The Independent State of Papua New Guinea and Gari Baki as Commissioner of Police v Timothy Gitua (2016) SC1479

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 02 February 2016
• Citation: (2016) SC1479
• Docket Number: SCA NO.138 OF 2015
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1479

Full Title: SCA NO.138 OF 2015; The Independent State of Papua New Guinea and Gari Baki as Commissioner of Police v Timothy Gitua (2016) SC1479

Supreme Court: Makail J

Judgment Delivered: 2 February 2016

SC1479

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO.138 OF 2015

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Appellant

AND

GARI BAKI as Commissioner of Police

Second Appellant

AND

THOMAS ELUH

Respondent

&

SCA NO.139 OF 2015

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Appellant

AND

GARI BAKI as Commissioner of Police

Second Appellant

AND

TIMOTHY GITUA

Respondent

Waigani: Makail J

2015: 2nd December &

2016: 2nd February

PRACTICE & PROCEDRE – Application for leave to appeal – Leave sought to appeal grant of leave for judicial review – Whether meritorious and arguable case established – Exhaustion of alternative remedies – Whether right of statutory review available – Contract of employment – Whether remedy lies in damages – Supreme Court Act – s. 14(3)(b) – Police Act – s. 26 – National Court Rules – O. 16

Cases cited:

Boyope Pere v. Emmanuel Ningi (2003) SC711

Central Pomio Logging Corporation Pty Ltd v. The State [1990] PNGLR 195

Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853

David Nelson v. Patrick Pruaitch (2004) N2536

Dominica Philip v. The National Education Board (2008) N4024

Ereman Ragi v. Joseph Maingu (1994) SC459

Hon. Ano Pala & The State v. Sam Koim Chairman Task Force Team Sweep (2015) SC1436

Joel Luma v. John Kali & Ors (2014) SC1401

Kekedo v. Burns Philip (PNG) Limited [1988-89] PNGLR 122

Lawrence Sausau v. Kumgal (2006) N3253

Martin Kenehe v. Allan Jogioba (2008) N4025

Matiabe Oberia v. Chief Inspector Charlie (2005) SC801

Ron Napitalai v. Caspar Wallace (2010) SC1016

Sekesu Sisapi Land Group (Inc) v. Turama Forest Industries Ltd (2008) SC976

Simon Kauba v. NEC & The State: OS (JR) No 477 of 2014 (Unnumbered & Unreported Judgment of 13th November 2015)

Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240

The State v. The Transferees (2014) SC1348

Young Wadau v. PNG Harbours Board [1995] PNGLR 357

Zachary Gelu v. Secretary, Department of Justice and Attorney-General (2004) N2762

Counsel:

Mr. I. Molloy & Mr. N. Tame, for Appellants

Mr. G. Egan & Mr. M. Nale, for Respondents

RULING

2nd February, 2016

1. MAKAIL J: In these cases, the Appellants seek leave to appeal against the decision of Nablu AJ given on 30th October 2015 in the National Court at Waigani in proceedings OS (JR) No. 633 of 2015 and proceedings OS (JR) No. 634 of 2015 whereby her Honour granted the Respondents leave to apply for judicial review of the Second Appellant’s decision to dismiss each of the Respondents from the Police Force. To save time and resources, I propose to deal with both matters together because the same kind of submission was made in each matter.

2. Leave is required because the decision in each case is an interlocutory one and does not fall within any of the exceptions contained in s. 14 (3) (b) of the Supreme Court Act.

Background Facts

3. Both Respondents were dismissed for disciplinary reasons. The Respondent Mr. Thomas Eluh was served a Notice of Penalty on 23rd September 2015 terminating his services and dismissing him from the Police Force for, amongst other things, insubordination. It was a result of a finding after an investigation that he accompanied the Respondent Mr. Timothy Gitua and another member of the Police Force Mr. Peter Guinness to the Prime Minister’s private residence at Konedobu to serve a letter from the then Commissioner of Police inviting the Prime Minister to attend an interview at the Fraud Squad Office at Konedobu.

4. In the case of Mr. Gitua, he was served a Notice of Penalty on 28th September 2015 demoting and dismissing him from the Police Force for, amongst other things, discharging a firearm at Armani Night Club, Gordons on 12th July 2014. The dismissal was also a result of an investigation.

