SC2031

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 9 OF 2018

BETWEEN:
PATRICK MONOULUK
Appellant

AND:
ANO PALA
as Minister for Justice & Attorney General and Chairman
of the Judicial and Legal Services Commission
First Respondent

AND:
JUDICIAL AND LEGAL SERVICES COMMISSION
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J, Koeget J, Shepherd J
2020: 9th September, 24th November

SUPREME COURT APPEAL - appeal from decision of primary court in a judicial review proceeding for not ordering certiorari and reinstatement of appellant despite court upholding the appellants application for judicial review – certiorari not granted by primary court because appellant did not come with “ clean hands” - although a plaintiff may come to court with unclean hands, this does not preclude an order for certiorari being made - primary judge was entitled to exercise her discretion in the manner which she did to determine that an order for reinstatement would not be appropriate in the circumstances - appellant is entitled to the salary, allowances and other benefits which he would have received if he had not been dismissed, from the date of his dismissal to the date of this decision – appeal is upheld in part – order for reinstatement is refused as the primary judge correctly applied her discretion in holding that it would be prejudicial to the public’s interest in ensuring the good administration of the Magisterial Services and that the integrity of the office of a Magistrate is not called into question – order in the nature of certiorari is issued and the decision of the first and second defendants in the primary court to dismiss the appellant/plaintiff from the Magisterial Service and to dismiss him from being a Magistrate is removed into this court and quashed – application for reinstatement is refused

Cases Cited:
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Lupari v. Somare (2008) N3476
Lupari v. Somare (2010) SC1071

Counsel:

Mr. F. Kuvi for the Appellant
Mr. R. Uware, for the Respondents

24th November, 2020

1. 	BY THE COURT:  The appellant is a former District Court Magistrate. On 10th September 2015 the Judicial and Legal Services Commission (JLSC) dismissed the appellant from the Magisterial Service and revoked his appointment as a Magistrate (JLSC decision). The appellant applied for judicial review of the JLSC decision. The primary judge upheld one ground of review and granted the appellant’s application for judicial review in part. The primary judge then refused the relief which the appellant had sought (decision appealed). The relief which the appellant had sought included an order for certiorari to quash the JLSC decision, reinstatement and entitlements backdated to the date of his dismissal.

Appeal

2. 	The appellant submits that after upholding his application for judicial review, the primary judge fell into error by not ordering certiorari and quashing the JLSC decision and by not ordering reinstatement and the payment of backdated entitlements.

3. 	The respondent submits that the primary judge did not fall into error in the exercise of her discretion in deciding not to order any of the relief sought by the appellant.

Review of exercise of discretion by primary judge

4. 	This Court’s role in an appeal from the exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788.  We reproduce the following passage from that decision: 

“A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”

Consideration
5. 	The ground of review that was upheld by the primary judge and which is not the subject of this appeal, is that the defendants, now respondents, failed to comply with the mandatory prescribed process under s. 53 of the Determination of Terms and Conditions of Service of Magistrates (Determination). The plaintiff, now appellant, was not charged with s. 51 of the Determination or suspended within the process under ss. 53(2) and (3) of the Determination. 
6. 	The primary judge found that the Chief Magistrate had breached the mandatory prescribed process under s. 53 of the Determination. The primary judge also found that there was no evidence that the JLSC had abused its powers or acted improperly.
7. 	After upholding one of the appellant’s grounds of review, the primary judge then considered whether the appellant should be granted any relief. The primary judge refused to order certiorari as amongst others, she found that the appellant came to court with unclean hands. The primary judge then proceeded to consider whether reinstatement was appropriate. This was notwithstanding that after the primary judge’s decision to refuse to quash the JLSC decision, a consideration of whether reinstatement should be ordered was not necessary as the JLSC decision remained.
8. 	The primary relief that was sought by the appellant was an order for certiorari. If that was granted, he sought consequential relief such as reinstatement and entitlements. If the primary relief was not granted, the appellant was not entitled to any consequential relief. That was the result in the decision appealed.
9. 	As to whether certiorari should have been granted, as mentioned, the primary judge found that the appellant did not come to court with clean hands. To our minds, the evidence as to alleged unclean hands was not such that it should have resulted in the primary judge refusing an order for certiorari after finding that the breach of the relevant statutory mandatory procedure was serious, warranting her to uphold the first ground of review.  We note also that although a plaintiff may come to court with unclean hands, this does not preclude an order for certiorari being made.  In Lupari v. Somare (2008) N3476, Injia DCJ (as he then was) at [70] noted that the plaintiff, “has not come with clean hands” and then at [77] granted an order in the nature of certiorari to the plaintiff.  We are satisfied in this instance that the primary judge fell into error in the exercise of her discretion in refusing to make an order for certiorari.
10. 	On the basis that certiorari should have been granted and pursuant to s. 16(c) Supreme Court Act, which provides that this court may give such judgment as ought to have been given in the first instance, the next consideration is the relief, if any, which should have been granted to the appellant. 
11. 	In regard to certiorari, as was stated by Hartshorn J in Lupari v. Somare (2010) SC1071 at [28], the grant of a mandatory injunction or reinstatement is discretionary following the grant of certiorari. The question is whether the primary judge exercised her discretion properly in refusing reinstatement.
12. 	Notwithstanding that after refusing to grant certiorari the primary judge need not have considered the relief to be granted, the primary judge’s consideration of whether reinstatement should have been ordered and the factors to be considered, in our view were correct. 
13. 	The primary judge considers these factors in detail in [52] to [58]. Specifically, in [58] the primary judge considers whether reinstatement would be appropriate or in the interests of the public.  Her consideration of the public interest, the time since the appellant had been out of office as a Magistrate, whether reinstatement would be prejudicial to the public’s interest in ensuring the good administration of the Magisterial Services and that the integrity of the office of a Magistrate is not called into question, were matters which the primary judge was entitled to consider.  In our view the primary judge did not fall into error in her consideration of these factors.  We are satisfied that the primary judge was entitled to exercise her discretion in the manner which she did to determine that an order for reinstatement would not be appropriate in the circumstances.
14. 	As to the question of the appellant’s salaries, allowances and other benefits and entitlements which he claimed, the primary judge did not give this relief any consideration. To our minds, proceeding on the basis that certiorari should have been ordered, the appellant is entitled to the salary, allowances and other benefits which he would have received if he had not been dismissed, from the date of his dismissal to the date of this decision. The appellant has not claimed interest and damages and so these items are not considered.

Orders
15.  The Court orders that:
a)	 This appeal is upheld in part;
b)	An order in the nature of certiorari is issued and the decision of the first and second defendants dated 10th September 2015 to dismiss the appellant/plaintiff from the Magisterial Service and to dismiss him from being a Magistrate is removed into this court and quashed;
c)	The application for reinstatement of the appellant/plaintiff into the Magisterial Service and for reinstatement as a Magistrate of Papua New Guinea is refused;
 d)	The appellant/plaintiff shall be paid by the third respondent a sum equivalent to the salary, allowances and other benefits to which he would have been entitled if he had not been dismissed, from 10th September 2015 to the date 	of this decision;
e)	The third respondent shall pay the appellant’s costs of and incidental to this appeal, such costs to be taxed if not agreed.
__________________________________________________________________
Elemi Lawyers:	Lawyers for the Appellant        
Office of the Solicitor-General: Lawyers for the Respondents