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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 26 OF 2009
STEVEN NINING
Plaintiff
V
DR NICHOLAS MANN, CHAIRMAN, COUNCIL APPEAL COMMITTEE, UNIVERSITY OF PAPUA NEW GUINEA
First Defendant
THE UNIVERSITY OF PAPUA NEW GUINEA
Second Defendant
Waigani: Cannings J
2013: 26 April, 3 May, 30 August
ADMINISTRATIVE LAW – student disciplinary procedures – whether errors of law committed in disciplinary process – whether disciplinary committee or appeals committee exceeded jurisdiction – whether decision to find plaintiff guilty or to dismiss his appeal to appeal committee was unreasonable.
JUDICIAL REVIEW – remedies – circumstances in which damages can be awarded in a successful judicial review.
The plaintiff was a university student. He was charged with a disciplinary offence, found guilty by a disciplinary committee and excluded from studies for two semesters, ordered to pay 10% of the total costs of assessed damage to university property to be paid before re-enrolment and required to enter a good behaviour bond. He appealed to an appeal committee, which dismissed his appeal and upheld the disciplinary committee's decision. He sought judicial review of the decisions of the disciplinary committee and the appeal committee on six grounds: (1) error of law on the face of the record due to failure to adhere to statutory procedures; (2) excess of jurisdiction; (3) the decisions were premeditated; (4) unreasonableness; (5) penalty was harsh and oppressive; and (6) the allegations were false. Grounds (3) and (6) were abandoned at the trial. The plaintiff sought declarations that the decisions of the disciplinary committee and the appeal committee were null and void and orders that the decisions be quashed, that the university allow him to continue his studies and damages. This was the trial of the application for judicial review.
Held:
(1) Ground (1) was upheld as eight errors of law appeared on the face of the records of the disciplinary committee and the appeal committee.
(2) Ground (2) was partially upheld in that the disciplinary committee and the appeal committee each denied him a reasonable opportunity to defend himself.
(3) Grounds (3) and (6) were not ruled on as they were abandoned.
(4) Ground (4) was upheld as the number and nature of the errors of law committed by each committee rendered their decisions unreasonable.
(5) Ground (5) was dismissed as not being a proper ground of review.
(6) As two grounds were wholly upheld and one was partially upheld the decisions of the disciplinary committee and the appeal committee were susceptible to judicial review. The errors of law were sufficiently serious to warrant declarations that both decisions are null and void and orders that they are quashed. Other relief sought by the plaintiff (that he be allowed to continue his studies and awarded damages) was refused. The question of costs was reserved and the plaintiff was granted leave to apply by motion for solicitor-client costs.
Cases cited
The following cases are cited in the judgment:
Aita Sanangkepe v Honourable Paias Wingti (2008) N3404
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Bakani and OPIC v Daipo (2001) SC659
Daipo v Bakani and OPIC OS No 489 of 2000, 17.11.00 (unreported)
Dale Christopher Smith v Minister for Lands (2009) SC973
Denis Donohoe v Ombudsman Commission [1985] PNGLR 348
Dopsie v Tetaga & Apeng (2009) N3722
Hanjung Power Ltd v Dr Allan Marat, Attorney-General (2009) N3751
Henry Wavik v Martin Balthasar (2013) N5272
In the Matter of Grand Chief Sir Michael Somare (2011) N4224
Isaac Lupari v Sir Michael Somare (2008) N3476
Isidore Kaseng v Rabbie Namaliu and The State (No 1) [1995] PNGLR 481
Island Helicopter Services Ltd v Wilson Sagati (2008) N3340
Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746
Jomino Holee v Sem Vegogo (2013) N5101
Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112
Karen Mek v Dr Nicholas Mann OS (JR) No 392 of 2009, 17.01.11 (unreported)
Kely Kerua v Council Appeal Committee (2004) N2534
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
Paul Saboko v Commissioner of Police (2006) N2975
Peter Kama v Council Appeal Committee (2010) N3829
Prai Ipandi v Robin Guria (2010) N3830
Robin Aegaiya v Gari Baki (2009) N3693
Ross Bishop v Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533
Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01 (unreported)
The State v Dibol Petrus Kopal (2004) N2778
The State v James Yali (2006) N2989
The State v Saul Ogeram (2004) N2780
Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718
Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018
Winmarang v Ericho and The State (2006) N3040
JUDICIAL REVIEW
This was an application for judicial review of decisions of a student disciplinary committee and an appeal committee.
Counsel
S Nining, the plaintiff, in person
C Lari, for the first & second defendants
30th August, 2013
1. CANNINGS J: Steven Nining, the plaintiff, was a third year law student at the University of Papua New Guinea in 2008 when he was charged with a disciplinary offence. He was found guilty by the Student Disciplinary Committee and excluded from studies for at least two semesters, ordered to pay 10% of the total costs of assessed damage to university property and enter a good behaviour bond. He appealed to the Council Appeal Committee, which rejected his appeal and upheld the Disciplinary Committee's decision. He has been granted leave to apply for judicial review of the decisions of the Disciplinary Committee and the Appeal Committee.
2. The facts are very similar to the facts in the case of Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746, which I decided in favour of the plaintiff. There was no application to disqualify me from the present case. However counsel for the first and second defendants, the Chairman of the Council Appeal Committee and the University, Ms Lari, applied for an adjournment of the trial in view of the fact that the defendants have appealed to the Supreme Court against my decision in Kumbu and the appeal is pending. I refused that application after noting that the appeal has not yet been heard. Each case must be judged on its merits. There was no order in place to prevent the present proceedings continuing. The plaintiff, who opposed the application, deserves to have his day in court. This is an old case. It relates to an incident that occurred five years ago and the decisions of which review is sought were made more than four years ago. Leave for judicial review was granted in February 2009. It has taken more than four years for the trial to start. I do not know the reason for that but the delay is too long, especially in a case like this where a person's education and livelihood are directly affected by the outcome.
3. The plaintiff was granted leave to argue six grounds of review:
(1) error of law on the face of the record;
(2) excess of jurisdiction;
(3) the decisions were premeditated;
(4) unreasonableness;
(5) the penalty was harsh and oppressive; and
(6) the allegations were false.
4. The plaintiff, who represented himself, abandoned grounds (3) and (6), so only grounds (1), (2), (4) and (5) will be ruled on.
GROUND 1: ERROR OF LAW ON THE FACE OF THE RECORD
5. The plaintiff argues that the Appeal Committee erred in law by not upholding his appeal which, he claims, contained valid grounds relating to breaches by the Disciplinary Committee of the University's Student Discipline Statute. Specifically he argues that:
(a) the disciplinary proceedings were time-barred;
(b) the Disciplinary Committee and the Appeal Committee were unlawfully constituted;
(c) the disciplinary charge laid against him was defective;
(d) the penalty imposed on him was unlawful and irrational;
(e) the Appeal Committee ignored the grounds of appeal.
(a) Disciplinary proceedings time-barred
6. Determination of this sub-ground requires an examination of the Student Discipline Statute. Two different versions of this subordinate legislative enactment, permitted to be made by the Council of the University under Section 32 (statutes) of the University of Papua New Guinea Act Chapter 169, have been put before the Court. There is the version found in the Revised Laws of Papua New Guinea, dated 1 January 1985, consisting of nine sections, annexed to an affidavit of the plaintiff (exhibit P2, annexure E). A different version, consisting of 16 sections, is annexed to an affidavit of the chairman of the Disciplinary Committee (exhibit D3, annexure C).
7. Which is the correct version? In Kumbu I concluded that the Revised Laws contains the correct version and nothing contended for by the defendants convinces me that that conclusion is wrong. The Revised Laws version was printed by the Government Printer. It is sufficient evidence by virtue of Section 33(5) (approval and publication) of the University of Papua New Guinea Act and Section 39 (statutes published by authority) of the Evidence Act. The other version has not been printed by the Government Printer and is not under the common seal of the University and I am not satisfied that it has been printed on behalf of the University for the purposes of Section 33(5). Nor is there evidence that it has been approved "by the Head of State, acting on advice, and when so approved ... notified in the National Gazette" as required by Section 33(1) of the University of Papua New Guinea Act.
8. In Karen Mek v Dr Nicholas Mann OS (JR) No 392 of 2009, 17.01.11 (unreported) Davani J, in determining an application for judicial review by a UPNG student of a decision of the Council Appeal Committee, dealt with similar confusion regarding the Student Discipline Statute. Different versions were in evidence. Her Honour found that the University itself was not sure which version of the Statute had been applied and proceeded to grant the application for judicial review, quashing the decision to exclude the student from studies for four years.
9. Another reason for not accepting the version of the Statute annexed to the affidavit of the Chairman of the Disciplinary Committee is that it is sprinkled with so many grammatical, spelling and punctuation errors (eg Section 4 "APPEALS AGAINST FEMALTY ['sic]; Section 8(1), a student may appeal by written notice ledged [sic] with the Registrar) I cannot believe that it has passed through the Office of Legislative Counsel.
10. Section 5(1) (procedure of disciplinary committee) of the Revised Laws version of the Student Discipline Statute provides that the Disciplinary Committee "shall meet within 21 days of the referral to it of an alleged breach of discipline". The sequence of events was:
| 17 May 2008 | a violent on-campus incident involving Engan students, allegedly including the plaintiff, occurred: University security personnel
were assaulted and the security headquarters was damaged; it was this incident which was at the centre of the disciplinary charge
laid against the plaintiff. |
| 4 September 2008 | disciplinary charge laid against the plaintiff, by letter, signed by the Pro Vice-Chancellor (the date of service is unclear, the
plaintiff claims that the letter was not served until 6 October 2008 but there is insufficient evidence in support of that claim). |
| 7 October 2008 | plaintiff responded to the charge by letter addressed to the chairman of the Disciplinary Committee. |
| 10 October 2008 | the Disciplinary Committee heard the charge (having heard on 6 October 2008 similar charges against other students relating to the
incident of 17 May 2008) and the plaintiff attended the hearing and defended the charge. |
| 20 October 2008 | the Disciplinary Committee notified the plaintiff by letter (incorrectly dated 20 September 2008) addressed to him that he had been
found guilty as charged and notified him of the penalties. |
| 27 October 2008 | the plaintiff appealed to the Appeal Committee by letter addressed to the chairman. |
| 4 November 2008 | the Appeal Committee heard the appeal. |
| 9 December 2008 | Appeal Committee notified the plaintiff by letter dated 2 December 2008 that his appeal was rejected and that the decision of the
Disciplinary Committee was upheld. |
11. I find that the alleged breach of discipline was referred to the Disciplinary Committee on 4 September 2008 as the letter to the plaintiff containing the charge bearing that date was copied to amongst others the chairman of the Disciplinary Committee. The Disciplinary Committee had 21 days to meet. It should have met by 25 September 2008. It did not meet until 10 October 2008, exceeding the statutory time limit by 15 days.
12. The plaintiff argues that this is an error of law on the face of the record and the defendants have failed to counter the argument. I find, as I did in Kumbu, that although the Statute does not expressly state that a failure to meet the time limit will invalidate the proceedings or decisions that are made, this is necessarily inferred from the language of Section 5 and the purpose of the Statute, which is to ensure that disciplinary matters regarding students are dealt with in a timely manner. The word "shall" is imposing a mandatory procedural requirement, so strict compliance was necessary (Isidore Kaseng v Rabbie Namaliu and The State (No 1) [1995] PNGLR 481, Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718). Failure to comply was an error of law, which deprived the Disciplinary Committee of jurisdiction.
