Jack Kariko v Tom Korua [2017] SC1939

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    Supreme Court dismissed an appeal by the National Judicial Staff Services against a finding that its sacking of a whistleblower was unfair and excessive and in breach of the rules of natural justice.

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  • SC1939
    PAPUA NEW GUINEA
    [IN THE SUPREME COURT OF JUSTICE]

    SCM NO. 28 OF 2016

    JACK KARIKO
    First Appellant

    POLI IFINA
    Second Appellant

    MEKEO GAULI
    Third Appellant

    NJSS APPEAL TRIBUNAL
    Fourth Appellant

    THE INDEPENDENT STATE OF PNG
    Fifth Appellant

    V

    TOM KORUA
    Respondent

    Waigani: Kirriwom, Batari & Toliken JJ
    th
    2017: 28 June
    th
    2020:29 April

    APPEAL – Judicial Review Application –termination of employment – grounds for
    judicial review – grant of application –review of – appeal grounds – whether in compliance
    with proper grounds of appeal – decision making process – whether in compliance with
    right to remain silent – caution against self-incrimination – lack of – whether in breach of
    Constitution s. 37 – reasons for decision – lack of – means no reasons for decision – Appeal
    dismissed.

    Facts

  • Page 2 of 18

  • The respondent who was employed as security supervisor of National Court in Goroka was
    charged with committing a serious disciplinary offence of soliciting bribes from subordinate
    workers to help expedite payment of their outstanding claims and termination benefits. There
    was evidence of pay officer in the salary section being paid and accepting bribes from former
    workers to fast-track processing their claims. The respondent was found guilty and
    recommended for dismissal to the Judicial Council while the pay officer who was alleged to be
    the instigator and who allegedly received bribes remained employed. Respondent appealed the
    Secretary’s decision to the Appeal Tribunal. The Tribunal dismissed his appeal and
    recommended dismissal to the Council. Council upheld the recommendation of the Tribunal
    and confirmed the Secretary’s decision.

    The respondent sought judicial review of the Secretary’s decision. At the judicial review
    hearing, where the respondent was for the first time being represented by legal aid, the court
    directed that all three decision-makers, namely, the Secretary, the Appeal Tribunal and the
    Judicial Council be included as parties by appropriate amendment to the pleadings and be
    served all documents. Pleadings were amended, except for the Fifth appellant who was
    represented, First, Second, Third and Fourth Appellants caused no appearance nor were they
    separately represented and matter proceeded to hearing.

    The review was grounded on denial of natural justice and excessiveness of penalty of
    termination of the respondent who was a whistle-blower while the instigator of the bribery
    scam in the pay section remain employed being unreasonable according to Wednesbury
    principle.

    Trial judge upheld the review and ordered reinstatement of the respondent.

    The appellants appealed arguing, inter alia, that the trial judge erred in law and in facts in
    arriving at his decision when questioning the decision of the inferior tribunal instead of the
    process.

    Issue

    1. Whether the trial judge erred in law and or in fact when he reached his decision?
    2. Did the appellants discharge the onus of showing that the trial judge had fallen into
    error?

    Held:

    1. Trial judge did not fall into any error and neither did the appellants demonstrate any
    appealable error on the part of the trial judge, as such the appeal is dismissed.

    2. Failure by the respondent to serve documents following amendment to the pleadings

  • Page 3 of 18

  • upon the First, Second, Third and Fourth Appellants as ordered by the judge in the
    lower court was a serious breach of procedural justice and fairness and tantamount to
    denial of fair trial, but no issue was taken of it on appeal to this Court, as such no
    miscarriage of justice resulted therefrom.

    3. Failure by the Judicial Council to give reason or reasons for its decision confirming the
    Secretary’s decision to terminate the respondent amounted to error of law and denial of
    natural justice.

    Applied and followed Mission Asiki v Manasupe Zurenuoc & The State [2005] SC 797

    4. There is no procedural fairness where the process under the Administrative Orders (O.
    10.33) was not complied with when charging the respondent with serious disciplinary
    offence before the matter came to the Secretary.

