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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