N11368
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS 190, 191, 195, 196 & 197 OF 2022 (IECMS-CC3)

BETWEEN:
NELSON PERIO, ABSALOM MAENUI, JOSEPH THOMAS, PETERSON FRANKIE & STEVEN DUTCH

AND:
DAVID TOWE, RAY PAUL & PAPUA NEW GUINEA CUSTOMS SERVICE

WAIGANI: WAWUN-KUVI, J
24 APRIL 2023; 26 JUNE 2025
CIVIL PRACTICE AND PROCEDURE- Declarations-Concurrency of disciplinary charges and criminal charges-Whether charging a person administratively and criminally is harsh and oppressive? Whether the appropriate mode used to claim reliefs?
The plaintiffs were employed with the Papua New Guinea Customs Service. Following an unauthorised raid, they were accused of receiving money from the person subject of the raid. This led to administrative charges. A few days later, a complaint was made to the police, and criminal charges were laid. The plaintiffs were subsequently terminated. Later, the court dismissed their charges.

Held:

1.	Criminal proceedings are distinct from administrative proceedings. Not only are the charges different but the intended outcome is distinct: see Sapu v Commissioner of Police [2003] PGNC 80; N2426 and Sudi Yaku v Commissioner of Police ex parte The State [1980] PNGLR 27 at 31-32.
2.	Criminal offences are distinct from administrative offence as a criminal offence is an act against the State and society which leads to criminal proceedings which become the subject of a penalty by way of fine or imprisonment: Public Employees Association of PNG v Public Services Commission [1983] PGSC 18; [1983] PNGLR 206. 

Cases cited
Madang Timbers Ltd v Wasa [2021] PGSC 84; SC2154
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Pomaleu v Skate Jnr [2006] PGSC 24; SC838
Electoral Commission v Niningi [2003] PGSC 9; SC710
Attorney-General Michael Gene v The Independent State of Papua New Guinea & Another (1999) SC630
Chan v Ombudsman Commission of Papua New Guinea [1998] PGSC 19; SC557
Public Employees Association of PNG v Public Services Commission [1983] PGSC 18; [1983] PNGLR 206
Sapu v Commissioner of Police [2003] PGNC 80; N2426,
Attorney General v Hamidian-Rad [1999] PNGLR 444
Maniho v Wenge [1999] PGNC 66; N1870
Kawage v Solicitor General [1999] PGNC 65; N1875
Sudi Yaku v Commissioner of Police ex parte The State [1980] PNGLR 27