    5. The right to silence and right against self-incrimination is a fundamental process in our
    justice system that extends to disciplinary matters of criminal nature.

    Adopted and applied SCR No. 2 of 1990; re s.333 Income Tax Act 1959 (Amended)
    [1991] PNGLR 211

    6. Failure by the Secretary and the Appeal Tribunal to appreciate the total effect of the
    statements from the five former security officers and the respondent, all pointing to
    Allan Tukar as the person who took the bribes, when recommending termination of the
    respondent to the Judicial Council amounted to unreasonable decision in the
    Wednesbury sense.

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

    7. The right of a person accused and charged with committing a serious disciplinary
    offence of criminal nature to be fully informed of the allegations against him is
    premised on the right to be heard (Constitution s.59) and the right to remain silent
    (Constitution s.37(10) and (4)(a)) and cross-examination of his accusers is an integral
    part of that process.

    Considered Kevi v Teaching Services Commission [1997] N1535.

    8. The NJSS Act gives discretionary power to confirm, annul or vary the Secretary’s
    decision to both the Appeal Tribunal (s.19 (2)) and the Judicial Council (s.19(5)).

  • Page 4 of 18

  • Cases Cited:
    Papua New Guinea Cases

    Air Niugini Ltd v. Beverley Doiwa [2000] PNGLR 347
    Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853
    Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
    Godfrey Niggints v Henry Tokam & 2 Ors [1993] PNGLR 66
    Hari John Akipe v Rendle Rimua (2018) N7381
    Henry Kwan v Collin Bining (2014) N5836
    Jimmy Lama v NDB Investments Ltd (2015) SC 1423
    Kekedo v Burns Philip [1988-89] PNGLR 122
    Kevi v Teaching Services Commissions (1997) N1535
    Mission Asiki v Manasupe Zurenuoc & The State (2005) SC 797
    Public Curator v Kibi Kara (2014) SC 1420
    Riddler Kimave v Poevare Tore (2013) SC 1303
    Sir Arnold Amet v Peter Charles Yama [2010] PNGLR Vol. 2, 87
    The State v Joseph Fron (2011) N4552

    Overseas Cases

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

    Counsel

    Mr M. Kipa, for the Appellants
    Mr B. Geita, for the Respondent

    DECISION
    th
    29 April, 2020

    1. BY THE COURT: This appeal by way of Notice of Motion is against a
    decision of the National Court at Goroka where the Court granted the respondent
    his application for judicial review with consequential reliefs.

    Background

    2. The respondent, Tom Korua was employed by National Judicial Staff
    Services (NJSS) from 2007 as Security Supervisor based at Goroka. In 2014, he
    allegedly solicited and/or received bribes from former security officers on
    several occasions so that their entitlement claims could be fast-tracked. On

  • Page 5 of 18

  • 6/1/2015 NJSS Secretary Jack Kariko charged Tom with a serious disciplinary
    offence under s. 14(h) of the National Judicial Staff Services Act 1987(the
    Act).The respondent conceded either receiving from or directing former security
    officers to give or make cash deposits into personal accounts of pay-roll officers
    based in Waigani. He denied receiving any personal benefits. Based on witness
    statements, the Secretary considered the charges proven and recommended the
    penalty of dismissal to the Judicial Council (Council).

    3. The respondent appealed the Secretary’s decision to the NJSS Appeals
    Tribunal (Tribunal). On 13/11/2015 the Tribunal dismissed the appeal and
    confirmed the Secretary’s decision. By letter dated 24/6/2016, the Secretary
    informed Tom Korua, the Council had confirmed the decision of the Tribunal.
    The respondent then sought a judicial review of the decisions of the Secretary,
    the Tribunal and the Council in the court below on the grounds of:

    a) Ultra vires: Breach or abuse of procedure or process in that the decision of
    the Secretary was ultra vires the provisions of Orders 10.28 and 10.39 of
    the NJSS Administrative Orders.

    b) The Secretary and legal officer breached natural justice when they did not
    follow the procedure or process for charging an officer under Orders
    10.28, 10.29 and 10. 39 of the NJSS Administrative Orders.

