IN THE SUPREME COURT OF NAURU

Civil Action No. 9/2005

BETWEEN:

DEROG GIOURA, KINZA CLODUMAR,
VINSON DETENMO, PRES-NIMES EKWONA,
REMY NAMADUK & NIMROD BOTELANGA
PLAINTIFFS

AND:

NAURU PARLIAMENTARY SUPERANNUATION TRUST
1ST DEFENDANT

AND:

SECRETARY FOR FINANCE
2ND DEFENDANT

AND:

SECRETARY FOR JUSTICE
3RD DEFENDANT

For the Plaintiffs Pres Nimes
For the 2nd & 3rd Defendants - Robert Kaierua

DECISION

Claim by former Members of Parliament for payment by the Nauru Parliamentary Superannuation Trust of pensions to which they claim to be entitled.

The six named Plaintiffs were Members of Parliament until defeated in the general election in October 2004. None has received since then what he claims as his entitlement calculated according to Section 22 of the Parliament Superannuation Act nor has he received any payment from the Trust.

The Writ and Statement of Claim were issued on 2nd June 2005. The relief claimed:-

(i) "A declaration by this Honourable Court that the Plaintiffs are duly entitled to receive payment of their respective pensions from the 1st and 2nd Defendants in accordance with the provisions of sections 11, 12, and 22 of this Act;

(ii) An order from this Honourable Court in directing the 1st Defendant that, upon losing their seats and ceasing to be Members of Parliament in the month of October, 2004, the Plaintiffs are duly entitled to payment of Basic Salary and Additional Salary, if any, to be paid out of the Fund, established under this Act;"

The action proceeded through interlocutory stages until this month. Connell CJ on the 18th November 2005 made an order substituting the Secretary for Finance as second Defendant and making the Secretary for Justice third Defendant. In May 2006, the Plaintiffs filed an amended Statement of Claim seeking this relief:-

"a. A Court Order directing the Defendant to authorize and issue payments of pensions to the Plaintiffs forthwith, and in accordance with the relevant provisions of the Parliamentary Superannuation Act 1991.

b. An Order directing the Trust to pay the Plaintiffs a lump sum payment, to each of the plaintiffs, an amount equivalent to the total amount of pensions that the plaintiffs would have received as pensions, in accordance with the Act, if that pension had been paid within a reasonable from the point that the plaintiffs have ceased to members of parliament, provided that such a point would not be sooner than 1st December 2004."

By the end of July no Defence had ever been filed. The Plaintiffs applied for summary judgment. On 8th August I gave the Defendants two days within which to file a Defence. A Defence was filed. It is a denial, paragraph by paragraph, of the allegations in the Statement of Claim and adding three affirmative defences. First, that the Plaintiffs had not sought nor been given leave by Cabinet to take the proceedings; a requirement of Section 3(1) of the Republic Proceedings Act 1972.

Second, that no moneys could be withdrawn from the Treasury Fund except in accordance with law.

Third, that there could be no withdrawal from the Treasury Fund "unless the purpose of the withdrawal has been recommended to Parliament by the Cabinet" (and presumably there had been no recommendation).

When the action came on for hearing yesterday Mr. Kaierua for the Defendants was prepared to admit that paragraphs two to four of the Statement of Claim were no longer in issue. These paragraphs relate to the Parliamentary Superannuation Fund and allege that the Plaintiffs had been Members of Parliament defeated at the last general election. The remaining paragraphs of Statement of Claim relate to matters of law which the Defendant needed neither to admit nor deny.

Only matters of law remained in issue.

The argument which Mr. Kaierua put strongly was that the Plaintiffs were in breach of Section 3(1) of the Republic Proceedings Act:-

"Where any person has a claim against the Republic or against any Government department or instrumentality of the Republic or the President, the Cabinet, any Minister or any public officer in his official capacity, howsoever it may be founded, no civil proceedings may be taken against the Republic, or against such Government department or instrumentality of the Republic or the President, the Cabinet, any Minister or any public officer in his official capacity, nor may a counter claim be made in proceedings commenced by the Republic, a Government department, an instrumentality of the Republic, the President, the Cabinet, a Minister or a public officer in his official capacity, to enforce that claim unless, before the commencement of the proceedings or the making of the counter claim, the Cabinet has given leave for them to be taken:"

The question is whether the Trust is "an instrumentality of the Republic". Mr. Kaierua argued that it is and cited the decision of Donne CJ in Andrew Heinrich v Nauru Phosphate Corporation Civil Suit No. 12 of 1985. Having read the decision I agree, with respect, with conclusion the Chief Justice reached but not necessarily with his reasoning. The decision does not assist the Defendants.

"Instrumentality of the Republic" is defined in Section 2 of the Republic Proceedings Act:-

"means a body established by or under an Act or Ordinance and constituted by the President or an officer of the Republic or by two or more such officers either with or without the President."

The Trust, pursuant to Section 14(1) of the Parliament Superannuation Act consists:-

"of three Trustees two of whom shall be appointed by the Cabinet by notice published in the Gazette and one by Members of Parliament who shall be appointed in such manner as Parliament may determine".

The Trust is set up by Act of Parliament and constituted of the three Trustees described in Section 14(1): it is not "constituted by the Presidents or an officer of the Republic or by two or more such officers either with or without the President."

Section 3(1) of the Republic Proceedings Act does not apply to the Trust. The Plaintiffs are not in breach of it; they did not require the leave of Cabinet.

The second affirmative defence is that no moneys may "be withdrawn from the Treasury Fund except....in accordance with law." Any withdrawal for the purpose of paying superannuation to the Plaintiffs would be pursuant to Section 22 of the Parliamentary Superannuation Act. It would be in accordance with law.

The Plaintiffs do not need to look beyond the provisions of the Parliamentary Superannuation Act. Where the Trustees find the money to meet the liability of the Trust to the Plaintiffs is a matter for them, not for the Plaintiffs.

The third affirmative defence was not argued.

The Defendants have no defence to the Plaintiffs claim. I grant the relief claimed.

The precise amount due to each Plaintiff is a matter of complex calculation under Section 22 of the Parliamentary Superannuation Act. I shall refer the matter to the Registrar. If the parties are not able to agree on amounts then the Registrar may make a recommendation to me which I shall consider during the next sittings before I make final orders.

I doubt, subject to further argument, that the Plaintiffs are entitled to relief against the second and third Defendants.

Dated 12 day of August, 2006

THE HON. ROBIN MILLHOUSE QC.,
CHIEF JUSTICE