Counsel
P Kewa, for the plaintiffs
T Kaleh, for the defendants

DECISION

1.	WAWUN-KUVI J: The proceedings were conducted jointly with consent by parties because they all arise out of the same subject matter.
2.	In each of the Originating Summons the plaintiffs seek the following orders:
“A. PRIMARY RELIEFS.
1.	A Declaration pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that a Chief Commissioner of Papua New Guinea Customs Service, his delegate or a disciplinary committee does not have concurrent powers under Papua New Guinea Customs Services Act 2014 and/or Administrative Order 14- Discipline to discipline or prosecute an employee whose charge(s) on a particular offence are pending determination in a court of competent jurisdiction (committal court) or related other forums.
2.	If the Declaration sought in paragraph one herein is in the negative, a declaration pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that Clause 14.19 of Administrative Order 14 of 2nd December 2016 later replaced by Clause 14.33 of Administrative Order 14 of 24th August 2018 which states that “an officer who is charged by police with a criminal offence may also be charged concurrently with a disciplinary offence” is a law which is harsh and oppressive and entirely inconsistent with Section 37 of the Constitution (protection of the Law), Section 59 of the Constitution (principles of natural justice), Section 48 of the Constitution (freedom of employment) and Section 1(1) of under Papua New Guinea Customs Service Act 2014 and is therefore invalid.
3.	 A further Declaration pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the decision of the Second Defendant on 12th April, 2018 to dismiss the plaintiff from employment with Papua New Guinea Customs Service, whilst the plaintiff’s charges were pending determination in Lae District Court (committal court) was harsh and oppressive and in violation of plaintiff’s right to “protection of the Law” accorded to him under Section 37 of the Constitution,” principles of natural justice” accorded to him under Section 59 of the Constitution and “freedom of employment” accorded to him under Section 48 of the Constitution and Section 1(1), of under Papua New Guinea Customs Service Act 2014. 
4.	 A Declaration pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the Administrative Order 14- Discipline, which was approved and endorsed by Papua New Guinea Customs Service Counsel (PNGCSC) on 24th day of August 2018, has superseded the previous Administrative Order 14- Discipline of 2nd December, 2016 and the Public Service General Order, hence it has “retrospective effect” and applicable on offence(s) committed prior to the coming into operation of the Administrative Order 14- Discipline of 24 August, 2018.
5.	If the declaration sought in paragraph 4 hearing is in the affirmative, a further Declaration Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the entire disciplinary procedures employed to discipline the Plaintiff under Administrative Order 14- Discipline of 2nd December, 2016 are deemed null and void or have no effect in law by operation of Administrative Order 14- Discipline of 24 August, 2018 as having “retrospective effect” in law.
6.	A Declaration pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that Clause 14.130 of Administrative Order 14 of 24 August, 2018, which states that “a Customs officer may summarily dismissed by the Director Internal Affairs from employment without regard to the disciplinary process” is a law which is harsh and oppressive and entirely inconsistent with Section 37 of the Constitution (protection of the Law), Section 59 of the Constitution (principles of natural justice), Section 48 of the Constitution (freedom of employment) and Section 1(1) of under Papua New Guinea Customs Service Act 2014 and is therefore invalid.
B. CONSEQUENTIAL RELIEFS.
7.	 An Order pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the Customs Council shall in accordance with Section 10 and Section 29(4)(b) of the Papua New Guinea Customs Services Act, 2014, repeal and replace any offending clauses in Administrative Order 14 of 24 August, 2018 including Clause 14.130 and Clause 14.33 which stands to or deemed to be harsh and oppressive and entirely inconsistent with Section 37 of the Constitution (protection of the Law), Section 59 of the Constitution (principles of natural justice), Section 48 of the Constitution (freedom of employment) and Section 1(1) of under Papua New Guinea Customs Service Act 2014. 
8.	An Order pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the plaintiff shall be reinstated to his substantive position forthwith. 
9.	An Order pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution  and in accordance with the principle enunciated in the case of Asiki v Zurenouc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005), the Plaintiff be paid a sum of money equivalent to the salary and emoluments payable in respect of the position he held or its equivalent, in the period from the date of his dismissal to the date of his reinstatement.
C. MISCELLANEOUS
10.	Costs of these proceedings shall be met by the Third Defendant. 
11.	Any other orders that this Honorable deems fit pursuant to Section 155(4) of the Constitution. 
12.	Time be abridged.
The Facts
3.	The plaintiffs were employed by the Papua New Guinea Customs Service based in Lae, Morobe Province.
4.	On 16 February 2018 an unauthorised raid was conducted.
5.	Out of the raid came an allegation that the plaintiffs had solicited monies from the person subject of the raid.
6.	On 8 March 2018, the plaintiffs were served the Notice of Charges under Administrative Order 14 of the Papua New Guinea Customs Service.
7.	On 12 March 2018, police arrested the plaintiffs for official corruption under s 87(1)(a)(i)(ii) of the Criminal Code.
8.	Between 10 April 2018 and 13 April 2018, Disciplinary Hearings were conducted. 
9.	On 12 April 2018, the plaintiffs were dismissed from the Papua New Guinea Customs Service.
10.	 On 18 July 2018, the Committal Court dismissed the charges against the plaintiffs
Preliminary Issue
