N3067

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 473 OF 2004

BETWEEN

TAU MAVARU KAMUTA
Applicant

AND

DAVID SODE
Commissioner General of Internal Revenue Commission
First Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani : Injia, DCJ
2006: 7 July

JUDICIAL REVIEW - Administrative action - Decision by statutory authority rejecting "recommendation" of Public Service Commission - Recommendation made under review procedure set out in the repealed s.18 of Public Service Management Act 1995 - Recommendation not binding - Reasons given by public authority for rejecting recommendation by Public Service - Whether good reasons for decision given - Principles discussed.

JUDICIAL REVIEW - Equitable relief - Certiorari - Discretionary - Principles - Equity follows law - Applicant must come with clean hands - Applied to situation where applicant was appointed to a position in the public service reserved for a lawyer based on misrepresentation by applicant that he had completed his Law Degree, when in fact he was a Law Student at the time of his appointment - Flaw subsequently discovered - Applicant dismissed for this reason - Statutory authority rejected recommendation of Public Service Commission for this reason - Good reason for decision given - Certiorari refused.

Cases cited in the judgment:
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1984] 1 KB 223
Burns Philp v Rose Kekedo [1988-89] PNGLR 122
Geoffrey Niggints v Henry Tokam & Ors [1993] PNGLR 66
Mainland Holdings v Paul Stobbs & Ors (2003) N2522; 
Ombudsman Commission v Peter Yama (2004) SC747. 
Paul Saboko v Commissioner for Police (2006) N2975
Peter Peipul v Justice Sheen & Others (2002) SC706
PNG Law Society v Richard Stegman [1998] PNGLR 541
R v Hillington London Borough Council [1986] AC 484

Counsel:
J. Kawi, for the Applicant
L. Nablu, for the First Respondent
B. Ovia, for the Second Respondent

7 July 2006

1. INJIA, DCJ: In this substantive application for judicial review made under O.16 r.5 of the National Court Rules, the applicant in his statement filed under O.16 r.3 on 30 August 2004, seeks the following relief:

"1. 	An order in the nature of mandamus to compel the respondents to give effect to the recommendations of the Public Service Commission by way of its letter to the Internal Revenue Commission dated 12 January 2004.

2. 	An order in the nature of a declaration that the applicant's termination on 25 April 2001 is null and void and of no effect.

3. 	An order of certiorari to bring into court the decision of the first respondent terminating the applicant's employment on the 25 April 2001, and to have it quashed.

4.	 An order that the respondents reinstate the applicant to his original position as Advising Officer with the Internal Revenue Commission within seven (7) days from the date of the order.

5. 	All outstanding entitlements owing to the applicant be calculated with retrospective effect to 5 April 2001, and paid to the applicant forthwith.

6. 	Alternative to orders sought under paragraph 4 above, general and specific damages to be paid by the respondents to the applicant for loss of entitlements, emotional suffering and pain.

7. 	Cost of the proceedings."

2. Also in the Statement, the applicant sets out six (6) grounds of review which are:

"1. The first respondent or its agents are under a duty or obligation to implement the recommendations of the Public Services Commission under cover of its letter to the Internal Revenue Commission dated 12 January 2004.

2. 	The first respondent or its agents had acted ultra vires its/their powers in terminating the applicant's employment as an Advising Officer with the Internal Revenue Commission on 25 April 2001.

3. 	The first respondent and or its agents acted ultra vires their powers in terminating the applicant without first doing a "performance appraisal" for the applicant.

4. 	The first respondent and or its agents had acted unreasonably and contrary to the principles of natural justice in terminating the applicant from his employment on 25 April 2001.

5. 	The decision by the First respondent to terminate the applicant's employment on 25 April 2001 was unfair, unreasonable and oppressive in the circumstances.

6. 	All other factual grounds as raised by the affidavit of Tau Mavara Kamuta sworn and filed in support of the application for judicial review."

