Unreasonableness is the ground most often pleaded and least often successful. It is worth understanding why, and what Papua New Guinea adds to it.
A deliberately high threshold
A decision is reviewable for unreasonableness where it is so unreasonable that no reasonable decision-maker, properly directing itself, could have arrived at it.
The standard is commonly called Wednesbury unreasonableness, after the English authority in which it was formulated, and it is part of the received common law applied as underlying law.
Judicial review examines legality, not merits. If a decision could be set aside merely because the Court disagreed with it, review would become an appeal on the merits, and the Court would be substituting its judgment for that of the body Parliament chose.
That is reinforced by the remedy: under Order 16 Rule 9(4) of the National Court Rules 1983, the Court quashes and remits the matter with a direction to reconsider. It does not decide the matter itself.
So an applicant arguing unreasonableness must be able to say more than that the decision was wrong, or harsh, or that a different conclusion was open. The question is whether it was one no reasonable decision-maker could have reached.
The PNG addition
An act that is done under a valid law but that in the particular case —
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
Section 41 does not require the decision to be one no reasonable decision-maker could have made. It asks whether the act, in the particular case, was harsh or oppressive, disproportionate, or not reasonably justifiable in a democratic society.
Three features are worth noting:
It applies to acts done under a valid law. The law is not impugned; the way it operated in the case is.
It introduces proportionality in terms — “disproportionate to the requirements of the particular circumstances”.
It supplies a standard of justification — “reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind”.
An applicant in Papua New Guinea should therefore consider pleading section 41 alongside, not instead of, the common-law ground.
Often better pleaded another way
| The complaint | The better ground |
|---|---|
| The decision-maker considered something it should not have | Irrelevant considerations |
| It ignored something it was required to consider | Failure to take account of relevant considerations |
| It used the power for the wrong end | Improper purpose |
| It applied a policy without considering the case | Fettering the discretion |
| There was nothing to support the finding | No evidence |
| The person was not given a chance to answer | Breach of natural justice — Constitution s 59 |
| The penalty was excessive on the facts | Section 41 — harsh, oppressive or disproportionate |
Most decisions that strike an observer as unreasonable are unlawful for a more specific reason — the decision-maker took account of something it should not have, or overlooked something it had to consider.
Pleading unreasonableness alone, without identifying the specific error, invites the answer that the applicant is really complaining about the merits. Identify the specific ground, and plead unreasonableness in addition where the outcome genuinely defies explanation.
Where the ground does real work
Section 41(b) — disproportionate to the requirements of the particular circumstances or of the particular case — is most obviously engaged where a tribunal has imposed a penalty said to be out of proportion to the conduct.
In Peipul v The Leadership Tribunal [2002] PGSC 1; SC706, the appeal from judicial review of a Leadership Tribunal determination raised, as a preliminary issue, whether the Court had jurisdiction or power to interfere with the penalty recommended by the Tribunal. The Court referred to its earlier decision in the Nilkare proceedings, holding that under Constitution section 155(4) the Court does have jurisdiction, consequent upon a review of findings of guilt, to consider and vary as just and appropriate the recommendations on penalty.
The respondent’s answer in that case was framed in the familiar terms: the Tribunal had correctly set out the penalty regime, had regard to the purpose of the Leadership Code and to Supreme Court authority, and its decision was clearly within jurisdiction, having acted fairly and reasonably in compliance with the principles of natural justice.
The National Court has an inherent power to make, in such circumstances as seem to it proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
Read with section 155(3)(a) — the inherent power to review any exercise of judicial authority — this is the constitutional foundation of the supervisory jurisdiction that Order 16 regulates.
In practice
- Plead the specific error first, and unreasonableness as an additional ground.
- Plead section 41 expressly where the complaint is that the act was harsh, oppressive or disproportionate in the particular case.
- Set the grounds out in the statement at the leave stage — under Order 16 Rule 6(1), no grounds shall be relied on at the hearing except those set out in the statement.
- Put the material before the Court by affidavit, filed before the leave application is made — because an unreasonableness argument depends entirely on what was before the decision-maker.
Sources
- Constitution — ss 41, 59, 155(3), 155(4)
- National Court Rules 1983 — O 8 r 20A; O 16 rr 3, 6, 9
- Peipul v The Leadership Tribunal [2002] PGSC 1; SC706
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.