N7181

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 165 OF 2016

BETWEEN:
PATRICK MONOLUK 
Plaintiff

AND:
ANO PALA as MINISTER FOR JUSTICE & ATTORNEY GENERAL AND CHAIRMAN OF THE JUDICIAL & LEGAL SERVICES COMMISSION 
First Defendant 

AND:
JUDICIAL & LEGAL SERVICES COMMISSION 
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Third Defendant 

Waigani: Nablu, J
       2017:  22nd September
 2018:  23rd March

JUDICIAL REVIEW – Decision of the Minister for Justice & Attorney General & Chairman of Judicial & Legal Services Commission – Dismissal of a Magistrate – disciplinary offences – Whether procedure under s. 53, of the Magisterial Services Act, Determination of Terms and Conditions of Services was compiled with – procedure under s.53 not complied with – one ground of judicial review upheld.

JUDICIAL REVIEW – Relief – grant of relief – discretionary – order of certiorari – not available where applicant comes with unclean hands – reinstatement – considerations – equitable remedy – relationship of the applicant and employer – O.16 r.4(1)(b), National Court Rules – relief refused.

Cases cited:
Papua New Guinea Cases

Ombudsman Commission v. Peter Yama (2004) SC 747
Mision Asiki v. Manasupe Zurenouc (2005) SC 797
Dale Christopher Smith v. Minister for Lands (2009) SC 973
Issac Lupari v. Sir Michael Somare (2008) N3476
Issac Lupari v. Sir Michael Somare & Others (2010) SC1070
Tau Mavara Kamuta v. David Sode and IRC (2006) N3067

Overseas Cases

Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233

Counsel:

F. Kuvi, for the Plaintiff 
R.Uware, for the Defendants 

23rd March, 2018

1.	NABLU, J:	The plaintiff, who was a Magistrate of the Tabubil District Court was granted leave to review the decision of the first and second defendant to dismiss him from office on or about 10th September 2015. The decision was conveyed to the plaintiff in a letter dated 10th September 2015 by the Minister for Justice and Attorney General, Hon. Ano Pala (as he then was) as the Chairman of the Judicial and Legal Services Commission (JLSC). 

2.	The plaintiff seeks orders in the nature of certiorari to bring the said decision into Court and quash it. He also seeks an order to reinstate him back to the Magisterial Services forthwith and costs.

3.	The facts of the matter are provided in the plaintiff’s statement of Support and the plaintiff’s affidavits. At the outset, the defendant’s did not take an interest in defending this case. They did not file any affidavits and despite appearance by counsel at the eleventh hour of the trial, no written submissions were handed up and it was clear to this Court that the State was not prepared for this case. Therefore, the facts which were pleaded and provided in evidence is primarily from the plaintiff’s perspective. 

4.	According to the Statement of Support (at page 9 to 10 of the Review Book) the facts of the matter are that the plaintiff was the Vice President of the Magistrate’s Association in 2013 when the incumbent Chief Magistrate, Ms Nerrie Eliakim was appointed. The plaintiff openly opposed the appointment and was quite vocal in the beginning but says he put his differences or the views of the Association aside and moved on. The plaintiff stated that he was offered two overseas trips by the Chief Magistrate, however, he declined the offers to travel. In 2014, he was offered a promotion to Northern (Oro) Province District Court to serve as the Senior Provincial Magistrate. He stated that he refused the promotion in order to avoid a conflict of interest situation because of his representation the Magistrates Association. It is alleged that following the refusal of the promotion the Chief Magistrate then stopped his salaries from February 2014 to February 2015. The plaintiff then on numerous occasions made pleas to the Chief Magistrate to reinstate him on the payroll. The plaintiff then referred the Chief Magistrate to the Judicial and Legal Services Commission (JLSC) for investigation into alleged misconduct in October 2015.

5.	On or about 8th April 2015. The Chief Magistrate recommended to the JLSC to have the plaintiff dismissed from office. The plaintiff wrote to the JLSC and demanded the right to be heard. On or about 28th April 2015, the plaintiff personally attended to the JLSC meeting in Port Moresby and defended himself. 

6.	On the 6th of May 2015, the JLSC over turned the decision of the Chief Magistrate that recommended his dismissal. The JLSC substituted the decision to terminate him with a decision to impose the penalty of a transfer to a location at the pleasure of the Chief Magistrate instead. The Chief Magistrate then considered the matter and decided to transfer him to Buka, Autonomous Region of Bougainville. 

