John Timothy Tembil v Michael Waipo

• Jurisdiction: Papua New Guinea
• Judge: Nablu, J
• Judgment Date: 27 October 2017
• Citation: (2017) N7005
• Court: National Court
• Year: 2017
• Judgement Number: N7005

Full : OS No 382 of 2017; John Timothy Tembil v Michael Waipo- Commissioner of Papua New Guinea Correctional Service and Papua New Guinea Correctional Service (2017) N7005

National Court: Nablu, J

Judgment Delivered: 27 October 2017

N7005

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 382 OF 2017

JOHN TIMOTHY TEMBIL

Plaintiff

AND:

MICHAEL WAIPO- Commissioner of Papua New Guinea Correctional Service

First Respondent

AND:

PAPUA NEW GUINEA CORRECTIONAL SERVICE

Second Respondent

Waigani: Nablu, J

2017: 4th & 27th October

JUDICIAL REVIEW – Assessment of damages – claim for general and exemplary damages – O.16 r, 7 National Court Rules –general damages awarded – exemplary damages refused.

Cases cited:

Bau Waulas v. Veronica Jigede (2009)N3781

Dannie Taka v. Dr Samson Amean (2006) N3070

Kamuta v. Sode (2006) N3067

Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534

Lawrence Sausau v. Joseph Kumgal (2006) N3253

Mision Asiki v. Manasupe Zurenouc (2005) SC797)

Paul Mond v. Honk Kiap (2013) N5356

Paul Sireh v. Miai Larelake (2007) N3181

Counsel:

Mr N. Kopunye, for the Plaintiff

Mr V. Gonduan, for the Respondents

JUDGMENT

27th October, 2017

1. NABLU J: This is the plaintiff’s application for damages to be assessed after the judicial review application was granted by consent on 24th August 2017. The plaintiff was granted leave to review the decision of the Commissioner of the Correctional Service to dismiss the plaintiff from employment for disgraceful conduct on 19th January 2017 by way of a letter dated 23rd February 2017.

2. The consent orders effectively granted the plaintiff’s application for review and quashed the decision. The respondents’ were also restrained from evicting the plaintiff and his family from the institutional house he was occupying and they were further ordered to pay all his missed salary under his terms of employment. Furthermore, the respondents’ were ordered to pay a fixed amount of K10, 000.00 to the plaintiff as legal costs for the proceedings.

3. The background facts of the case are not disputed. The plaintiff commenced employment with the Papua New Guinea Correctional Service in 1997 and served in the Service for over 20 years until he was dismissed on the 23rd of February 2017 for disgraceful conduct. The disgraceful conduct which the Commissioner alleged the plaintiff had committed, occurred during the time he was responsible for the co-ordination of the “haus krai” for the deceased officers. It is alleged that he threw the requisition claims to Mr Richard Mandui and said “…get this requisition signed, bloody useless”. The plaintiff stated that his outburst was due to the decision by the Commissioner not to honour the payments after an agreement was reached with the relatives of the deceased officers.

4. The matter was then investigated and the plaintiff was charged for a serious disciplinary offence and dismissed. The plaintiff’s main challenge against the decision was that the first respondent failed to follow the disciplinary procedure stipulated in the Correctional Service Act.

5. At the time the plaintiff was dismissed from the Service he held the rank of Chief Inspector and was also the Executive Officer to the Commissioner. It is not disputed that the plaintiff was on furlough leave at the time of his dismissal and was paid all his furlough leave entitlements prior to his dismissal.

6. The main legal issue for determination by the Court is whether the plaintiff has established a case for general damages. And if he has; then how much in general damages should be awarded to the plaintiff? Secondly, whether the plaintiff has established a case for exemplary or punitive damages to be awarded against the respondents? And if he has established such a case; then how much in exemplary damages should be awarded?

7. It is trite law that there are two stages of judicial review proceedings. First the applicant has to establish one or more grounds of review. If the applicant is successful then the next stage is for the applicant to make out a case for the relief sought (see Mision Asiki v. Manasupe Zurenouc (2005) SC797).

8. It is also trite law that the grant of relief is discretionary. The Court after finding that the applicant has made out the grounds of review; may still exercise its discretion to refuse relief. This discretion is codified in Order 16 r. 4 of the National Court Rules. The Rule states that relief may be refused where the grant of relief may prejudice or interfere with the rights or interest of anyone or where it would be detrimental to good administration.

9. Upon brief research of the case law, I note some cases where despite the grant of judicial review, the Court refused the relief sought (see Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534; Dannie Taka v. Dr Samson Amean (2006) N3070; Paul Sireh v. Miai Larelake (2007) N3181). Furthermore, in some instances where the applicant comes to Court with unclean hands, in those circumstances the Court may exercise its discretion to refuse relief; Kamuta v. Sode (2006) N3067.

10. The Court has a wide and unfettered discretion to grant relief which include the relief of damages. Order 16 Rule 7 of the National Court Rules, states that the Court has the discretion to award damages in judicial review applications provided that two conditions are met. First, the applicant has included the claim for damages in his Statement of Support. Secondly, the Court is satisfied that if the claim had been made in an action begun by the applicant at the same time, he would have been awarded damages.

11. The question of whether damages or the amount of damages that can be awarded in a judicial review application has been the subject of judicial consideration. The Court has imposed damages for distress and inconvenience in judicial review proceedings. The award of damages is discretionary.

12. In Lawrence Sausau v. Joseph Kumgal (2006) N3253and Bau Waulas v. Veronica Jigede (2009) N3781 the successful applicants were awarded K3000 and K5000 respectively. His Honour, Justice Cannings considered the suffering and inconvenience of the plaintiff greater in Paul Mond v. Honk Kiap (2013) N5356 and therefore, awarded K10,000.00 each to the eighteen (18) plaintiffs .

13. In Bau Waulas v.Veronica Jigede (supra), the plaintiff was the Acting Director for Health in the New Ireland Provincial Administration and the damages awarded were for frustration and distress. In Lawrence Sausau v. Kumgal (supra) the court awarded damages of K3000 for hardship and stress as a result of being subjected to the disciplinary process.

14. Mr Kopunye of counsel for the plaintiff submitted that liability has already been established in the present case, the first respondent committed a serious error of law when he unilaterally decided to dismiss the plaintiff without complying with the mandatory statutory procedure. The applicant’s contention that the first respondent appears to have abused his powers is supported by the evidence.

15. The State contested the case for damages on the following grounds. The main reason for the contention is that the claim for damages was not properly pleaded pursuant to Order 8 Rule 29(1) of the National Court Rules. Also that the plaintiff has not proven the damage they claimed to have suffered. I note that most of the cases submitted by counsel were mainly civil cases where the legal proceedings were commenced by writ.

16. In regard to exemplary damages, the plaintiff claims exemplary damages because there are special circumstances that warrant and justify the award of exemplary damages. The main reason is that the first respondent abused his powers. The plaintiff was dismissed for a trivial matter which could have been dealt with as a minor matter. The plaintiff claimed that the Commissioner was motivated by ulterior motive to punish the plaintiff for the alleged role which he suspected the plaintiff played in the Commissioner’s power struggle earlier.

17. On the other hand, the...