    4. Upon review, the first ground was dismissed. The primary judge decided
    the remaining ground in favour of the respondent and quashed the termination
    decision. The court also ordered immediate reinstatement of the respondent to
    his position in the NJSS. On 19/10/2016 the appellants filed this appeal.

    Grounds of Appeal

    5. The appeal grounds drafted in long and unwieldy fashion are numerous.
    These may be condensed into six grounds and fairly rephrased as follows:

    a) Grounds 1& 2: The primary judge exceeded settled principles
    governing judicial reviews when his Honour strayed into making
    findings of facts and further erred when he found against the weight
    of the evidence that the respondent only assisted his subordinates

  • Page 6 of 18

  • and did not receive bribe monies.

    b) Ground 3, 4 & 9: The primary judge misapplied the Wednesbury
    principles when he failed to consider the respondent’s case on its
    own facts and instead, considered extraneous matters to conclude
    there was disparity of penalty between the decision to dismiss Tom
    and “no punishment” against Allan Tukar who had denied receiving
    bribes and was not before the court.

    c) Ground 5: The primary judge erred when he commented, the
    Tribunal’s finding on soliciting will not be the subject of the review but
    then made contradictory finding that Allan Tukar took the bribes.

    d) Ground 6 & 7: The primary court erred in holding Tom was not
    given a fair hearing before the Tribunal as he did not have the
    opportunity to cross-examine the witnesses as part of natural justice
    and wrongly applied the principles in,Kevi v Teaching Services
    Commission (1987) N1535, to the facts of this case.

    e) Ground 8: The primary judge considered irrelevant matters when
    he held, the report was tainted when it reached the Secretary as Tom
    was not informed of his right to remain silent under s. 37 of the
    Constitution.

    f) Ground 10: The primary judge misread and misapplied the
    discretionary powers of the Tribunal under s. 19(2) of the NJSS Act as
    if to say it is mandatory on the Tribunal to vary or amend the
    Secretary’s decision.

    Relevant matters against the merits of this appeal.

    6. We make these further observations at the outset to demonstrate other
    pertinent shortcomings of the grounds of the appeal and the futility of this case.

    7. On pages 95 to 99 of the Appeal Book, the primary court granted the
    respondent (plaintiff then), his application to amend the application for review to
    include determinations at the three levels of the process and the utility of the
    tribunal decision. The court then ordered, the amended pleadings with all
    supporting documents be served on the Judicial Council and further that Council
    to be separately represented at the hearing of the review application.

    8. We also note, the Appeal Book included fresh evidence and submissions
    on matters not pleaded in the original Order 16 Statement. This possibly resulted

  • Page 7 of 18

  • from the amendment to the originating process.

    9. The Appeal Book does not include proof of service of the amended
    application for judicial review. Indeed, the plaintiff’s lawyer conceded not
    having effected service of the amendments on the State and the Judicial Council
    as ordered. The trial judge having initially raised that issue then considered
    service on the Solicitor General lawyer on ground, sufficient compliance.

    10. With respect, service of the amendments with fresh supporting documents
    on the agent lawyer cannot amount to adequate service because of the specific
    orders of the primary court.

    11. In essence, the orders for specific service underpinned the right of the
    parties to be heard. There were relevant matters raised that would have been
    peculiarly within the information, knowledge and possession of the NJSS parties
    which counsel representing the State may have not been or fully briefed on.
    Indeed, in making the orders for separate representation for the Judicial Council,
    the trial judge had no doubt acknowledged the fresh matters the Council ought to
    be properly heard on. Furthermore, O. 8 r. 58 of the National Court Rules,
    provides in mandatory terms, that the party making the amendment must serve
    the parties on whom the original document was served, on the same day of the
    amendment. The plaintiff failed to comply with these requirements.

