Judicial Review Application by Andrew Posai [1995] PNGLR 350

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 30 August 1995
• Citation: [1995] PNGLR 350
• Court: National Court
• Year: 1995
• Judgement Number: N1354

Full Title: Judicial Review Application by Andrew Posai [1995] PNGLR 350

National Court: Sheehan J

Judgment Delivered: 30 August 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JUDICIAL REVIEW APPLICATION BY ANDREW POSAI

Waigani

Sheehan J

7 July 1995

2 August 1995

18 August 1995

30 August 1995

ADMINISTRATIVE LAW — Judicial review — Application for leave — Need to establish an arguable case.

CONSTITUTIONAL LAW — Judicial review — Basis and scope of court's power, Constitution s 155 (4).

Facts

The Leadership Tribunal found the plaintiff guilty of misconduct in office on 26 counts and recommended his dismissal from office on some counts and reprimand on others. The plaintiff sought judicial review of the tribunal's decisions on penalties and applied leave to make an application therefore.

Held

1. The Court's powers of judicial review stem from s 155 (4) of the Constitution, and from the inherent jurisdiction of the Courts. Essentially the supervisory jurisdiction of judicial review is intended do justice, to review — for cause — the actions or determinations of any public authority dealing with the rights of the individuals.

2. The power of review ranges across the whole of public administration whether judicial or administrative. Since Ridge v Baldwin [1964] AC 40 and many decisions since that time both here in Papua New Guinea notably Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 and overseas there is no longer any distinction between judicial and administrative decisions and Courts supervisory role now extends to the review of public authorities and persons charged with any public duty where their actions or determinations affect the public rights of individuals.

3. The Leadership Tribunal is required to recommend punishment. In Judicial Review In Judicial Review this Court cannot itself exercise that discretion even if it were to disagree with the determination made. It can not act as a Court of appeal. It can not substitute its own view of what penalty should be imposed. All that it can do in review is to determine whether the Leadership Tribunal exercised its discretion lawfully and accordance with the powers given to it by the Organic Law.

4. Application for leave for judicial review do not involve a full enquiry into the facts and issues of a case. It must be shown however that a plaintiff has an arguable case. Here the plaintiff has not established such a position.

Cases Cited

Papua New Guinea case cited

Premdas v Independent State of Papua New Guinea 1974 PNGLR 329.

Other cases cited

R V Hillingdon v London BC [1986] AC 484.

Chief Const. of North Wales Police v Evans 1982 1 WLR 1155.

Ridge v Baldwin 1964 AC 40.

Counsel

Dr Marat, for the plaintiff.

Mr F. Damem, for the defendant.

30 August 1995

SHEEHAN J: On 5 July 1995 a Tribunal constituted under the Organic Law on Duties and Responsibilities of Leadership found the plaintiff guilty of misconduct in office on some 26 counts. The Tribunal was then addressed by both the Public Prosecutor and Counsel for the plaintiff "as to what penalty should be imposed upon the leader and the law relating to the powers of the Tribunal and what the law required as the relevant considerations".

On the following day 6 July 1995 the Tribunal delivered its written decision, the "Imposition Of Penalties" determining that on certain of the counts against the plaintiff it was appropriate that there should be a recommendation for dismissal from office and on others that there need be a reprimand only.

Pursuant to s 28 (1A) (2) of the Constitution the appropriate authorities acted in accordance with the Tribunal recommendation. The plaintiff was therefore reprimanded and dismissed from office.

The plaintiff now seeks leave to apply for judicial review of the Tribunal's decision on penalties, on the grounds that the determination of the Tribunal to recommend dismissal on the relevant counts "was against the weight of evidence advanced during the Tribunal hearing which was suggestive of a much lesser degree of culpability on the part of the applicant."

Additional grounds for review assert that a comparison of the offences for which dismissal was recommended, with those where a reprimand only was determined, show an inconsistency which indicates want of proper consideration by the Tribunal. Another ground was that no aggravating...