3. The applicant's evidence before me consists of his affidavit sworn on 24 May 2004 (Exhibit "A"), his affidavit sworn on 29 June 2005 (Exhibit "B"), the affidavit of Bill Nouairi sworn on 28 June 2005 (Exhibit "C") and the affidavit of Geno Gapi, (Investigator with the Public Service Commission (PSC) ) sworn on 31 October 2005 (Exhibit "D").

4. The respondents contest the application. The First Respondent (IRC) relies on the affidavit of Willie Raga sworn on 3 January 2004 (Exhibit "E"), affidavit of Garry Juffa sworn on 3 December 20005 (Exhibit "F") and affidavit of David Sode sworn on 2 June 20005 (Exhibit "G").

5. The second respondent did not file any affidavits but relied on the affidavit of Mr. Geno Gapi.

6. The PSC, as an interested party, was served the Notice of Motion filed under O.16 r.5(2), but showed no interest in the proceedings and did not appear in Court to be heard.

7. All parties handed up their written submissions in Court and made oral submissions.

8.  I have considered the evidence and submissions.

9. The relevant undisputed facts as I find on the evidence are these. On 12 May 1999, the applicant applied for employment as a legal officer, a position described as "Advising Officer Litigation". In his job application (see annexure A1 of Winnie Raga's affidavit), he stated:

"I have done a Law Degree at the University of Papua New Guinea and 
Currently being employed by Westpac Bank (PNG) Ltd ".

10. In his curriculum vitae attached to his job application, he set out his tertiary qualification as follows:

"TERTIARY: UNIVERSITY OF PAPUA NEW GUINEA, FACULTY OF LAW, 
 BACHELOR OF LAWS DEGREE PROGRAMME (1994-1998).

11. The prescribed qualifications for this position as set out in cl. 5 of the Job Description (Annexure B of W. Raga's affidavit), are:

"(A) 	Qualifications
Full admission as a Barrister and Solicitor of the Supreme Court of Papua New Guinea.
(B)	Knowledge
Good knowledge of taxing laws and legal practice.
(C)	 Skills
Advocacy skills or related training.
(D) 	Work Experience
General knowledge on litigation essential. Officer will be trained on the general aspects of Litigation and Court room advocacy."

12. On 7 June 1999, IRC appointed him to the position. The particulars of his position are set out in IRC's letter to the applicant dated 1 June 1999 as follows:

"Position: Advising Officer
Position No: RCPL 011 L1
Salary pa.: K18,408
Branch/Division: Policy & Legal Affairs
Date: 01.06.99"

13. At the time of his appointment, the applicant was a law student at the University of Papua New Guinea (UPNG). Obviously, he failed to meet the prescribed job qualification and job experience as a person who had obtained "Full admission as a Barrister and Solicitor of the Supreme Court of Papua New Guinea" or in other words, "a lawyer" under the Lawyers Act 1986.

14. Mr Nouairi, who was then the Assistant Commissioner of the Policy and Legal Affairs Branch of IRC was responsible for the applicant's recruitment. In his affidavit, he explains the reasons why he engaged the applicant. It is sufficient to quote the part which contains the basic explanation as follows:

"The facts of the matter as much as I am able to recall is that, first of all he had supporting references for his application which had high recommendations of his stature as well as potential for him to excel in his appropriate career development. Secondly, in the course of interview I found him to have a good understanding of general litigation practice as he was already active in legal Aid program, and thirdly he was in his final year at the Law School with the potential to graduate.

These qualities added together with the position of law as espoused by the Income Tax Act and the District Court Act in so far as concerns prosecuting and/or defending taxation cases satisfied me of the kind of candidates I was looking for to recruit against the base level positions in the Division I was in charge of. Accordingly I made favourable recommendations to the Director of the Human Resource Division for this particular person's recruitment.

