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• N8273
  PAPUA NEW GUINEA
  [IN THE NATIONAL COURT OF JUSTICE]

  OS (JR) 834 OF 2015

  BETWEEN:
  TOM KORUA
  Plaintiff

  AND:
  JACK KARIKO as Secretary, National Judicial Staff Services
  First Defendant

  AND:
  POLI IFINA as Principal Legal Officer, National Judicial Staff Services
  Second Defendant

  AND:
  NATIONAL JUDICIAL STAFF SERVICES APPEAL TRIBUNAL
  Third Defendant

  AND:
  NATIONAL JUDICIAL STAFF SERVICES
  Fourth Defendant

  AND:
  THE INDEPENDENT STATE OF PAPUA NEW GUINEA
  Fifth Defendant

  Goroka: Neill J
  2016: 8, 15, 22 July; 1, 15, 23 August; 9 September

  ADMINISTRATIVE LAW – “whistle-blower” officer who made complaints
  against a senior officer was then subject to disciplinary procedure – self-
  incrimination Constitution Section 37 – natural justice for person subject to
  disciplinary action to be able to cross-examine witness–reasonableness of
  punishment where person facilitated soliciting bribe but he was not a
  beneficiary of bribes nor had he personally anything to gain.

  Facts

  The Plaintiff was a Security Supervisor and with lower rank former security
  officers made complaints that the payroll officer was not doing his job in that he
  had not paid the former officers their retirement and overtime entitlements and

• Page 2 of 16

• had taken bribes to do his job. There was no caution given to the Plaintiff that in
  making his statement he could be charged under Section 97B of the Criminal
  Code Act or under the National Judicial Staff Services Act. He was dismissed
  for soliciting money to fast track the former officers’ entitlements from payroll
  officer.

  The plaintiff felt a commitment to the former security, who he called “his men”,
  none of whom were well educated, to help them. He denied taking any money
  for himself. The former officers gave a history of frustration when trying to
  contact or to obtain their entitlements from the payroll officer. They gave
  evidence the payroll officer accepted their bribes which they hoped would get
  him do his job to process their lawful entitlements. The payroll officer continues
  to be employed. He denied taking bribes. He was not made available for cross-
  examination by the plaintiff.

  Held

  1. When considering a disciplinary offence, it is a denial of natural justice
  by a statutory authority, to not give the officer who has been charged, the
  opportunity to cross-examine and test the evidence of the person who is the
  root cause of the charge.

  2. 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.

  3. The person (whistleblower) who reports a person for accepting bribes
  should be informed of their right to not self-incriminate.

  4. The disparity of punishment of the whistleblower compared to no
  punishment of the person who took bribes – reasonableness.

  Cases Cited:
  Papua New Guinea Cases

  Kekedo v Burns Philp (PNG) Ltd [1988-9] PNGLR 122
  Paul Asakusa v Andrew Kumbakor (2008) N3303
  Kevi v The Teaching Service Commission (1997) N1555

  Overseas Cases

  Associated Provincial Picture Houses v Wednesbury Corp [1947] 2 All ER 680

  Legislation

• Page 3 of 16

• Constitution, SS 37, 59
  National Judicial Services Act
  National Court Rules, Order 16

  Counsel

  Ms V Move, for the Plaintiff
  Mr P Ifina, for the First, Second, Third, Fourth Defendants &Judicial Council
  Ms W Oa, for the Fifth Defendant

  9th September, 2016

  1. NEILL J: BACKGROUND: The Plaintiff was employed by the Fourth
  Defendant, the National Judicial Staff Services (NJSS) as a Security Supervisor
  at the National Court Goroka. He had been employed as a security since 2
  January 2007.The National Judicial Services Act 1997 (Act) established the
  NJSS to provide support staff to the courts. The Act set up a procedure to deal
  with employment issues of NJSS staff. The First Defendant (Secretary) is the
  Head of the NJSS. It is the Secretary who considers complaints made against
  staff of their having committed a breach of the Act.

