Jacob Sanga Kumbu v Dr Nicholas Mann, Chairman, Council Appeal Committee, University of Papua New Guinea and University of Papua New Guinea and The Independent State of Papua New Guinea (2012) N4746

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 July 2012
• Court: National Court
• Citation: (2012) N4746
• Docket Number: OS (JR) NO 8 of 2009
• Year: 2012
• Judgement Number: N4746

Full Title: OS (JR) NO 8 of 2009; Jacob Sanga Kumbu v Dr Nicholas Mann, Chairman, Council Appeal Committee, University of Papua New Guinea and University of Papua New Guinea and The Independent State of Papua New Guinea (2012) N4746

National Court: Cannings J

Judgment Delivered: 20 July 2012

N4746

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 8 OF 2009

JACOB SANGA KUMBU

Plaintiff

V

DR NICHOLAS MANN, CHAIRMAN, COUNCIL APPEAL COMMITTEE, UNIVERSITY OF PAPUA NEW GUINEA

First Defendant

UNIVERSITY OF PAPUA NEW GUINEA

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2012: 22 June, 20 July

ADMINISTRATIVE LAW – student disciplinary procedures – whether errors of law committed in disciplinary process – whether disciplinary committee or appeals committee exceeded jurisdiction – whether decisions premeditated – whether decision to find plaintiff guilty or to dismiss his appeal to appeal committee was unreasonable

JUDICIAL REVIEW – remedies – circumstances in which damages can be awarded in a successful judicial review

The plaintiff was a student at a university. He was charged with a disciplinary offence, found guilty by a disciplinary committee and excluded from studies for two semesters, barred from graduating and ordered to pay 10% of the total costs of assessed damage to university property and to enter a good behaviour bond. He appealed to an appeal committee, which dismissed his appeal and upheld the disciplinary committee’s decision. He sought judicial review of the decisions of the disciplinary committee and the appeal committee on five grounds: (1) error of law due to failure to adhere to procedures of student discipline statute; (2) excess of jurisdiction due to failure to serve charge and allow reasonable opportunity to defend himself; (3) the decisions were premeditated and subject to undue influence by the Vice-Chancellor; (4) unreasonableness; and (5) failure to grant an exemption from enrichment courses. The plaintiff sought declarations that the decisions of the disciplinary committee and the appeal committee were null and void and orders that the decisions be quashed, that the university allow him to graduate, that he be exempted from doing enrichment courses and damages. This was the trial of the application for judicial review.

Held:

(1) Ground (1) was upheld as the charge was ambiguous and defective and the penalty had no logical connection to the charge.

(2) Ground (2) was dismissed as the principles of natural justice were not breached by the disciplinary committee or the appeal committee.

(3) Ground (3) was dismissed as there was no credible evidence to support the claim that either decision was premeditated or affected by any actual or apprehended bias on the part of committee members or that undue influence had been brought to bear on either committee.

(4) Ground (4) was upheld as the number and nature of the errors of law committed by each committee rendered their decisions unreasonable.

(5) Ground (5) was dismissed as not being a proper ground of review as it addressed the merits of a decision (whether the plaintiff had to do certain courses to be eligible to graduate) which was not the subject of judicial review.

(6) As two grounds of review were upheld the decisions of the disciplinary committee and the appeal committee were susceptible to judicial review. The errors of law were sufficiently serious to warrant declarations that both decisions are null and void and orders that they are quashed. Other relief sought by the plaintiff (that he be allowed to graduate, that he be exempted from doing enrichment courses and awarded damages) was refused. The question of costs was reserved and the plaintiff was granted leave to apply by motion for solicitor-client costs.