In short the candidate I was looking for against the position of 'Advising Officer Litigation' was a person that was about to graduate from the UPNG Law School, and though not yet a 'Solicitor' who nevertheless have some general understanding or high level of interest in litigation, and who also have particular interest in the study and application of direct and indirect taxation laws. This is a 'base level' position and the officer would in due course be supervised and trained on the general aspects of litigation and courtroom advocacy."

15. On 25 April 2001, following an internal investigation into the applicant's performance on the job, IRC terminated his employment. The notice of termination states:-

"TAKE NOTE that in accordance with the Public Services (Management) Act and the General Orders made under that Act, that following an appraisal of your performance, you are not fit to continue in the Public Service. You are hereby dismissed from the Public Service 7 days from the date of this notice."

16. The main underlying reason for termination given by IRC was that the applicant was "wrongfully and illegally" employed for the position because at the time of his appointment, he did not possess the prescribed qualifications. This reason however was not specified in the notice of termination. 

17. By the time of this trial, the applicant had completed his studies and obtained his law Degree on 23 March 2001 and was admitted to practice law in the Supreme Court of Papua New Guinea on 10 February 2005.

18. On 15 June 2001, he lodged a complaint with PSC under s.18 of the PSM Act. In his letter of complaint to PSC dated 15 June 2001, he gave details supporting his complaint over lack of appraisal. No mention was made in that letter of his lack of job qualification.

19. On 12 January 2004, the PSC made its findings and recommendations and communicated it in writing to IRC, as follows:

"1. ADVICE:

1.1 	That the Applicant to be re-instated to his substantive position number RCPL.011 L-1 designated Advising Officer Policy and Legal Affairs Division;
1.2 	That all lost salaries to be paid to the officer for the period terminated; and
1.3 	That the period terminated shall be counted as service."

20. These recommendations were based on its findings that no staff performance appraisal was done on the applicant's performance. The PSC found that as a probationary officer, the applicant was entitled to a performance appraisal before any decision on his future is made, as required by Interim Orders 4.24, 4.25 & 4.6. In addition to that, IRC had failed to respond to a s.18(2) "served" by PSC. The PSC did not consider the applicant's lack of job qualification presumably because the application did not raise that matter in his complaint.

21. Upon receipt of this letter, IRC rejected the recommendation. The IRC's decision and reasons for decision are set out in the IRC Commissioner's letter to the PSC dated 14 February 2004 and his letter to the applicant dated 17 May 2005. The IRC gave three reasons: (1) In his letter to PSC, IRC stated that the applicant's complaint was statute-barred because it was lodged outside of the sixty (60) days time limit. The PSC lacked jurisdiction or acted ultra vires s.18(2) when it entertained the complaint; (2) Also in its letter to PSC, IRC stated that PSC failed to effect due service of the s.18(2) notice on IRC thereby denying natural justice; and (3) in its letter to the applicant, IRC stated that the applicant was not qualified for the job in the first place. The evidence before me is that IRC conducted an internal investigation which showed that the applicant did not posses the required job qualification. It is necessary to set out the third reason in full, as follows:-

In addition to that we seek not to comply with the Recommendations, because we believe we have good reasons not to do so.

Your employment with the Internal Revenue Commission was void ab initio in that you portrayed yourself to be a qualified lawyer when in fact you were not a qualified lawyer. At the time you were employed you were occupying a position designated for a qualified lawyer therefore you were unlawfully occupying this position. When this came to my notice there was no option but to terminate your employment and no evaluation could be made of your probationary service with us as a lawyer as the evidence shows you were never a lawyer and therefore never qualified to hold that position. Your initial recruitment by the then Assistant Commissioner for the IRC legal branch Mr Bill Nouairi is highly questionable and in my view illegal under the Public Services Management Act and on this basis and we will be contending that you should be seeking redress from him. I gather he is now your counsel."