  2. The Secretary is required to adhere to the procedures for dealing with
  serious disciplinary offences. The Secretary did the following:

  1. By notice dated 6 January 2015 the Plaintiff was suspended
  and a second notice charged the Plaintiff (under Section 14(h) of
  the Act):

  “On several occasions you solicited and received monies
  from former security officers from Goroka National Court
  namely Sawong Suman, SutoMosoka, Simon Kar and Billy
  Tarosa as payment to fast track their outstanding
  payment.” (charge)

  2. The Plaintiff was served with the notice of charge on 9
  January 2015 and he responded to the charge by letter dated 12
  January 2015. The NJSS Legal Division date stamp shows
  receipt on10 February 2015.

  3. Section 16(5) (a) to (e) of the Act empowers the Secretary to
  impose punishment after due consideration of the material. Of
  the range, Section 16(5)(a), (b) and (c) relate to monetary
  punishment by fine, or reduction in salary, or lowering the
  officer’s classification with a consequential lower salary. In

• Page 4 of 16

• addition to that punishment, Section 16(5)(d) provides for
  transfer of the offender to another location.

  4. Section 16(5)(e) allows the Secretary to recommend
  dismissal to the Judicial Council (Council), established under
  Section 3A of the Act. Pursuant to Section 16(6) of the Act, by
  notice dated 4 March 2015 the Secretary informed the Plaintiff
  he has been referred to the Council for dismissal. The notice was
  served on 9 March 2015.

  5. A notice of appeal was given by the Plaintiff to the National
  Judicial Staff Services Appeal Tribunal (Tribunal) and the
  appeal proceeded to hearing. On 13 November 2015 the Tribunal
  dismissed the appeal.

  6. By letter dated 24 June 2016 the Secretary informed the
  Plaintiff that the Council had upheld the Tribunal’s decision and
  confirmed the dismissal by the Secretary. That letter did not
  reach the Plaintiff until some 21 days later. The Plaintiff’s salary
  ceased on 22 June 2016.

  3. Section 19 of the Act provides for a three stage process for a “serious
  disciplinary offence”. After the Secretary considers the complaint and makes a
  decision, then, an officer may appeal the Secretary’s decision to the Tribunal.
  The Council is at the apex of the appeal process.

  4. Pursuant to Section 19(2) the Tribunal may vary the Secretary’s decision
  as the punishment imposed under Section 16(5)(a) to (d) and may recommend
  to the Council that the officer be dismissed. Section 19(3) provides that the
  Tribunal’s decision is final except as to dismissal.

  5. The Tribunal recommended to the Council that the Plaintiff be dismissed.
  The recommendation of the Secretary and the Tribunal was then considered by
  the Council under Sections 19(5) and 19(6) of the Act. The letter of dismissal
  (see paragraph 7) said (sic.):

  “The Judicial Council had upheld the decision of the Appeals
  Tribunal which confirmed the decision of the Secretary to
  recommend you to Judicial Council for dismissal from NJSS.”

  Background to the Act

  6. Sir Buri Kidu was the first Papua New Guinean Chief Justice. He knew
  that there could be no independence for the Judiciary without financial
  independence. That is how the Act was conceived. Anyone who knows politics

• Page 5 of 16

• knows that to pass legislation it requires both timing and the appropriate person
  to move the legislation. The timing and the person came about in 1987 when the
  second reading of the Bill (now the Act) was moved by the then Minister for
  Justice, Warren Dutton. He too was conscious for the need for judicial
  independence and said in the House:

  “There are three arms of Government. They are the executive,
  the legislative and the judicial. The Constitution says that in
  principle these arms are to be kept separate.”

  7. The important thing was to secure the financial independence of the
  judiciary. Later the Act’s mechanism for staffing, the “detail” was drafted in
  recent years as the Administrative Orders (Admin Orders).

