Ponia v Cook Islands Public Service Board of Appeal [1985] CKHC 3; OA 1 of 1985 (19 March 1985)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

O.A. 1/1985

IN THE MATTER of the Constitution of the
Cook Islands and the Public service Act 1975

AND

IN THE MATTER of an appeal by the Applicant herein
To the Cook Islands Public Service Board of Appeal

BETWEEN

ERIC PONIA of Rarotonga,
Public Servant
APPLICANT

AND

THE COOK ISLANDS PUBLIC SERVICE
BOARD OF APPEAL
RESPONDENT

Mr Arnold for applicant.
Mr Manarangi for respondent.

Date of hearing: 16 March 1985
Date of Judgement: 19 March 1985

JUDGMENT OF DILLON J.

The applicant in these proceedings applies for an order of certiorari to quash the decision of the Respondent dated the 28^th August 1984. The Respondent Board in that decision confirmed the appointment that had been made of Tuamotu Matamaki to the position of Inspector of Secondary Schools in preference to the applicant Eric Ponia. In passing, it may be observed that no reasons were given in the lengthy delay in filing these proceedings that is from the 28^th August 1984 to the 26^th February 1985.

The applicant basis his claim - that the board of Appeal did "...wrongly and in excess of its jurisdiction determine the appeal on the following basis:

'(a) that Mr Matamaki's experience fitted more closely to the qualification specified by the Department for the appointment than did those of the Applicant.

(b) that the Board of Appointment whose decision was being appealed had preferred Mr Matamaki to the Applicant.

(c) that in the time between Mr Matamaki's provisional appointment and the appeal he had performed favourably in the position.'"

In the course of the proceedings grounds (b) and (c) set out above were not pursued by Mr Arnold. These grounds related to the evidence of Miss Kave and Mr Etches, whether that evidence should be considered, and that weight should be given to it. It was considered by Mr. Arnold that no objection was taken to that evidence at the appeal hearing. He also considered that if the evidence had disclosed an unsatisfactory performance record between the appointment and the appeal then such evidence was both relevant and admissible. So it would also seem both reasonable and consistent, if a person's performance was satisfactory. However the points are now not in issue and Mr Arnold relies solely on the Board of Appeal decision which he sets out on page 3 clause 3 of his submissions:-

"3. IN considering the respondent's position in the appeal the Board noted the submission of counsel for the Applicant that Mr Matamaki had had almost no experience as an inspector until his present acting appointment. The answer of the board to this point is crucial to this present application. It is clearly the crux of the decision of the board; viz

'...(Mr Matamaki's) lengthy experience at senior level as Deputy Principal of Tereora College and Principal of Titikaveka College fit more closely (emphasis added) to the qualifications specified by the department for this appointment:-

Qualification: Graduate trained teacher with extensive experience at senior administrative level of a secondary school.'"

He develops his argument along the following lines as I have summarised it:-

1. The Departmental advertisement for the position of Inspector of Schools (Secondary) was so framed as to prejudice Mr Ponia.

2. The Board of Appeal is not bound by a formulation of the qualifications as specified by the Department.

3. The Board of Appeal has the jurisdiction and the duty to determine the relevance of qualification.

4. That the Board of Appeal in this instance indicated that it was bound by the qualification criteria and relying on it. Mr Ponia was there by prejudiced and his previous experience as an Inspector of Secondary Schools – that is in effect the same position – was not considered; was not given proper weight; or was not evaluated in terms of qualification requirements of the position advertised.

However I find the position to be as follows:-

The qualification requirement in the advertisement state-

"Qualification: Graduate trained teacher with extensive experience at the senior administrative level of a secondary school."

Mr. Arnold suggests that there should be added to that the following:-

"....or previous experience of inspectorate work at a secondary level."

That addition in my view could be justified if Mr Ponia was prejudiced by the actual advertisement. However it seems very clear that the five years experience Mr Ponia had as an inspector between 1974 and 1979 must qualify as "extensive experience at the senior administrative level of a secondary school". Mr Ponia was Director of Secondary Schools for 4 years from 1975 to 1978, he was the senior administrator of all secondary schools in Rarotonga; his senior position was second only to the Secretary of Education. His experience therefore at the very highest level for that 5 year period and without question clearly filled the qualification description set out in the advertisement. The advertisement did not prejudice Mr Ponia; his experience at senior level was very relevant to the position; there was therefore no necessity as Mr Arnold suggests for the Board of Appeal to determine the relevance of qualifications stipulated by the Department. Such action can only be contemplated if an applicant is so prejudiced that the question of relevance must then be considered. Here that does not apply. Mr Ponia's qualification and experience are clearly embraced by the advertisement. The Board of Appeal in its decision considers his qualification and those of the other applicant Mr Matamaki. Having considered those respective qualifications it proceeds to make an evaluated Judgment.