22. On 18 May 2004, the applicant filed these proceedings. 

23. There are several preliminary matters which I need to deal with. First, the appropriate decision the proper subject of this review is the decision of the IRC on his refusal to implement the PSC recommendation. The purpose of this review is not to review the PSC decision - making process but to consider the propriety or reasonableness of the IRC's decision: see Ombudsman Commission v Peter Yama (2004) SC747. 

24. Secondly, IRC and PSC disputed the procedure under which the PSC completed the review. The IRC's objection as to the time bar formed part of the reasons it rejected the PSC recommendation. For this reason, it is necessary to determine the correct procedure under s.18 under which the PSC conducted the review and made its findings and recommendations.

25. The applicant lodged his complaint under the old s.18 of the PSM Act. The PSC took more than 1½ years, to conduct and complete its review. The investigations were carried out in 2001. Whilst those investigations were continuing, s.18 was amended and new procedures were introduced by Act No. 24 of 2002. The relevant part of the repealed s.18 states:

"18. Review of personnel matter connected with the National Public  Service

1.	The Commission shall review a personnel matter connected with the National Public Service either on its own initiative or following a complaint by an officer to the Commission where that officer has been affected by a decision in relation to that personnel matter.

2. 	The Commission shall –

a. 	complete the review of a personnel matter within 60 days of –

i. 	the making of the complaint to the Commission under (1); or where the Commission instigates the review, the instigation of the review; …"

26. The relevant part of the new s.18 states:

"18. Review of Personnel Matters in Relation to Appointments, Selection or Discipline.

(1)	The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment, selection or discipline connected with the National Public Service, where that officer has been affected by the decision.

(2)	A complaint referred to in Subsection (1) shall be –

(a) 	in writing; and

(b) 	made to the Commission by the officer within 60 of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the complaint; and

(c) 	copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint."

27. Under the repealed provision, no time limit is prescribed for making the complaint whereas under the new provision a time limit of 60 days is prescribed. Also under the new provision, the Chairman of the Commission has power to waive the time limit. The other significant difference is that under the repealed provision, PSC makes "a recommendation" as to whether the decision of the Departmental Head concerned should be confirmed, varied or revoked. The Departmental Head has a discretionary power to decide whether to accept or reject the PSC recommendation. Under the new provision, the Commission makes "a decision" which becomes binding after 30 days.

28. On 12 January 2004, PSC published its findings and recommendations. The question arises as to which procedure was applicable and applied by the PSC in dealing with the applicant's complaint - the old or new s.18 procedure. The 2002 amendment did not contain transitional provisions. Section 83, is the only transitional provision, which applies, by implication. Section 83 provides:

"Disciplinary offences.

(1) 	Where, prior to the coming into operation of this Act an officer has been charged with committing a disciplinary offence under the repealed Acts, and on that coming into operation the procedure set out for dealing with the disciplinary offence under the repealed Acts had not been completed, that disciplinary offence shall continue to be dealt with in accordance with the provisions of the repealed Act.

(2) 	For the purposes of this Act, an offence against the repealed Acts committed prior to the coming into operation of this Act, but in respect of which no charge had been made at that coming into operation, shall be deemed to be a disciplinary offence under Section 50 of this Act."

29. The applicant's case before this Court is based on the old s.18 procedure. His position is supported by Mr Geno Gapi, an internal investigator with PSC, who at par. 17 - 18 of his affidavit says:

"17.	This matter was dealt with at the time when the Public Service (Management) (Amendment) Act No. 24 of 2002, had not come into operation. It was dealt with under the previous Section 18 provisions of 1995 Act.

18.	The amendments came into operation on 1st June 2002, by virtue of Gazettal Notes No. G142."

30. The IRC's case is based on the new s. 18. Ms Nablu submits the new s. 18 procedure was applicable because even though the applicant's complaint was made under the repealed provision, the investigation was concluded after the new amendment came into force. Mr Kawi submits otherwise. Both counsel made submissions on the meaning of s. 83.

