Martin Kenehe (OS 95/07), Aita Sanangkepe (OS 96/07), Sakius Donnis (OS 97/07), Joan Kalama (OS 98/07), Andrew Nuabo (OS 99/07), Banjamin Yalo (OS 100/07), Synell Ko’ou (OS 101/07) v Allan Jogioba as Chairman of Teaching Services Commission and Michael Pearson as Acting Commissioner, Operations and The Independent State of Papua New Guinea (2008) N4025

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 11 July 2008
• Court: National Court
• Citation: (2008) N4025
• Docket Number: OS NO. 95, 96, 97, 98, 99, 100 & 101 OF 2007 (JR)
• Year: 2008
• Judgement Number: N4025

Full Title: OS NO. 95, 96, 97, 98, 99, 100 & 101 OF 2007 (JR); Martin Kenehe (OS 95/07), Aita Sanangkepe (OS 96/07), Sakius Donnis (OS 97/07), Joan Kalama (OS 98/07), Andrew Nuabo (OS 99/07), Banjamin Yalo (OS 100/07), Synell Ko’ou (OS 101/07) v Allan Jogioba as Chairman of Teaching Services Commission and Michael Pearson as Acting Commissioner, Operations and The Independent State of Papua New Guinea (2008) N4025

National Court: Injia, DCJ

Judgment Delivered: 11 July 2008

N4025

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 95, 96, 97, 98, 99, 100 & 101 OF 2007 (JR)

Between:

Martin Kenehe (OS 95/07), Aita Sanangkepe (OS 96/07), Sakius Donnis (OS 97/07),

Joan Kalama (OS 98/07), Andrew Nuabo (OS 99/07), Banjamin Yalo (OS 100/07),

Synell Ko’ou (OS 101/07),

Plaintiffs

And:

Allan Jogioba as Chairman of Teaching Services Commission

First Defendant

And:

Michael Pearson as Acting Commissioner, Operations

Second defendant

And:

The Independent State of Papua New Guinea

Third defendant

Waigani: Injia, DCJ

2008: 11th July 2008

JUDICIAL REVIEW – two decisions the subject of review, ie the decision to suspend plaintiffs and secondly to demote four and dismiss three of them – issues arising - Whether decision of First Defendant to demote and or dismiss Plaintiffs, and not providing reasons for their actions amounts to breach of natural justice – whether first and second defendants are in breach of mandatory provisions of Teaching Service Act – whether persons disciplined under s.95 of TSA can be subjected to disciplinary procedure under Part VII of TSA – whether defendants actions were harsh and oppressive – ss.41 & 59 (2) of the Constitution, ss 87 (2), (3) and (4), and 95 Teaching Services Act, O.16 r.3 National Court Rules

JUDICIAL REVIEW – three (3) issues for Court to determine - whether the disciplinary process set out in Part VII Div 4 & 5 apply to teachers who are dealt with under s 95 - whether decisions of the defendants are in breach of the mandatory procedural requirements of s 87 (2), (3), and (4) of the TSA - whether s 95 provides a separate and distinct disciplinary process for dealing with breach of s 95(1)(a), (b) and (c)

PRACTICE AND PROCEDURE - judicial review relief is a specialized remedy in public law available at common law and is discretionary – general rule - administrative appeal or review process has to be exhausted first prior to leave application for judicial review – grounds of review and relief sought to be addressed in leave stage to deserve hearing on issues and evidence only based on those grounds –most grounds are not proper grounds where judicial review relief is available

JUDICIAL REVIEW – determination of remaining issues - whether s.95 of TSA is a valid law – whether s.95 is harsh and oppressive – whether court lacks jurisdiction to determine validity – whether appointment of an Independent Investigation Team was ultra vires s 11 of the Act - s.95 cannot be declared invalid under s41 of Constitution – not a proper ground – common law equivalent of s 41 of Constitution is under the Wednesbury principle of unreasonableness

PRACTICE AND PROCEDURE – remedies – TSC failed to conduct its own independent investigation and hearing into the matter as required by TSA - decisions by Teaching services Commission is quashed by an order for certiorari – plaintiffs to remain suspended pending proper hearing before TSC –each plaintiff to be restored to substantive position and paid their full backdated entitlements - s 95 (2) Teaching Services Act

Cases Cited

Joe Ponau v The Teaching Service Disciplinary Committee and the State (2006) N 3059

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

Paul Asakusa v Andrew Kumbakor, Minister for Housing (2008) N3303

Sausau v PNG Harbours Board (2006) N3253.

Counsel:

N Kera, for the plaintiffs

No appearance for the defendants

11th July, 2008

1. INJIA, DCJ: These are seven separate applications for judicial review made under O 16 of the National Court Rules. The hearing of each application was consolidated because they raised the same issues for determination.