  8. The Admin Orders allow the NJSS Secretary to deal with disciplinary
  matters by reading the complaint and the reply to the complaint and without
  giving an opportunity to the officer to test the allegations made. This is a
  common mechanism in the Public Service but it does beg the question of
  natural justice. The Admin Orders are subsidiary to the Act, however Section
  16 of the Act does authorise the Secretary to charge and suspend an officer if he
  is of the opinion the charge has been sustained and the Secretary may
  recommend dismissal.

  Facts

  9. The Secretary acted on a complaint by the “former security officers” who
  were named in the charge and who were under the Plaintiff’s supervision at the
  Goroka Court. A statement was also given by Jasis Unua, a fifth person who
  wanted to “fast track” his final payout. The statements of all five men are noted
  in the Secretary’s decision recommending dismissal.

  10. In considering the evidence of the former security officers, they tell much
  the same story. Their separate statements are annexed to an affidavit by the
  Plaintiff (filed 11 August 2016, document 24). In summary, they say:

  ♣ Some were retiring from the NJSS service. Some due to
  health and others age and others due to restructure of positions;
  all had been employed for many years.
  ♣ It is not suggested that any of these men had much education
  or work experience other than as a security guard. They wanted
  to get their retirement entitlements and overtime pay.

  ♣ Allan Tukar, the paymaster at NJSS Waigani seemed to be
  the person whose job it was to pay them their entitlements.

• Page 6 of 16

• 11. To give some notion of their frustration in trying to contact Allan Tukar
  let alone obtain their entitlements, Jasis detailed his efforts (sic.):

  “I made several attempts by travelling to Port Moresby NJSS
  head office to follow up.….I was told Mr Allen Tukar to follow
  up with him. Many times I went to his office when I in Port
  Moresby but he was not always in his office. After attempting
  follow-up for so many times I was forced to travel out of Port
  Moresby …. Again in September 2012 I travel to Port Moresby
  but there was no good attendance by Allan Tukar. From the way
  he was approaching me I understood and that he was expecting
  some money from me as usual before he could calculate and pay
  my entitlements. I gave him K500 cash all in 100 kina notes in
  front of the Waigani Court house under the rain tree. The
  transaction took place in the presence of Security Supervisor Mr.
  Tom Korua. When I handed the K500 cash he took it and put it in
  his short pocket…My retrenchment entitlement is still yet to be
  paid to me….”

  12. Suman Sawong’s statement says that he was paid his retrenchment money
  but not paid for the overtime that he worked. He paid K150 and K200 to the
  Plaintiff to send to Allan Tukar and he states (sic.):

  “Naomi Thomas request some money for processing and we
  contributed and sent a total of K250 on the advice of Tom Korua.
  The money was posted through Naomi’s ANZ bank
  account.” [He adds that in regard to the claim he was “still
  waiting”.]

  13. Suto Mosoka says he was paid his entitlements on retirement but not his
  overtime. He says that money was paid to both Allan Tukar and to Naomi
  Thomas through the Plaintiff to get his claim processed.

  14. Simon Kar was not paid his retrenchment benefits or overtime. He paid a
  “processing fee” of K750 through the Plaintiff to send to Allan Tukar.

  15. The last of the former security officers is Billy Tarosa. He says:

  “I followed up on so many times. While waiting for payment I
  sent some money to the paymaster account but nothing has
  happened. Firstly I sent K150 into Allen Tukar’s BSP bank
  account. Recently in July 2014 I sent another K100 to Mrs.
  Naomi Thomas into her Bank Account.”