11.	The plaintiffs’ counsel has shifted from the questions posed in the originating summons and raises a challenge in his written submissions on the existence of disciplinary meetings. At page 10 of his written submissions, he submits that the plaintiffs should be reinstated because there were no disciplinary meetings.
12.	This is an abuse.
13.	Firstly, the substance of the relief sought by the plaintiffs was the interpretation of the Administrative Order 14 of the Papua New Guinea Customs Service as it relates to concurrent sanctions under the criminal law and administrative law and also on the retrospective effect of the amendments to Administrative Order 14. There was no challenge on the existence or otherwise of disciplinary meetings.
14.	 A party must have notice of nature of the proceedings. Fair notice of the case which has to be met must be given and the issues must be clear to enable the court to decide on the real controversy between parties.
15.	Secondly, if the intent was a challenge to the decision of the Papua New Guinea Customs Service decision to terminate the plaintiffs and for subsequent reinstatement then the plaintiffs have applied the wrong mode. It is settled that the proper mode to challenge the decision of a governmental body or public authority for orders in the nature of prerogative writs must be through Order 16 of the National Court Rules. Order 16(1) is mandatory: see Madang Timbers Ltd v Wasa [2021] PGSC 84; SC2154, Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906, Pomaleu v Skate Jnr [2006] PGSC 24; SC838, Electoral Commission v Niningi [2003] PGSC 9; SC710, Attorney-General Michael Gene v The Independent State of Papua New Guinea & Another (1999) SC630, Chan v Ombudsman Commission of Papua New Guinea [1998] PGSC 19; SC557, Sapu v Commissioner of Police [2003] PGNC 80; N2426, Attorney General v Hamidian-Rad [1999] PNGLR 444, Maniho v Wenge [1999] PGNC 66; N1870 and Kawage v Solicitor General [1999] PGNC 65; N1875.
16.	For these reasons, I reject the first leg of the plaintiffs’ submissions.
17.	I turn now to the reliefs sought by the plaintiffs in their Originating Summons.
Reliefs Sought 
18.	Relief 1, 2 and 3 relate to the subject matter of the concurrent provisions on criminal and administrative sanctions. I will address them together.
19.	The Administrative Orders are issued under the Papua New Guinea Customs Service Act 2014.
20.	Order 14.17 reads:
“Offences fall into two categories; they are with Criminal Offences or Disciplinary Offences. Disciplinary offences may be classified as minor or serious in nature.”
21.	Order 14.18 reads:
“Criminal Offences are defined under the Criminal Code Act, 1974 and the Summary Offences Act, 1977.” 
22.	Order 14.19 reads:
“Where an officer is charged by Police with a criminal offence, he/she may also be charged concurrently with a disciplinary offence.”
23.	The administrative charges were under Order 14.20 (i) and (j) which read:
“A Customs officer commits a disciplinary offence, of a minor or serious nature, if he/she:
(i)	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
j) 	is guilty of disgraceful or improper conduct in his/her official capacity or 	otherwise”
24.	 Firstly, there is no bar between proceeding against an officer administratively and the laying of a criminal charge.
25.	Secondly, the plaintiffs have misconceived the nature of committal proceedings. A committal proceeding is not a trial which determines guilt or innocence. It is a process to determine only sufficiency. The dismissal by the Committal Court does not necessarily mean that the case against them is finally determined. The Public Prosecutor could still indict them if he wishes to do so. 
26.	Thirdly, criminal proceedings are distinct from administrative proceedings. Not only are the charges different but the intended outcome is distinct. As said by Kirriwom J in Sapu v Commissioner of Police [2003] PGNC 80; N2426, “There is this misconception that the disciplinary charge was piggy-backed by the assault charge and once that charge was thrown out due to lack of evidence, there was no case for him to answer as far as the disciplinary proceeding was concerned. This is all wrong......It must be pointed out at the outset that the criminal proceeding had no relevance to the disciplinary action. The outcome of the criminal case in the District Court had no bearing on the disciplinary action. They were not pursuing the same result.” See also Sudi Yaku v Commissioner of Police ex parte The State [1980] PNGLR 27 at 31-32.
27.	The facts in Sapu v The Commissioner were that the plaintiff had engaged in sexual intercourse with a minor. He was charged for assault. The police offered no evidence in the District Court. He was later charged administratively for disgraceful conduct and dismissed from the police force.
28.	Here the plaintiffs were charged administratively for receiving monies in connection with the discharge of their official duties other than their official remuneration and for disgraceful or improper conduct in their official capacity. They were first charged administratively and shortly after the police laid a charge for official corruption under the Criminal Code. They were processed administratively and terminated. Later, the Committal Court dismissed their matters. 
29.	 The distinction between the two types of proceedings was also described by the Supreme Court in Public Employees Association of PNG v Public Services Commission [1983] PGSC 18; [1983] PNGLR 206. As distinct from an administrative offence, a criminal offence is an act against the State and society which leads to criminal proceedings which become the subject of a penalty by way of fine or imprisonment.
30.	 The plaintiffs have not demonstrated or made out a case which shows that the actions of the Papua New Guinea Customs Service were inconsistent with the law or was harsh or oppressive.
31.	As for the argument that that the actions of Papua New Guinea Customs Service is inconsistent with section 37 (3) of the Constitution, the Supreme Court in Public Employees Association of PNG v Public Services Commission [1983] has settled that section 37(3) only affords protection to criminal offences and does not extent to punishment for disciplinary offences. The plaintiffs have not directed me to any circumstance that they were not afford protection when they were charged criminally. 