7.	In the plaintiff’s affidavit filed on 24th March 2016, he stated that he wrote to the Chief Magistrate and accepted the transfer to Buka. However, he requested further time to make alternative arrangements for his family, in particular the relocation of his children to alternative schools and the shipment of his personal effects and belongings. 

8.	He stated further that according to that letter, the Chief Magistrate had advised that a 20 foot freight container was organised to remove their personal effects, airline tickets for him and his family were organised and paid for. He stated that whilst waiting for the container he was served with a copy of the decision to terminate him. It was further alleged that the Chief Magistrate whilst sitting as a member of the JLSC informed the Commission that the plaintiff had deliberately delayed his transfer to Buka and had defied the direction of the Chief Magistrate. It was alleged that the plaintiff was not charged for a disciplinary offence and not served a copy of the charges nor given an opportunity to respond to the charges. He alleged that his termination was improper, illegal and contrary to the prescribed process provided under the Determination. It was based on this, that the plaintiff sought leave to review the decision. I note that there is no letter or correspondence in the evidence before me of him accepting the decision or directive of the Chief Magistrate and the JLSC.

9.	The legal issues for determination by the Court is whether or not the decision of the JLSC was unreasonable within the Wednesbury principles of unreasonableness. And also whether the plaintiff was denied natural justice. 

10.	The defendants opposed the application and argued that they were well within their powers to terminate the plaintiff from employment for the reason that the plaintiff failed to carry out a lawful directive by the Chief Magistrate and the JLSC. 

11.	The plaintiff relied on the following grounds of review as stated in the Statement of Support to challenge the decision which is summarized as follows: 

1)	The defendants failed to comply with the mandatory prescribed process under Section 53 of the Determination. The plaintiff was not charged within Section 51 of the Determination or suspended within the process under Section 53 (2) & (3) of the Determination.
2)	The decision to revoke the plaintiff’s appointment was unreasonable, harsh and oppressive. 

12.	Section 53 of the Determination of Terms and Conditions of Service of Magistrates (Determination) provides the procedure for dealing with serious disciplinary offences. Where a Magistrate is believed to have committed a serious disciplinary offence. The Chief Magistrate or a delegated Magistrate or officer lays the disciplinary charge. The Chief Magistrate has the discretion to suspend the Magistrate from duty if he or she is of the opinion that the Magistrate should not continue in the performance of his or her duty. Suspension of a Magistrate can be effected and revoked at any time prior to, at the time of or after laying of charges during the disciplinary process. If the disciplinary charges are not sustained the suspension may then be lifted. 

13.	The Magistrate must be notified of the charges and they should be furnished with a copy of the charge. The Magistrate then has the opportunity to reply to the disciplinary charge. The reply must be made within seven (7) days of receiving the charges. Failure to provide a reply will mean that the Magistrate admits the truth of the charge. 

14.	After considering the report related to the offence, the charge, the reply and the explanation (if any), the Chief Magistrate is satisfied that the charges are sustained the Chief Magistrate can either impose a penalty under Section 53(5) of the Determination. The prescribed penalties range from a fine of a sum not exceeding K100, reduction of salary range, demotion or transfer to another posting. It should be noted that the Chief Magistrate does not have the power to dismiss the Magistrate. The Chief Magistrate’s disciplinary powers are limited to making a recommendation to the Commission for dismissal of the Magistrate. 

15.	The Chief Magistrate is obliged by law to notify the Magistrate of the punishment. The aggrieved Magistrate has the right to appeal to the Tribunal. The powers of the JLSC in relation to dealing with serious disciplinary offences under the Magisterial Services Act is captured in Section 54 of the Determination. A recommendation by the Chief Magistrate for dismissal from the Magisterial Service is considered by the JLSC. If the Magistrate chooses not to appeal to the Appeals Tribunal within the prescribed time, the Commission considers the relevant reports, the reply, the explanation and any further reports’ it considers necessary. If the JLSC is of the opinion that the charge has been sustained, then the Commission has the discretion to dismiss the Magistrate from the Service or alternatively impose any of the penalties available under Section 53(a) to (d) of the Determination. 

