Kely Kerua v Council Appeal Committee of The University of Papua New Guinea and University of Papua New Guinea (2004) N2534

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 02 June 2004
• Court: National Court
• Citation: (2004) N2534
• Year: 2004
• Judgement Number: N2534

Full Title: Kely Kerua v Council Appeal Committee of The University of Papua New Guinea and University of Papua New Guinea (2004) N2534

National Court: Injia DCJ

Judgment Delivered: 2 June 2004

1 Civil Law—Practice and Procedure—Judicial Review—Review of University Student Disciplinary body's decision to exclude final year student—Application under Order 16 of National Court Rules—Grant of Leave and stay order issued pending determination of substantive application issued allowing student to continue and complete studies—Essence of time—Purpose of application achieved by passage of time due to delay in fixing substantive application for hearing—Duty of Registrar and Applicant to fix date for substantive hearing within the time period stipulated by O16 r5(3) and (4) of the National Court Rules.

2 Judicial Review—Student Disciplinary body—Duty to observe principles of natural justice—Decision to exclude student—Business Economics student in final year of studies—Failure to consider student's case—Failure evident on face of record of decision—Decision unreasonable—Decision quashed—Constitution, s59.

3 Honk Kiap v Chairman of Board of Governors of Kerevat National High School (1995) N1381), Graham Kevi v The Teaching Service Commission [1997] PNGLR 659, Jimmy Gwaitep v Harbours Board (1994) N1309, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1974] 2 All ER 680 and Kim Foon & Sons Pty Ltd v Minister of Finance and Planning [1997] PNGLR 484 referred to

___________________________

N2534

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

OS 299 of 2003

BETWEEN:

KELY KERUA

-Plaintiff-

AND :

COUNCIL APPEAL COMMITTEE OF THE UNIVERSITY OF

PAPUA NEW GUINEA

-Fist Defendant-

AND:

UNIVERSITY OF PAPUA NEW GUINEA

-Second Defendant-

Waigani Injia Dep. CJ

2004 : March 24th June 2nd

Civil Law – Practice and Procedure – Judicial Review – Review of University Student Disciplinary body’s decision to exclude final year student - Application under Order 16 of National Court Rules –Grant of Leave and stay order issued pending determination of substantive application issued allowing student to continue and complete studies – Essence of time – Purpose of application achieved by passage of time due to delay in fixing substantive application for hearing – Duty of Registrar and Applicant to fix date for substantive hearing within the time period stipulated by Order 16 r 5(3) and (4) of the National Court Rules.

Judicial Review – Student Disciplinary body – Duty to observe principles of natural justice – Decision to exclude student – Business Economics student in final year of studies – Failure to consider Student’s case – Failure evident on face of record of decision - Decision unreasonable – Decision quashed – Constitution, S.59.

Cases cited in the judgement.

Application of Honk Kiap v Board of Governors of Kerevat National High School & Others N1381 (1995).

Graham Kevi v The Teaching Services Commission Disciplinary Committee N1555 (1997);

Jimmy Gwaitep v Harbours Board N1309 (1994);

Associates Provincial Picture Houses v Wednesbury Corporation [1974] 2 ALL ER 680.

Kim Food & Sons Pty Ltd v Minister for Finance and Planning N1464 (1994).

B Meten for the Plaintiff

D Sirae for the Defendant

2nd June 2004

Injia, Dep.CJ : This is an application for judicial review filed under O16 of the National Court Rules.

The Applicant is a student at the University. He seeks a review of the decision of the University Council’s Disciplinary Appeal Committee (Appeal Committee) made on 8th May 2003 to reject his appeal against the decision of the University’s Student Disciplinary Committee (SDC) to terminate his studies for disciplinary reasons. Leave to apply for review was granted on 13 June 2003.

The grounds upon which the Relief are sought are as follows:-

(1) That the First Defendant wrongly decided that the Plaintiff raped the student, (named), in that based on the evidence before the First Defendant a reasonable Tribunal could not have held that the Plaintiff raped the student, (named).

(2) That the First Defendant wrongly decided that the PlaintiffI was illegally on campus and illegally using Rom K13, Toa 6 as he was a registered student and had paid 95% of the total fee for the year and was allocated the said Room by the Student Services Department of the Second Defendant.

(3) That the First Defendant wrongly found the Plaintiff guilty of being under the influence of alcohol in that based on the evidence that was before the First Defendant a reasonable tribunal would not have found the Plaintiff guilty.

(4) That the penalty of permanent exclusion from UPNG to be effective immediately was too excessive.

At the time of grant of leave, the Court granted an order staying enforcement of the decision. This allowed the Plaintiff to continue his final year studies in Business Economics. At the hearing of the substantive application, I was informed by counsel for

the Plaintiff, Mr Meten that the Applicant had qualified for a degree and was to have graduated on the Graduation ceremony scheduled for 30th March but the Defendants would not allow him without an order from this court. For this reason, on 23rd March 2004 he sought assistance from the Registrar for an expedited hearing of the application. The Registrar referred the matter to me and I made special arrangements to hear this matter. I heard it on March 24th and reserved my decision. If he is successful in this review, he will be given his degree. This position I understand is accepted by counsel for the Defendants.

The purpose of this application has been achieved by default, by reason of passage of time. In a judicial review application, time is of the essence. The rules recognize and emphasize this point by requiring the Registrar to fix a date for hearing the substantive application within a fixed time frame, after the grant of leave. Order 16 rule 5(3) & (4) provides:-

“ (3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the notice of motion and the day named in the hearing.

(4) Within 21 days after the grant of leave the notice of motion shall be allocated a date for hearing by the Registrar after consultation with the parties.”

It is incumbedent on the Registrar to consult with the parties within the prescribed twenty-one (21) days and fix a date for the substantive hearing to take place as soon as it is practicable for the parties and the court. The date for hearing will be fixed on the Notice of Motion filed by the Applicant under O 16 r 5(1). A reasonable or practical time frame is not infinite number of weeks or months and even a year or years, as my own experience in some judicial review cases show. I am speaking of a week to a few weeks or perhaps, and in exceptional cases a month or two at most. It is equally incumbedent on the parties, Applicants in particular, to enquire with the Registrar within the twenty-one (21) days to fix a date for the hearing. In a case where there is a stay

order issued, the onus is even heavier on the Registrar and the parties with the Registrar in particular, the Applicant, who is the beneficiary of the stay order, to consult and take the appropriate action. If for some good reason, it is not practicable for the Registrar to fix a date for the hearing within the twenty-one (21) days, he must seek directions from the Court.

In the present case, there is no record of any Notice of Motion being filed by the Plaintiff under O16 r 5(1) and being served on the Defendants under O 16 r 5(2). After the grant of leave, the matter came before the National Court on two (2) occasions, on 28th July and 1st August 2003 respectively, but it is not clear how the matter got listed on those two dates and whether the matters were fixed for the substantive hearing.

It is now more that nine (9) months since leave was granted and the position of the parties have changed significantly. The purpose of the application has been achieved. The Plaintiff has completed his studies and earned his degree. He is entitled to receive his degree. This Court’s judicial review exercise may be afterall an academic exercise in futility.

The fault in not promptly bringing this matter for a hearing cannot be solely put on the Registrar. The Plaintiff is the first to blame because he starts the process with the filing of the Notice of Motion. He should have filed the Notice of Motion first in order for the Registrar to fix a date on it. Equally so, it was incumbedent on the Defendant to seek a date for the hearing or even apply for summary disposal of the application for want of prosecution. If neither party acted, the Registrar could have referred the matter to the Court for summary determination.

Under O16 r 4 (1), in a...