    12. Ordinarily, the hearings following no or inadequate service will be
    considered highly irregular. The lack of service will invariably result in denial of
    natural justice as the opposing party would not have had the opportunity to be
    properly informed of what to defend.

    13. In this case, the lack of service of the amended documents on the NJSS
    appellants were critical against the respondent (plaintiff then). Those procedural
    irregularities can lead to substantial miscarriage of justice.

    14. The appellants did not raise the issue of competencyof the primary court
    review proceedings on the grounds of lack of service of the amended pleadings
    in this appeal. Furthermore, accepting that the issues we have averted to were not
    raised in the primary court, the appellants missed the opportunity to seek leave of

  • Page 8 of 18

  • the court and show exceptional reasons why they should be heard on the fresh
    matters without first raising the issue in the Court below. See Fly River
    Provincial Government v. Pioneer Health Services Ltd (2003) SC705; Chief
    Collector of Taxes v. Bougainville Copper Limited (2007) SC853; Sir Arnold
    Amet v Peter Charles Yama [2010] PNGLR Vol. 2, 87.

    15. By conduct, the appellants plainly missed the plot in this case. The
    lacklustre attitude towards the seriousness of an appeal by a dismissed employee
    is apparent on the lack of proper representation of the NJSS management and the
    Judicial Council at the judicial review hearings. Then in this appeal, from the
    face of the records, the appellants failed to see the serious implications of lack of
    service we averted to earlier. They also failed to see the serious implications of
    orders for compliance by the Judicial Council and separate representation of the
    Council as ordered by the primary court. The in-house lawyers clearly failed to
    see the significance of protecting the interests of the Court Administration. The
    end result is the costly exercise in this appeal that is mounted on superficial knit-
    pickings of issues that lapse into insignificance as we will demonstrate.

    16. Crucial procedural aspects of the judicial review proceedings in the court
    below are clearly lost to the appellants either by design, ignorance or they were
    simply unaware of.

    17. The first was/is the apparent absence of the reasons for decision by the
    Judicial Council in upholding the decision of the Tribunal. The law is settled,
    that public authorities and officials vested with the power to make decisions
    which affect substantial rights, interests and welfare of other officers and their
    families are accountable to the public to give reasons for their decisions. The
    requirement to give reasons is also essential for good management and common-
    sense principles of fairness: Godfrey Niggints v Henry Tokam & 2 Ors [1993]
    PNGLR 66 (Amet CJ).

    18. Where no reason is given, the inescapable conclusion is, that the decision
    lacked any good reason.This Court has also stated, the failure to give reasons is
    an error of law and a denial of natural justice: Mission Asiki v Manasupe
    Zurenuoc & The State (2005) SC 797 (Jalina J, Cannings, Manuhu JJ).

    19. In Sir Arnold Amet v Peter Charles Yama[2010]PNGLR Vol. 2, 87 the

  • Page 9 of 18

  • Supreme Court (per Salika DCJ (then), Batari J)stated at pp. 94-95:

    “The duty to give reasons is a necessary part of the duty of a
    public official to accord natural justice to persons affected by the
    decisions of those public officials. That duty is essential to the
    observance of the rules of natural justice as held in, Ombudsman
    Commission v Peter Yama (2004) SC 747 (Injia DCJ, Sakora,
    Sawong JJ).”

    20. In this case, the primary judge correctly noted a pertinently important
    defect in the appeal process at page 223 of the Appeal Book namely, the absence
    of the Judicial Council’s decision. The plaintiff was merely informed of the
    purported decision of the Council by a letter from the NJSS Secretary.

    21. It is plain then that the Council had no reason for confirming the decision
    of the Tribunal. Therefore, the NJSS Secretary’s letter of 24 June 2016 to the
    respondent was legally flawed and a breached of procedural fairness.

    22. The second significant procedural defect was the breach of NJSS Admin
    Order 10.33 which requires a Manager, where a serious offence has been
    committed, to consider the seriousness and nature of the offence before referring
    the matter to the Secretary in writing. The requirement is in mandatory terms.
    There is no evidence of that process being followed in charging Tom Korua. At
    page 223 of the Appeal Book, the primary judge concluded, this procedural
    breach effectively made the disciplinary charge, legally flawed.