16.	Before considering the legal issues before me at the outset, I wish to comment on the following. Leave was granted to the plaintiff on 6th December 2016. Since that time, the Solicitor General’s Office has not taken an interest in this case. On a number of occasions there was no appearance by the State lawyers. No affidavits were filed for the State or on behalf of the JLSC. Counsel appeared at trial and just made submissions from the bar table. It was evident that the State was not prepared for this case. There was little or no assistance from the State. This is quite concerning at the lack of preparation to defend such cases. This case involves the dismissal of a Magistrate. The Magisterial Services is an integral part of the National Justice System. The decision was made by the Chairman of the Judicial & Legal Services Commission who at the time was the Attorney General of this Country. It is very disappointing that no effort was made to ensure that the State’s actions were adequately defended and proper preparation of the case was undertaken. 

17.	Having said that, I now turn to the issues for determination by the Court. The first ground of review the plaintiff contends that the first defendant committed procedural errors. The JLSC failed to consider that the process under Section 53 was not followed. The plaintiff contends that he was never charged with any offence. He was not suspended pending the determination of the charges. He also argued that he was not served a notice of charge by the Chief Magistrate contrary to Section 53(4) of the Determination. Furthermore, the Chief Magistrate did not notify the Plaintiff that his appointment as a Magistrate was revoked. 

18.	The main issue for determination by this Court is whether the Chief Magistrate followed the mandatory prescribed process provided under Section 53 of the Determination. 

19.	It is not disputed that on the 6th May 2015, the Commission made a decision to reject the recommendation of the Chief Magistrate to dismiss the plaintiff and instead substituted the penalty of dismissal to that of a transfer to another location. The Chief Magistrate was to determine the date and place of transfer. The Commission also directed the plaintiff to comply with the Chief Magistrate’s direction to transfer. The Commission also directed that “…if Magistrate Patrick Monoluk fails to comply with the directions by Chief Magistrate, it will warrant a [sic] further disciplinary action and serious penalty may be imposed…”

20.	The plaintiff argued that the decision of the first defendant to unilaterally decide to dismiss him without following the mandatory prescribed disciplinary process under Section 53 of the Determination was unlawful. 

21.	It is not disputed that initially, the Chief Magistrate recommended that the plaintiff should be dismissed. The JLSC rejected the recommendation and opted instead to impose the penalty of transfer to another location. The location was to be determined by the Chief Magistrate. In the letter, the Commission gave specific directions to the plaintiff to comply with. That letter of the 6th of May 2015 is at page 34 of the Review Book. 

22. 	It is necessary to set out the letter dated 6th May 2015. The letter was endorsed by the Chief Justice as the Acting Chairman of the JLSC and addressed to the Chief Magistrate.

								6th May 2015
Nerrie Eliakim
Chief Magistrate
Magisterial Service Headquarters
P O Box 1616
Port Moresby
National Capital District

Dear Chief Magistrate,
Re: Magistrate Patrick Monouluk
On 8th April 2015, you found Mr. Patrick Monouluk guilty on three disciplinary charges and recommended, to the Judicial Legal Services Commission (‘the Commission’), a penalty of dismissal on each count pursuant to the provisions of Section 54(c) of the Magisterial Services Act 1975 – Determination of Terms and Conditions of Services (‘the Determination’). The three offences are as follows;
i.	insubordination with regard to his refusal to transfer in 2014,
ii.	taking a purported official overseas trip with the entire court house staff without approval from the Office of the Chief Magistrate,
iii.	discharging of judicial duties whilst under suspension since 29th January 2015.

On 28th April 2015, the Commission convened a hearing in which Mr. Monouluk attended and addressed the Commission on the question of penalty. Before hearing Mr. Monouluk, the Commission affirmed its position that the Chief Magistrate’s decision on guilty verdicts in respect of the three disciplinary offences were not in question and that the hearing should be confined to the question of penalty. His oral address closely followed his written submission which he submitted to the Commission by letter dated 21st April 2015. Mr. Monouluk addressed the Commission on penalty in relation to the first and second offences and maintained his innocence on the third offence.

In reaching its decision, the Commission took into account the following matters;
•	You decision and reasons for the decision set out in your letter to Mr. Monouluk dated 8th April 2015,
•	Your Submission and recommendation to the Commission dated 8th April 2015,
•	Your detailed Submission including other documents dated 15th April 2015, which you presented to the Commission on 16th April 2015,
•	Mr. Monouluk’s Submission to the Commission dated 21st April 2015,
•	Mr. Monouluk’s Miscellaneous submission documents dated 28th April 2015, and 
•	Mr. Monouluk’s oral submissions before the Commission on 28th April 2015.

