Lawrence Bokele v The Police Commissioner and The State (2001) N2105

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 June 2001
• Court: National Court
• Citation: (2001) N2105
• Year: 2001
• Judgement Number: N2105

Full Title: Lawrence Bokele v The Police Commissioner and The State (2001) N2105

National Court: Kandakasi J

Judgment Delivered: 22 June 2001

N2105

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O. S. 720 of 2000

BETWEEN:

LAWRENCE BOKELE

Applicant/Plaintiff

AND:

THE POLICE COMMISSIONER

First Respondent/Defendant

AND:

THE STATE

Second Respondent/Defendant

WAIGANI: KANDAKASI

2001: 8 & 20 JUNE 2001

ADMINISTRACTIVE LAW — PRACTICE & PROCEDURE — Application for Leave for judicial review — Defendants consenting to leave being granted — Consent of parties no bar to the Courts power to consider and determine case on its merits — If the pre-requisites and requirements for leave are not met an application for leave even by consent should be refused.

ADMINISTRATIVE LAW — Application for Leave for judicial review — Termination of employment — Charges leading to termination served on Plaintiff and opportunity given for response — No response to the charges — Purported responses given after decision to terminate — Applicant conceding to the decision sought to be review being fairly arrived at and seeking only to explain his failure to respond to charges — No arguable case for leave for review demonstrated — Leave refused — Order 16 Rule 3 National Court Rules (chp.38).

Cases Cited:

The Application of Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276

An Exparte Application of Eric Gurupa for Leave to Apply for Judicial Review N856.

Peter Ipu Peipul v.Sheehan J , Mr. Ori Karapo and Ivoa Geita (consisting the Leadership Tribunal) & Ors (unreported and unnumbered judgement delivered on 25th May 2001)

Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617

Ila Geno and Others v. The State [1993] PNGLR 22

Leto Darius v. Commissioner for Police and The State N2046

Application of Demas Gigimat [1992] PNGLR 122

Application of Christopher Haiveta (1998) N1783

Joe Nemambo vs. Peter Peipul SC475

Counsels:

Mr. P. Ame for the Plaintiff

Mr. D. Lambu for the Defendant

22nd June 2001

KANDAKASI, J: The Plaintiff is applying under Order 16 Rule 3 of the National Court Rules (NCRs) for leave to apply for judicial review of a decision of the Defendants terminating his employment as a policeman. He claims that, he was not charged with any disciplinary offence but was found guilty of misconduct and terminated without any evidence. The Defendants consent to leave being granted.

Issue

There are two issues for me to determine. First, whether the Court is precluded from assessing and determining an application for leave for judicial review where the Defendants consent to leave being granted? Secondly, subject to a determination of the first issue, whether the applicant has demonstrated an arguable case for grant of leave for judicial review?

Background

The Plaintiff issued these proceedings on the 8th of December 2000. Then on the 18th of May 2001, a notice of motion seeking leave of this court to proceed to judicial review of the decision of the First Defendant terminating his employment was filed. At that time, he also filed a statement as required by O.16 r. 3(2)(a) of the NCRs together with an affidavit by himself verifying the statement. The Defendants have filed their Notice of Intention to Defendant through the Solicitor General on the 27th of December 2000. The motion came before me on the 25th of May 2001. That is when Mr. Lambu, counsel for the Defendants informed the court that, his clients were consenting to leave being granted. I reserved a ruling to consider the issues presented. This is my ruling on the matter.

Facts

The Plaintiff was a policeman employed by the State. He was attached to the Boroko Police Station in the National Capital District. On the 12 of November 1998, he was charged under the then provisions of section 46(2) of the Police Force Act. The allegation against him was that, out of a set bail of K50.00 each for a mother and daughter offenders (the ladies), he kept K20.00 out of a payment of K100.00 on the set bails.

The charged was served on the Plaintiff on the 24th of February 1999, at 1:00pm at the Boroko Police Station. The Plaintiff acknowledged service by signing for it on the same day. He was required to respond within 14 days. At the time of service of the charge on him, he indicated that, he would respond in writing. On the 22nd of June 2000, the First Defendant decided to terminate the Plaintiff by a letter dated the same day. In so doing, it acknowledged that, despite service of the charge on him on the 24th of February 1999, he failed to respond. It also noted that no submission on penalty was received.

The First Defendant reasoned that, the offence or the charge against the Plaintiff was very serious and an unacceptable conduct. As such, a stronger penalty was called for to serve as a deterrent against other members of the Police Force engaged in or would be inclined to engage in future. It was to help uphold the standard, integrity and the principles of Police Force.

About a month later, on the 24th of July 2000, the Plaintiff wrote to the First Defendant explaining his failure to respond when he was required to and his own conduct in relation to the charge. In the second line of his letter he said, "the penalty handed down, was fairly done". He then proceeded to say that, when he committed the offence he did not intend to steal the K20.00 from the ladies. Instead, he took it on their approval to organise their taxi to their house. He called a taxi but before any taxi could arrive a superior officer who had...