SC2277
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 47 OF 2021

BETWEEN:
MICHAEL BOKI
Appellant

AND:
BERNARD KIPIT
as City Manager - NCD
First Respondent

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J., Pitpit J., Gora J.
2022: 28th June, 8th August

SUPREME COURT APPEAL- Appeal Against Refusal to Grant Application for Judicial Review

Cases Cited:
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Kumul Petroleum Holdings Ltd v. Edward Alina (2022) SC2253
Nelson Saroa v. Babagini Nogana (2020) SC1992 
Telikom PNG Ltd v. Yaki Kopalye (2021) SC2141

Counsel:

Mr. M. Philip, for the Appellant
Mr. N. Kopunye and Mr. E. Tolabe, for the First and Second Respondents
Mr. T. Tanuvasa, for the Third Respondent

8th August, 2022

1.        BY THE COURT: This is a decision on a contested appeal against a National Court decision which refused an application for judicial review (Decision Appealed). The judicial review concerned the termination of the appellant’s employment with the second respondent National Capital District Commission (NCDC) as acting security supervisor.

Background

2.       The appellant was notified of the termination of his employment with NCDC in an inter-office memorandum dated 16th April 2018 from the first respondent. 

3.     The appellant sought to review that decision (termination decision). He also sought orders in the nature of certiorari to quash the termination decision and the decision of the National Capital District Commission Staff Appeal Tribunal (SAT) dated 8th June 2018 to maintain the decision to terminate (SAT decision). 

Appeal

4.        The appellant’s grounds of appeal are amongst others, that the primary judge fell into error in holding that the SAT had not committed error in its deliberations as the primary judge had failed to consider that the SAT had not complied with clause 10(5) NCDC Staff Disciplinary Code (Code) as it had not notified the appellant in writing of the time and place of the hearing of his appeal before the SAT; and had failed to consider that before the SAT there was evidence showing that the appellant was authorised by his supervisor to use the certain motor vehicle.

5.      The first and second respondents submit amongst others, that the first ground of appeal should be dismissed as it is a question of fact, and leave should have been obtained; that all procedures under the code were adhered to and the process was not unfair to the appellant; and that the appellant raised issues in the judicial review that were not raised before the SAT and is now raising issues not raised in the judicial review.

6.      The second respondent, the State, submits that the leave to apply for judicial review which was granted is not specific, and so, only relates to the decision for which leave to review was sought. Leave had only been sought in respect of the termination decision and not the SAT decision. Consequently, the primary judge did not fall into error in not considering the SAT decision.

Review of exercise of discretion by primary judge

7.    This Court’s role in an appeal from the exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788. We reproduce the following passage from that decision: 

“A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed 	from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”

Consideration

8.      As to the submission of the second respondent that leave to review was only given in respect of the termination decision and not the SAT decision and so the primary judge did not fall into error in not considering the SAT decision, notwithstanding that the leave was only sought in the originating summons to review the termination decision, in the written reasons of the primary judge he makes reference or considers the SAT decision as well as the termination decision in various paragraphs of his written reasons. The statement of agreed and disputed facts and legal issues refers to the disputed fact concerning whether the appellant was notified properly by the SAT of the hearing of the appeal. Further, the submissions of the appellant and first and second respondents before the National Court address the SAT decision and whether the appellant was informed of the SAT hearing pursuant to clause 10(5) Code.

9.    Given the above, we are satisfied that the SAT decision and whether the appellant was notified of the hearing of the appeal before the SAT pursuant to clause 10(5) Code were raised and argued before the primary judge by the appellant and first and second respondents.

10.     In the recent Supreme Court judgment, Telikom PNG Ltd v. Yaki Kopalye (2021) SC2141 at [53], Collier J, with whom Logan J and Hartshorn J agreed, said:

	“The Supreme Court in Motor Vehicles Insurance (PNG) Trust v. Pupune [1993] PNGLR 370 noted however that pleadings are only a means to an end, and if parties in fighting their legal battles choose to meet each other on different issues, they cannot hark back to the pleadings and treat them as governing the area of contest (Gould v. Mount Oxide Mines Ltd [1916] HCA 81; (1916) 22 CLR 490 at 517).”

	11.     Consequently, we do not find any merit in this submission.

12.     The next issue we consider is whether the primary judge fell into error in his consideration or otherwise of whether notice had been given to the appellant of the SAT hearing pursuant to clause 10(5) Code.

13.      In his written reasons, the primary judge does not specifically address whether notice pursuant to clause 10 (5) Code had been given. It is clear that the Code applies in this instance and that pursuant to clause 10(5) Code the appellant should have been notified in writing of the time and place of hearing of the SAT hearing. This requirement is mandatory.

	14.     It is conceded by the first and second respondents that there is no material or actual evidence of the appellant being given notice of the SAT hearing pursuant to clause 10(5) Code or at all. The issue of notice was raised in the Order 16 statement by the appellant and is referred to in the statement of agreed and disputed facts and issues for trial. The respondents were put on notice of this issue therefore, but did not or were not able to give evidence on this issue.

	15.     That the appellant should have been given notice of the SAT hearing is not merely a requirement of the Code, it is also a requirement of natural justice or procedural fairness: see generally Nelson Saroa v. Babagini Nogana (2020) SC1992 and Kumul Petroleum Holdings Ltd v. Edward Alina (2022) SC2253.

16.      As the primary judge did not specifically address the mandatory requirement of whether, the appellant had been given proper notice pursuant to clause 10(5) Code, to our minds the primary judge fell into error. Consequently, the appeal should be upheld on this ground alone. Given this, it is not necessary to consider the other submissions of counsel.

	17.   As to the relief that should be granted, as the error that we have found to have occurred concerns the appellant being afforded the opportunity to be heard at the hearing of his appeal before the SAT, it is appropriate in the circumstances that the relief that should be granted should permit that opportunity.

	Orders
	18.  It is therefore ordered that:
	a)	The appeal is upheld.
	b)	The orders of the National Court made on 5th August 2021 and entered on 6th 	August 2021 in OS(JR) No. 195 of 2019: Michael Boki v. Bernard Kipit and two others, are quashed.
c)	The appeal of the appellant to the NCDC Staff Appeal Tribunal shall be reheard by that Tribunal within 30 days of today. That Tribunal and the Manager under the National Capital District Commission Staff Disciplinary Code shall ensure that the appellant shall be notified in writing of the time and place of rehearing of his appeal.
d)	The respondents shall pay the costs of the appellant of and incidental to this appeal and the costs of the appellant/plaintiff of and incidental to National Court proceeding OS(JR) No. 195 of 2019.
__________________________________________________________________
Korerua and Associates Lawyers: Lawyers for the Appellant                                     
Kopunye Lawyers: Lawyers for the First and Second Respondents    
Solicitor General: Lawyer for the Third Respondent