Peter Tupa v Sam Inguba (QPM) Commissioner for Police and The Independent State of Papua New Guinea (2006) N3171

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 25 August 2006
• Court: National Court
• Citation: (2006) N3171
• Docket Number: OS 448 OF 2006
• Year: 2006
• Judgement Number: N3171

Full Title: OS 448 OF 2006; Peter Tupa v Sam Inguba (QPM) Commissioner for Police and The Independent State of Papua New Guinea (2006) N3171

National Court: Davani, J

Judgment Delivered: 25 August 2006

N3171

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 448 OF 2006

BETWEEN:

PETER TUPA

Plaintiff/Applicant

AND:

SAM INGUBA (QPM)

Commissioner for Police

First Defendant/Respondent

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Second Defendant/Respondent

Madang: Davani, J

2006: 24, 25 August

Counsel:

A.Turi, for Plaintiff/Applicant

25 August, 2006

DECISION

1. DAVANI .J: The Plaintiff/Applicant (‘applicant’) applies for leave to judicially review a decision of the first defendant made on 3 May, 2004, effectively dismissing him from the Police Force.

2. The matter proceeded ex parte because such is the nature of these applications.

BACKGROUND

3. The Originating Summons, Statement in Support Notice of Motion and affidavit in support were all filed by the Office of the Public Solicitor for and on behalf of the applicant on 27 June, 2006. An additional affidavit of the applicant sworn on 21 August, 2006 was later filed.

4. It is necessary that I set out chronology of events leading up to the applicant’s termination.

5. The applicant was then employed as a sergeant in the Police Force based at the Ambunti Police Station, Ambunti in the East Sepik Province. He held the rank of Sergeant, Registration No. 8337. Nine (9) charges were levelled against him by the Provincial Police Commander of East Sepik, Chief Superintendent Leo Kabilo. These charges termed as ‘Serious Disciplinary Offence Report’ (‘SDOR’), were all dated 2 September, 2002.

6. All nine SDORs alleged that the applicant had by false pretences and with an intent to defraud, taken from various people, cash and properties in excess of K5,000.00

7. The applicant responded to these charges within fourteen (14) days as he was required to do. But he was suspended from official duties on 20 August, 2002. Subsequently, after considering his response, the chief superintendent uplifted the suspension on 18 September, 2002.

8. But despite the uplifting of the suspension, the first defendant proceeded to consider the same charges and served a Notice of Penalty upon the plaintiff on 3 March, 2004. The Notice of Penalty advised the applicant that he had been found guilty of all charges and he was effectively dismissed from the Police Force upon his receipt of the Notice of Penalty (on 3 March, 2004). The applicant was also criminally prosecuted, in relation to the same matter, which charges were dismissed after the State failed to call evidence to prove these charges.

The application

9. The law on grant of leave for judicial review is firmly established in this jurisdiction.

10. The question of whether or not leave should be granted is discretionary. In order for the applicants to succeed in this application, they must establish to the satisfaction of this Court certain factors to which I shall shortly refer to. First, they must establish they have locus standi. For a person seeking declaratory or injunctive orders, it was required that a person must be a member of the public who has suffered or is at risk of suffering particular direct and substantive damages other than and different from that which was common to the rest of the public: (Boyce v Paddington Borough Council [1903] 1 Ch. 109). The applicants in the instant application must also show that they have a sufficient interest, (see Order 16 r 3 (5) of the National Court Rules (‘NCR’)).

11. The second relevant consideration is whether the applicant has an arguable case. This involves the question of whether an application raises any fundamental or serious legal issues. The decision of Wilson J in NTN Pty Limited v The Board of the Post & Telecommunication Corporation and 2 Others [1987] PNGLR 70 is relevant to this discussion. His Honour Wilson .J said at page 74:

“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O16, 4 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, 4 3(1). In exercising its discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] ACT 617, Lord Diplock set out the principles upon which the court should act and I respectfully adopt them. Lord Diplock said at 644:

‘If, on a quick perusal of the material then available, the court…thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for judicial relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.’“

12. A third consideration that may be also involved at this stage and which is not based on O.16 is a common law principle involving the question of exhaustion of administrative remedies. This principle raises the question of whether administrative remedies have been exhausted and whether a party should be required to pursue a further appeal.

13. Apart from the requirement of a party having a sufficient interest, the only other criterion for determining whether to grant or refuse leave which criterion is specifically mentioned in O.16 R.4 is the time limit for bringing an application. Order 16 Rule 4 states;

“1. Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Subsection (2) applies, the application for leave under rule (3) is made after the relevant period has expired, the Court may refuse to grant:

(a) leave for the making of the application; or

(b) any relief sought on the application if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

3. In the case of an application for an order of certiorari to remove any judgment order, conviction or other proceedings for the purpose of quashing it, the relevant period for the purpose of Sub rule (1) is four months after the date of proceedings.”

14. As can be seen from Rule 4 of O.16, there are two distinctive issues. The first is the question of “undue delay”. The second is the effect of granting the leave sought and whether the grant of leave would be likely to cause substantial hardship to, or that would prejudice the rights of any person or it would be detrimental to good administration.

15. Having said that, it is necessary that I set out the grounds relied on by the applicant in this application to then decide whether they do fall within the requirements set out above.

16. These are set out in the applicant’s Statement in Support under grounds for relief which are basically that the first defendant breached s.24 and s.25 of the Police Force Act by not appointing a disciplinary officer, by not conducting an investigation and by not furnishing a disciplinary report with recommendations for punishment to the applicant for him to respond to.

17. It is also necessary that I set out below, s.24 and s.25 of the Police Force Act 1998. These provisions including s.23 read;

“23. Dealing with serious offences.

(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.

(3) On a charge being laid against a member of the Force that member shall-

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports

that are to be considered in relation to the charge; and

(c) be invited -

(i) to reply within 14 days, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it.

(4) A charge or other documentation is deemed to have been furnished to a member under this section-

(a) where it has been personally served on the member; or

(b) where, it being unreasonable because of distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.

(5) Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4)(a) or within 28 days after posting in accordance with Subsection 4(b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24.

24. Determination of charge.

(1) In a case where Section 23 applies, the Commissioner shall appoint a disciplinary...