Steven Nining v Dr Nicholas Mann, Chairman, Council Appeal Committee, University Of Papua New Guinea and The University Of Papua New Guinea (2013) N5338

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 August 2013
• Court: National Court
• Citation: (2013) N5338
• Docket Number: OS (JR) NO 26 OF 2009
• Year: 2013
• Judgement Number: N5338

Full Title: OS (JR) NO 26 OF 2009; Steven Nining v Dr Nicholas Mann, Chairman, Council Appeal Committee, University Of Papua New Guinea and The University Of Papua New Guinea (2013) N5338

National Court: Cannings J

Judgment Delivered: 30 August 2013

N5338

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 26 OF 2009

STEVEN NINING

Plaintiff

V

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

First Defendant

THE UNIVERSITY OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2013: 26 April, 3 May, 30 August

ADMINISTRATIVE LAW – student disciplinary procedures – whether errors of law committed in disciplinary process – whether disciplinary committee or appeals committee exceeded jurisdiction – 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 university student. He was charged with a disciplinary offence, found guilty by a disciplinary committee and excluded from studies for two semesters, ordered to pay 10% of the total costs of assessed damage to university property to be paid before re-enrolment and required 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 six grounds: (1) error of law on the face of the record due to failure to adhere to statutory procedures; (2) excess of jurisdiction; (3) the decisions were premeditated; (4) unreasonableness; (5) penalty was harsh and oppressive; and (6) the allegations were false. Grounds (3) and (6) were abandoned at the trial. 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 continue his studies and damages. This was the trial of the application for judicial review.

Held:

(1) Ground (1) was upheld as eight errors of law appeared on the face of the records of the disciplinary committee and the appeal committee.

(2) Ground (2) was partially upheld in that the disciplinary committee and the appeal committee each denied him a reasonable opportunity to defend himself.

(3) Grounds (3) and (6) were not ruled on as they were abandoned.

(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.

(6) As two grounds were wholly upheld and one was partially 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 continue his studies 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

The following cases are cited in the judgment:

Aita Sanangkepe v Honourable Paias Wingti (2008) N3404

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

Bakani and OPIC v Daipo (2001) SC659

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

Dale Christopher Smith v Minister for Lands (2009) SC973

Denis Donohoe v Ombudsman Commission [1985] PNGLR 348

Dopsie v Tetaga & Apeng (2009) N3722

Hanjung Power Ltd v Dr Allan Marat, Attorney-General (2009) N3751

Henry Wavik v Martin Balthasar (2013) N5272

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

Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746

Jomino Holee v Sem Vegogo (2013) N5101

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

Karen Mek v Dr Nicholas Mann OS (JR) No 392 of 2009, 17.01.11 (unreported)

Kely Kerua v Council Appeal Committee (2004) N2534

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 Appeal Committee (2010) N3829

Prai Ipandi v Robin Guria (2010) N3830

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 (unreported)

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

JUDICIAL REVIEW

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

Counsel

S Nining, the plaintiff, in person

C Lari, for the first & second defendants

30th August, 2013

1. CANNINGS J: Steven Nining, the plaintiff, was a third 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 at least two semesters, 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.

2. The facts are very similar to the facts in the case of Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746, which I decided in favour of the plaintiff. There was no application to disqualify me from the present case. However counsel for the first and second defendants, the Chairman of the Council Appeal Committee and the University, Ms Lari, applied for an adjournment of the trial in view of the fact that the defendants have appealed to the Supreme Court against my decision in Kumbu and the appeal is pending. I refused that application after noting that the appeal has not yet been heard. Each case must be judged on its merits. There was no order in place to prevent the present proceedings continuing. The plaintiff, who opposed the application, deserves to have his day in court. This is an old case. It relates to an incident that occurred five years ago and the decisions of which review is sought were made more than four years ago. Leave for judicial review was granted in February 2009. It has taken more than four years for the trial to start. I do not know the reason for that but the delay is too long, especially in a case like this where a person’s education and livelihood are directly affected by the outcome.

3. The plaintiff was granted leave to argue six grounds of review:

(1) error of law on the face of the record;

(2) excess of jurisdiction;

(3) the decisions were premeditated;

(4) unreasonableness;

(5) the penalty was harsh and oppressive; and

(6) the allegations were false.

4. The plaintiff, who represented himself, abandoned grounds (3) and (6), so only grounds (1), (2), (4) and (5) will be ruled on.

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

5. 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 and the Appeal Committee were unlawfully constituted;

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

(d) the penalty imposed on him was unlawful and irrational;

(e) the Appeal Committee ignored the grounds of appeal.

(a) Disciplinary proceedings time-barred

6. Determination of this sub-ground requires an examination of the Student Discipline Statute. Two different versions of this subordinate legislative enactment, 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 P2, annexure E). A different version, consisting of 16 sections, is annexed to an affidavit of the chairman of the Disciplinary Committee (exhibit D3, annexure C).

7. Which is...