Dominica Philip v The National Education Board and The Teaching Service Commission Disciplinary Committee and The Independent State of Papua New Guinea (2008) N4024

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 27 June 2008
• Court: National Court
• Citation: (2008) N4024
• Docket Number: OS 445 OF 2006 (JR)
• Year: 2008
• Judgement Number: N4024

Full Title: OS 445 OF 2006 (JR); Dominica Philip v The National Education Board and The Teaching Service Commission Disciplinary Committee and The Independent State of Papua New Guinea (2008) N4024

National Court: Injia, DCJ

Judgment Delivered: 27 June 2008

N4024

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 445 OF 2006 (JR)

BETWEEN:

DOMINICA PHILIP

Plaintiff

And:

THE NATIONAL EDUCATION BOARD

First Respondent

And:

THE TEACHING SERVICE COMMISSION DISCIPLINARY COMMITTEE

Second Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Injia, DCJ

2007: 16th October

2008: 27th June

JUDICIAL REVIEW – plaintiff reviewing decision of defendants who found her guilty on counts of disciplinary offences – five grounds of review advanced, namely error of law or ultra vires, breach of natural justice, irrelevant considerations, bias and Wednesbury principle of unreasonableness - s.41 Constitution, s.90(3) Teaching Service Act, O.16.r.3 National Court Rules

JUDICIAL REVIEW – practice and procedure - relief sought and grounds relied upon must be properly and sufficiently pleaded in Statement - plaintiff not permitted to challenge primary decision or reargue or rehash arguments raised before primary –decision making body – disciplinary process provided under Teaching Service Act - Part VII Div.4 Teaching Service Act 1988, O.16 rr.3& 6 National Court Rules

JUDICIAL REVIEW – remedies - application for judicial review granted in part - TSCDC’s decisions on other grounds of appeal upheld - remaining grounds under Wednesbury principles of unreasonableness not considered – matter remitted back to TSCDC for rehearing on fresh evidence on bias only.

Cases Cited:

Falsheer v Okuk [1980] PNGLR 101,

Gabir & Ors v Public Service Commission & Ors [1988-89] PNGLR 406.

Jaran v Kerepia [1987] PNGLR16

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

Sausau v PNG Harbours Board (2006) N3256

Counsel:

G Kogora, for the plaintiff

A Chillion, for the respondents

27th June, 2008

1. INJIA, DCJ: This is an application for judicial review made under O 16 of the National Court Rules. The plaintiff seeks to review the decision of the respondents to find her guilty on three counts of disciplinary offences and impose a penalty of demotion and transfer her out of Madang Teachers College (MTC).

Grounds of review:

2. There are five heads of grounds set out in the amended Statement filed under O 16 r 3 as follows:

“A. Error of law & ultra vires.

1. That the charges against the plaintiff by the National Education Board, the first Defendant herein were laid outside of the prescribed statutory time limit of 14 days as stipulated under Section 90(3) of the Teaching Service Act and therefore are legally invalid and of no effect.

2. By reason of the aforesaid, the First Defendant acted ultra vires its powers under Section 90(3) of the Teaching Service Act.

B. Breach of (Natural) Justice.

3. By not allowing or giving the Plaintiff a copy of the Investigation Report forming the basis of the charges made against her so as to respond properly and adequately to the charges laid, the First Defendant breached the Plaintiff’s right to natural justice.

C. Irrelevant considerations.

4. That the Second Defendant did not or failed to take into account relevant considerations, and took into account irrelevant considerations in arriving at the decision the subject of this review when it refused or failed to consider the fresh

evidence adduced by the plaintiff at the appeal alleging bias.

D. Bias

5. That the decision to charge, demote and transfer the Plaintiff out of MTC was tainted with bias, or was made under circumstances of real likelihood of bias when:

(a) it was based on an investigation report which was conducted in a biased manner.

(b) there was evidence of collusion between the Chairman of TSC, (named )(hereinafter referred to as the MR AJ), Assistant Secretary, Teacher

Education & Staff Development, (named)(hereinafter referred to as Mr

MT), The Acting Principal of MTC (named) (hereinafter referred to as Mr SP) and Registrar of MTC, (named) (hereinafter referred to as Mr RM) to remove the Plaintiff from her tenure position as Principal of MTC which was not taken into account at all.