(b) Disciplinary Committee and Appeal Committee unlawfully constituted
(i) Disciplinary Committee
13. The plaintiff argues that there were no student members on the Disciplinary Committee contrary to the Student Discipline Statute. Section 4(2)(a) (powers and composition of disciplinary committees) of the Revised Laws version of the Statute provides that at the Waigani Campus a Disciplinary Committee shall consist of:
(i) a person appointed by the Vice-Chancellor, who shall be Chairman; and
(ii) two persons, one man and one woman, appointed by the Vice-Chancellor from a panel selected by the Academic Board; and
(iii) two students, one man and one woman, appointed by the President of the Students' Representative Council from a panel selected by that Council. [Emphasis added.]
14. It is therefore necessary that two of the members of the Disciplinary Committee be students. This is also the case under the equivalent provision, (Section 6(3)) of the other (incorrect) version of the Statute. The minutes of the Committee meeting of 10 October 2008 at which the decisions were made to find the plaintiff guilty as charged and to impose the penalty the subject of this application for judicial review (annexed to an affidavit of the Chairman of the Committee, exhibit D3, annexure B) record the members present as:
| | |
| Chairman |
| Academic Senate Rep |
| Director – Student Welfare |
| Warden – Taurama Campus |
15. I do not think the minutes are accurate as the letter to the plaintiff notifying him of the Committee's decisions was signed by a different Chairman. Be that as it may there is no mention in the minutes or any other evidence of any of the members of the Committee being students appointed by the President of the Students Representative Council from a panel as selected by that Council, as required by the Statute. I have considered the possibility that there were in fact two students who were members of the Committee but they failed to attend the meeting. If that were the case the meeting might have been able to proceed lawfully if the student members had been given due notice of it, as Section 5(2)(a) of the Statute provides that the quorum is three members. However, the minutes do not show any apologies or absences by any members. I find that there were no students on the Committee. This is contrary to Section 4(2)(a)(iii) of the Statute. There was an error of law as the Disciplinary Committee was unlawfully constituted.
(ii) Appeal Committee
16. The plaintiff argues that the Chairman of the Appeal Committee was not legally qualified contrary to the Student Discipline Statute. Section 6(3) (appeals) of the Revised Laws version of the Statute provides that in the case of an appeal by a student against a penalty imposed by a Disciplinary Committee:
... the Council shall constitute an Appeal Committee consisting of four of its members, of whom at least one shall be a member of the academic staff and one a student, and a Chairman who shall be a person legally qualified and appointed by the Chancellor. [Emphasis added.]
17. It is therefore necessary that the Chairman be legally qualified. This is not the case under the equivalent provision (Section 8(3)) of the other version of the Statute, which provides that the Appeal Committee shall consist of five members of the University Council but does not say that the Chairman must be legally qualified; that provision does not apply in this case.
18. The letter from the Appeal Committee to the plaintiff notifying him that his appeal had been dismissed was signed by the second defendant, Dr Nicholas Mann CMS. The minutes of the meeting of 4 November 2008 (annexed to an affidavit of the Registrar of the University, exhibit D1, annexure I) confirm that Dr Mann was the Chairman. There is no mention in the minutes or any other evidence that Dr Mann is legally qualified. The plaintiff bears the legal burden of proving that Dr Mann is not legally qualified, but having raised that allegation of fact on something that is reasonably expected to be in the knowledge of the defendants, the evidentiary burden of proof (that Dr Mann was legally qualified) shifted to the defendants. It has not been discharged, and I find that the Chairman was not legally qualified. This is contrary to Section 6(3) of the Statute. There was an error of law as the Appeal Committee was unlawfully constituted.
(c) Disciplinary charge defective
19. The charge was laid in these terms:
Dear Mr Nining
Re: Student Disciplinary Charge
It is alleged –
(1) that on Saturday 17th May 2008 at 0430 hours you were involved in an incident caused by a student from Enga;
(2) that during the attack, you were one of the first ones to throw sticks and stones; and
(3) that you assaulted the Uniforce Security Officers and damaged University properties at the Security Base.
Based on the reports I have received, I am charging you under the Student Disciplinary Statute No 169, which states that:-
(1) A student who:-
- (a) commits a breach of this Statute; or
- (b) commits a breach of any By-Law or Rule of the University or of any similar requirement of any institution at which he/she is pursuing a course of study; or
- (c) conducts himself/herself in a manger [sic] not appropriate for a member of the profession for which he/she is training; or
- (d) disobeys a reasonable direction given by a person having authority to give it; or
- (e) deliberately withholds relevant information or who furnishes false or misleading information as to a matter affecting him/her as a student; or
- (f) breaches an undertaking as to a matter affecting him/her as a student; or
- (g) makes [sic], defaces or damages or destroys property; or
- (h) disorderly or improperly conducts himself in a manner detrimental to the interests of the University or to its good repute; or
- (i) aids, incites or encourages any of the acts or conducts specified in paragraphs (a) to (h)
is guilty of a disciplinary offence and is liable to be dealt with and punished in accordance with this Statute.
I am therefore referring this matter to the Student Disciplinary Committee (SDC) for its consideration and, if necessary, determination of appropriate penalties. Be advised that if you are currently on a "Good Behaviour Bond", these charges include a charge for breach of that bond.
You have seven (7) days to make a written response, which should be sent to the Chairman of the SDC via the Student Administration office. Be sure to include all relevant evidence in your response. In the event of an appeal, the Council Appeal Committee may reject new evidence that could have been made available when the SDC first considered the matter.