    23. The trial judge also correctly found the matter was tainted when it came to
    the Secretary. The substance was of a criminal nature. Under Admin Order 10.35,
    the Secretary had the discretion to refer the matter to police for criminal
    prosecution. And before him for determination, the Secretary had a self-
    incriminating statement obtained from the respondent without a caution in direct
    breach of the right to remain silent. The self-incriminating statement was likely
    to end up in criminal prosecutions. His Honour correctly noted, the procedure to
    warn a person is fundamental in our system of justice.

    24. In The State v Joseph Fron (2011) N4552 Batari, J echoed that sentiment

  • Page 10 of 18

  • against self-incrimination as follows:

    “10. I pause here to deal with an important procedural issue
    of witness self-incrimination that arose during the trial. Judas
    Kone gave self-incriminating testimony as an accomplice. Despite
    caution, he continued unheeded to thoroughly implicate himself.
    The risk of self-incrimination for him is real and appreciable. In
    practice, the judge or counsel usually warns a witness who is
    about to enter the danger zone if the incriminating tendency is
    apparent: R v. Gray [1965] Qd R 373; R v Turner [1966] QWN
    44. Here the witness stands to be charged with the same offences
    of conspiracy and arson on his admissions.

    11. Privilege against self-incrimination is akin to the right to
    silence. For that reason and for his own protection against self–
    incrimination under s 37 of the Constitution, he was cautioned by
    the Court. On this point, it is instructive to heed and follow what
    the Supreme Court in, SCR No 2 of 1990; Re s333 Income Tax Act
    1959 (Amended) [1991] PNGLR 211 (Kidu CJ, Kapi DCJ, Amet
    J, Hinchliffe J, Salika J), stated:

    ‘Another fundamental right in the criminal process,
    either prior to being charged, after being charged or at
    the time of trial is the right to silence and right against
    self-incrimination, which are embodied in s 37 (10),
    and reinforced by s 37 (4) (a). A procedure which
    compels or obliges an accused person to file a
    “defence” prior to the trial in court or to give “further
    and better particulars of the defence” or to give
    “discovery” or to “answer interrogatories” is in
    contravention of the right to silence and right against
    self- incrimination. Such procedural requirements
    relate to civil suits and are foreign to a criminal
    prosecution.’”

    (Underlying added).

  • Page 11 of 18

  • 25. The trial judge there had to caution a witness who was about to give self-
    incriminating evidence. To that point, the witness had not been charged with any
    offence. The warning was necessary to inform him of his right to silence and his
    right against self-incrimination.

    26. The right to silence and the right against self-incrimination involves a
    process whereby, a person being interviewed or requested to make a statement
    concerning a matter of a criminal nature, must be cautioned at the outset against
    making self-incriminating statements irrespective of whether the person will be
    charged or not. That fundament process in our system of justice extends to
    disciplinary matters of criminal nature. The person being interviewed or from
    whom information is solicited for the purpose of laying disciplinary charges of a
    criminal matter are entitled to be warned against self-incrimination at the outset.

    27. In this case, the statement solicited from the respondent concerned fraud
    and soliciting bribes from NJSS security officers so that their claims could be
    fast-tracked by paymasters at Waigani finance office. He was not warned that his
    responses might be used against him. The security men were also not cautioned.
    The actions of the first and second appellants were in serious breach of the right
    to silence. Hence, the statements used by the Secretaryagainst the respondent
    were substantially tainted, as the trial judge held.

    28. The primary judge also made a pertinent point, that the appeal process
    being mounted upon the materials given to the Tribunal and the Tribunal’s
    written decision means that if the Tribunal’s decision is flawed, then the
    Council’s decision is similarly flawed. His Honour then pointed to several
    procedural deficiencies, (two which we have covered), the full impact of which
    makes this appeal a total farce.

    29. Other than dismiss the appeal now and for completeness, we will show
    briefly why the grounds of appeal lacked substance.