(c) There was evidence of large cash payments were made from MTC accounts by Mr MK, Registrar of MTC with approval of Mr SP, Acting Principal of MTC to TSC Chairman and Mr MT prior to and at the time of the Plaintiff’s suspension which also was not taken into account at all.

E. Unreasonableness

6. The Second Defendant’s decision to dismiss the Plaintiff’s appeal and to uphold the decision of the First Defendant by way of penalty to demote the Plaintiff by two

(2) levels from her substantive position level 11 and to transfer her out of Madang Teachers College was harsh, oppressive, excessive and disproportionate to the nature and severity of the charges levelled against the Plaintiff and therefore contrary

to Section 41 of the Constitution.

7. Considering the circumstances of the particular case in its entirety, the decision the subject of the review made by the First and Second Defendants is very unreasonable and contrary to the Wednesbury principles.”

Evidence

3. The plaintiff relies on her two affidavits sworn on 31st May 2006, and 22nd February 2007 respectively. The respondents have not filed any affidavits but they rely on the written decision of the first respondent (TSCDC) dated 25th November 2005 which is annexed to the Plaintiff s affidavit sworn on 31st May 2006.

Facts

4. The plaintiff is a teacher employed by the Department of Education (DOE). Between 2003 and 2005, until her disciplinary demotion and transfer on 3rd June 2005, she was the Principal of MTC. There is no dispute that she was a “tenure holder” of that position. Between 5th March to 6th December 2004 or January 2005, she took study leave to undertake postgraduate studies in the degree of Master of Education at the University of Perth, Australia. In her absence, Mr SP was appointed to act in the position. Upon her return from studies in December 2004, her efforts to resume duties was resisted by Mr SP and the Teaching Service Commission (TSC). Tensions developed at the school between factions of staff and students aligned to Mr SP and the plaintiff which led to a fight at the college premises on the night of 11th January 2005. On 13th January 2007, the plaintiff was advised that she was suspended from duties pending an investigation into the matter. TSC sent a team of investigators from Waigani to investigate and report back on the incident. Between 14th – 20th January 2005, the investigation team interviewed staff and students. It was understood that an “Investigations Report was compiled and presented to the TSC. On 21st January 2005, the plaintiff was formally suspended from her duties pending investigations.

5. On 15th February 2005, the plaintiff was formally served with three charges. The charges were drafted in the prescribed manner with reference to the section of the Teaching Service Act 1988 (the Act) alleged to have been breached, the conduct alleged to constitute the offence and a statement of alleged facts to support each charge. The first charge was that she “committed a breach of this Act namely Section 108”, thereby contravening s 83 (a) of the Act. It was alleged that she took unapproved study leave in Australia. The second charge was that she “wilfully disobeyed or disregarded lawful order made by person in authority” thereby contravening s 83(b) of the Act. It was alleged that she disregarded orders issued by TSC for her not to resume duties until the National Education Board (NEB) decided on her position and conducted meetings with certain staff members and attempted to seize office by force. In collaboration with other named staff members, she demanded and obtained the office keys from Mr SP, seized cheque book and cash book of MTC, prevented 2005 teacher appointees from performing their duties and caused a confrontation which led to one Siegeru Woda being seriously hurt. The third charge was that she engaged conduct which was “disgraceful and improper in your official capacity so as to reflect the teaching profession” thereby contravening s 85 (1) of the Act. It was alleged that she conspired with other named staff members and held unauthorized meetings whilst she was on study leave which resulted in the same events referred to under the second charge. She was given seven (7) days to send her written response to the National Education Board’s Disciplinary Committee (NEBDC).

6. On 16th February 2005 she replied to the charge in writing. In a 6-page written statement, she denied the charges and gave an explanation on each charge. On 13th April, 2005 NEBDC met and heard the matter. The plaintiff attended the hearing. It is not clear from her evidence (see par 36 of her affidavit sworn on 31st May 2006) if she made any oral address. After the hearing NEBDC made its’ recommendation to NEB. On 25th May 2005, NEB made its decision. On 3rd June 2005, it conveyed its decision to the plaintiff in the form of a “Notice of Decision” in Form 14 of the Act. It found her guilty on all three charges. On the first and second charges, she was cautioned. On the third charge, she was demoted two levels...