John Timothy Tembil v Stephen Pokanis – Commissioner of Papua New Guinea Correctional Service and Others

• Jurisdiction: Papua New Guinea
• Judge: Yagi J,Geita J,Anis J
• Judgment Date: 19 May 2023
• Neutral Citation: SC2398
• Citation: SC2398, 2023-05-19
• Counsel: N Kopunye with counsel assisting M Worinu, for the Appellant,V Gonduon, for the Respondents
• Docket Number: SCM NO. 70 OF 2021
• Hearing Date: 25 April 2023,19 May 2023
• Court: Supreme Court

SC2398

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 70 OF 2021

Between:

John Timothy Tembil

Appellant

v.

Stephen Pokanis – Commissioner of Papua New Guinea Correctional Service

First Respondent

and

Vincent Kundi, Donald Apeti & Bob Omba as Members of Disciplinary Board

Second Respondent

and

Papua New Guinea Correctional Service

Third Respondent

Waigani: Yagi J, Geita J & Anis J

2023: 25^th April, 19^th May

JUDICIAL REVIEW APPEAL — Appeal against exercise of discretion by leave court in refusing leave for judicial review — contested arguments concerned arguable case and exhaustion of administrative remedies — whether review judge erred in the exercise of discretion — whether there was prima facie arguable case — whether the appellant had exhausted administrative remedies provided for under the Correctional Service Act 1995

Cases Cited:

Papua New Guinean Cases

Curtain Bros (PNG) Limited v. UPNG (2005) SC788

The State & Sam Akoita v. Central Provincial Government (2009) SC977

Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106

Overseas Cases:

Australia Coal and Shale Employees' Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621

Counsel:

N Kopunye with counsel assisting M Worinu, for the Appellant

V Gonduon, for the Respondents

Kopunye Lawyers: Lawyers for the Appellant

PNG Correctional Service In-House Counsel: Lawyers for the Respondents

19^th May, 2023

1. BY THE COURT: This was a judicial review appeal hearing. The appellant is the Commander of Mukurumanda Correctional Institution (MCI). He is currently under suspension with full pay. He had unsuccessfully applied for leave for judicial review in the National Court (leave or JR Court). He had intended to challenge the decision of the first respondent (CS Commissioner) in appointing a Special Disciplinary Board within the Correctional Service (Disciplinary Board). The said decision is contained in the Commissioner's internal circular dated 16 July 2020. The Disciplinary Board was appointed to determine serious offences the appellant was alleged to have committed under s39(g) of the Correctional Service Act 1995 (CS Act).

2. The appeal is filed under Order 10 Rule 1 of the Supreme Court Rules 2012 (amended to date), that is, by Notice of Motion (appeal/NoM). The NoM refers to the leave Court's decision of 23 November 2021 in proceeding OS (JR) No. 78 of 2021 (JR proceeding), and we note that there are 2 main grounds raised therein where we are being asked to determine. We summarise them as follows:

• Alleged error of mixed fact and law. The appellant claims that His Honour, in assessing whether there was an arguable case, should have but did not restrict himself to consider whether there was a prima facie case; instead, the appellant claims, His Honour proceeded to substantially determine the argument; (grounds a and b);

• Alleged error of mixed fact and law. The appellant claims that His Honour, in assessing whether the appellant had exhausted all administrative remedies, should have noted or found that the CS Act does not provide any administrative remedies for one to exhaust before filing for judicial review proceeding if one intends to challenge the CS Commissioner's decision in appointing a disciplinary board or its composition under s42 of the CS Act. (Ground c).

LAW

3. The decision by His Honour in refusing leave for judicial review is discretionary. Such decision may be disturbed or set aside by an appellant Court if an identifiable error(s) has occurred, or if not, where the order made may be inferred as so unreasonable or plainly unjust. See cases: Curtain Bros (PNG) Limited v. UPNG (2005) SC788, The State & Sam Akoita v. Central Provincial Government (2009) SC977, Australia Coal and Shale Employees' Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 and Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106.

4. The Supreme Court in Curtain Bros stated:

The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees' Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 at p. 627, which was adopted by Clarkson J in Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 at p.112 – 113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees' Union v The Commonwealth … the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance …”

[Underlining ours]

DID THE LEAVE COURT JUDGE COMMIT AN IDENTIFIABLE ERROR?

5. The question we ask ourselves is whether the trial Judge committed an identifiable error when he exercised his decision and refused leave in the JR proceeding.

6. The appellant's intended challenge concerns exercise of power by the CS Commissioner in appointing the Disciplinary Board that would hear disciplinary charges that were laid against him. Premised on the Statement (which contained the pleaded facts) filed in support of his leave application (i.e., red tab in the NoM), the appellant refers to s42(2) of the CS Act (which was pleaded in the Statement) and submits that he had an arguable case that should have warranted the granting of leave by His Honour. The appellant submits that His Honour instead considered and determined the arguable case argument substantially, something which, the appellant submits, should have been reserved for substantive argument after the leave stage. In doing so, the appellant submits, His Honour committed an identifiable error.

7. The respondents, we note, tried to raise substantive argument in their response. Counsel submits on point that the CS Act or s42(2) is silent on composition of a disciplinary board in a case where a commanding officer of a CS institute is charged with a serious offence. Therefore, they submit, the Commissioner was at liberty to look at other provisions within the Act to assist including s13. They also submit that the action of the Commissioner was consistent with similar practices that were in place and enforced in the other disciplinary forces such as police, and therefore they submit that His Honour was correct in his decision thus no identifiable error was committed.

8. It is appropriate that we begin by setting out s42. It reads:

“42. SERIOUS OFFENCES.

(1) A charge for a serious offence shall be heard by the Disciplinary Board.

(2) The Commissioner shall appoint for each correctional institution a Disciplinary Board which shall be comprised of the Commanding Officer of that correctional institution, the Deputy Commanding Officer of that correctional institution and another senior correctional officer or member of that correctional institution.

(3) A member of a Disciplinary Board may disqualify himself or herself and the Commissioner shall appoint another member of the same or senior rank to the disqualifying member.

(4) In hearing the offence a Disciplinary Board shall–

(a) if not satisfied on the evidence, dismiss the matter; or

(b) if satisfied on the evidence, find the charge proven and apply one of the penalties prescribed under this Act.

(5) A Disciplinary Board shall not be bound by the rules of evidence in the conduct of a hearing under this section, but shall conduct...