    Incompetent Appeal grounds

    30. It is trite law that leave is required where grounds of appeal raise issues of

  • Page 12 of 18

  • fact alone. In this case, in so far as the grounds of appeal raise matters of fact
    alone, it is apparent from the face of the records, the appellants did not seek
    leave in respect of those findings in a separate application for leave to appeal.
    The grounds which raise findings of fact only are 1, 2, 3, 4, 5 and 9. These
    grounds also suffer from incontestably scanty and superficial knit pickings. The
    grounds knit-picked issues, that fall into insignificance upon a wholesome
    scrutiny of the proceedings and reasoning processes supporting the outcome of
    the judicial review application.

    31. These grounds are incompetent for the foregoing and reasons that follow.

    Grounds 1 & 2: Evidence on soliciting bribery

    32. The appellants submitted, the primary judge committed error of fact and
    law when he found, “Respondent did not receive any benefit for the bribes
    offered but did so to assist his subordinates,”which amounted to findings of facts
    contrary to judicial review principles and in making such findings against the
    weight of the evidence.

    33. The respondent’s submissions are that the decision the trial judge arrived
    at was consistent with the circumstances of the case.

    34. We consider, that besides being incompetent, the grounds also lacked
    merit. At page 211 of the Appeal Book, the primary judge held, “Dismissal was
    excessively severe where the officer did not receive any benefit for the bribe
    offered but did so to assist his subordinates who were properly due salary and
    end-of-employment entitlements.” His Honour reached that conclusion after
    reviewing the decisions of the Secretary and the Tribunal.

    35. Both authorities made a fundamental error in the decision-making
    process. In recommending the dismissal penalty, the two authorities failed to
    appreciate the total effect of the statements from five former security officers and
    Tom Korua, all pointing to Allan Tukar as the person who took the bribes. On the
    other the hand, the Tribunal decision at page 70 para 14 of Appeal Book
    referred to a bare denial by Allan Tukar.

    36. The clear evidence on the face of the records which the Secretary and the

  • Page 13 of 18

  • Tribunal overlooked or ignored was, that Allan Tukar took the bribes in order to
    facilitate the final entitlements for the five retired security men. Allan Tukar was
    the principal instigator. He was the mind behind the scam and still employed at
    the time Mr Korua’s employment was terminated. The appellants failed to
    appreciate the lesser role of the respondent as a “middleman”, cum a “whistle
    blower” to assist his former subordinates.

    37. The trial judge did not make any findings of facts. The appellants
    misunderstood the role of the reviewing judge in having to look at the evidence
    and findings of facts from direct evidence or inferences to confirm if the decision
    reached, followed proper application of due process. This ground is dismissed.

    Grounds 3, 4& 9: Whether the Wednesbury principleswere misapplied

    38. The appellants contend, the trial judge misapplied the reasonableness test
    under the Wednesbury principles to the punishment imposed on the respondent.

    39. The ‘Wednesbury principle’ the appellants rely on is laid down in the oft
    cited case of Associated Provincial Picture House Ltd v Wednesbury
    Corporation [1948] 1 KB 223. Under this principle, the superior court may set
    aside an administrative or judicial decision if it can be objectively determined to
    be unreasonable. The test as stated in Henry Kwan v Collin Bining (2014) N5836
    (Cannings, J) following a host of past precedents is whether, the decision is so
    unreasonable or absurd, having regard to all the circumstances, no reasonable
    decision-maker could have made the decision.

    40. In, Hari John Akipe v Rendle Rimua (2018) N7381 Higgins, J said:

    The test comes down to whether the decision is or is not one to
    which any reasonable authority could rationally come. In
    essence, a decision maker is not empowered to make arbitrary or
    whimsical decisions.

    41. In Air Niugini Ltd v. Beverley Doiwa [2000] PNGLR 347, Amet CJ,
    referred to the English case of Council of Civil Service Unions v. Minister for the
    Civil Service [1985] 1 AC 374 in which Lord Diplock described the Wednesbury

  • Page 14 of 18

  • “unreasonableness” principle as:

    “a decision which is so outrageous in its defiance of logic or of
    accepted moral standards that no sensible person who had
    applied his mind to the question to be decided could have arrived
    at it.”