Cases cited

Papua New Guinea Cases

Air Niugini Ltd v Beverley Doiwa [2000] PNGLR 347

Aita Sanangkepe v Honourable Paias Wingti (2008) N3404

Bakani and OPIC v Daipo (2001) SC659

Bau Waulas v Veronica Jigede (2009) N3781

Daipo v Bakani and OPIC OS No 489 of 2000, 17.11.00

Dale Christopher Smith v Minister for Lands (2009) SC973

Denis Donohoe v Ombudsman Commission [1985] PNGLR 348

Dopsie v Tetaga & Apeng (2009) N3722

Graham Keri v Teaching Services Commission Disciplinary Committee (1997) N1555

In the Matter of Grand Chief Sir Michael Somare (2011) N4224

Isaac Lupari v Sir Michael Somare (2008) N3476

Isidore Kaseng v Rabbie Namaliu and The State (No 1) [1995] PNGLR 481

Island Helicopter Services Ltd v Wilson Sagati (2008) N3340

Jeffrey Afozah v Police Commissioner (2008) N3300

John Nilkare v Ombudsman Commission (1996) SC498

John Unido v Commissioner of Police (2008) N3369

Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112

Karen Mek v Mann, UPNG & The State OS (JR) No 392 of 2009, 17.01.11

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

Lawrence Sausau v Joseph Kumgal (2006) N3253

Mao Zeming v Justice Timothy Hinchliffe (2006) N2998

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Ombudsman Commission v Peter Yama (2004) SC747

Paul Saboko v Commissioner of Police (2006) N2975

Peter Kama v Council Appeals Committee of the University of Papua New Guinea (2010) N3829)

Peter Yama v BSP (2008) SC921

Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) SC1060

Prai Ipandi v Robin Guria (2010) N3830

Richard Koki v Sam Inguba (2009) N3785

Robin Aegaiya v Gari Baki (2009) N3693

Ross Bishop v Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533

Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01

The State v Dibol Petrus Kopal (2004) N2778

The State v James Yali (2006) N2989

The State v Saul Ogeram (2004) N2780

Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718

Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018

Winmarang v Ericho and The State (2006) N3040

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

JUDICIAL REVIEW

This was an application for judicial review of decisions of a student disciplinary committee and an appeal committee.

Counsel

J S Kumbu, the plaintiff, in person

C Lari, for the first & second defendants

20 July, 2012

1. CANNINGS J: Jacob Sanga Kumbu, the plaintiff, was a final year law student at the University of Papua New Guinea in 2008 when he was charged with a disciplinary offence. He was found guilty by the Student Disciplinary Committee and excluded from studies for two semesters, barred from graduating and ordered to pay 10% of the total costs of assessed damage to university property and enter a good behaviour bond. He appealed to the Council Appeal Committee, which rejected his appeal and upheld the Disciplinary Committee’s decision. He has been granted leave to apply for judicial review of the decisions of the Disciplinary Committee and the Appeal Committee on five grounds.

GROUND (1): ERROR OF LAW ON THE FACE OF THE RECORD

2. The plaintiff argues that the Appeal Committee erred in law by not upholding his appeal which, he claims, contained valid grounds relating to breaches by the Disciplinary Committee of the University’s Student Discipline Statute. Specifically he argues that:

(a) the disciplinary proceedings were time-barred;

(b) the Disciplinary Committee was unlawfully constituted;

(c) the disciplinary charge laid against him was defective;

(d) there was no evidence to sustain the charge;

(e) the penalty imposed on him was unlawful and irrational.

3. Further errors were made by the Appeal Committee, the plaintiff argues, in that:

(f) it was not lawfully constituted; and

(g) it failed to determine his grounds of appeal.

(a) Disciplinary proceedings time-barred

4. Determination of this sub-ground requires an examination of the Student Discipline Statute, which puts the court in a quandary as two different versions of this subordinate legislative enactment, which is permitted to be made by the Council of the University under Section 32 (statutes) of the University of Papua New Guinea Act Chapter 169, have been put before the court. There is the version found in the Revised Laws of Papua New Guinea, dated 1 January 1985, consisting of nine sections, annexed to an affidavit of the plaintiff (exhibit P4). A different version, consisting of 16 sections, is annexed to an affidavit of the chairman of the Disciplinary Committee (exhibit D5).

5. I regard the Revised Laws as the correct version as it is a copy of the Statute printed by the Government Printer. It is sufficient evidence by virtue of Section 33(5) (approval and publication) of the University of Papua New Guinea Act and Section 39 (statutes published by authority) of the Evidence Act. The other version has not been printed by the Government Printer and is not under the common seal of the University and I am not satisfied that it has been printed on behalf of the...