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Warden v Attorney-General [2007] SBHC 123; HCSI-CC 210 of 2007 (29 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 210 of 2007

JOHN CHARLES WARDEN,
THE ZORO GROUP LIMITED

-v-

THE ATTORNEY-GENERAL
(Representing the Commissioner of Labour)

Date of Hearing: 29 August 2007
Date of Ruling: 29 August 2007

P. Lavery for the Plaintiffs/Applicants
No appearance of Respondent/Defendant

RULING on summons for certiorari arising out of the Commissioner of Labour’s refusal to issue a work permit following the Ministers order on appeal.

Brown, J: The 2nd applicant, the Zoro Group Limited is a company registered in the SI and employs the 1st applicant John Charles Warden. He is the companies General Manager. A work permit (for Mr. Warden is not a citizen of the SI) was originally granted Mr. Warden on the 9 August 2002 so that he in terms of s. 37(1) of the Labour Act was then lawfully able to act and work in his capacity as General Manager. He in fact did so work and continued until this imbroglio which started about the 21 November last year, and resulted in Mr. Warden ceasing to act and provide services on Zoro’s behalf to Woodford International School. It would seem one Houmakiki Patterson wrote to Woodford on behalf of the Commissioner of Labour asserting that Woodford had breached the Labour Act by employing Mr. Warden.

This is an apparent misapprehension by Mr. Patterson as to the factual situation surrounding Mr. Warden employment. He is the General Manager of Zoro which company contracts its services to Woodford. "System made" law in this case, the Companies Act appears to be but barely understood, for while the respondent, the Commissioner of Labour has not appeared through the appropriate officer, the Attorney-General, from the approaches by Mr. Lavery [the lawyer for the applicant], it is plain the Commissioner had been appraised of the factual situation about Mr. Warden’s employment.

I am strengthened in that for the Minister for Commerce, Industries and Employment the Honourable. Peter Shanel did on the 17 April 2007 by letter to the Zoro Company, grant a permit to Mr. Warden for a period of 2 years. That grant was given under the Ministers powers to be found in s. 37(8) of the Act which provides that the Minister may confirm the Commissioner’s refusal to grant a work permit, vary the decision or over- rule it. The Minister plainly has over-ruled the Commissioners refusal to grant a permit for otherwise the letter of the Minister has no underlying purpose.

Once an appeal reaches the Minister the decision rests with him in his absolute discretion. That means neither Mr. Warden nor the Commissioner can take issue with the Ministers decision (unless this court in terms of its inherent jurisdiction finds that the exercise of the Ministers power has miscarried in some way).

That is not the issue here. The issue is the Commissioners assertion that he may act contrary to the Ministers determination. Mr. Lavery says the Commissioner appears to have purported to act on the basis that the Minister may only consider an appeal against a refusal, not a revocation of a permit. Frankly this on the facts, is not the case here.

As I say, the original work permit issued in 2002, it was freshly granted in 2004 and approval for a further renewal in similar terms given on the 6 September 2006 when the fees were duly paid. There was a legitimate expectation that a valid work permit would then issue. That legitimate expectation was not in fact realised for as Mr. Warden says, the Commissioner denies the right in the Minister to hear this appeal.

I’m satisfied the 1st applicant had never been employed by Woodford, was not on its pay roll as an employee, had not committed any criminal offence (none was suggested) and the Commissioner appears perversely to have acted contrary to law in that he has ignored the Ministers determination on the appeal.

For all these reasons, I grant an order of certiorari to bring up and quash the decision of the Commissioner to rescind or withdraw the approval granting the renewal of Mr. Warden’s work permit found in the Commissioner’s letter of the 29 November 2006. Clearly the Commissioner has deigned not to accept the Ministers review. It is consequently for this court to exercise its powers in terms of the prerogative writ of certiorari and I have no hesitation in making that order.

I should say I have allowed the matter to proceed on short notice for the summons was served on the Attorney’s office on Monday last. Since the first notice of this matter was given AG was on the 12 March 2007 and no satisfactory response by the Attorney in the light of the facts has been made, I am satisfied the matter may proceed today. The application has clearly been pursued with a proper regard to the need to appraise the Commissioner of the applicants intention to proceed to court in the light of the Commissioners refusal to accept the Ministers determination.

The basis of the claim for certiorari has plainly been made out. The Commissioners actions are as I say perverse in the circumstances. They have no basis in law following the Minister decision and I direct the Commissioner to issue the permit forthwith.

The respondent shall pay the applicants costs on an indemnity basis

THE COURT