31. In my view there is no question that s.83 applies to the primary disciplinary processes under Part XIV of the PSM Act. The question is whether the disciplinary review commenced under the old s.18 should continue under the old or new s.18 procedure. The answer is found in s.18 (1) of the old and the new s.18(1), both of which provide for PSC's review of "a personnel matter relating … to discipline". Section 18(1) gives a person aggrieved by a "decision on a personnel matter relating to … discipline" to seek review. Therefore the primary disciplinary process is inseparable from the review process. As such the phrase "dealing with disciplinary offence" in s.83(1) includes both the primary disciplinary process under Part XIV and the review process under s.18(1). For this reason, I accept Mr Gawi's submission which is consistent with Mr Gapi's position. I find that the old s.18 procedure was applicable and the PSC correctly applied that procedure pursuant to s. 83, notwithstanding the operation of the new amendment to s.18 effected by Act No. 24 of 2002.

32. Fourthly, IRC's case is based on PSC's breach of the new s.18 procedure. IRC's evidence and arguments raised in relation to compliance with the requirements of the new s.18 are therefore irrelevant. However, those evidence and arguments are equally relevant to the old s.18 procedure in terms of the powers of the PSC on review and the powers of the Departmental Head to accept or reject the PSC recommendation and I will consider them.

33. I now turn to the substantive issues. Unlike the new s.18, PSC's decision remains a "recommendation." The Departmental Head has discretion to accept or reject the recommendation. If he rejects the recommendation, he must give reasons and good reasons for decision: Geoffrey Niggints v Henry Tokam & Ors [1993] PNGLR 66 at 4-5; Ombudsman Commission -v- Peter Yama (2004) SC747. Those reasons must be given at the time the decision is made and communicated to the person affected by the decision and not later: Kelly Yawip v Commissioner of Police [1995] PNGLR 93.

34. In my view, the sum effect of the arguments made by the parties in relation to all the grounds of review turn on the soundness, rationality or reasonableness of IRC's decision. The question is: Did IRC give reasons and good reasons for its decision in rejecting the PSC recommendation? There are two parts to this question. I have no difficulty in answering the first part of this question. The Courts have spelt out the duty imposed on a public authority to give reasons for a decision which affects the livelihood of a person occupying public office: see Geoffrey Niggints' case, supra, and Peter Yama's case, supra. In the present case, IRC gave reasons for its decision.

35. The answer to the second part of the question depends on what one considers to be good reason(s) for decision. The public authority has wide discretion in formulating the reasons for its decision which it considers relevant and appropriate to the case before it. There is an element of subjective assessment on the part of the public authority in forming a judgment as to what constitutes sufficient reasons for a decision in the case before it. The nature and extent of reasons given for a decision will depend on the nature and scope of the discretionary power vested by law in the public authority and its application to the facts of the case. The facts of each case are always different and it is difficult to lay down any general principles applicable to every case. Generally speaking, in my view, a good reason(s) is one which is acceptable as being logically sound, relevant to the subject at hand, constructive, rational, sensible and above all, one which is proper and reasonably sufficient having regard to the nature and scope of the discretionary power vested in the decision-making authority and a proper application of that power to the relevant circumstances of the case before it, in a fair and objective manner. The rationality or reasonableness of the reasons given for a decision traditionally falls under the common law principle of unreasonableness laid down in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 (Wednesbury principles) which has been adopted and applied in many cases in this jurisdiction. The Supreme Court in Ombudsman Commission v Peter Yama (2004) SC747 summarized those principles as follows:

1.	 It must be a real exercise of the 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.

36. The sixth and last sub-principle best sums up the Wednesbury principle. The decision is so unreasonable and absurd and one which no reasonable decision-maker could have made in the circumstances: Paul Saboko v Commissioner for Police (2006) N2975, per Cannings J. The test of reasonableness under the Wednesbury principle is a high and restrictive one, for several reasons: 