• Page 7 of 16

• 16. Four of the statements of the former security officers are dated 21 August
  2014 and the statement of Billy Tarosa and the Plaintiff are dated 22 August
  2014. There is nothing in the statements to suggest that they had been informed
  of their right to remain silent or the issue of self-incrimination or Section 37 of
  the Constitution or they could be referred to Police pursuant to Admin Orders
  10.35 (say to be charged under Section 97B Criminal Code Act) or Part IV of
  the Admin Order for an offence regarding bribes to Allan Tukar. And, where an
  investigating authority is looking to prosecute a principal offender, an
  arrangement is sometimes made with a less culpable offender for indemnity or a
  lesser charge or lesser penalty, in order to secure the evidence of the less
  culpable offender in regard to prosecuting the principal offender.

  17. The Plaintiff’s statement is he did not take for himself any money of the
  former officers but he helped them, so they could get their money (sic.):

  “As their supervisor I have been doing all these to assist my
  security officers with their overtime claims. If I don’t do that how
  could I assist my security personnel. I was left with no choice by
  the paymaster as they were controlling the overtime claims and
  telling me to facilitate for their processing fee. I did that in good
  faith only to help my security men. I had no criminal intention.”

  Grounds of appeal to the Tribunal

  18. In summary, the grounds in the Plaintiff’s notice of appeal to the
  Tribunal:

  A. Notice of the Secretary’s decision to recommend dismissal
  was received by the Plaintiff (sic.) “came after 35 working days
  from the time of my replyment to the said charge therefore my
  charges shall be considered null and void” as contrary Admin
  Orders 10.39 and10.40.

  B. The Plaintiff and the five former officers informed the
  Principal Legal Officer about misconduct of the payroll officers,
  Allan Tukar and Naomi Thomas in not processing the security
  entitlements. (Pursuant to Admin Orders 10.28, the Legal Officer
  is the person to whom the Secretary refers a complaint and who
  then prepares a charge.)Based on that information, some months
  later the Plaintiff was charged, though he thought his statement
  was concerning the payroll officer. The Plaintiff says that delay
  contravened Admin Orders 10.29.

  C. The Plaintiff was not given an opportunity to see the
  evidence provided in support of the charge.

• Page 8 of 16

• D. The Plaintiff denies the statements of the security officers
  that he took money from them to process their claims.

  19. The Plaintiff says the Secretary did not comply with the time
  requirements of Order 10 of the Admin Orders. The Admin Orders, which fill an
  arch-lever file, have such detail, that a lawyer could navigate but it is doubtful
  that a security guard with only limited education could competently do so.

  In regard to A

  20. Admin Orders 10.39 and Admin Orders 10.40 apply. The Orders require
  the formal notification of the Secretary’s decision is to be provided to the officer
  within 21 working days otherwise: “the charge against the officer shall be
  deemed null and void.” The affidavit of the Principal Legal Officer annexes
  copies of the documents: the notice of charge was served on the Plaintiff on 9
  January 2015; the date stamp of the “Legal Division” (NJSS) notes the
  Plaintiff’s response to the charge was received on 10 February 2015; the
  Plaintiff was served the notice of dismissal on 9 March 2015.

  21. The number of working days from 10 February to 9 March 2015 is 20,
  including these two days.

  22. When the Plaintiff claims the notice was received outside the 21 days he
  is calculating the timeframe from the date of his response not the date received
  by the Second Defendant. In his Amended Statement (document 22) the
  Plaintiff says: “responded to the charge on the 12th day of January 2015 sent to
  the First and Second Defendants on the same date through EMS at the Post
  Office in Goroka”. But there is no evidence when it was delivered by EMS to
  either of these defendants. As there is no proof of service, the only clear date of
  receipt that the Court can rely on the date stamp of 10 February 2015 and which
  was within 21 days. This ground of the appeal must fail accordingly.

  In regard to B

  23. The Plaintiff and the five former officers informed the Principal Legal
  Officer about misconduct of the payroll officers, Allan Tukar and Naomi
  Thomas in not processing the security entitlements. The officers’ statements
  were made on 21 and 22 August 2014.The Plaintiff was charged on 6 January
  2015.