Yours sincerely,
Professor Alan Easton
Pro Vice-Chancellor (ASA)
Cc: Registrar
Chair and Secretary of SDC
Director, Residences & Catering
Executive Dean, School of Law
Chief of Security, Uniforce
Student File
20. I find that the charge is defective in three respects contended for by the plaintiff.
(i) Charge based on non-existent law
21. The charge was based on the second version of the Student Discipline Statute, not on the Revised Laws version, which contains a markedly different description of proscribed student conduct. The terminology is also different as the Revised Laws version speaks of a "breach of discipline" rather than a "disciplinary offence". Section 2(1) (breaches of discipline) of the Revised Laws version, the provision that should have been, but was not, used to frame the charge states:
Any act or conduct of a student is a breach of discipline if –
(a) it is a wilful breach of any Statute, by-law or Rule of the University or of any similar requirement of another institution at which he is pursuing a course of study; or
(b) it involves disobedience of a reasonable direction by a person in authority over the student; or
(c) it involves –
(i) breach of an understanding; or
(ii) false representation; or
(iii) deliberate withholding of relevant information; or
(iv) the furnishing of false or misleading information,
as to a matter affecting him as a student; or
(d) without permission of the appropriate authority, it involves the use of the crest, title or address of the University in any communication, document, or public notice; or
(e) it involves the marking, defacing, damage or destruction of property or failure to return property moved or borrowed by him; or
(f) it obstructs the use of the facilities of the University or the conduct of its work; or
(g) it subjects another person to –
(i) indignity by threat or abuse; or
(ii) physical violence; or
(iii) damages to his property; or
(h) it is disorderly or otherwise improper or detrimental to the interests of the University or to its good repute; or
(i) it is an offence punishable in a court of law; or
(j) it is an incitement or encouragement to any breach of discipline referred to in Paragraphs (a) to (i).
22. A disciplinary charge that is based on a wrong or non-existent law is inherently defective and will result in unfairness and render a determination of the charge a nullity (Robin Aegaiya v Gari Baki (2009) N3693). I find that to be the case here.
(ii) Charge lacked specificity and clarity
23. The Pro Vice-Chancellor at the beginning of his letter of 4 September 2008 made allegations of fact (that the plaintiff was involved in an incident, that during the attack he was one of the first to throw sticks and stones and that he assaulted security officers and damaged property). He then stated that the plaintiff was being charged under a provision of the Student Discipline Statute, described as (1)(a) to (i) (which creates numerous different disciplinary offences). He then stated that he was referring the matter to the Disciplinary Committee. But nowhere did he state what the specific charge was.
24. Davani J pointed out a similar error in Mek's case: allegations were put to the student and the provision of the Statute being relied on was recited, but the particular paragraph of the provision being relied on was not stated. Her Honour held that it is unacceptable to make allegations of fact and generally recite the law under which the person is charged and leave it up to the student to work out what charge he or she is facing. I agree with her Honour that the parts of the law that are alleged to have been infringed must be precisely stated. It was important to do that here as Section 2(1) of the version of the Statute attempted to be relied on by the Pro Vice-Chancellor actually creates approximately 35 different disciplinary offences.
25. As I held in Kumbu it is part of the principles of natural justice that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy the person charged will not know the case that he has to answer. The person laying the charge (here, the Pro Vice-Chancellor), the body determining the charge (the Student Disciplinary Committee) and the body determining an appeal (the Council Appeal Committee) will not have a clear mind on the real issues to be decided (Bakani and OPIC v Daipo (2001) SC659; Daipo v Bakani and OPIC OS No 489 of 2000, 17.11.00, National Court, Sevua J, unreported; Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, National Court, Los J, unreported; Winmarang v Ericho and The State (2006) N3040; The State v James Yali (2006) N2989; Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112; Prai Ipandi v Robin Guria (2010) N3830). Those requirements were breached in this case.
(iii) Law relied on to support charge was misquoted
26. The part of the letter that purports to recite the relevant provision of the Student Discipline Statute is inaccurate and misleading. Here is how Section 2(1) (disciplinary offences) of the second (unauthorised) version of the Statute reads:
A student who:-
(a) commits a breach of this Statute; or
(b) commits a breach of any By-Law or Rule of the University or of any similar requirement of any institution at which [he] is pursuing a course of study or
(c) conducts himself in a manner not appropriate for a member of the profession for which he is training or
(d) disobeys a reasonable direction given by a person having authority to give it or
(e) deliberately withholds relevant information or who furnishes false or misleading information as to a matter affecting him as a student; or
(f) breaches an undertaking as to a matter affecting him/her as a student; or
(g) without permission of the appropriate authority uses the crest, title or address of the University in any conversation document or public notice; or
(h) makes [sic], defaces or damages or destroys property; or
(i) fails to return property moved or borrowed by him; or
(j) obstructs the use of facilities of the University or the conduct of its work; or
(k) subjects another person to indignity by threat or abuse, or to physical violence or damages his property; or
(l) disorderly or improperly conducts himself in a manner detrimental to the interests of the University or to its good repute; or
(m) is charged with an offence punishable in a court of law; or
(n) aids, incites or encourages any of the acts or conducts specified in Paragraphs (a) to (m)
is guilty of a disciplinary offence and is liable to be dealt with and punished in accordance with this Statute. [Underlining added.]
27. The underlined paragraphs were omitted from the Pro Vice-Chancellor's letter. This is significant as some of them (eg (j) obstructing the use of facilities of the University, (k) subjecting another person to indignity by threat or abuse or to physical violence or damaging property) are the provisions that should have been used (if this were the correct version of the Statute) to frame a disciplinary charge given the nature of the actual allegations that the Pro Vice-Chancellor was trying to put to the plaintiff: that he was involved in a violent riot involving actual physical violence and malicious damage to University property.