The Commission was of the view that whilst the three disciplinary offences on which he was found guilty are serious for the reasons given by yourself, the recommendation is tainted by your failure to give Mr. Monouluk an opportunity to be heard before the penalty was decided upon and recommended to the Commission. This is one reason why the recommendation was not accepted.

Further, the Commission itself having heard Mr. Monouluk on the question of penalty, it was satisfied that a lesser penalty was warranted in the circumstances. These were Mr. Monouluk’s first disciplinary offences and he had served the Magisterial Services for an unbroken period of 19 years. He and his family had suffered hardship in that he was put off the payroll from February 2014 to March 2015 (later reimbursed in March 2015).

The Commission was of the view that the environment in which Mr. Monouluk was working partly brought about internal discords between Mr. Monouluk and the management of the Magisterial Services which led to the commission of the offences. In the circumstances, a more appropriate penalty within the range provided in Section 53(5)(d) of the Determination, would be one of transfer to another location. You would determine the time and location for the transfer and that Mr. Monouluk should comply within your decision on transfer, failing which he could be charged with a more serious offence and punished appropriately.

For the foregoing reasons, the Commission resolved as follows:
i.	The Commission rejects the recommendation by the Chief Magistrate to dismiss Magistrate Patrick Monouluk;
ii.	The Commission substitutes the penalty of dismissal to that of transfer as provided for under Section 53(5)(d) of the Determination. The Chief Magistrate is to determine the date and place of transfer for Magistrate Patrick Monouluk;
iii.	The Commission directs Magistrate Patrick Monouluk to comply with the Chief Magistrate’s instruction to transfer as per Section 53(5)(d) of the Determination; and
iv.	The Commission directs that if Magistrate Patrick Monouluk fails to comply with the instructions by the Chief Magistrate, it will warrant a further disciplinary action and serious penalty may be imposed.

You can now proceed to implement these decisions of the Commission.

Yours sincerely,

….(signed)….
Sir Salamo Injia, Kt,GCL
Chief Justice 
Acting Chairman – Judicial and Legal Services Commission

cc: Patrick Monouluk
Office of Senior Magistrate
Tabubil District Court
PO Box 342
Tabubil
Western Province

23.	About four (4) months later the Commission under the hand of the Chairman (the Attorney General) wrote to the plaintiff, informing him of the decision to dismiss him from office. It is necessary to set out that letter. 

10th September 2015
Patrick Monouluk
Office of Senior Magistrate
Tabubil District Court
PO Box 342
Tabubil
Western Province