    42. We agree with the respondent’s contention. The Wednesbury test applies to
    the whole circumstances of the case. The appellants’case has not passed the
    unreasonableness test as consistently expressed in the cited precedent cases.

    43. The trial judge was entitled to consider the whole circumstances under
    which the Secretary recommended the penalty of dismissal and the failure by the
    Tribunal and consequently, the Judicial Council,to review the proportionality of
    the penalty imposed by looking only at the situation of the respondent and by
    ignoring the situation with Allan Tukar being the principal instigator of the scam.
    The Wednesbury principles was in effect against the appellants’ knit-picking
    contentions. We dismiss this ground.

    Ground 5: Contradictory finding of fact

    44. The appellants submitted, the primary judge erred by looking at the case
    of Allan Tukar when it ought to have looked at the process and not the evidence.

    45. This contention is absurd with no substance in law. The appellants
    misapprehended the whole of the primary judge’s reasoning process. It is clear
    the Secretary and the Tribunal decisions were arrived at in clear breaches of the
    legal processes, we have covered earlier. This ground is dismissed.

    Grounds 6& 7: Natural justice and right to cross exam witness

    46. The appellants’ contentions are that the respondent was afforded his right
    to be heard. He responded to the Charges and was heard at the Tribunal hearing
    of his appeal. The case of Kevi v Teaching Services Commissions (1997) N1535
    has no application to this case. It was erroneously relied on by the trial judge.

  • Page 15 of 18

  • 47. The respondent submits that upon being charged with an administrative
    breach, he has the right under s. 59 of the Constitution to be served witness
    statements and given the opportunity to respond to those allegations. The failure
    by the appellants to give Tom Korua the opportunity to test the witnesses’
    evidence denied him the right to be heard.

    48. The trial judge dealt with the issue of right to be heard at pages 221 – 222
    of the Appeal Book. At page 222 his Honour stated:

    “Anyone can make a false accusation which may seem credible.
    But unless the person accused has the opportunity to confront his
    accuser and test the accusation by cross-examination, justice is
    not done. The process of the Secretary’s dismissal and the
    Tribunal’s appeal decision and the Council’s confirmation are
    respectively based on this denial of justice”.

    49. Persons in authority, administrative bodies, tribunals vested with quasi-
    judicial powers and the courts are required to disclose all available and relevant
    information to the accused person. In essence, the procedural requirement for the
    person facing a criminal charge, or a serious disciplinary offence as in this case
    under NJSS Admin Order 10.35 to be fully informed of the allegations against
    him,is premised on the right to be heard (Constitution s.59) and the right to
    remain silent (Constitution s.37 (10) and (4)(a)).

    50. That process necessarily calls for response(s) from the accused or a person
    facing disciplinary charges. Cross-examination of the accusers is an integral part
    of that process. The accused may or may not decide to cross-examine his
    accusers. In Kevi v Teaching Services Commissions (1997) N1535 the right to
    cross-examine is provided for under the Teaching Service Act 1988. Where the
    process to cross-examine his accusers is not provided for by legislation, it can be
    implied under s. 59 of the Constitution as an integral aspect of procedural
    fairness under the principles of natural justice.

    51. The appellants have not shown where the trial judge erred as alleged. This
    ground is dismissed.

  • Page 16 of 18

  • Ground 8: Taking into account irrelevant matters

    52. The appellants’ contentions are that the right to remain silent under s. 37
    of the Constitution does not apply to disciplinary proceedings. So, the trial judge
    erred in law when he took into account irrelevant matters and concluded, the
    statements before the Secretary against the respondent were tainted.