28. Omission of important paragraphs is not the only source of confusion. Paragraph (g) of the letter repeats the malapropism in paragraph (h) of the Statute whereby a student who "makes ... property" is guilty of a disciplinary offence. So, not only was the wrong law relied on, it was misquoted. This was an error of law.
29. Any allegation of wrongdoing, to have legal effect and to give rise to an obligation on the part of the recipient to respond, must be clear and precise, comprehensible by a reasonable person and not require the recipient to speculate on what is alleged (Ross Bishop v Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533, The State v Dibol Petrus Kopal (2004) N2778, The State v Saul Ogeram (2004) N2780). These allegations failed to meet that standard. I find as I did in Kumbu that the Pro Vice-Chancellor's letter was so poorly and ambiguously drafted that it did not contain a charge sufficient to oblige the plaintiff to respond or to enliven the jurisdiction of the Student Disciplinary Committee.
30. Ms Lari, for the first and second defendants, submitted that if the charge were found to be defective, this is of no consequence as the plaintiff did not raise the defects with the Student Disciplinary Committee. I reject this submission as it is the duty of the Committee – not the person charged – to ensure that the Committee has jurisdiction in a matter referred to it (Denis Donohoe v Ombudsman Commission [1985] PNGLR 348).
31. One of the prerequisites to a disciplinary tribunal being seized of jurisdiction is that the charge it is asked to determine is clear and lawful, not ambiguous and defective. I conclude that there were three errors of law that rendered the charge defective and a nullity.
(d) Penalty unlawful and irrational
32. The plaintiff takes issue with the part of the penalty imposed by the Disciplinary Committee that related to damage to University property. The Chairman's letter notifying the plaintiff of the Committee's guilty finding and the penalties to which he was subject stated:
33. I uphold the plaintiff's argument that it is an irrational penalty as he was not charged with damaging any University property. A person cannot properly be found guilty by a disciplinary tribunal of something with which he has not been charged (In the Matter of Grand Chief Sir Michael Somare (2011) N4224). There was an allegation relating to property at the beginning of the Pro Vice-Chancellor's letter: that the plaintiff "damaged University properties at the Security Base". But that allegation was not the subject of a proper charge. The only reasonable interpretation of the version of the Statute that the Pro Vice-Chancellor was attempting to rely on – which does allow, in Sections 3(4)(c)(i) and 6(1)(a), the Disciplinary Committee to "order the student ... to make good any damage to property he has caused" – is that for a student to be visited with a penalty of making good damage to property he must be charged with and found guilty of such an offence. Here, that logical connection between the charge, the finding of guilt and the penalty was absent.
34. There was an error of law constituted by imposition of a penalty in relation to an offence with which the plaintiff was neither charged nor found guilty.
(e) Appeal Committee ignored grounds of appeal
35. The plaintiff argues that the Appeal Committee erred in law by not considering his grounds of appeal. He relies on Kumbu in which I held, following Kely Kerua v Council Appeal Committee (2004) N2534 and Peter Kama v Council Appeal Committee (2010) N3829, that the Appeal Committee has a duty to consider the grounds of appeal and to give good, proper and sufficient reasons for its decision. Failure to do so amounts to a denial of natural justice (Ombudsman Commission v Peter Yama (2004) SC747, Mision Asiki v Manasupe Zurenuoc (2005) SC797).
36. Here, the plaintiff's 12-page appeal letter contained ten numbered grounds of appeal all of which in my assessment were comprehensible. The letter from the Chairman of the Appeal Committee to the plaintiff notifying him of the rejection of his appeal, after summarising the charge and the penalty imposed by the Student Disciplinary Committee, simply stated:
Having carefully considered your appeal and related documents, the Committee has concluded that there were no new evidences provided by yourself to give substance to your appeal. Your claim that you were not physically present on campus on Saturday 17th May 2008, was not supported by any credible evidence nor alibi.
Given the above, the Committee resolved to reject your appeal and uphold the SDC decisions together with the penalties imposed on you as given above.
Please note that the decision of this Appeals Committee is final.
37. I find that the plaintiff's ten grounds of appeal were ignored and that the only reason given for dismissing the appeal – that the plaintiff had not provided any new evidence – was irrelevant and insufficient. The Appeal Committee failed to give good, proper and sufficient reasons for its decision. Denial of natural justice, which may be categorised as an error of law, has been proven.
Conclusion re ground 1
38. Eight errors of law appear on the face of the records of the Student Disciplinary Committee and the Appeal Committee, in that the:
Ground 1 of the review is upheld.
GROUND 2: EXCESS OF JURISDICTION
39. The plaintiff argues that there was an excess of jurisdiction by both the Student Disciplinary Committee and the Appeal Committee in that:
(a) the charge was not adequately served; and
(b) he was not given a reasonable opportunity to defend himself;
(c) the Disciplinary Committee and the Appeal Committee were biased;
(d) he was charged with committing offences that did not exist;
(a) Inadequate notice of charges
40. The plaintiff argues that he was not given adequate notice of the charge. Section 7(1) (procedure generally) of the Revised Laws version of the Statute states:
Notice to a student on any disciplinary matter shall be adequately served by means of a letter signed by an authorised officer of the University –
(a) despatched to the address given by the student on his registration form as his postal address for the time being; or
(b) delivered by hand by a member of staff to the student.
41. The plaintiff submits that only two modes of service are permissible – by post to the address on the student's registration form or by hand by a member of staff to the student – and that neither was used in his case.