2. The plaintiffs are school teachers. Except for Mr Ko’ou who is a lecturer with the PNG Education Institute and Mr Kenehe who is the Headmaster of Gerehu Secondary school, the other plaintiffs are primary school teachers. They seek review of disciplinary actions taken against them by the defendants for their role in a nation-wide strike conducted by teachers throughout Papua New Guinea in 2006.

3. There are two decisions the subject of review. The first is a decision made between 10th – 14th July 2006 to suspend each plaintiff under s 95(1) of the Teaching Service Act 1988 (“the Act”). The second is decisions made on 3rd October 2006, under s 95 (2) of the Act to demote four of the plaintiffs and dismiss three of them. In the case of Mr Kenehe he was demoted from Education Officer level 9 to 6, Mr Sanangkepe from 2.7 to 2.6, Mr Donnis from 5 to 4 and Mr Kalama from 7 to 4. Mr Nuabo, Mr Yalo and Mr Ko’ou were dismissed from the Teaching Service.

4. The respondents were personally served with the Notice of Motion and supporting affidavits and notice of hearing but they or their lawyer failed to attend the hearing. I granted leave to the plaintiffs to proceed ex parte.

5. The hearing proceeded by way of uncontested affidavit evidence and both oral and written submissions made by Mr Karl of counsel for the plaintiffs. Submissions were concluded and I reserved my decision which I now deliver.

6. The relief sought and grounds relied upon are set out in the amended Statements filed under O 16 r 3(2)(a) of the National Court Rules. The grounds set out in each Statement are essentially the same and I set them out in full.

Relief sought:

7. There are eighteen (18) relief sought, as follows:

1. A declaration that the said decision of the Second Defendant to suspend the Plaintiffs was ultra-vires to Clause 9 of the Memorandum of Understanding entered into between the First Defendant and the Papua New Guinea Teachers Association on 19th May 2006 and is accordingly null and void.

2. A Declaration that Section 95 of the Teaching Services Act 1988, does not apply to Industrial Actions organized by the Papua New Guinea Teachers Association in accordance with the Industrial Organisation Act, 1963 and that accordingly the decisions of the first and second defendants are null and void.

3. A declaration that the first and second Defendants suspended, demoted or dismissed the plaintiffs for participating in an industrial action and for being an officer, delegate or member of an industrial organization and that such action(s) contravenes Section 63 of the Industrial Organisation Act and Section 47 of the Constitution and therefore amounts to an error of Law on the face of the records and is accordingly null and void.

4. A declaration that the decision of the First Defendant to suspend the Plaintiffs contravened Section 11 of the Teaching Services Act as such was a denial of natural justice contrary to Section 59 and 41 of the Constitution and is accordingly null and void.

5. A declaration that the First and Second Defendants failed to apply the mandatory provisions of section 11(1)(C) and Section 11(7) of the Teaching Services Act, 1988 and that such decisions are accordingly null and void.

6. A declaration that the First Defendant’s decision on or about 3rd October 2006 to discipline Mr. Kenehe by a penalties of demotion or dismissal, were unlawful within the meaning of Section 87 of the Teaching Services Act; or

7. Alternatively, a declaration that the First Defendant’s decision on or about 3rd October 2006 in respect of each plaintiff referred to above, was a denial of natural justice contrary to Section 59 of the Constitution.

8. A Declaration that the First and Second Defendants failed to rely on any evidence, or if they did then such evidence was unreliable and therefore the decisions made are null and void for no evidence and for being unreasonable.

9. A Declaration that the first and second defendants took into account irrelevant considerations when disciplining the plaintiff and that such decision is accordingly null and void.

10. A declaration that the First and Second Defendants failed to observe the principles of natural justice enshrined in s 59 of the Constitution in that they :-

(a) Failed to give reasons for their decisions when suspending and demoting or dismissing the plaintiffs and that such failure amounts to a breach of Natural Justice provided to the plaintiffs under section 59(2) of the Constitution and accordingly such decisions are null and void.

(b) Failed to charge the plaintiff before disciplining the plaintiffs and that such a failure amounts to a breach of Natural Justice provided to the plaintiffs under section 59(2) of the Constitution and accordingly such decisions are null and void.

(c ) Failed to conduct a hearing before disciplining the plaintiffs and that such failure amounted to a breach of Natural Justice provided to the plaintiff under section 59(2) of the Constitution and accordingly any decisions made during or at the time of the purported hearing is null and void;

(d) Alternately, failed to accord to the plaintiffs the right to be heard and that such failure amounted to a breach of Natural Justice guaranteed to the...