N2105

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O. S. 720 of 2000

BETWEEN:

LAWRENCE BOKELE
Applicant/Plaintiff

AND:

THE POLICE COMMISSIONER
First Respondent/Defendant

AND:

THE STATE
Second Respondent/Defendant

WAIGANI:	KANDAKASI
2001: 	8 & 20 JUNE 2001

ADMINISTRATIVE LAW – PRACTICE & PROCEDURE - Application for Leave for judicial review – Defendants consenting to leave being granted – Consent of parties no bar to the Courts power to consider and determine case on its merits – If the pre-requisites and requirements for leave are not met an application for leave even by consent should be refused. 

ADMINISTRATIVE LAW – Application for Leave for judicial review – Termination of employment – Charges leading to termination served on Plaintiff and opportunity given for response – No response to the charges – Purported responses given after decision to terminate – Applicant conceding to the decision sought to be review being fairly arrived at and seeking only to explain his failure to respond to charges – No arguable case for leave for review demonstrated – Leave refused - Order 16 Rule 3 National Court Rules (chp.38).

Cases Cited:
The Application of Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276
An Ex parte Application of Eric Gurupa for Leave to Apply for Judicial Review N856.
Peter Ipu Peipul v.Sheehan J, Mr. Ori Karapo and Ivoa Geita (consisting the Leadership Tribunal) & Ors (unreported and unnumbered judgement delivered on 25th May 2001)
Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617
Ila Geno and Others v. The State [1993] PNGLR 22
Leto Darius v. Commissioner for Police and The State N2046
Application of Demas Gigimat [1992] PNGLR 122
Application of Christopher Haiveta (1998) N1783
Joe Nemambo vs. Peter Peipul SC475

Counsels:
Mr. P. Ame for the Plaintiff
Mr. D. Lambu for the Defendant

22nd June 2001

KANDAKASI, J: The Plaintiff is applying under Order 16 Rule 3 of the National Court Rules (NCRs) for leave to apply for judicial review of a decision of the Defendants terminating his employment as a policeman. He claims that, he was not charged with any disciplinary offence but was found guilty of misconduct and terminated without any evidence. The Defendants consent to leave being granted.

Issue

There are two issues for me to determine. First, whether the Court is precluded from assessing and determining an application for leave for judicial review where the Defendants consent to leave being granted? Secondly, subject to a determination of the first issue, whether the applicant has demonstrated an arguable case for grant of leave for judicial review?

Background 

The Plaintiff issued these proceedings on the 8th of December 2000. Then on the 18th of May 2001, a notice of motion seeking leave of this court to proceed to judicial review of the decision of the First Defendant terminating his employment was filed. At that time, he also filed a statement as required by O.16 r. 3(2)(a) of the NCRs together with an affidavit by himself verifying the statement. The Defendants have filed their Notice of Intention to Defendant through the Solicitor General on the 27th of December 2000. The motion came before me on the 25th of May 2001. That is when Mr. Lambu, counsel for the Defendants informed the court that, his clients were consenting to leave being granted. I reserved a ruling to consider the issues presented. This is my ruling on the matter.

Facts

The Plaintiff was a policeman employed by the State. He was attached to the Boroko Police Station in the National Capital District. On the 12 of November 1998, he was charged under the then provisions of section 46(2) of the Police Force Act. The allegation against him was that, out of a set bail of K50.00 each for a mother and daughter offenders (the ladies), he kept K20.00 out of a payment of K100.00 on the set bails.

The charged was served on the Plaintiff on the 24th of February 1999, at 1:00pm at the Boroko Police Station. The Plaintiff acknowledged service by signing for it on the same day. He was required to respond within 14 days. At the time of service of the charge on him, he indicated that, he would respond in writing. On the 22nd of June 2000, the First Defendant decided to terminate the Plaintiff by a letter dated the same day. In so doing, it acknowledged that, despite service of the charge on him on the 24th of February 1999, he failed to respond. It also noted that no submission on penalty was received.

The First Defendant reasoned that, the offence or the charge against the Plaintiff was very serious and an unacceptable conduct. As such, a stronger penalty was called for to serve as a deterrent against other members of the Police Force engaged in or would be inclined to engage in future. It was to help uphold the standard, integrity and the principles of Police Force. 

About a month later, on the 24th of July 2000, the Plaintiff wrote to the First Defendant explaining his failure to respond when he was required to and his own conduct in relation to the charge. In the second line of his letter he said, "the penalty handed down, was fairly done". He then proceeded to say that, when he committed the offence he did not intend to steal the K20.00 from the ladies. Instead, he took it on their approval to organise their taxi to their house. He called a taxi but before any taxi could arrive a superior officer who had come in with the bail money at the first place returned and found that the Plaintiff had taken the K20.00. Without waiting for an explanation the Plaintiff, was suspended and was told to stay away from work on full pay.

About 21 days later, the Plaintiff return to work but was turned away. He was asked to stay away indefinitely on full pay. He does not say anything specifically about the charge being laid against him on 12th December 1998, which was served, on him on the 24th of February 1999. He does however say that, because his witnesses, including the ladies had gone away, he was not able to respond to the charge before his employment was terminated. After his termination however, he was able to get and provide a copy each of the ladies and his other witnesses’ statements supporting his claim to the First Defendant. On the basis of those materials and his explanation, he asked the First Defendant to reinstate him and was refused on the 7th of August 2000. That resulted in the filing of this application on the 31st of October 2000.

The Law

As I said in my most recent judgement in Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Ivoa Geita (consisting the Leadership Tribunal) & Ors (unreported and unnumbered judgement delivered on 25th May 2001) at pages 7:

"[T]he purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting it, with the court’s own decision. Instead, judicial review is concerned with the decision making process, and not the decision itself. The circumstances under which judicial review may be available are, where the decision making authority lacks, exceeds or abuses its power, commits an error of law, breaches the principles of natural justice and reaches a decision, which no reasonable tribunal could have reached. This position has been made clear in a large number of cases, decided by both this and the Supreme Court. A recent example of that, is the case John Joe Nemambo v. Peter Peipul and The State SC475, a decision of the Supreme Court, delivered on the 21st of December 1994, … See also the case of Kekedo v. Burnsphilip [1988-1989] PNGLR 122 per Kapi DCJ at 124."

Then basing on the judgment of Lord Diplock in Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617 at 663 and Lord Scarman at page 749, which have been quoted and adopted with approval by our National and Supreme Courts, as in, Ila Geno and Others v. The State [1993] PNGLR 22 at page 24 by the Supreme Court, I said: 

"The objective, as can be seen from the authorities such as those mentioned above, for the requirement for leave, is to provide the courts with the opportunity to screen and allow cases that merit judicial review. That is to safeguard against the courts being flooded with unmeritorious cases. This process ensures that, busy bodies with misguided or trivial complaints of administrative error do not waste the court’s time. It also helps to remove uncertainties in the public officers and authorities as to, whether they could safely proceed with an administrative action while judicial review of a decision is pending, even though misconceived. 

A little earlier on in Leto Darius v. Commissioner for Police and The State N2046, at page 8, I said on the question of the need to demonstrate an arguable case:

"To determine whether or not an applicant has an arguable case, regard must be had to what Lord Roskill said in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 953. His Lordship in summary said it would be an appropriate case for judicial review if a plaintiff can show any of the following against the decision-making authority: 

1.	Want or excess of jurisdiction. 
2.	Whether there is an error of law on the face of the record.
3.	Failure to comply with the rules of natural justice.
4.	The Wednesbury principle - whether a power is exercised in so unreasonable a manner." 