5. At the time of dismissal, Mr. Eluh was employed under a contract of employment between him and the Second Appellant on behalf of the Police Force. The contract was for three years expiring on 13th July 2016. Mr. Gitua was not employed under a contract of employment.

6. The principles applicable on an application for leave to appeal are well-established. In Boyope Pere v. Emmanuel Ningi (2003) SC711 the Supreme Court said the reason for leave is “to ensure that only meritorious cases go to the Supreme Court on appeal....... If the court is satisfied there is merit in the proposed appeal......the appellant should be granted leave or allowed to proceed to lodge his appeal.” In Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853 the Supreme Court stated that there must be a meritorious and arguable case.

7. Other considerations may be relevant, particularly where the application for leave is from a discretionary decision within the Court’s jurisdiction involving a question of practice and procedure. See, for example, Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240 (application for leave to appeal against orders in respect of discovery and affidavit evidence), and Matiabe Oberia v. Chief Inspector Charlie (2005) SC801 (application for leave to appeal against a refusal to enter default judgment, and to extend time for filing a defence). Sekesu Sisapi Land Group (Inc) v. Turama Forest Industries Ltd (2008) SC976 provides an example of leave to appeal from a grant of leave to apply for judicial review. See also The State v. The Transferees (2014) SC1348. It is also rare for the Court to grant leave from a grant of leave for judicial review as matters raised at the leave hearing are for the National Court to determine at the substantive hearing as the Court only conducts a cursory inquiry at the leave hearing. See Hon. Ano Pala & The State v. Sam Koim Chairman Task Force Team Sweep (2015) SC1436.

8. The issue is, is there is a meritorious and arguable case?

Appellants’ Submissions

The Appellants contend that her Honour erred in granting leave on two grounds, each of which raises an arguable case on appeal. First, each Respondent has not exhausted alternative remedies. They contend that s. 26 (5) and (6) of the Police Act (“Act”) provide for a statutory review. I set out s. 26 below:

“26. Penalties for serious offences.

(1) Subject to Subsection (2), any one or more of the following penalties may be imposed under this Division:—

(a) a fine not exceeding K200.00;

(b) reduction of the member's salary;

(c) forfeiture of not more than four weeks' pay;

(d) reduction of the member to a rank having a lower classification, and to a salary within that classification;

(e) in addition to or instead of a punishment specified in Paragraph (d), the transfer of the member to other duties;

(f) in addition to or instead of a punishment specified in Paragraph (d) or (e), the transfer of the member to some other locality;

(g) dismissal of the member from the Force.

(2) In addition to any penalty imposed under Subsection (1)(a) to (f) inclusive, the Commissioner may also require the member to undergo a course of re-training.

(3) The penalty specified in Subsection (1)(f) shall not be imposed on a member of the Community Auxiliary Police or on a Special Constable.

(4) The Commissioner shall notify a member of a penalty imposed on that member.

(5) Where a penalty is imposed under this section by a disciplinary officer, the member affected may, within seven days of notification to the member under Subsection (4) of the penalty, or within such further time as the Commissioner may allow, apply in writing to the Commissioner for a review of the decision.

(6) An application under Subsection (5) for a review may be effected by —

(a) delivery in person to a disciplinary officer; or

(b) sending the application by ordinary post addressed to the Commissioner; or

(c) delivery in such other manner as may be approved by the Commissioner,

and is deemed to have been made on the day on which it is so delivered or posted.

(7) On a review under Subsection (5), the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final.

(8) The Commissioner may direct that a penalty imposed under Subsection (1) by a specified rank of disciplinary officers shall not be put into execution until confirmed by him.

(9) The power conferred on the Commissioner for this section to confirm a penalty is deemed to include the power to increase or otherwise to vary the penalty in any way not inconsistent with this Act.

(10) The power of the Commissioner to delegate under Section 17 is limited for the purposes of Subsections (6) and (7) to a power to delegate to a member of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made.” (Underlining is mine).

9. They submit that in her reasons, her Honour recognised that an Applicant for leave to apply for judicial review should first exhaust other remedies. As to the right of review under the Act, she said “this provision is only effected when the...