Dear Mr. Monouluk,
Dismissal from Magistrate Services

1.	On the 10th of September 2015, the Judicial and Legal Service 	Commission (‘JLSC’) met to deliberate on matters of the JLSC.
2.	At this meeting, the Chief Magistrate brought to the attention of the JLSC 	that 	you had been notified of the decision of the JLSC of 6th May 2015 in 	relation to you disciplinary matter (‘JLSC Decision’). The JLSC Decision 	is 	summarised as follows:
i.	JLSC rejects the recommendation by the Chief Magistrate to dismiss Magistrate Patrick Monouluk,
ii.	JLSC substitutes the penalty of dismissal to that of transfer as provided for under Section 53(5)(d) of the Determination. The Chief Magistrate is to determine the date and place of transfer for Magistrate Patrick Monouluk,
iii.	JLSC directs Magistrate Patrick Monouluk to comply with the Chief Magistrate’s direction to transfer as per Section 53(5)(d) of the Determination.
iv.	JLSC directs that if Magistrate Patrick Monouluk fails to comply with the directions by Chief Magistrate, it will warrant a further action and serious penalty may be imposed…
3.	The JLSC notes that you accepted the posting to Buka in the Autonomous 	Region of Bougainville as directed by the Chief Magistrate. However, you 	provided explanations thereafter seeking extension of you stay in Tabubil, 	Western Province. You have delayed and continuously delay you transfer as 	directed by the Chief Magistrate. The JLSC is of the view that the reasons 	for 	your delay in continuing to reside in Tabubil are excuses that it does not 	accept.
4.	You know that the Chief Magistrate is the head of the Magisterial 	Services and the person who occupies the Office of the Chief Magistrate is empowered by law to administer the Magisterial Services to effectively 	perform its function to serve the People of Papua New Guinea. All magistrates are under the administration of the Chief Magistrate and are not to work in isolation. According to your actions, it appears that you undermine the authority of the Chief Magistrate. 
5.	Prior to the JLSC Decision, JLSC did consider your disciplinary matter and 	subsequently substituted the Chief Magistrate’s recommendation to JLSC for 	your dismissal. This gave you the opportunity to continue you services as a 	magistrate to the Magisterial Services. However, according to the submission 	by the Chief Magistrate on 10th September 2015, it has been more than three 	(3) months and you have not adhered to the directions she had given.
6.	JLSC is the view that more than ample has been given to you to comply 	with the directions of the Chief Magistrate to transfer in accordance with 	the 	JLSC Decision. Your actions also undermine the JLSC Decision.
7.	In light of the submission made by the Chief Magistrate on 10th September 	2015, the JLSC also considered the Magisterial Services Act 1975 – 	Determination of Terms and Conditions of Service (‘the Determination’). 	After deliberating on your matter, JLSC also notes that you had not appealed 	to a Tribunal within the prescribed time as provided for in Section 54(b) of 	the Determination. The reason being that you had accepted the JLSC 	decision. Therefore JLSC has formed that view to dismiss you from the 	Magisterial Services in accordance with Section 54(c) of the Determination.
8.	Section 54(c) of the Determination is as follows:
	POWERS OF THE COMMISSION IN RELATION TO SERIOUS	OFFENCES.
	Where – 
a)	…
b)	…
c)	the Commission, after consideration of reports relation to the offence and charge the reply and explanation (if any) of the Magistrate charged, the recommendation of the Chief Magistrate and any further reports if considers necessary, is of the opinion that the charge has been sustained, the Commission may impose a punishment specified in Section 53(a), (b), (c), or (d) or dismiss the Magistrate from the Services.
9.	On behalf of the JLSC, I advise you that you are hereby dismissed from the 	Magisterial Services effective from the date of this letter. Please find attached 	you copy of the Instrument of Revocation of Appointment as a Magistrate of 	Papua New Guinea.
10.	The Chief Magistrate is empowered by Section 175(4) of Constitution of 	Papua New Guinea to deal with you to implement the decision of JLSC in 	dismissing you from the Magisterial Services.

Yours sincerely,

...(signed)…
Hon. Ano Pala, CMG, MP
Minister for Justice & Attorney General
Chairman – Judicial and Legal Services Commission

Attach: Instrument of Revocation

cc:	JLSC members
cc:	Nerrie Eliakim
	Chief Magistrate
	Magisterial Services Headquarters
	PO Box 1616
	Port Moresby  
	National Capital District

24.	This is the decision which is subject of review. In the evidence before me it is clear that the Chief Magistrate did not lay any fresh charges against the plaintiff pursuant to Section 53 of the Determination. In the evidence before me, it is also not disputed that the plaintiff was informed by the Chief Magistrate to transfer to Buka (see page 37 of the Review Book). Between May 2015 and September 2015, the plaintiff claimed that he could not relocate to Buka and needed more time to ensure that his family and his personal affairs were in order before he transferred.

25.	The plaintiff claimed that the Commission was not empowered to dismiss him unless the process under Section 53 of the Determination was complied with. I am of the view that the plaintiff’s ground of review are sustained. There is no evidence that fresh charges were laid on the plaintiff for not complying with the direction of the Chief Magistrate or the JLSC. With the greatest respect, it appears that the Chief Magistrate raised the issue or complained to the JLSC that her directive to the plaintiff to transfer to Buka was not complied with. A period of four (4) months had lapsed since the direction was issued to the plaintiff to transfer. The plaintiff did not comply with the direction and stated that he was waiting to ensure his personal effects and his children’s education were secured. The first defendant did not consider that the reasons given by the plaintiff were reasonable and formed the view that the plaintiff had deliberately intended to defy the directive of the Chief Magistrate. 