I also noted in that case at the same page that: 

"In our own jurisdiction Kapi DCJ stated that position in this way in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124:

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. "

I than consider the case of Application of Demas Gigimat; [1992] PNGLR 122 and Application of Christopher Haiveta (1998) N1783 said:

"It is apparent from the above authorities that the question of whether or not an arguable case is shown involves the question of whether the application raises any fundamental or serious legal issue which warrants the Court’s consideration: See Ombudsman Commission of Papua New Guinea v. Honourable Justice Sakora and 2 Others as the Leadership Tribunal (1996) N1720."

The Supreme Court in Joe Nemambo vs. Peter Peipul and The State SC475 held that "leave should not, as a matter of course be granted unless exceptional circumstances can be shown".

First Issue: Consent of the Parties

From the above authorities, it is very clear that, the Court has the ultimate control over applications for judicial review. That is why leave is required. The Court can grant leave for judicial only if it is satisfied that all the pre-requisites and or the requirements for leave to be granted are met in a case before it. It follows therefore that, if the opposite is the case, than the application should be refused. Accordingly, in my view, leave can not and should not be granted readily because there is no object or there is consent by the defendants as in this case. Instead, the court has the right and power to consider the application fully. If the materials disclose a prima facie or arguable case for judicial review, only then should the court grant leave. Indeed, I note that, all applications for leave for judicial review are made ex parte by operation of the rules of the Court and the long and well established relevant practice. As a result of that, usually the defendants do not participate at the hearing of an application for leave. That does not result in a grant of leave as a matter of course. Only if a case for leave to be granted is made out in such an ex parte process, leaves are granted. Given these, I am of the view that, even if parties consent to a grant of leave for judicial review, the court still has the ultimate say as to whether or not leave should be granted in the exercise of its discretionary power to only allow meritorious cases to proceed to judicial review. The question of whether or not leave should be granted is determinable on the basis of the material produced and placed before the court.

For these reasons, I rule that the consent of the parties do not necessarily mean that, the court should grant leave. Instead, the court charged with a duty to only allow cases deserving judicial review, has the power to determine whether or not leave should be granted. Hence, I am of the view, that the consent of the parties to a grant of leave does not preclude the court from exercising its filtering jurisdiction. Hence, I find that the consent of the parties in this case does not preclude this court from determining the application or the next issue on its merits on the basis of the material placed before it. I now proceed to consider the second issue.

Second Issue:	 Arguable case

In the present case, there appears to be no issue on the requirements that must be met before the Court can grant leave for judicial review. The only issue is, whether the Plaintiff discloses an arguable case.

The Plaintiff admits being suspended for allegedly stealing bail monies. I find that, he was served with a formal charge and was given the opportunity to respond to the charge. The charge was served on him on the 24th of February 1999, and he acknowledged its receipt on the same day. His claim of not being served with any charge is without any basis. I therefore reject that claim.

He was given the opportunity to respond to the charge but he did not make use of that opportunity. A period of more than 1 year 4 months past and he still did not respond to the charge. Finally, on the 22nd of June 2000, he was terminated on the basis that, the charge was established having regard to his lack of response. By his letter to the First Defendant on the 24th of July 2000, he expressly stated that the decision to terminate him "was fairly done" or arrived at. 

There is no allegation of the Defendants not following the correct procedures to bring about his termination. Likewise, there is no allegation or evidence of the Defendants taking into account irrelevant factors to the exclusion of relevant factors. Also there is no allegation or evidence of the Defendants acting either in excess, abuse or without power when arriving at the decision to terminate the Plaintiff. Further, there is no allegation and or evidence of any error of law on the face of the record, which requires correction by judicial review. 

In these circumstances, I am not satisfied that an arguable case for judicial review has been demonstrated. I am therefore, not satisfied that this is an appropriate case for leave for judicial review to be granted. Accordingly, I decline to grant the orders sought and order a dismissal of the proceedings with costs against the Plaintiff.
______________________________________________________________________
Lawyers for the Plaintiff: 			Philip Ame Lawyers
Lawyers for the Defendants:			Solicitor General