(1) 	Judicial review is an equitable remedy and very much discretionary. The exercise of this jurisdiction is guided by principles of equity adopted under Schedule 2.2 of the Constitution. Two of those principles of equity which I consider to be relevant in the instant case are that equity follows the law and he who seeks equity must come with clean hands: see Mainland Holdings v Paul Stobbs & Ors (2003) N 2522; 
(2) 	Judicial review is not available to examine the reasoning of the authority which is empowered to make the decision, with a view to substituting the court's own decision but it is concerned with the decision-making process: Burns Philp v Rose Kekedo [1988-89] PNGLR 122; 
(3) 	The decision is largely an administrative one and the administrative decision-maker is in a good position to form a judgment on matters of an administrative nature. The Court must pay greater deference to the reasons for decision given by the decision-maker and more reluctant to interfere with the reasons given except in special cases which call for the exercise of judicial discretion; and 
(4) 	The court must be reluctant to interfere with the administrative decision which is supported by reasons except where the reasons given for the decision are so untenable, so unreasonable and so absurd that they amount to an abuse of power and offend established principles on proper exercise of statutory power and public interest in good administration. In other words, the reasons given are so unthinkable and absurd that "no sensible person could ever dream that it lay within the powers of the authority": Wednesbury's case, per Lord Green. In Peter Peipul v Justice Sheen & Others, (2002) SC706, Kapi DCJ (as he then was), after referring to Lord Green's statement in Wednesbury's case adopted and applied the principles in R v Hillington London Borough Council [1986] AC 484 at 518 as follows:

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity (for example, breach of natural justice), or unreasonableness in the Wednesbury sense - unreasonableness verging on absurdity…Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and the fact involves a broad spectrum ranging from the obvious to the debatable to the conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely". 

37. These principles underpin the fundamental principle of public administration that the Court should not interfere in the day to day running of a public body unless it is clearly wrong and the decision for the reasons given should not be allowed to stand in the public interest in good administration and in the interest of justice.

38. I adopt and apply these principles to this case. IRC gave three reasons for its decision. The first is a formal one on procedure for lodging complaints with the PSC. The reason is that the complaint was not lodged within time. In my view, the matter of time bar was not open to IRC. Under the old s. 18, no time limit is prescribed for lodging a complaint, meaning the complaint could be lodged at any time after the decision on the disciplinary matter. This reason is irrelevant to the exercise of discretion under the old s.18 procedure. This is not a good reason for decision. 

39. The second reason is related to the first reason and it is irrelevant to the old s.18 procedure. This is not a good reason for decision. 

40. The third reason is more substantive and perhaps the main reason. IRC gave reasons pertaining to the applicant's failure to meet prescribed job qualification and experience which entitled him to be appointed to the position in the first place. This is a valid and good reason for decision. I am satisfied on the evidence before me that the plaintiff was not qualified in terms of educational qualification, professional legal qualification as a lawyer and practical legal experience in litigation to qualify him for appointment to the position he was appointed to in the first place. 

41. The difficulty with this reason however is that it was not set out in the notice of termination. As such it appears the applicant did not raise this matter in his complaint to PSC on this reason and PSC did not address this matter either. I have read the affidavit evidence on behalf of IRC and note that there is no mention of this matter being brought to applicant's attention. I accept Mr Kawi's submission that there was a breach of natural justice. In my view however, the weight to be attached to this finding is reduced significantly by the fact that the applicant would or ought to have known that he was not qualified to hold the position and should not have been recruited in the first place and that an assessment of his performance would have obviously revealed this flaw and resulted in the applicant's dismissal for that reason.

42. As for the other reasons given by PSC in relation to lack of staff appraisal of a probationary officer, I consider those matters to be secondary to the more fundamental question of job qualification. A performance appraisal would have no doubt involved assessment or evaluation of the applicant's performance as against his job qualification and experience. The investigation carried out by IRC would no doubt be part of that assessment process. I consider those matters to be internal matters for the IRC. IRC determined that the applicant was "not fit" to hold the position and terminated his employment based on an appraisal of his performance. IRC had before it a situation where a person who was not a lawyer with practical experience was occupying the position reserved for a lawyer and his performance was considered not fitting of a lawyer. In the circumstances, I am not persuaded by the applicant that IRC formed an unreasonable or irrational judgment on this point.