26.	Notwithstanding the fact, that the JLSC is established under the Constitution to appoint Magistrates to the Magisterial Services, the process of discipline is provided under Section 53 of the Determination. With respect, the Chief Magistrate was under a statutory duty to invoke the disciplinary process first by laying the disciplinary charges and directing the Magistrate to respond and after consideration of the charge and the relevant reports impose a penalty or make a recommendation of dismissal to the JLSC. In the evidence before me there is no evidence that this process was initiated and therefore, with respect, I find that the Chief Magistrate breached the mandatory prescribed process under Section 53 of the Determination. 

27.	I am satisfied that the plaintiff has made out the first ground of review. 

28. 	In the second ground of review, the plaintiff contends that the decision of the first defendant to revoke his appointment as a magistrate is unreasonable, harsh and oppressive.

29.	The plaintiff submits that the failure of the Chief Magistrate to invoke the disciplinary process under Section 53 of the Determination resulted in the first defendant making an unreasonable decision. The submissions by counsel question the soundness, rationality and reasonableness of the first defendant’s decision. 

30.	The common law principles of unreasonableness emanate from the classic case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233. The Wednesbury principles of unreasonableness as they are commonly referred to, has been adopted and applied in numerous cases in this jurisdiction. A succinct summary of the principles was pronounced by the Supreme Court in the case of Ombudsman Commission v. Peter Yama (2004) SC 747. They are as follows:

(1)	It must be a real exercise of discretion; 
(2)	The body must have regard to matters which it is expressly or by implication  referred by the statute conferring the discretion; 
(3)	It must ignore irrelevant considerations; 
(4)	It must not operate on the basis of bad faith or dishonesty; 
(5)	It must direct itself properly in law; and 
(6)	It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

31.	It is the sixth principle which is often referred to as the one that succinctly summarizes the Wednesbury principles of unreasonableness. 

32.	In the present case, the pertinent issue is whether the first defendant’s decision was so unreasonable, absurd and one which no reasonable decision-maker could make. When applying the principles to the present case, I am not convinced that the first defendant’s decision is unreasonable.

33.	Firstly, there is no evidence by the plaintiff that he communicated to the Chief Magistrate his reasons for not complying with lawful directions.

34.	Secondly, the plaintiff was made aware of the JLSC decision dated 6th May 2015. He was copied the decision. Despite this, in his affidavit filed on 24th March 2016, he insinuates that the reason for his dismissal was not because he did not take up the post in Buka but because he filed a Section 5 Notice against the State to sue the State for his lost salaries and entitlements. I am not persuaded by these submissions and find them baseless and sensationalised to suit the plaintiff’s arguments.

35.	The letter from the JLSC is clear that the plaintiff was dismissed for failing to comply with the Chief Magistrate’s lawful directive. The JLSC explicitedly stated that “...according to your actions, it appears you undermine the authority of the Chief Magistrate”. 

36.	Whilst I have found that the Chief Magistrate erred in law by failing to initiate fresh charges, it cannot be said with complete satisfaction that the conduct of the plaintiff was not blameworthy. With respect, the decision to dismiss the plaintiff was in my view made in haste and out of frustration and dissatisfaction over the plaintiff’s blatant disregard of the Chief Magistrate’s authority. 

37.	There is no evidence that the JLSC abused it’s powers or acted improperly. The JLSC is empowered to appoint Magistrates to the Magisterial Services in similar fashion the JLSC is also empowered to revoke the appointments.

38.	There is no evidence that the present decision to revoke his appointment were motivated by ill-will or a personal vendetta to remove him from the Magisterial Services. The only evidence before the Court is from the plaintiff. Despite the fact that the evidence is uncontested, it is still not corroborated and therefore, this Court is open to draw any inferences or conclusions from the material before it. I find that the decision of the first defendant was not absurd or unreasonable. The plaintiff’s conduct and action in continuously defying lawful directives of the Chief Magistrate and undermining her authority resulted in dismissal by the JLSC. This ground of review is dismissed.

39.	Now turning to the issue of relief. There are two pertinent steps involved in the process of determining judicial review applications. Firstly, the Court must be satisfied that the applicant has proven one or more of its grounds of review. Secondly, if it is proven one or more of its grounds of review, then the court has the discretion to determine what is the appropriate remedy or relief to be granted: Mision Asiki v. Manasupe Zurenuoc (2005) SC 797 and Dale Christopher Smith v. Minister for Lands (2009) SC 973.

40.	The plaintiff has proven one ground of review and that is the first defendant did not comply with mandatory procedure prescribed in Section 53 of the Determination. The next issue to determine is the appropriate relief to be granted in the circumstances.