  24. The Plaintiff says that delay contravened Admin Orders 10.29. This Order
  relates to minor offences. His charge was a “Serious Offence” but Admin
  Orders 10.34 says the same procedure applies. While it is obvious that some 4
  months 2 weeks elapsed from the date of the statements to the date of the
  charge, Admin Orders 10.33 states the precondition for instituting the dismissal

• Page 9 of 16

• procedure is:

  “Where a serious offence has been committed, a Manager shall
  consider the seriousness and the nature of the offence and shall
  refer the matter to the Secretary in writing.”

  25. There is no evidence of a reference by “a Manager” to the Secretary. It
  cannot be known if the process of the Admin Orders 10.33 was followed.
  Without knowing about this referral it is not possible to know if the timeframe
  of 10 days in Admin Orders 10.29 was followed. Albeit for reasons other than in
  the ground of appeal, there was breach of process.

  In regard to C

  26. This is the substantive ground. The Plaintiff says that he did not have the
  statements of the former security officers or Allan Tukar when he drafted his
  reply to the charge. He implies that as a consequence he was denied natural
  justice.

  In regard to D

  27. On review the Court does not look at the evidence as such, but looks at
  the process. Regardless, the Plaintiff’s statements have inconsistencies. The
  former officers made statements which vary from the Plaintiff’s. The Tribunal’s
  finding of soliciting will not be the subject of the review.

  Tribunal’s decision

  28. In regard to penalty, the Tribunal noted (at paragraph 8) the Plaintiff’s
  statement “that he never benefited from the money he solicited” and

  “Allan Tukar, the other officer who was charged for the same offence is still
  working. The Criminal Clerk in the Goroka National Court, Namely
  Roselyn Mamano was charged for misappropriation of K2, 000 bail money,
  was found guilty and fined and she is still in her substantive position. He
  submitted that his case falls well below these two categories of cases
  therefore a lesser penalty such as caution or reprimand or fine shall be
  considered.”

  29. At paragraph 14 the Tribunal notes in regard to Allan Tukar:

  “Mr. Allan Tukar, who is charged with the same charge, in his
  response to the Secretary dated 23 October 2014, has denied
  communicating with the former named security officers from
  Goroka National Court, nor requested Mr. Tom Korua to solicit

• Page 10 of 16

• monies from them to fast track payments of their outstanding
  claims. The Appellant admitted soliciting or receiving monies
  from the former security officers. Receiving or accepting money
  may not necessarily mean that the Appellant benefitted from it.
  However, a denial by Mr. Allan Tukar does draw an impression
  that the Appellant had benefited from the monies he solicited.”

  30. In regard to penalty, at paragraph 20, the Tribunal states:

  “Since the Appellant in his appeal did not challenge the severity
  of the sentence or claims innocence as grounds of his appeal, I
  do not think it is appropriate for this Tribunal to annul or vary
  the decision of Secretary.”

  31. This last finding of the Tribunal is not correct. Section 19(2) of the Act
  gives the Tribunal power to vary the decision. And, the letter of the Secretary
  dated 4 March 2015 to the Plaintiff says his decision is on penalty: “Therefore
  the following penalty is imposed upon you…”:

  32. Pursuant to that notice the Plaintiff lodged his appeal. In the above cited
  paragraph 8 of the Tribunal’s decision the Plaintiff obviously addresses the
  Tribunal on penalty. In the above cited paragraph 14 the Plaintiff raises matters
  in regard to innocence and mitigation of penalty.

  33. The principle of reasonableness as developed in Associated Provincial
  Picture Houses v Wednesbury Corp. [1947] 2 All ER 680 (Wednesbury)is often
  cited in our jurisdiction, for example in Magiri v PNG Forest Authority (2009)
  N3670. In Wednesbury a municipal authority exercising powers to restrict
  children going to the appellant’s cinema. Lord Greene M.R. discussed
  reasonableness in the context of the authority exercising discretion given to it by
  the relevant legislation, in essence (p. 685 C), “a conclusion so unreasonable
  that no reasonable authority could ever have come to it”.