43. IRC was faced with a situation where if PSC's recommendation were implemented, it would result in a person who failed to meet the prescribed job qualification being re-instated and paid entitlements and accorded other privileges to which he was not entitled to receive in the first place. The prescribed qualifications were governed by the Lawyers Act 1986 and to accept PSC's recommendation would have caused IRC to commit an unlawful act, ie to employ someone who was not a lawyer against a lawyer's position in breach of the Lawyers Act 1986. Therefore IRC was entitled to reject PSC's recommendation for that reason, even if that particular point was not brought to PSC's attention.

44. I have already said that certiorari (and consequential declaratory order which may follow), is an equitable remedy and it is discretionary. This Court cannot ignore uncontested material on relevant matters placed before it, in particular material on the applicant's qualification for the job and the valid or good reason given by IRC for terminating his employment on the grounds that the appointment was highly questionable and illegal or unlawful. In order for this Court to dispense justice in a substantive way, as it should, those material and reasons must be considered and given proper weight. For this reason, I accept the evidence on behalf of IRC on the investigations carried out and findings made and the reason why the applicant's employment was terminated. I cannot think of any sensible counter-argument to this reason. The applicant has offered no argument against this reason. Mr Nouairi's explanation cannot stand against the prescribed qualification as set out in the job description. The position was reserved for a person who had completed his law degree, had attended legal Training Institute, was fully admitted to practice law under the Lawyers Act 1986 and possessed sufficient legal practical experience to properly discharge the duties of his office. Mr Nouairi must have been fully aware of these requirements when he progressed the appointment. I find that the initial recruitment and appointment of the applicant was wrongful and fundamentally flawed.

45. I have already said that certiorari is not available to an applicant whose hands are unclean. I am satisfied that at the time the applicant submitted his application he misrepresented the true facts about his qualifications as to obtaining a Law Degree, his "lawyer" status and practical experience. He held himself out as having undertaken and completed his Law Degree between 1994 - 1998 when in fact he was a Law Student in his 4th year of studies in 1999. Equity will not permit him to the relief he seeks on this kind of misrepresentation.

46. Equity will also not permit him to be appointed to a position in the public service and to enjoy or derive benefits from that position to which he is not legally qualified to occupy in the first place. Those qualifications are prescribed by IRC and/or the Public Service machinery through delegated legislation authority and have the force of law. The terms Legal officer, or a person who has attained "full admission as a barrister or solicitor of the Supreme Court of Papua New Guinea" or an "Advising Officer Litigation" or any other similar terms which a person chooses to describe his or her practice in law in the Courts, either as an advisor/solicitor in a law office or as an advocate in Court come under one definition - "a lawyer" under the Lawyers Act 1986: see PNG Law Society v Richard Stegman [1998] PNGLR 541. A person who does not posses that qualification as a lawyer cannot enjoy the privileges and benefits conferred by it and any such enjoyment of privileges, benefits etc, would be contrary to law. In fact it is a criminal offence under the Lawyers Act, for a person to occupy a position reserved for lawyers and perform or purport to perform the duties of a "lawyer" without being so qualified. Equity only follows the law.

47. I accept that the applicant is now qualified to hold the position that he was appointed but that cannot right the wrong committed in 1999.

48. In the exercise of my discretion I refuse the application.

49. For these reasons, I dismiss the application with costs to the respondents.
_______________________________________________________________
Bill N Nouari Lawyers: Lawyer for the Plaintiff
L Nablu: Lawyer for the First Respondent
Paul Paraka Lawyers: Lawyer for the Second Respondent