32.	In relation to the plaintiffs’ contentions that they should be reinstated because the new Administrative Order has a retrospective effect, the plaintiffs are misconceived. Their acts and the subsequent actions undertaken during the Disciplinary process were completed prior to the coming into operation of the new Order. There is no merit in the submissions.
33.	 As to consequential relief seven (7) seeking repealing and amending the Administrative Orders, the plaintiffs bearing the onus have not shown that the applicable provisions are harsh or oppressive.
34.	Finally, in relation to reliefs eight (8) and nine (9) which seek reinstatement and back payment, the plaintiffs attempt to disguise judicial review under the guise of originating summons is an abuse. 
35.	 For the foregoing reasons, I refused the declarations sought the proceedings styled OS 190, 191, 195, 196 and 197 are dismissed.
Orders
36.	The Order of the Court is as follows:
1.	A Declaration sought pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that a Chief Commissioner of Papua New Guinea Customs Service, his delegate or a disciplinary committee does not have concurrent powers under Papua New Guinea Customs Services Act 2014 and/or Administrative Order 14- Discipline to discipline or prosecute an employee whose charge(s) on a particular offence are pending determination in a court of competent jurisdiction (committal court) or related other forums is refused.
2.	A Declaration sought pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that Clause 14.19 of Administrative Order 14 of 2nd December 2016 later replaced by Clause 14.33 of Administrative Order 14 of 24th August 2018 which states that “an officer who is charged by police with a criminal offence may also be charged concurrently with a disciplinary offence” is a law which is harsh and oppressive and entirely inconsistent with Section 37 of the Constitution (protection of the Law), Section 59 of the Constitution (principles of natural justice), Section 48 of the Constitution (freedom of employment) and Section 1(1) of under Papua New Guinea Customs Service Act 2014 and is therefore invalid is refused.
3.	 A Declaration sought  pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the decision of the Second Defendant on 12th April, 2018 to dismiss the plaintiff from employment with Papua New Guinea Customs Service, whilst the plaintiff’s charges were pending determination in Lae District Court (committal court) was harsh and oppressive and in violation of plaintiff’s right to “protection of the Law” accorded to him under Section 37 of the Constitution,” principles of natural justice” accorded to him under Section 59 of the Constitution and “freedom of employment” accorded to him under Section 48 of the Constitution and Section 1(1), of under Papua New Guinea Customs Service Act 2014 is refused.
4.	 A Declaration  sought pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the Administrative Order 14- Discipline, which was approved and endorsed by Papua New Guinea Customs Service Counsel (PNGCSC) on 24th day of August 2018, has superseded the previous Administrative Order 14- Discipline of 2nd December, 2016 and the Public Service General Order, hence it has “retrospective effect” and applicable on offence(s) committed prior to the coming into operation of the Administrative Order 14- Discipline of 24 August, 2018 is refused.
5.	A Declaration sought pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the entire disciplinary procedures employed to discipline the Plaintiff under Administrative Order 14- Discipline of 2nd December, 2016 are deemed null and void or have no effect in law by operation of Administrative Order 14- Discipline of 24 August, 2018 as having “retrospective effect” in law is refused.
6.	A Declaration sought pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that Clause 14.130 of Administrative Order 14 of 24 August, 2018, which states that “a Customs officer may summarily dismissed by the Director Internal Affairs from employment without regard to the disciplinary process” is a law which is harsh and oppressive and entirely inconsistent with Section 37 of the Constitution (protection of the Law), Section 59 of the Constitution (principles of natural justice), Section 48 of the Constitution (freedom of employment) and Section 1(1) of under Papua New Guinea Customs Service Act 2014 and is therefore invalid is refused.
7.	 An Order sought pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the Customs Council shall in accordance with Section 10 and Section 29(4)(b) of the Papua New Guinea Customs Services Act, 2014, repeal and replace any offending clauses in Administrative Order 14 of 24 August, 2018 including Clause 14.130 and Clause 14.33 which stands to or deemed to be harsh and oppressive and entirely inconsistent with Section 37 of the Constitution (protection of the Law), Section 59 of the Constitution (principles of natural justice), Section 48 of the Constitution (freedom of employment) and Section 1(1) of under Papua New Guinea Customs Service Act 2014 is refused.
8.	An Order pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution, that the plaintiff shall be reinstated to his substantive position forthwith is refused.
9.	An Order pursuant to Order 12 Rule 1 of the National Court Rules 1983 and Section 155(4) of the Constitution  and in accordance with the principle enunciated in the case of Asiki v Zurenouc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005), the Plaintiff be paid a sum of money equivalent to the salary and emoluments payable in respect of the position he held or its equivalent, in the period from the date of his dismissal to the date of his reinstatement is refused.
10.	The proceedings styled OS 190, 191, 195, 196 & 197 of 2022 are dismissed in their entirety and the files are closed.
11.	The plaintiffs shall pay the defendants’ costs on a party-party basis, to be taxed, if not agreed.
12.	Time is abridged.

Lawyer for the plaintiff: Pacific Attorneys & Consulting Group
Lawyer for the defendants: Papua New Guinea Customs Service Inhouse Counsel