  34. In applying the Wednesbury principle to the findings made by the
  Tribunal it is clear that the Tribunal was unreasonably swayed by the
  seriousness of the charge compared to the more serious matter of Allan Tukar
  taking bribes. The Tribunal did not reasonably consider the aims of the Act in
  regard to soliciting bribes under Section 14(h) of the Act. Section 14(h) looks to
  stop NJSS staff soliciting bribes and to stop the NJSS staff accepting bribes. In
  looking only at the situation of the Plaintiff the Tribunal ignored the situation
  with Allan Tukar and that was unreasonable within the Wednesbury meaning.

  Order 16 and relevant cases on a review

  35. To consider the legal framework of a Judicial Review, Order 16 Rule

• Page 11 of 16

• 13(1) of the Rules lists possible grounds for a review. The relevant grounds in
  that list for this Review are:

  ♣ Breach of procedure
  ♣ Taking into account irrelevant considerations
  ♣ Failing to take into account relevant considerations
  ♣ Error of law on the face of the record
  ♣ Reasonableness

  36. In deciding this Review the Court is mindful of the following cases in
  regard to Order 16, particularly on the issues of:

  ♣ The “decision-making process not the decision”
  ♣ “breach of natural justice”
  ♣ Reasonableness

  37. In Kekedo v Burns Philp (PNG)Ltd [1988-9] PNGLR 122 the Supreme
  Court said in summary of several aspects relevant to this Appeal:

  ♣ The Judicial Review jurisdiction of the National Court is
  discretionary.

  ♣ The purpose of Judicial Review is not to examine the
  reasoning of the subordinate authority with a view to substitute
  the Court’s opinion. Judicial Review is concerned with the
  decision-making process not the decision.

  ♣ The circumstances under which Judicial Review may be
  available are where the decision-making authority exceeds its
  powers, commits an error of law, commits a breach of natural
  justice, reaches a decision which no reasonable tribunal could
  have reached, or abused its powers.

  ♣ Even in cases where no appeal lies against an order or a
  decision, Judicial Review would nevertheless still be available to
  challenge the validity or reasonableness of the order or decision

  Pleadings

• Page 12 of 16

• 38. The Plaintiff filed an Originating Summons on 11 December 2015 which
  sought an order to quash the dismissal by the Secretary. Notice of Motion filed
  the same day sought Review of the Tribunal’s appeal decision.

  39. On 8 July 2016 the Plaintiff was granted Leave to Review the Tribunal
  decision and the dismissal by the Secretary and the matter was adjourned to 22
  August 2016. At that time the Plaintiff and the Court were not aware of the
  Secretary’s letter dated 24 June 2016 informing that the Council had confirmed
  the dismissal.

  40. On 15 July 2016, the matter was brought back to Court to vacate the
  adjourned date and for the parties to be informed of the confirmation. The
  matter was adjourned to 22 July 2016 to allow for Mr Ifina to travel to Goroka.

  41. On 22 July 2016 the Principal Legal Officer announced that he
  represented the First, Second, Third, Fourth Defendants and the Council. With
  all the parties’ consent, the Court granted leave to amend the application for
  review to include in the current proceedings the determinations at all three
  levels of the disciplinary process, namely the Secretary’s decision, Tribunal’s
  decision and the Council’s confirmation.

  42. The State argued that the pleadings are not sufficiently detailed. In Paul
  Asakusa v Andrew Kumbakor (2008) N3303 [Injia DCJ] made clear that:

  The grounds must contain reference to some established grounds
  recognized by law as proper grounds upon which judicial review
  relief is available and the statutory provision or common law
  duty alleged to have been breached.