42. It is correct that there are only two modes of service permissible but I reject the plaintiff's claim that the letter from the Pro Vice-Chancellor containing the charge was given to him by another student – not by a staff member – on 6 October 2008. This claim only emerged in submissions and is unsupported by the evidence. There was no breach of Section 7(1) of the Statute.
(b) No reasonable opportunity to defend himself
43. The plaintiff argues that he was not given a reasonable opportunity to defend himself, because:
(i) the Disciplinary Committee failed to make available all documents presented to it;
(ii) the Appeal Committee failed to make available all documents presented to it;
(iii) he was not permitted to present his case to the Appeal Committee.
44. These arguments must be considered in light of the provisions of the Student Discipline Statute that regulate the procedures of the Disciplinary Committee and the Appeal Committee. Section 7 (procedure generally) relevantly provides:
(1) Notice to a student on any disciplinary matter shall be adequately served by means of a letter signed by an authorised officer of the University –
- (a) despatched to the address given by the student on his registration form as his postal address for the time being; or
- (b) delivered by hand by a member of staff to the student.
(2) All documents presented to a Disciplinary Committee or Appeal Committee shall be made available to the student concerned.
(3) Before a penalty is imposed on a student by a ... Disciplinary Committee ... [it] shall give the student a reasonable opportunity of answering the charge against him.
(4) The Disciplinary Committee and the Appeal Committee may, in their absolute discretion, allow a student to have legal or other representation when appearing before them.
(5) Failure to attend by a student on whom notice has been served in accordance with Subsection (1) shall not invalidate disciplinary proceedings.
(6) An appeal against the imposition of a penalty shall not operate to suspend the enforcement of the penalty unless the Vice-Chancellor directs such suspension.
(i) Disciplinary Committee failed to make available all documents
45. I uphold the plaintiff's argument that the Disciplinary Committee failed to make available to him all documents presented to it. An extensive incident report (exhibit D4, annexure A) was prepared by the Chief of Security and a copy was forwarded to the Pro Vice-Chancellor under cover of a letter dated 17 July 2008. It is apparent that this report became the basis of the charge laid against the plaintiff. It is reasonably to be inferred that the report was presented to the Disciplinary Committee, in which case the Disciplinary Committee was obliged to make it available to the plaintiff. I am satisfied that the Committee did not make it available and therefore breached Section 7(2) of the Statute.
(ii) Appeal Committee failed to make available all documents
46. I uphold the plaintiff's argument that the Appeal Committee failed to make available to him all documents presented to it. A report on the hearing of the plaintiff's case and related cases was prepared by the Disciplinary Committee (exhibit D1, annexure G; exhibit D3, annexure D). The Chairman of the Appeal Committee has given evidence that the report was forwarded to the Appeal Committee (exhibit D2, para 4), in which case the Appeal Committee was obliged to make it available to the plaintiff. I am satisfied that the Appeal Committee did not make it available and therefore breached Section 7(3) of the Statute.
(iii) Not permitted to present his case to the Appeal Committee
47. I uphold the plaintiff's argument that he was denied the opportunity to orally present his case to the Appeal Committee. Though the Statute does not expressly give a student the right to appear in person before the Appeal Committee it must be inferred from the wording of Section 7(4) that such a right is conferred. Section 7(4) confers an absolute discretion on the Appeal Committee whether to allow a student appearing before it to have legal or other representation when appearing before it; thus it is presuming that the student will be appearing before the Committee in person. Besides that, the very nature of an appeal process gives rise to the presumption that the appellant will be given a chance to present his case orally.
(c) Disciplinary Committee and Appeal Committee were biased
48. This argument is poorly articulated and without substance. There is no evidence that the decision of either Committee was affected by actual or reasonably apprehended bias.
(d) Charged with committing offence that did not exist
49. It is correct that the plaintiff was charged with a disciplinary offence that did not exist as he was charged under an unauthorised and ineffective version of the Student Discipline Statute. However the argument is a rehash of ground 1(c)(i) and does not deserve further consideration.
Conclusion re ground 2
50. Three of the four sub-grounds have been dismissed. However by ground 2(b) the plaintiff has proven excess of jurisdiction by the Disciplinary Committee and the Appeal Committee, which each denied him a reasonable opportunity to answering the charge against him in that:
Ground 2(b) is upheld. Grounds 2(a), 2(c) and 2(d) are dismissed.
GROUND (3): PREMEDITATION
51. This ground of review was abandoned and is not ruled on.
GROUND (4): UNREASONABLENESS
52. The plaintiff's argument is that the decisions of the Disciplinary Committee and the Appeal Committee were unreasonable according to the 'Wednesbury principles': the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test to apply is:
53. If the answer is yes, the decision may be labelled unreasonable, the decision-maker will have exceeded jurisdiction and the decision is susceptible to judicial review. If the answer is no, the decision is not unreasonable and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure.
54. In responding to this ground of review Ms Lari submitted that the Court should be careful not to insist on the Disciplinary Committee or the Appeal Committee following adversarial procedures that apply in court proceedings. In support of the proposition that neither Committee is obliged to act judicially she cited the following passage from the judgment of Injia DCJ as he then was in Kely Kerua v Council Appeal Committee (2004) N2534:
I accept that the SDC and the Appeals Committee have wide powers to deal with student disciplinary matters, and they should not be required to and expected to operate under strict rules of practice and procedure in an adversary style hearing/trial process that is adopted by the Courts and other statutory tribunals. They are under no duty to act judicially or quasi-judicially. Disciplinary rules are part of a student's education and these rules are there for good reasons. Student disciplinary rules are an integral part of student academic life and breach of those rules may be the sole reason for their exclusion from studies. Students of course have a right to receive an education which will qualify them for a future career or job in life but that right is qualified – the student must adhere to the disciplinary rules. In matters of student discipline, they are the best judges and arbitrators of disputes affecting the academic and social welfare of the University students, teachers and staff and the Court must pay greater deference to their judgment on these kinds of matters.
