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Penk v Huafolo [2019] PGNC 294; N8022 (15 August 2019)

N8022

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 955 of 2018

BETWEEN:
JOSIAH PENK
Plaintiff

AND:
RAPHAEL HUAFOLO Deputy
Commissioner for Police
First Defendant

AND:
GARI BAKI as the
Commissioner for Police
Second Defendant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA

Third Defendant

Waigani: Thompson J
2019: 7 August: 15 August

EMPLOYMENT LAW - Termination From Police Force– Judicial Review – Need To Plead Grounds With Particularity – Need To Plead Breach Of Statutory Or Common Law Duty – Statutory Procedures Followed – No Breach Of Natural Justice

Counsel:

Mr. J. Isaac, for the Plaintiff
Mr. R. Uware, for the Defendants

15^th August, 2019

1. THOMPSON J: BACKGROUND: The Plaintiff had been employed with the Police Force since 1980, and was a Senior Sergeant at the Mount Hagen Police Station. On 13 January 2013, he was on duty at the Police Station, when 17 prisoners and detainees escaped.

2. One of the prisoners who escaped, Agnes Iki, had been committed for trial in 2012, and after her escape in 2013, the National Court ordered that the Police conduct an internal investigation into the circumstances of the escape, and present their findings to the court. Following the presentation of those findings, a Serious Disciplinary Offence charge was laid against the Plaintiff for contravention of S 20 (1)(az) of the Police Act (“the Act”). After completion of the adjudication process, the Plaintiff was found guilty of the charge, and the penalty of dismissal was imposed. The Plaintiff applied to the 2^nd Defendant to review the decision, but his application was rejected for being made out of time.

3. The Plaintiff issued these proceedings on 18 December 2018 seeking to review the decision of 27 May 2016 to find him guilty and impose a penalty of dismissal, and the decision of 21 February 2018 to refuse his application for a review.

4. On 28 December 2018 the Plaintiff obtained an ex parte injunction restraining him and his family from being evicted from the Defendant’s housing. On 7 March 2019, the Plaintiff was granted Leave to proceed by way of judicial review.

Grounds for Review

5. The eleven Grounds are set out in para D of Statement, and I will deal with each of them in turn.

6. Ground 1– The decision of 27 May 2016 to find the Plaintiff guilty was wrong in law, because it breached S33 (2) of the Act.

7. This Ground is misconceived, as S33 of the Act is not relevant to the proceedings. S33 only applies to persons convicted of a criminal offence, and S33(2) merely provides that a member who is convicted of an offence for which a term of imprisonment is imposed, shall be dismissed. There was no breach of S33 (2) of the Act.

8. The Act does not provide that the only ground for dismissal of a member, is being convicted of a criminal offence. On the contrary, S26 (1)(g) of the Act specifically provides that a member may be dismissed where a serious disciplinary offence charge has been sustained.

9. Ground 2 – The decision to find him guilty and impose a penalty of dismissal was harsh, oppressive and unlawful within the meaning of S41 of the Constitution, because the Plaintiff had been suspended for 2.5 or 2.6 years without a charge being laid against him.

10. The dates in this Ground, are not clear. The Plaintiff does not state the date on which he was suspended, and there are no documents showing that he was suspended, either with or without pay. Although the dates do not add up to 2.5 or 2.6 years, the Plaintiff must be saying that he was suspended sometime after the escape of the prisoners on 13 January 2013. The Charge was dated 15 August 2014, a period of about 18 months later. No reason has been provided to show why this would be harsh, oppressive or unlawful. The Defendants produced evidence that the reason that a charge was not laid earlier, was that the Plaintiff’s fellow officers at the Mount Hagen Police Station had refused to co-operate, and it was not until they were obliged to comply with the National Court Orders, that the Defendants were able to investigate the circumstances and obtain the evidence.

11. Furthermore, the Plaintiff has not sought or obtained Leave to seek judicial review of any decision to suspend him for 2.5 or 2.6 years without laying a charge, and so this Ground is irrelevant.

12. Ground 3–The Decision of 27 May 2016 to find him guilty and dismiss him was in breach of natural justice because the allegations were made 3.4 years earlier, the allegations had not been converted into formal charges, and he had not been given an opportunity to be heard on such formal charges.

13. It is unclear what this Ground means. The allegations made 3.4 years earlier were not identified, and a formal Charge was laid against him on or about 15 August 2014. He was given, and took, the opportunity to be heard on that charge. No breach of natural justice has been identified.

14. Ground 4 - The decision to find him guilty and dismiss him was in breach of natural justice, because the Plaintiff’s response was not given any consideration, and there was no evidence to corroborate the allegations.

15. The Plaintiff gave a sworn written response to the charge. Chief Inspector Alphonse Maipe conducted the adjudication of the charge. He gave evidence that he received and took into account the evidence of the Plaintiff, the Police Investigator, seven prisoners or detainees, and five policemen. His assessment of all that evidence is set out in his Findings and recommendation on penalty, dated 29 March 2016. The 1^stDefendant gave evidence that he considered the charge, the evidence referred to in the adjudicating officer’s report, and the recommendation on penalty, before making his decision.

16. This court of judicial review is not concerned with the merits of the Defendant’s decision. This court can only be concerned with the decision-making process. The evidence showed that the Plaintiff’s response was given consideration by the Defendants, and there were witnesses who corroborated the allegations. It was therefore open to the Defendants to make a finding of guilt. The decision-making process was followed, and there was no breach of natural justice.