  43. Not stating the grounds has to be distinguished from a situation where the
  contentious pleadings are merely ill-expressed. The Plaintiff is an example of
  the need to obtain legal advice from the outset of a matter.
  44. His reply to the charge is clumsy. The Originating Summons was filed by
  him but apparently with help from a “ghost writer” and later he obtained legal
  aid (Appearance, document 11, filed 16 May 2016). But he does state grounds
  with reference to sections of the Act and Admin Order time frames, albeit as
  noted in A and D some of the grounds are misconceived.

  45. He says that he did not have a fair hearing before the Tribunal as he did
  not have the opportunity to cross-examine the former security nor, most
  importantly, Allan Tukar. In this situation the Court should not shut out a person
  for “ill-expressed” pleadings.

  Charge

  46. In addition to the ground in the notice of appeal summarised in C above,

• Page 13 of 16

• another but undated response by the Plaintiff is an annexure to his affidavit filed
  17 May 2016 (document 13), where he states: “I was not given a chance of
  viewing the evidence of the charge…”

  47. The Plaintiff was not given the opportunity to test by cross-examining the
  former security officers on their statements dated August 2014, or the
  opportunity to cross-examine Allan Tukar. There is no statement from Allan
  Tukar in evidence but the Tribunal notes his bare denial (para14).

  48. 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. In Kevi v The Teaching Service Commission (1997) N1555 the Court
  looked at this issue. There the matter of breach of natural justice was raised
  because the plaintiff was not provided with “an opportunity to cross-examine
  any witness who provided evidence in support of the charge”. In regard to that
  ground, the Court held that “one of the rules of natural justice is that a person
  has a right to be heard before a decision adversely affecting him is taken.” The
  Court referred to Section 59 of the Constitution and Ridge v Baldwin [1963] 2
  All ER 66 and quashed the decision of the Commission.

  Punishment

  50. With sentencing, there is a need to recognise some degree of parity with
  the punishment handed down to accomplices unless the other sentences are
  plainly beyond the sentencing range. Courts try to avoid unjustifiable disparity
  when passing sentence on co-accused while taking into account the differing
  circumstances of each accused to achieve justice.

  51. There is no evidence of what punishment the “former security officers”
  received. After all, it was they who were claiming their entitlements and
  benefited from the assistance of the Plaintiff to “fast track” the payments.
  The process of comparing punishment of offenders in the same enterprise was
  not done or at least there is no evidence before the Tribunal that the process was
  carried out. The disparity of their treatment compared with the Plaintiff’s
  dismissal shows that his dismissal was excessively severe.

  52. It is in regard to the treatment of Allan Tukar compared with the
  Plaintiff’s dismissal that excessive severity is most obvious. On the evidence,
  for example of Jasis, Allan Tukar did not do his job in processing Jasis’
  entitlements and then took a bribe to do his job. It was Allan Tukar who brought
  about the situation, which Jasis noted in his statement, to get his money he had
  to pay a bribe to Allan Tukar. However Allan Tukar is still employed as payroll

• Page 14 of 16

• officer.

  53. In contrast to his situation the Plaintiff did not get any cash benefit but
  only facilitated “his men” i.e. those under his command, accessing the payroll
  officer. A bribe to an officer is an offence under the Act and sadly the Plaintiff
  and former officers did not contact the Secretary directly at the outset instead of
  thinking the matter could be resolved by bribes.

  Findings

  54. There is no copy of the details of the Council’s decision only the short
  statement in the Secretary’s letter to the Plaintiff dated 24 June 2016.The
  Council had to consider the material given to the Tribunal and the Tribunal’s
  written decision. The appeal process being built upon this necessarily means
  that if the Tribunal’s decision is flawed then the Council’s decision is similarly
  flawed.

