasoning on this issue is also reinforced by the principle that the National Court and the Supreme Court should always have regard to all admissible evidence and all relevant legal issues when determining a matter, not just what facts and issues are considered relevant by a party of their lawyers. In addition, we repeat our above comment that we consider the stated ‘Legal Issues for Determination’ in the Statement in the National Court proceeding were lacking in detail and/or particulars and fell well short of the standard of issues put before the trial Judge to consider.

26. The appellant also argued as one of his grounds of appeal that the issue of natural justice was not an issue before the Court and was not an agreed issue in the Statement. We consider it important to highlight this issue as we consider it a fundamentally flawed and misconceived submission. The principles of natural justice and procedural fairness are central to any judicial proceeding, and accordingly it was entirely appropriate that the trial Judge made comments about the issue of natural justice and cited examples in support of his judgment that the appellant had not made out his case to warrant the grant of judicial review.

27. We note that one of the grounds of appeal is essentially that the trial Judge placed too much attention on the records of interview and other ‘evidentiary material’, which were not identified or particularised by the appellant. Having read the trial Judge’s written judgment, we do not agree that was the case.

Conclusion

28. For the reasons stated above, we do not consider any of the grounds of appeal have any merit. Accordingly, we consider all the grounds of appeal should be dismissed. In general terms, we consider it necessary to say that for the reasons given above, that largely the appellant overstated matters in his grounds of appeal and made claims that were simply not correct. This includes the claim by the appellant that certain defects in the Notice of Charges were admitted by the respondent, when that was not the case. Another example was to suggest, effectively, that the trial Judge was confined solely to the matters referred to in the Statement and therefore should not have considered principles of natural justice. That proposition by the appellant and/ or his lawyer was clearly misconceived.

Orders

29. In the circumstances we make the following orders:

1. The appeal by way of Notice of Motion filed on 9 May 2023 is dismissed.
   
2. The judgment and orders delivered on 30 March 2023 in National Court proceeding OS (JR) No. 125 of 2022 are affirmed.
   
3. The appellant shall pay the respondents’ costs of and incidental to the appeal on a party/ party basis, to be taxed if not agreed.
   
4. The terms of these Orders are abridged to the date of settlement by the Court.
   

__________________________________________________________________
Lhyrn Lawyers: Lawyers for the Appellant
Internal Revenue Commission, Legal Services Division: Lawyers for the Respondents