41.	The relief the plaintiff has sought is set out in the Notice of Motion filed on 20th December 2016 which included an order for certiorari to quash the first and second defendant’s decision. He also seeks an order reinstating him as a Magistrate of Papua New Guinea. He also seeks to be back-paid all the lost salaries and allowances from the date of his dismissal.

42.	The Court has the discretion to order relief pursuant to Order 16 Rule 1 of the National Court Rules. However, the grant of relief is discretionary. Order 16 Rule 4(1)(b) of the National Court Rules provides the Court with a discretion when granting relief. If the relief sought is likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration, then the Court would have the grounds to refuse relief. However, the exercise of discretion must be made within the ambits of the law and on proper grounds. The Supreme Court in Mision Asiki v. Manasupe Zurenouc (supra) stated that:

“ It is one thing to establish an error of law or a breach of natural justice and for the Court to uphold an application for judicial review. It is another separate step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan, J stated in Tohian v. Geita and Mugugia (No.2) [1990] PNGLR 479, National Court.

..in judicial review, even though the court might find error, even an error affecting the  matters of jurisdiction, the Court would not thereby be obliged to automatically to quash the proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The Court must therefore look at all the circumstances of the case and decide whether its appropriate to grant a remedy: and if it is, what the remedy should be. It is not a formality. The Court should generally only consider granting a remedy that has been specifically sought by the applicant for review or would serve a useful purpose. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are: Albert Karo v. Ombudsman Commission SCA No.89 of 1995, 07.04.95, unreported Supreme Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v. Ombudsman Commission [1996] PNGLR 333, Amet CJ, Kapi DCJ, Los J, Injia J: and Allan Pinggah v. Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia, DCJ.”

43.	The Supreme Court in Mision Asiki’s case also stated that the grant of certiorari is discretionary. The Court when considering the question of whether to grant the relief of certiorari must start by looking at the decision and the nature of the excess of jurisdiction identified by the Court. Having considered that then the Court must consider whether the decision “... was wrong in law and flagrantly so”. Therefore the decision cannot stand and should be quashed.

44.	In Issac Lupari v. Sir Michael Somare (2008) N3476, His Honour, Injia DCJ (as he then was) stated that “In determining whether or not to grant certiorari, apart from considering the nature and seriousness of the error of law, it is important to consider the conduct of parties. Certiorari is an equitable remedy and is only issued in favour of a person who comes with clean hands: Tau Mavara Kamuta v. David Sode and IRC (2006) N3067.” Upon appeal, the Supreme Court upheld His Honour’s decision in Issac Lupari v. Sir Michael Somare and Others (2010) SC1070 to refuse the relief sought of reinstatement.

45.	With respect, I consider that the breach of the statutory mandatory procedure is serious. However, when considering all the circumstances of the case, I consider that the JLSC is the appointing body of all Magistrates and therefore, at the end of the day, the JLSC, in their wisdom dismissed the plaintiff and revoked his appointment. Furthermore, I am not persuaded that the plaintiff came to Court with clean hands. In the evidence before me, the plaintiff seems to suggest that the actions of the Chief Magistrate were not bona fide and they were tainted with bias. Furthermore, that the JLSC decision was a consequence of the plaintiff filing a Section 5 Notice under the Claims by and against the State Act in August 2015. The claim was to sue the Chief Magistrate and the State for damages for pain and suffering. This was followed by the former Chief Secretary Sir Manasupe Zurenouc writing to the Chairman of the JLSC to investigate the conduct of the Chief Magistrate which was unfortunately leaked and ended up on the front page of the newspaper on 7th October 2015. (See affidavit of Patrick Monoluk at pages 13 to 22 of the Review Book).

46.	The onus of proof in seeking relief is placed on the plaintiff. The evidence provided by the plaintiff to support these contentions is inconsistent. The letter by the JLSC is clear that the Commission reconsidered the charges and found that the plaintiff’s conduct in failing to take up the transfer to Buka as directed by the Chief Magistrate and consequently dismissed the plaintiff.

47.	Furthermore, the letter by the Chief Magistrate at page 37 of the Review Book is clear. The Chief Magistrate directed the plaintiff to travel to Buka and even organised the logistics including airline tickets. The letter was dated 18th June 2015, a month after the direction was given by the JLSC.