55. I consider that Ms Lari's submission has taken his Honour's statement that the Disciplinary Committee and the Appeal Committee are 'under no duty to act judicially or quasi-judicially' out of context. His Honour was in my view confining his observation to an argument that the committees were obliged to conduct adversarial hearings in which the rules of evidence apply and making it clear that each Committee was under no such obligation. I agree with that. In my decision in Kumbu I did not say that either Committee was under an obligation to conduct an adversarial hearing or to apply the rules of evidence. However, each Committee is under an obligation to act judicially in the sense that it must confine itself to the jurisdiction conferred on it, act fairly in accordance with the principles of natural justice, adhere to the procedures to which it is subject and act reasonably and not arbitrarily or capriciously. His Honour in Kerua was not saying that the Courts should altogether refrain from judicially reviewing the decisions of either the Disciplinary Committee or the Appeal Committee. Quite the contrary. Before the passage quoted by Ms Lari his Honour said this:
The academic life of a final year University student lays the foundation for his career in life and any decision made by a reasonably neutral student disciplinary body, which is likely to deny him the opportunity to continue and complete his studies successfully, must be made carefully, through a process which is fair to both parties. The decision given by the disciplinary body as recorded must reflect a fair deliberation of the case for both sides and a fair decision reached. Judicial review is about the fairness of the process by which the decision by an administrative body is reached and not the correctness of the decision itself.
56. Immediately after the passage cited by Ms Lari his Honour made it clear that neither Committee is permitted to make decisions that go beyond the bounds of reasonableness:
When a Court of law is requested to interfere in the decision-making process of a student disciplinary body, the Court will only do so where the body has committed an error of law, has failed to follow the prescribed procedures, exceeded its jurisdiction or exercise of power in decision-making is so irrational. That principle of irrationality has come to be known in the common law as the Wednesbury principle of unreasonableness – that no reasonable student disciplinary body would have reached such decision on the materials placed before it.
57. I will, as I did in Kumbu, apply the Wednesbury principle of unreasonableness to the decisions of both the Disciplinary Committee and the Appeal Committee.
(a) Disciplinary Committee
58. It committed seven errors of law by:
59. Though some grounds of review alleging other errors on the part of the Disciplinary Committee (that it proceeded without the plaintiff being given adequate notice of the charge and that it was biased) were dismissed, the number of errors committed by the Disciplinary Committee and the fact that they were committed not only at the outset of its deliberations but in its guilty finding and in its decision on penalty mean that its decision to find the plaintiff guilty and to penalise him in the manner it did was unreasonable. One error of law by a disciplinary tribunal does not necessarily render a decision unreasonable. But there comes a point, as I decided in Kumbu, when the cumulative effect of so many errors of law results inevitably in unreasonableness. That point was reached here. The decision was so unreasonable, having regard to all the errors that were made, no reasonable decision-maker would have made the decision.
(b) Appeal Committee
60. It committed four errors of law by:
61. A similar failure to give reasons by the Appeal Committee was found in Kely Kerua v Council Appeal Committee (2004) N2534 to be sufficient cause for an unreasonableness finding. There is no reason to reach a different conclusion here. The decision was so unreasonable, having regard to all the errors that were made, no reasonable decision-maker would have made the decision.
Conclusion re ground 4
62. The decisions of both the Student Disciplinary Committee and the Appeal Committee were unreasonable in the Wednesbury sense. Ground 4 is upheld.
GROUND (5): PENALTY WAS HARSH AND OPPRESSIVE
63. The plaintiff argues that the penalty of payment of 10% of the total cost of actual assessed damage to University properties was harsh and oppressive as he was found guilty of an ambiguous and defective charge and there was no credible and independent valuation of the properties that were damaged.
64. There are two problems with this argument. First it is not based on any recognisable and proper ground of judicial review. It would have been acceptable, in my view, to argue as a ground of judicial review a breach of Section 41 (proscribed acts) of the Constitution, which provides that even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case, amongst other things, harsh or oppressive (Hanjung Power Ltd v Dr Allan Marat, Attorney-General (2009) N3751). But there is no mention of Section 41 in the plaintiff's originating statement or in his submissions. Secondly the arguments underpinning ground 5 are a rehash of previous arguments and deserve no further consideration.
Conclusion re ground 5
65. This ground is misconceived and is dismissed.
GROUND (6): ALLEGATIONS WERE FALSE
66. This ground of review was abandoned and is not ruled on.
RECAP OF DETERMINATION OF GROUNDS OF REVIEW
67. Ground (1) was wholly upheld as the plaintiff proved by establishing sub-grounds (1)(a) to (e) that eight errors of law appeared on the face of the records of the Disciplinary Committee and the Appeal Committee.
68. Ground (2) was partly upheld as the plaintiff proved by establishing sub-ground (2)(b) that there was an excess of jurisdiction by the Disciplinary Committee or the Appeal Committee in three respects.
69. Ground (3) was not ruled on as it was abandoned.
70. Ground (4) was upheld as the number and nature of the errors of law committed by each committee rendered their decisions unreasonable.
71. Ground (5) was dismissed as not being a proper ground of review.
72. Ground (6) was not ruled on as it was abandoned.
73. Thus, two of the six grounds have been wholly upheld, one has been partly upheld and partly dismissed, one has been wholly dismissed and two have been abandoned.
WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?