    53. This ground is misconceived as discussed above. It is dismissed.

    Ground 10: Discretionary powers of the Tribunal

    54. This ground reads as follows:

    His Honour the learned Primary Judge erred in law and in fact
    when he found that the Tribunal had committed an error of law in
    finding that it was not appropriate for it to annul or vary the
    decision of the First Appellant, although in the view of the
    learned Primary Judge, section 19(2) of the NJSS Act gave
    Tribunal the power to inter alia, annul the decision of the First
    Appellant, as if to say that it is mandatory for the Tribunal to vary
    or amend the Secretary’s decision, when section 19(2)only gives
    the Tribunal the discretion to either annul, vary or confirm the
    First Appellant’s decision depending on its determination of
    appeals that are brought before it.

    55. It is apparent, the ground is drafted in unwieldy, confusing fashion and
    makes easy reading difficult. It is one of the numerous grounds that suffer from
    poor drafting and hence, lacking in clarity, tact, grammatical and legal sense and
    intelligibility. The appellants have not discharged the duty to file proper grounds
    of appeal pursuant to O 7 rr 9 (c) and 10 of the Supreme Court Rules.

    56. It has been settled in numerous Supreme Court case precedents, some we
    refer to here, that a ground that does comply with these rules in terms of lack of
    particularity, (Public Curator v Kibi Kara (2014) SC 1420); is poorly drafted,
    vague and confusing (Riddler Kimave v Poevare Tore (2013) SC 1303); is
    lacking in grammatical and legal sense and intelligibility (Jimmy Lama v NDB

  • Page 17 of 18

  • Investments Ltd (2015) SC 1423) is incompetent and stands to be dismissed. This
    ground falls into this trap.

    57. On the other hand, making some head and tail out of this ground of appeal,
    the contentions by the appellants are misconceived.

    58. The finding of the trial judge on error of law by the Tribunal at p. 224 of
    the Appeal Book, is crystal clear. On the face of the records, the Tribunal
    wrongly concluded it was not“appropriate for this Tribunal to annul or vary the
    decision of the Secretary.

    59. That statement by the Tribunal appeared to be based on the legal
    proposition that the Tribunal has no jurisdiction under s. 19 of the National
    Judicial Staff Services Act 1997 (NJSS Act) to hear appeals for non-compliance
    with due process under the NJSS Administrative Orders and that the respondent’s
    ground of appeal challenging the validity of the Secretary’s decision before the
    Tribunal was incompetent.

    60. In the course of the submissions at pp 68 – 69 of the Appeal Book, the
    respondent made submissions on the severity of penalty and asked for leniency.
    At page 71 the Tribunal found the dismissal to be the appropriate penalty in the
    circumstances of the case.

    61. Given that scenario, the trial judge quite correctly found, s. 19 (2) of the
    NJSS Act gives the Tribunal the discretion to confirm, annul or vary the decision
    appealed against. His Honour corrected a legal misnomer that having to decide
    on the appropriateness of penalty for recommendation to the Judicial Council,
    the Tribunal lacked the discretion to annul or vary the decision of the
    Secretary.This ground is dismissed.

    Conclusion

    62. In conclusion, the circumstances which may permit a judicial review of an
    administrative decision, action or inaction are where the decision-making
    authority exceeds its powers, commits an error of law, commits a breach of
    natural justice or reaches a decision which no reasonable tribunal could have

  • Page 18 of 18

  • reached or abuses its powers in the decision making process: Kekedo v Burns
    Philip [1988-89] PNGLR 122. The trial judge in this case found the disciplinary
    charge and penalty imposed on Tom Korua was in breach of legal processes and
    the rule of natural justice in the decision-making process.The appellants have
    failed to establish where his Honour committed an error in granting the
    respondent, his application for judicial review.

    63. In the end result, the appeal is dismissed. In regard to the orders of the
    primary court in the event of this outcome, we did not hear from the parties. We
    will however make the following orders:

    1) The appeal is dismissed.
    2) The Orders of the National Court are to take effect forthwith.
    3) The appellants meet the costs of the appeal
    _________________________________________________________________
    Fairfax Legal PLN: Lawyers for the Appellants
    Public Solicitor: Lawyers for the Respondent