48.	The plaintiff has not provided any evidence to explain why he did not comply with the directions of the Chief Magistrate and the JLSC.

49.	In the absence of evidence to the contrary, the Court, based on the material before it can reasonably infer that the plaintiff defied the directions of the Chief Magistrate and the JLSC.

50.	Also, I find that the relationship between the plaintiff and the Management of the Magisterial Services had soured to the point that it could not be repaired and there was irreparable harm to the relationship. Any orders to quash the decision would be contrary to good administration and prejudicial to the parties (in particular the defendants) and cause grave injustice (see pages 17-20 of the Review Book).

51.	Therefore, an order in the nature of certiorari is an equitable remedy and the plaintiff comes to this Court with unclean hands and is not entitled to the relief he seeks. For the foregoing reasons, I am inclined to refuse the order of certiorari.

52.	In regard to the relief of reinstatement. I adopt the views of Injia DCJ (as he then was) in the case of Issac Lupari v. Sir Michael Somare (2008) N3476. Before considering whether to exercise the Court’s discretion to reinstate a successful applicant, the following factors should be taken into consideration:

1)	The current status of the employer and employee’s relationship;
2)	whether damages is an appropriate remedy;
3)	these are equitable remedies therefore demand that equitable principles are applicable (meaning that the plaintiff must come to Equity with clean hands);
4)	whether the public interest is in the good administration of the department or the public body as the case maybe; and,
5)	whether the position the applicant once occupied is still available or vacant.

53.	In the present case, when applying these principles to the facts, as found earlier, the current status between the plaintiff and his superiors that is, the Chief Magistrate appears to have broken down catastrophically. There has been multiple allegations which has irreparably harmed their working relationship. It would be unreasonable for the Court to reinstate him back to the position of a Magistrate thereby compelling the defendant’s to work with him again. This would only create an environment of chaos and animosity. 

54.	I am of the view that damages would be an appropriate remedy. The plaintiff is still at liberty to make a claim for the damages either based on the provisions of his employment contract or through a common law claim for damages. It would be better to bring the damages under a writ of summons so he can plead the particulars of his claim. I am unable to exercise the discretion to amend his Statement of Support because he has not made a claim for damages in these judicial review proceedings.

55.	Order 16 Rule 7 of the National Court Rules empowers the Court to exercise the discretion to award damages to a successful applicant if he has included a claim for damages in his Statement of Support pursuant to Order 16 of the National Court Rules. 
56.	In regard to the relief sought, it is trite law that the grant of relief is discretionary. Equitable principles like the equitable maxim of “he who comes to equity must come with clean hands,” is applicable in the present case. There were serious allegations of misconduct. Those allegations were insubordination and incompetence. Notwithstanding the plaintiff’s right to be heard and the right to innocence, they are serious allegations, so serious that the JLSC thought it warranted revocation of his appointment as a Magistrate forthwith. 

57.	The plaintiff in his affidavits vehemently denies the truth of those allegations. However, I am of the view that the response he gave did not conclusively settle the issues between him and the defendants. The question of the truthfulness of allegations is still open to speculation. Given that situation, I am of the view that the plaintiff did not come to court with clean hands, therefore the relief of certiorari and reinstatement is not appropriate.

58. 	The next consideration is whether reinstatement would be appropriate or in the interest of the public. The public interest lies in the good administration of the Magisterial Services. The plaintiff’s appointment was revoked in September 2015. It has been three (3) years since the plaintiff has been out of the office of a Magistrate. In my view, that is a long time. If this Court was to reinstate him to the position it would be prejudicial to the public’s interest in ensuring the good administration of the Magisterial Services and the integrity of the office of a Magistrate is not called into question.

59.	For those reasons, I refuse the relief of certiorari and reinstatement. It would be prejudicial to the defendant’s and it would not be good for the administration of the Magisterial Services.

Conclusion

60.	Having fully considered the matter and upheld one ground of review and in the exercise of my discretion, the plaintiff’s application for Judicial Review is granted in part. Relief sought by the plaintiff is refused. Costs follow the event and the defendants are to pay the plaintiff’s costs of and incidental to the proceedings to be taxed if not agreed. 

Orders accordingly, 
________________________________________________________________
Rageau, Manua & Kikira Lawyers: Lawyers for the Plaintiff
Solicitor-General’s Office: Lawyers for the First, Second, Third & Fourth Defendants