  Breach of procedure

  55. There is no evidence of referral by a Manager to the Secretary (Admin
  Orders 10.33). And, the matter was tainted when it came to the Secretary as the
  Plaintiff was not informed of his right, as guaranteed by Section 37 of the
  Constitution to remain silent (no self-incrimination) or that he could be referred
  under Admin Orders 10.35 to Police and charged (say Section 97B Criminal
  Code Act) or charged under the Admin Orders Part IV for an offence regarding
  bribes to Allan Tukar. This procedure to warn a person is fundamental in our
  system of justice and does not need to be restated in the Act. This breach of
  procedure flaws the entire process in this case.

  Taking into account irrelevant considerations
  Failing to take into account relevant considerations

  56. The Secretary and the Tribunal noted the statements of the five former
  security officers and the Plaintiff made on 21 and 22 August 2014 but in
  considering the charge then ignored the fact that the person who took the bribes
  was Allan Tukar. The only statement from Allan Tukar is paraphrased in the
  Tribunal’s decision (paragraph 14) as a bare denial.

  Error of law on the face of the record

  57. The Tribunal erred in law in finding (its decision paragraph 20 decision)
  that it was not “appropriate for this Tribunal to annul or vary the decision of
  Secretary” when the Act, Section 19(2), gives the Tribunal that power.

  Breach of natural justice

• Page 15 of 16

• 58. The Plaintiff was not given an opportunity to see the evidence provided in
  support of the charge until after he had made his reply to the charge. He says
  that he did not have a fair hearing before the Tribunal as he was not given the
  opportunity to cross-examine Allan Tukar nor the former security. As a result he
  was denied natural justice.

  59. The process is flawed as the Plaintiff was not given the opportunity to
  confront the persons who made statements to the Secretary and test their
  accusations. He was denied natural justice in that regard and the decision to
  dismiss him from his employment was based on untested allegations as the
  Plaintiff could not cross-examine the person who was the root cause of the
  matter, namely the payroll officer, Allan Tukar.

  Reasonableness

  60. In looking only at the situation of the Plaintiff the Tribunal ignored the
  situation with Allan Tukar and that was unreasonable within the Wednesbury
  meaning.

  Damages

  61. The Plaintiff pleads distress arising from the charge and dismissal. That
  claim is not particularised and is not considered further.

  62. If the Plaintiff be reinstated to his position at the time of the charge then
  he gets all the emoluments of his position and he sustains no loss.

  63. The Court is concerned with the decision making process. It would be
  inappropriate to suggest what might be a penalty to impose on the Plaintiff
  pursuant to Section 16 of the Act.

  Costs

  64. The Plaintiff has been represented by legal aid and it seems has received
  legal assistance from unidentified persons. Costs have been incurred by the
  Defendants and some of the grounds of the appeal to the Tribunal have no merit.
  In the circumstances each party shall pay their own costs.

  The Court orders:

  1. The recommendation, made 4 March 2015 by the Secretary National
  Judicial Staff Services to the Judicial Council, to dismiss the Plaintiff
  from his employment by the said Staff Services, is quashed.

• Page 16 of 16

• 2. The decision made on 4 March 2015 by the Secretary, National Judicial
  Staff Services as to punishment of the Plaintiff is quashed.

  3. The decision given on 13 November 2015 by the National Judicial Staff
  Services Appeal Tribunal is quashed.

  4. The confirmation of the Secretary’s recommendation for dismissal made
  on 24 June 2016 by the Judicial Council is quashed.

  5. The Plaintiff is forthwith reinstated to his position in the National Judicial
  Staff Services as at 6 January 2015 and at the salary for that position
  together with all entitlements related to the position then and which have
  subsequently accrued with increments.

  6. Each party to pay their own costs.

  7. Time abridged to date of settlement of this order which is forthwith.

  Ordered accordingly

  _____________________________________________________________
  Public Solicitor Goroka office: Lawyer for Plaintiff
  P. Ifina, Principal Legal Officer, NJSS: Lawyer for First to Fourth Defendants
  and the Judicial Council
  Solicitor General Goroka office: Lawyer for the Fifth Defendant