Peter Kama v Council Appeals Committee, University of Papua New Guinea and University of Papua New Guinea (2010) 22 January 2010

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 January 2010
• Court: National Court
• Citation: (2010) 22 January 2010
• Docket Number: OS (JR) NO 225 OF 2008
• Year: 2010
• Judgement Number: N3829

Full Title: OS (JR) NO 225 OF 2008; Peter Kama v Council Appeals Committee, University of Papua New Guinea and University of Papua New Guinea (2010) 22 January 2010

National Court: Cannings J

Judgment Delivered: 22 January 2010

N3829

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 225 OF 2008

PETER KAMA

Plaintiff

V

COUNCIL APPEALS COMMITTEE,

UNIVERSITY OF PAPUA NEW GUINEA

First Defendant

UNIVERSITY OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2009: 19 June, 2 July,

2010: 22 January

ADMINISTRATIVE LAW – student disciplinary procedures – whether appeals committee failed to give adequate reasons for decision to dismiss appeal by student and to increase penalty – whether the decision was unreasonable.

The plaintiff was a student at a university. He was charged with a disciplinary offence, found guilty and excluded from studies for two semesters. He appealed to an appeals committee, which dismissed his appeal and increased the penalty to exclusion for four years (eight semesters). He sought judicial review of the appeals committee’s decision on two grounds: (1) that the committee failed to give sufficient reasons for its decision; and (2) that the decision was unreasonable.

Held:

(1) An integral part of the right to natural justice is the right to be given good, proper and sufficient reasons for the decision.

(2) The test to apply for the purposes of determining whether an administrative decision has been made unreasonably is to ask whether the decision is so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker would have made the decision.

(3) The appeals committee failed in its duty to give good, proper and sufficient reasons, as the record of its decision contained no reference to the grounds of the plaintiff’s appeal and gave no indication that those grounds had been considered and contained no justification for quadrupling the penalty.

(4) The test as to unreasonableness was satisfied as: no justification for quadrupling the penalty was provided; notice should have been given to the plaintiff that the committee was considering increasing the penalty and he should have been given the opportunity to address the committee on that issue; the committee failed to take account of a number of mitigating factors (eg the plaintiff was a first-time offender; he struck the victim only once; the corroborating statements of witnesses provided by the plaintiff; lack of medical evidence; substantial de facto provocation; character references in support of the plaintiff’s prior good character); the committee took aggravating factors into account of which there was no evidence or that were irrelevant (eg that the plaintiff was the child of a leader and that he was involved in group fighting, resulting in grievous bodily harm and that his conduct was an instance of ‘ethnic culture’); and the penalty was manifestly excessive.

(5) The errors of law committed by the appeals committee were serious and its decision was therefore quashed.

Cases cited

Papua New Guinea Cases

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

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Ombudsman Commission v Peter Yama (2004) SC747

Paul Saboko v Commissioner of Police (2006) N2975

Wohengu v Hickey (2009) N3721

Overseas Cases

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

Counsel

S Ranewa, for the plaintiff

C Lari, for the defendants

22 January, 2010

1. CANNINGS J: Peter Kama, the plaintiff, began his studies as an accountancy student at the University of Papua New Guinea in 2007. On 26 August 2007 he assaulted a fellow student who he alleged was responsible for the theft of his laptop computer. He was charged with a disciplinary offence and found guilty by the Student Discipline Committee, which fined him K100.00, excluded him from studies for two semesters and placed him on a good behaviour bond for the remainder of his studies. He appealed against the guilty finding and the penalty to the Council Appeals Committee, which dismissed his appeal and increased the penalty by excluding him from studies for four years (eight semesters).

2. Aggrieved by the decision of the Appeals Committee the plaintiff applied for and was granted leave to seek judicial review of that decision. This is a trial of the substantive application for judicial review.

THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT

3. The plaintiff set out four grounds of review in his supporting statement but only pursued two. He is arguing that the Appeals Committee committed two errors of law:

· that the Committee failed to give sufficient reasons for its decision; and

· that the decision was unreasonable.

4. They are the two grounds of review. If either or both are upheld the plaintiff wants the Court to quash the Committee’s decision and to award him damages.

ISSUES

5. There are three issues before the Court:

1 Did the Appeals Committee fail to give sufficient reasons for its decision?

2 Was the Appeals Committee’s decision unreasonable?

3 What declarations or orders should the Court make?

1 DID THE APPEALS COMMITTEE FAIL TO GIVE SUFFICIENT REASONS FOR ITS DECISION?

6. It is part of the principles of natural justice and the duty to act fairly that once a decision is made the decision-maker must give good, proper and sufficient reasons for the decision. Two recent Supreme Court decisions have entrenched this principle: Ombudsman Commission v Peter Yama (2004) SC747 and Mision Asiki v Manasupe Zurenuoc (2005) SC797. It has been applied in numerous National Court decisions including Kely Kerua v Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534.

7. In the latter case Injia DCJ as he then was stated:

The Appeals Committee’s decision superseded the Student Discipline Committee’s decision and it is incumbent on the Appeals Committee to provide some meaningful explanation of how it went about addressing the issues raised by the plaintiff and exercised its mind to it and arrived at its decision.

8. In the present case the Appeals Committee conveyed the reasons for its decision in a letter to the plaintiff dated 17 April 2008. The Committee notified the plaintiff that it had “thoroughly considered” his appeal and noted in its discussions that:

(a) You have admitted to slapping Mr Tongia [the fellow student he was found to have assaulted] across the face. An action which resulted to Mr Tongia sustaining injuries to his face and neck.

(b) Physical assault is a serious offence and is punishable in a court of law.

The Committee resolved to reject your appeal, vary the decision of the SDC and award the following penalties:

(a) Exclusion from studies for four years, effective semester 1/2008. You will be eligible for re-enrolment in semester 1/2012. Your readmittance to the University will be subject to confirmation, from a church or community leader that your character has been significantly reformed;

(b) Complete your outstanding fees with the University;

(c) Placed on a good behaviour bond for the remainder of your studies at the University of Papua New Guinea.

May I remind you that the decision of the Council Appeals Committee is final.

[Signed]

Dr Nicholas Mann CMS

Chairperson, Council Appeals Committee, on Student Discipline Matters

9. The only part of that letter that can conceivably be regarded as providing reasons for the Committee’s decision is where the Committee states that the plaintiff admitted to slapping the complainant and that physical assault is a serious offence. The other parts of the letter are simply a notification of the decision. They do not constitute reasons for the decision. So the reasons for the decision are reduced to two sentences, viz:

(a) You have admitted to slapping Mr Tongia across the face. An action which resulted to Mr Tongia sustaining injuries to his face and neck.

(b) Physical assault is a serious offence and is punishable in a court of law.

10. Those reasons are clearly inadequate. The Committee failed in its duty to give good, proper and sufficient reasons. The letter contained no reference to the grounds of the plaintiff’s appeal and gave no indication that those grounds had been considered and contained no justification for quadrupling the penalty that had been imposed by the Student Discipline Committee. The plaintiff’s three-page appeal letter was carefully drafted and contained three clear grounds:

1 That he was not guilty of the charge as he slapped the complainant only mildly and there was no medical evidence in support of the allegation that the complainant was seriously injured.

2 That the complainant had been accommodating outsiders in his room who the plaintiff suspected were responsible for the theft of his laptop computer and two mobile phones and a radio.

3 The penalty was too severe...