74. As two grounds of review have been wholly upheld and one has been partly upheld, the decisions of the Student Disciplinary Committee and the Appeal Committee are susceptible to judicial review. It does not necessarily follow that the court will make the declarations and orders sought by the plaintiff. In any judicial review the court's determination of the review proceeds in two stages: (a) determining whether the plaintiff has proven one or more grounds of review, and if he has (b) deciding as a matter of discretion what remedies, if any, should be granted (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).
75. The plaintiff seeks five types of remedies:
(a) an order in the nature of certiorari to quash the decision of the Council Appeal Committee to uphold the decision of Student Disciplinary Committee (Order 16, Rule 3(2)(a) statement, para 3B);
(b) an order in the nature of mandamus requiring the University to allow him to continue his studies as a final year law student (Order 16, Rule 3(2)(a) statement, para 3C);
(c) a declaration that the Appeal Committee's decision is null and void (Order 16, Rule 3(2)(a) statement, paras 3D, 3E, 3F, 3H);
(d) a declaration that the Disciplinary Committee and the Appeal Committee were not impartial (Order 16, Rule 3(2)(a) statement, para 3G);
(e) damages (Order 16, Rule 3(2)(a) statement, para 3I).
(a) Certiorari re Appeal Committee decision
76. The Appeal Committee committed errors of law by exercising jurisdiction despite being unlawfully constituted, ignoring the plaintiff's grounds of appeal and failing to give good, proper and sufficient reasons for its decision, failing to make available to the plaintiff all documents presented to it and not permitting the plaintiff to orally present his case, thus rendering its decision unreasonable. No good reason has been advanced to depart from the natural conclusion that its decision should be quashed. The relief sought will be granted.
77. Though not expressly sought against the Disciplinary Committee, an order in the nature of certiorari will also be granted in relation to its decisions as to the guilt of the plaintiff and the penalty, given the number and serious errors of law committed by it.
(b) Mandamus re continuation of study
78. The court is in no position to order that the plaintiff be allowed to continue as a final year law student. The evidence suggests that he is yet to complete his third year courses. There is an argument that he should be allowed to continue where he left off, which I presume is part-way through first semester of third year. However, it is an academic argument, in the sense that it is best considered by the University authorities if and when the time comes for it to be considered, rather than by the Court. I am trusting the University to take full account of this judgment and the Court's orders if and when the plaintiff applies for re-enrolment. If it unreasonably refuses an application for re-enrolment the plaintiff will be able to approach the Court for relief. An order in the nature of mandamus would at this stage be premature. I decline to grant the relief sought.
(c) Declaration re Council Appeal Committee decision
79. The Appeal Committee committed numerous errors of law, as did the Disciplinary Committee. No good reason has been advanced to depart from the natural conclusion that its decision should be declared null and void and a nullity. The relief sought will be granted.
80. Though not expressly sought against the Disciplinary Committee, declarations of a similar nature will be made in relation to its decisions.
(d) Declarations as to partiality
81. All arguments that the Disciplinary Committee and the Appeal Committee were biased have been rejected. There is no basis for a declaration as to their lack of impartiality. I decline to grant the relief sought.
(e) Damages
82. The question of whether the court should award damages arising from a successful application for judicial review must be determined according to Order 16, Rule 7 of the National Court Rules, which states:
(1) On an application for judicial review the Court may, subject to Sub-rule (2), award damages to the applicant if -
(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
(2) Order 8, Division 2, shall apply to a statement relating to a claim for damages as it applies to a pleading.
83. Thus there are three requirements:
84. The first two requirements are satisfied but not the third. The Order 16, Rule 3(2)(a) statement is barren in its claim for damages. I have considered relaxing the third requirement as I have done recently in Jomino Holee v Sem Vegogo (2013) N5101 and Henry Wavik v Martin Balthasar (2013) N5272 when awarding plaintiffs K10,000.00 each upon granting of applications for judicial review. However, the facts of the present case are more complex and the claim for damages is reasonably to be expected to be of a higher amount than in those cases, so I have decided not to award any damages. The plaintiff's claim for damages would be better prosecuted by commencement of fresh proceedings, which would appear to be a viable course in light of the comments in Aita Sanangkepe v Honourable Paias Wingti (2008) N3404 and Isaac Lupari v Sir Michael Somare (2008) N3476. I decline to award damages.
COSTS
85. There is a case for the court awarding costs to the plaintiff on a solicitor-client basis in view of the fact that the University has committed a number of errors of law of the same type that have been found in at least four National Court cases to have invalidated student disciplinary proceedings, including Kumbu's case. However, an application for solicitor-client costs should be prosecuted by notice of motion (Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018, Island Helicopter Services Ltd v Wilson Sagati (2008) N3340). I will reserve the question of costs and allow the plaintiff 14 days to apply by notice of motion for costs.
ORDER
(1) The application for judicial review is granted.
(2) The decision of the Student Disciplinary Committee, conveyed by a letter to the plaintiff dated 20 September 2008, finding him guilty of a disciplinary offence and excluding him from studies for two semesters, ordering him to pay 10% of the total costs of assessed damage to university property to be paid before re-enrolment and requiring him to enter a good behaviour bond, is the subject of an order in the nature of certiorari and accordingly is quashed and declared null and void.
(3) The decision of the Council Appeal Committee, conveyed by a letter to the plaintiff dated 2 December 2008, rejecting his appeal and upholding the decision of the Student Disciplinary Committee, is the subject of an order in the nature of certiorari and accordingly is quashed and declared null and void.
(4) Other claims for relief, including that the plaintiff be awarded damages, are refused.
(5) The question of costs is reserved and the plaintiff is at liberty to apply within 14 days after entry of this order by notice of motion for costs.
(6) Time for entry of this order is abridged to the date of settlement of the order by the Registrar which shall take place forthwith.
______________________________________________________
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