Kely Kerua v Council Appeal Committee of The University of Papua New Guinea (2004) N2534

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2534
• Date: 02 June 2004
• Court: National Court
• Year: 2004

Full Title: Kely Kerua v Council Appeal Committee of The University of Papua New Guinea (2004) N2534

National Court: Injia DCJ

Judgment Delivered: 2 June 2004

1 Civil Law—Practice and Procedure—Judicial Review—Review of University Student Disciplinary body's decision to exclude final year student—Application under Order 16 of National Court Rules—Grant of Leave and stay order issued pending determination of substantive application issued allowing student to continue and complete studies—Essence of time—Purpose of application achieved by passage of time due to delay in fixing substantive application for hearing—Duty of Registrar and Applicant to fix date for substantive hearing within the time period stipulated by O16 r5(3) and (4) of the National Court Rules.

2 Judicial Review—Student Disciplinary body—Duty to observe principles of natural justice—Decision to exclude student—Business Economics student in final year of studies—Failure to consider student's case—Failure evident on face of record of decision—Decision unreasonable—Decision quashed—Constitution, s59.

3 Honk Kiap v Chairman of Board of Governors of Kerevat National High School (1995) N1381), Graham Kevi v The Teaching Service Commission [1997] PNGLR 659, Jimmy Gwaitep v Harbours Board (1994) N1309, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1974] 2 All ER 680 and Kim Foon & Sons Pty Ltd v Minister of Finance and Planning [1997] PNGLR 484 referred to

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Injia DCJ: This is an application for judicial review filed under O16 of the National Court Rules.

The Applicant is a student at the University. He seeks a review of the decision of the University Council's Disciplinary Appeal Committee (Appeal Committee) made on 8 May 2003 to reject his appeal against the decision of the University's Student Disciplinary Committee (SDC) to terminate his studies for disciplinary reasons. Leave to apply for review was granted on 13 June 2003.

The grounds upon which the Relief are sought are as follows:

(1) That the First Defendant wrongly decided that the Plaintiff raped the student, (named), in that based on the evidence before the First Defendant a reasonable Tribunal could not have held that the Plaintiff raped the student, (named).

(2) That the First Defendant wrongly decided that the Plaintiff was illegally on campus and illegally using Rom K13, Toa 6 as he was a registered student and had paid 95% of the total fee for the year and was allocated the said Room by the Student Services Department of the Second Defendant.

(3) That the First Defendant wrongly found the Plaintiff guilty of being under the influence of alcohol in that based on the evidence that was before the First Defendant a reasonable tribunal would not have found the Plaintiff guilty.

(4) That the penalty of permanent exclusion from UPNG to be effective immediately was too excessive.

At the time of grant of leave, the Court granted an order staying enforcement of the decision. This allowed the Plaintiff to continue his final year studies in Business Economics. At the hearing of the substantive application, I was informed by counsel for the Plaintiff, Mr Meten that the Applicant had qualified for a degree and was to have graduated on the Graduation ceremony scheduled for 30 March but the Defendants would not allow him without an order from this court. For this reason, on 23 March 2004 he sought assistance from the Registrar for an expedited hearing of the application. The Registrar referred the matter to me and I...