Mr Arnold relies heavily on the part of the judgment appealed from which says:-

"...(Mr Matamaki's) lengthy experience at Senior level as Deputy Principal of Tereora College and Principal of Titikaveka College fit more closely to the qualifications specified by the Department for this appointment."

He says that this clearly indicates the Board of Appeal placed undue emphasis on Secondary School Administrative experience at which Mr Matamaki had 9 years and Mr Ponia virtually nothing. But further it indicates that as a previous inspector of Secondary Schools for 5 years this was not taken into account or not given sufficient weight especially when compared with Mr Matamaki who had no such experience.

However the whole judgment must be read and not rely on one sentence only as indicating an undue preference for Mr Matamaki. As I have said the advertisement clearly embraces the experience of these two applicants – one with experience as an Inspector of Secondary Schools during the period of 1974 to 1979 and now Principal of a Primary school for the last 3 years; the other as a Deputy Principal and Principal of Secondary Schools for a period of 9 years. Both are graduates. The Judgment insofar as it compares the attributes of the two contenders for this position clearly sets out this comparison as follows:-

"The strength of Mr Ponia's case, apart from his University degree and his general experience in education lay in his appointment during the years 1974-1978 as an acting Inspector of Schools, and then as Director of Secondary Schools – we accept that during this period he performed the duties equivalent to the present post under appeal – as there were no Inspectorships as such.

He also played some part during that time in the work done by many in introducing the Cook Islands School Certificate programme. In considering the significance of that appointment we pay regard to the advertisement for the post listing the duties. We accept that as he was appointed, he must have been considered to fill those requirements and the position involved administration of secondary education. It may have been through no fault of his own that he was transferred to Teachers Training College in 1979 as Acting deputy Principal, which was on a lower scale than previously, but whatever the cause that removed him from active secondary school administration – a position which continued when for personal reasons he declined in 1982 to Principal of Aitutaki College and accepted a position as principal of a primary school. As far as Mr Matamaki is concerned, Mr Arnold has pointed out that he has had almost no experience as an inspector until his present (acting) appointment. However, his lengthy experience at senior level as Deputy Principal of Tereora College and Principal of Titikaveka College fit more closely to the qualifications specified by the Department for this appointment:"

The Board of Appeal has clearly evaluated the qualifications and the experience of both applicants; it had before it a useful synopsis of relevant experience and was thus required to make a valued judgment on whether Mr Ponia with 5 years experience as an inspector 5 years ago and now a Principal of a Primary School was to be preferred to Mr Matamaki who had 9 years experience as a Deputy Principal and was now Principal of a Secondary School and this evaluation in respect to the advertised duties viz:

"Responsible to the Senior Inspector of Schools, (Secondary) for inspecting, advising, reporting on teachers, the organising and running of in-service courses; in-service training and professional development of teachers. To assist the Senior Inspector with all matters pertaining to the staffing of secondary schools. Other duties as may be delegated from time to time."

The Judgment states that having considered all those matters and having considered the factors set out in this Section 15 of the Public Service Act the Board of Appeal then made their election. Just on a comparison basis of length of relevant experience viz., 5 years for Mr Ponia and 9 years for Mr Matamaki; of present position viz., principal of a primary school and principal of a secondary school; of duties required viz., dealing with secondary school teachers, staffing and training etc.-there would appear to be justification for the decision of the Board of Appeal arrived at. However, it is not that point I am concerned with. Rather it is whether Mr Ponia has been prejudiced in any way whatsoever by the form of the advertisement; the course of the proceedings; or any lack of Jurisdiction exercised by the Board of Appeal.

It is abundantly clear to me that Mr Ponia has not been prejudiced in any way by the form of the advertisement; the Judgment clearly sets out the comparisons evaluated and the conclusions reached; and for those reasons the Board of Appeal did not lack jurisdiction as claimed by the applicant.

The Order is refused. Costs of $200.00 awarded to the Respondent.

Judge