Stewart Yareng, Adrian Haua & Carol Wallan v Captain Dabung Kiong and Board of Papua New Guinea Maritime College (2019) N8152

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 11 December 2019
• Court: National Court
• Citation: (2019) N8152
• Docket Number: HRA No 242 of 2019
• Year: 2019
• Judgement Number: N8152

Full Title: HRA No 242 of 2019; Stewart Yareng, Adrian Haua & Carol Wallan v Captain Dabung Kiong and Board of Papua New Guinea Maritime College (2019) N8152

National Court: Cannings J

Judgment Delivered: 11 December 2019

N8152

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 242 OF 2019

STEWART YARENG, ADRIAN HAUA & CAROL WALLAN

Plaintiffs

V

CAPTAIN DABUNG KIONG

First Defendant

BOARD OF PAPUA NEW GUINEA MARITIME COLLEGE

Second Defendant

Madang: Cannings J

2019: 5th, 26th September, 11th December

HUMAN RIGHTS – disciplinary proceedings re tertiary institution students – right to full protection of the law, Constitution, Section 37 – proscribed acts, Constitution, Section 41 – principles of natural justice, Constitution, Section 59 – whether students found guilty of disciplinary offences and suspended from studies were afforded full protection of law, dealt with fairly, dealt with harshly or oppressively.

PRACTICE AND PROCEDURE – mode of commencement of proceedings – whether proceedings to challenge decision of college principal to suspend students’ studies required to be instituted by judicial review – whether proceedings should be dismissed due to failure to comply with requirements for commencement of representative proceedings.

The three plaintiffs were college students allegedly involved in an alcohol-related incident near the college campus. They were each found guilty of disciplinary offences under the student code of conduct and suspended from studies. They instituted proceedings in the National Court by an application for enforcement of human rights, claiming that their human rights were breached in three respects: denial of full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and not given a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution. The second and third plaintiffs consented to the first plaintiff being their spokesperson and principal plaintiff. The college principal (who made the decision to find the plaintiffs guilty and suspend them from studies) and the college board were named as defendants. They argued two preliminary points. First that the proceedings were an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. Secondly, that the second and third plaintiffs’cases ought to be summarily dismissed as there was a failure to comply with the requirements of representative proceedings and neither of them gave evidence. As to the merits of the claim the defendants denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the code of conduct that the students expressly agreed to be bound by when they enrolled for studies at the college.

Held:

(1) The proceedings were not improperly commenced as the plaintiffs were not applying for the type of orders that would make it necessary to commence proceedings under Order 16 of the National Court Rules. They were applying for enforcement of human rights, properly invoking the jurisdiction of the National Court under Section 57 of the Constitution.

(2) The second and third plaintiffs failed to comply with the requirements for commencement of representative proceedings, and failed to give evidence to support their cases. The proceedings, to the extent that it involved them,are frivolous and an abuse of process. Their claims were summarily dismissed.

(3) The defendants failed to adhere to the principles of natural justice enshrined in Section 59 of the Constitution in dealing with the first plaintiff in that: (a) he was not provided with a charge, setting out clearly and specifically the allegations against him; (b) there was no hearing of any charge; (c) he was not given copies of witness statements relied on by the principal; (d) he was not given the opportunity to present witnesses or witness statements to support his version of events; (e) the decision to suspend him from studies was not clear and specific as to its effect; the consequence being that the defendants did not act fairly and were not seen to act fairly.

(4) The defendants thereby failed to afford the first plaintiff the full protection of the law under Section 37(1) of the Constitution and dealt with him in a manner not warranted by the particular circumstances of his particular case contrary to Section 41(1)(b) of the Constitution.

(5) Declared: that the decision to find the first plaintiff guilty of disciplinary offences and to suspend him from studies, was an unlawful act for the purposes of Section 41(1)(b) of the Constitution. Ordered: that he be reinstated to studies.

Cases cited

The following cases are cited in the judgment:

Gene v Hamidian-Rad [1999] PNGLR 444

Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746

Manuel Gramgari v Steve Crawford (2012) N4950

National Executive Council & Luke Lucas v Public Employees Association [1993]

PNGLR 264

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

Simon Mali v The State (2002) SC690

Tigam Malewo v Keith Faulkner (2009) SC960

Wilson v Kekeya & Divine Word University (2018) N7613

APPLICATION

This was an application for enforcement of human rights.

Counsel

S I Asivo, a personal representative, with leave, for the plaintiffs

D F Wa’au, for the defendants

11th December, 2019

1. CANNINGS J: The three plaintiffs were PNG Maritime College students allegedly involved in an alcohol-related incident on or near the college campus in Madang on 25 June 2019. They were each found guilty of disciplinary offences under the student code of conduct and suspended from studies. They instituted proceedings in the National Court by an application for enforcement of human rights, claiming that their human rights were breached in three respects: denial of full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and not given a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution.

2. The second and third plaintiffs consented to the first plaintiff being their spokesperson and principal plaintiff. The college principal (who made the decision to find the plaintiffs guilty and suspend them from studies) and the college board were named as defendants. They argued two preliminary points. First that the proceedings were an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. Secondly, that the second and third plaintiffs’ cases ought to be summarily dismissed as there was a failure to comply with the requirements of representative proceedings and neither of them gave evidence.

3. As to the merits of the claim the defendants denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the code of conduct that the students expressly agreed to be bound by when they enrolled for studies at the college.

ISSUES

(1) Should the proceedings be dismissed as an abuse of process?

(2) What allegations did the plaintiffs face and how were they dealt with?

(3) Was there any breach of the human rights?

(4) What orders should the court make?

1 SHOULD THE PROCEEDINGS BE DISMISSED AS AN ABUSE OF PROCESS?

4. Mr Waáu, for the defendants, submitted that the proceedings are an abuse of process as what the plaintiffs are trying to do is obtain judicial review of the administrative decisions of the defendants to charge them, find them guilty and terminate their studies, which can only be done by making an application for judicial review under Order 16 of the National Court Rules.

5. For two reasons I am not impressed by that argument. First, the Order 16 procedure is only the exclusive procedure for commencing proceedings when two conditions apply: (a) the plaintiff is applying for orders in the nature of prerogative writs (those described in Order 16, Rule 1(1) of the Rules); and (b) the decisions reviewed are those of a public or governmental body (National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Gene v Hamidian-Rad [1999] PNGLR 444). Condition (a) does not apply as the plaintiffs are not seeking any of the orders prescribed by Rule 1(1): mandamus, prohibition, certiorari or quo warranto. So they were not obliged to invoke the Order 16 procedure.Secondly, the present proceedings have been commenced by the plaintiffs directly under Section 57(1) of the Constitution, which allows any person with an interest in protection and enforcement of human rights to apply to the National Court for enforcement of those rights. The plaintiffs are applying for enforcement of their individual rights, so, clearly, they have a sufficient interest and they have properly invoked the jurisdiction of the Court. Therefore the defendants’ first preliminary point fails.

6. As to the second...