Leto Darius v The Commissioner of Police and The State (2001) N2046

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2046
• Date: 19 January 2001
• Year: 2001

Full Title: Leto Darius v The Commissioner of Police and The State (2001) N2046

National Court: Kandakasi J

Judgment Delivered: 19 January 2001

1 ADMINISTRATIVE LAW—Judicial review—Application for leave—Failure to take into account relevant factors before decision on penalty despite earlier court order—Factors for consideration on leave application considered—Arguable case shown—Leave granted

2 Ombudsman Commission v Donohoe (1985] PNGLR 348, NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini Pty Ltd (1987] PNGLR 70, Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund (1995] PNGLR 276, Ex parte Application of Eric Gurupa (1990) N856, Papua New Guinea Air Pilots Association v Director of Civil Aviation and National Airline Commission, trading as Air Niugini (1983] PNGLR 1, Arawe Logging Pty Ltd v The State (1988–89] PNGLR 216, NCDIC v Crusoe Pty Ltd (1993] PNGLR 139, Air Niugini Limited v Beverley Doiwa (2000] PNGLR 347, Tiga Nalu v Commissioner of Police (1999) N1927, Application of Christopher Haiveta (1998) N1783, Diro v Ombudsman Commission of PNG (1991] PNGLR 153, Application of Demas Gigimat (1992] PNGLR 322, Council of Civil Service Unions v Minister for the Civil Service (1984] 3 All ER 935, Kekedo v Burns Philp (PNG) Ltd (1988–89] PNGLR 122, Ombudsman Commission of Papua New Guinea v The Honourable Justice Sakora, Messrs Manuhu and Karapo (Constituting the Leadership Tribunal) and Paul Pora (1996) N1720, In the Matter of the Ex–parte application of Poka Biki (1995] PNGLR 337, Lawrence Kalaivi, John Hevie, Yondi Andale, Petrus Uandi, Gilbert Semen and Geoffrey Waffi v Simon Arua, Superintendent SAID, Department of Education, Peter Baki, Secretary for Department of Education And The Independent State of Papua New Guinea (1999) N1922 referred to

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Kandakasi J: This is an application for leave for judicial review of a decision of the First Defendant (hereinafter "the Commissioner"). The application is made pursuant to O16 r3 of the National Court Rules 1983 (Ch38).

The relevant originating summons was filed on 1 February 2000. That was together with an affidavit in support by the Plaintiff sworn on 15 December 1999. Subsequently, on 16 March 2000, a statement in support of the application together with an affidavit of the Plaintiff verifying the facts relied on were filed. At that time, a notice of motion seeking leave for judicial review and other orders was also filed.

There is an affidavit of service sworn by a Barry Kiway on 20 April 2000 and filed on 1 May 2000. That affidavit shows that the above documents were served on the Acting Solicitor–General for the purposes of O16 r3(3). On the 29 of May 2000, the then Acting Solicitor–General filed a Notice of Intention to Defendant on behalf of the Defendants.

Then by notice of motion filed on 2 June 2000, the Plaintiff applied for and received and interim restraining order against the Defendants, preventing them from evicting the Plaintiff from the Bumbu Police Barracks, here in Lae. Prior to that, the original notice of motion filed on 16 March 2000, was the subject of continuous adjournments which continued until it came before me on 12 January 2001. The last adjournment was from 15 December 2000 to 12 January 2001. With the exception of only two appearances by Mr Saranduo and Ms Kiele Polume respectively on 15 May 2000 and 29 September 2000, there has been no appearance for the Defendants on each of the occasions the matter went before the Court and was adjourned. I was thus satisfied that the Defendants showed no interest in the matter despite being served and making two brief appearances on two separate occasions, evidenced by their consistent non appearances. Besides I reminded myself that O16 r3 of the National Court Rules permits an applicant for leave for judicial review to proceed ex parte subject only to the requirements for service on the Secretary for Justice under O16 r3(3), which requirement was met. I therefore granted leave to the Plaintiff to proceed ex parte.

Facts

On the 7 of May 1997, the Plaintiff was charge with a disciplinary offence of being drunk whilst on duty, failing to report for duty on time and failing to respond to radio calls. That followed his suspension from duties on 22 April 1997. Eventually, he was found guilty and dismissed from the Police Force (hereinafter "the Force") by the then Commissioner of Police, Peter Aigilo LLB, QPM, with effect from 24 December 1997.

The Plaintiff then successfully applied for a judicial review of the Commissioner's decision. His Honour, Hinchliffe J in a judgment delivered on 4 May 1999, made the following orders:

1. That the decisions of the first Defendant (that is the Commissioner of Police) dismissing the plaintiff from the Police Force effective from 24 December 1997 are quashed.

2. That the decisions finding the plaintiff guilty of the serious offence are confirmed.

3. That the Police Commissioner is to hear the plaintiff on penalty before he makes a final decision. The hearing and the decision and the notification of the decision are to occur within sixty . . . days from today.

4. The State is to pay the costs. If not agreed then to be taxed.

By letter dated 3 June 1999, the plaintiff submitted his address on penalty and was received by the Commissioner on 21 September 1999. On the same day of the receipt of the plaintiff's address on penalty, the Commissioner decided to reaffirm the earlier decision to dismiss.

On 19 October 1999, the plaintiff was served with a copy of the decision dismissing him, dated 21 September 1999. This led to the present proceedings being filed on 1 February 2000. That was well within the 4 months stipulated by O16 r4, both from the date of the decision and from the date the decision was received by the plaintiff.

The plaintiff was...