17. Ground 5 – The decision of 21 February 2018 to refuse the Plaintiff’s application for review was harsh, oppressive or unlawful within the meaning of S41 of the Constitution because the Defendant took twenty months to make the decision, and five months to serve the decision on him.

18. There is no time limit prescribed in the Act, in which a decision on a review must be delivered or served. S26 provides that the member may apply for a review within seven days of notification of the decision, or within such further time as the Commissioner may allow, the Commissioner may confirm or annul the penalty, and his decision is final. The Plaintiff has not identified any significance or adverse consequence caused by the date when the review decision was delivered and served. It has not been shown to be harsh or oppressive, and it was not unlawful.

19. Ground 6 – The decision of 21 February 2018 to refuse the Plaintiff’s application for a review, was harsh, oppressive or unlawful within the meaning of S41 of the Constitution, because the Plaintiff waited in suspense for the decision.

20. This ground is the same as Ground 5. The Plaintiff had already been found guilty and dismissed in 2016. There was no time period prescribed for the review decision to be delivered or served. It was not harsh, oppressive or unlawful.

21. Ground 7 – The Defendant’s decision to refuse the Plaintiff’s application for review was in breach of natural justice because the merits of the Plaintiff’s application were not considered, and there was no evidence to corroborate the allegations against him.

22. S 26 (5) of the Act clearly provides that an application for review must be made within seven days, or within such further time as the Commissioner may allow. No error has been shown in the Commissioner’s decision to reject the Plaintiff’s application for review because it was made out of time. No breach of natural justice has been shown.

23. Ground 8 – The Defendant’s decision to refuse the Plaintiff’s application for review was against the spirit of good administration, because a Legal Officer had made a contrary recommendation.

24. The 1^st Defendant gave evidence that the person who made the recommendation was not a lawyer. Furthermore, and in any event, the facts on which the recommendation was based, were clearly wrong. The recommendation was based on a statement that no investigation had been carried out, which was incorrect, and on the Plaintiff having been dismissed pursuant to S 33 (2) of the Act, which, as set out earlier, was not correct, and this section did not apply to the Plaintiff. The Defendant was not obliged to act on this recommendation, and no error has been shown in rejecting it.

25. Ground 9 – the Defendant’s failure to make a decision on the Plaintiff’s application for review earlier, and failing to inform the Plaintiff of progress, was a breach of the Plaintiff’s right to expect such action.

26. The Plaintiff has not identified any statutory or common law right which is alleged to have been breached. There are no time limits prescribed in the Act.

27. Ground 10 – The Defendants were biased in making the decision, because they did not take into account favorable facts including that the allegations made against him were based on lies.

28. The evidence was that the Defendants took into account all the matters favorable to the Plaintiff which were set out in his written response, and in the evidence from witnesses. The evidence showed that the Defendants also took into account other evidence which they found substantiated the allegations. No error has been shown in the decision-making process.

29. Ground 11 – There was a substantial miscarriage of justice in the circumstances of the case.

30. The Plaintiff has not identified any miscarriage of justice. The Act provides the procedures which are to be followed in the case of a serious disciplinary charge, and the evidence showed that all the procedures were followed. There was no evidence of any breach of those procedures, the charge was based on serious facts, the charge was found proven, and in those circumstances, a miscarriage of justice was not shown.

Conclusion

31. As has been said in many cases, it is necessary for the Statement to set out an accurate description of the decision under review, a succinct statement of the relevant facts alleged which give rise to the grounds for review, the relief sought, and the grounds upon which the relief is sought. The grounds must contain reference to some established grounds recognized by law as proper grounds upon which judicial review relief is available, and the statutory provision or common law duty alleged to have been breached. (see Paul Asakusa v Andrew Kumbakor and others (2008) PGNC 39).

32. A number of the grounds here are vaguely worded and not sufficiently particularized to demonstrate any error the face of the record. The grounds failed to identify, and the evidence failed to support any breach of statutory procedures or of natural justice.

33. In the Statement of Agreed and Disputed Facts, and in the Plaintiff’s written submissions, a further issue was raised as to whether or not the 1^st Defendant was properly appointed to deal with the Plaintiff’s disciplinary charges. As this was not a Ground of review set out in the Statement, it was not in fact an issue which could be raised. In any event, upon the Defendant providing evidence which established that the 1^st Defendant was properly appointed, the Plaintiff did not proceed with this issue.

34. It was also mentioned in submissions that the Plaintiff had not been given an opportunity to make a separate submission on penalty, after the finding of guilt. This was not a Ground in the Statement, and in any event, the Serious Disciplinary Charge notice included a Statement that he should also “provide any submission you may wish to make in relation to penalty, should the charge be sustained”. There was no requirement in the Act for there to be separate determination of guilt and penalty, and he was given the opportunity to make a submission on penalty. No error has been shown.

35. As the Plaintiff has failed to establish the Grounds for review, it is not necessary to consider the relief sought. Nevertheless, it must be noted that an application for reinstatement to a position which he had not held since January 2013, six and half years ago, would be likely to be found to be detrimental to good administration. Further, the Plaintiff is now aged nearly 62, and as S 91 of the Act provides for compulsory retirement at the age of 60, reinstatement could not be an option.

36. I therefore make the following orders:

(a) The Plaintiff’s application for judicial review of the Defendant’s decisions of 27 May 2016 and 21 February 2018, is refused.

(b) The Injunction orders initially granted on 28 December 2018, are discharged.

(c) Each party is to pay its own costs.

_________________________________________________________________
Lawama Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants