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Warau v Attorney General [2014] SBHC 96; HCSI-CC 226 of 2013 (2 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

ALFRED WARAU
Claimant

AND:

ATTORNEY GENERAL
Defendant

Date of hearing: 19 May 2014.
Date of Judgment: 2 July 2014.

Mr. M. Haurii for the Claimant.
Ms. F. Taeburi for the Defendant.

RULING
Apaniai, PJ:

Introduction.

1. This is an application by Attorney General ("Applicant") for dismissal of a judicial review claim filed against it by Alfred Warau ("Respondent") on the grounds that the claim is frivolous and vexatious and discloses no reasonable cause of action. Alternatively, the defendant seeks a dismissal of the claim pursuant to rule 15.3.18 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules").
   
2. In the claim, the Applicant seeks the following remedies:-
   

[1] Leave to file the claim out of time pursuant to the Rules.

[2] An order to quash the dismissal of the defendant on 3 September 2012 on the ground that the dismissal was unlawful, unfair and unauthorised by law.

[3] An order to quash the dismissal of the claimant on 3 September 2013 on the ground that the Misconduct Report relied on in dismissing the claimant was made contrary to Public Service Regulations 1998 in the following manner:-

[a] No opportunity was given to the claimant to give evidence against the allegations and the contents of the Report;

[b] No opportunity was given to the claimant to be represented and was denied representation or the right to be heard;

[c] No opportunity was given to the claimant to see and examine a copy of the Report.

[4] A declaration that the dismissal or termination of the claimant based on the Report which was not given to the claimant was wrong in law, unlawful and unfair.

[5] An order consequent upon [2], [3], [4] that the claimant's appointment is still valid and is entitled to all benefits under his contract of service with the defendant from the time of dismissal until judgment.

[6] A mandatory order that the defendant reinstate the claimant to his post within 14 days as of the date of the order.

[7] An mandatory order that the defendant pay the claimant his salary loss of $2,494.04 per fortnight, loss of NPF contribution from the employer of 7.5% and loss of housing allowance of $2,500.00 per month as from the date of termination to the date of judgment.

[8] A mandatory order that the defendant pays the claimant damages to be assessed but limited to $150,000.00.

[9] A mandatory order that the defendant pays damages for abuse of public office to be assessed but limited to $150,000.00.

[10] Costs.

[11] Further or other orders as the court thinks just and fit.

3. The Applicant says that the claim is frivolous, vexatious and discloses no reasonable cause of action because, first, the Respondent had not exhausted all available remedies before filing this claim (Rule 15.3.18(d)), second, the claim is against the wrong party (PSC), and third, the claim being a judicial review claim has been filed outside the six months period allowed for filing judicial review claims (Rule 15.3.8).
   

Facts not disputed.

4. The following facts and chronology of events are not seriously disputed.
   
5. The Respondent was a public officer employed as Assistant Commissioner of Lands (Urban) with the Ministry of Lands, Housing & Survey ("MoL"). He had been so employed for 28 years. He was dismissed on 3 September 2012 on charges of misconduct.
   
6. The charges allege that he had manipulated the land allocation process and had been granting land to his close associates and relatives without going through the proper process. They also allege that he has been allocating land to himself without going through the proper process.
   
7. These charges were reported to the Permanent Secretary of the Ministry of Public Service ("PS/MPS") on 18 July 2011.
   
8. On 11 August 2011, the PS/MPS wrote to the Respondent informing him of his suspension for misconduct.
   
9. On 13 September 2011, the PS/MPS again wrote to the Respondent informing him that he was suspended on half pay, probably, pending investigations.
   
10. A detailed report of the allegations against the Respondent was then sent by the Permanent Secretary of the Ministry of Lands ("PS/MoL") to the PS/MPS on 7 February 2012.
    
11. On 27 April 2012, the PS/MPS wrote to the Respondent informing him of the charges against him and advising him to respond to the charges within 14 days. No response was received from the Respondent within those 14 days.
    
12. However, on 31 May 2012, the Respondent's solicitor, Mr. Martin Haurii, wrote to the PS/MPS requesting further and better particulars of the charges.
    
13. The PS/MPS did not respond to Mr. Haurii's letter as he was of the view that the details of the charges as stated in his letter to the Respondent dated 27 April 2012 were sufficiently clear and therefore it was not necessary to provide any more details. Nevertheless, on 18 June 2012, the PS/MPS again forwarded to the Respondent a copy of the letter dated 27 April 2012 to the Respondent.
    
14. On 16 July 2012, the Respondent wrote to the PS/MPS requesting replies to his previous letters. On 17 August 2012, the PS/MPS wrote to Mr. Haurii advising him that the Ministry of Public Service ("MPS") will not accept any more representation from the Respondent.
    
15. On 3 September 2012, the PS/MPS wrote a letter to the Respondent dismissing him from the Public Service and advising him of his right of appeal to the PSC within 14 days.
    
16. On 24 September 2012, the Respondent issued a letter of appeal to the PSC against his dismissal by the PS/MPS explaining in that appeal letter that he had only received the dismissal letter on the 13 September 2012.
    
17. On 2 July 2013, the Respondent filed this claim. The claim has named the defendant as the Attorney General (for and on behalf of the Public Service Commission) despite the fact that the PSC had not yet received the appeal letter, nor made any decision on the appeal.
    
18. The PSC had received the appeal letter dated 24 September 2012 on 12 March 2014. On 14 March 2014, the PSC deliberated on the appeal and upheld the decision by the PS/MPS to dismiss the claimant. To date, that decision has not been challenged.
    

Submission by the Applicant.

19. In her submission, Ms. Taeburi, of counsel for the Applicant, has put forward three reasons why the claim should be dismissed. First, she argues that the Respondent had not exhausted all available remedies before filing this claim. Second, she argues that the claim is against the wrong party (PSC), and third, she says that the claim, being a judicial review claim, is out of time.
    

Whether there is an alternative remedy.

20. The first issue in this application is whether there was an alternative remedy available to the Respondent.
    
21. The decision to dismiss the Respondent was conveyed to the Respondent by letter dated 3 September 2012 written by the PS/MPS. It was a decision made by the PS/MPS under delegated powers. Under regulation 14 of the Public Service Regulations 1998, a person aggrieved by a decision of the PS/MPS has a right of appeal to the PSC against the decision of the PS/MPS. The Respondent had done that on 24 September 2012. Having filed the appeal, is he entitled to come to court by way of judicial review to challenge the decision against which he has already filed an appeal? I do not think so.
    
22. Judicial review is a discretionary remedy. It has been said by this court from time to time that judicial review is not normally granted when statute provides for an appeal process. Furthermore, Rule 15.3.18 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") prevents the court from hearing a claim unless three conditions are satisfied. One of them is that there is no other remedy that resolves the matter fully and directly.
    
23. No other reason has been given by the Respondent why he has decided to come to court for judicial review when he has already filed an appeal to the PSC apart from the argument that the decision to dismiss was that of the PSC because dismissal of public officers is a function of the PSC and in making the decision to dismiss the Respondent the PS/MPS was acting on behalf of the PSC.
    
24. I do not agree with that submission. It is clear that the decision was made by the PS/MPS and that an appeal against that decision lies to the PSC. In any event, the PSC has decided the appeal on 14 March 2014 and has dismissed the appeal. There is no challenge to that PSC decision and I think the matter should be laid to rest.
    
25. I am satisfied that an appeal under regulation 14 of the Public Service Commission Regulations 1998 ("PSC Regulations") is available to the Respondent which could fully and directly resolve this matter between the parties. For that reason, the application succeeds.
    
26. I am also satisfied that the decision being challenged in this claim was a decision made by the PS/MPS under delegated powers and is a decision which is appealable to the PSC under regulation 14 of the PSC Regulations. It is not a decision made by, or on behalf of the PSC. In that regard, this claim was brought against the wrong party and should be dismissed. For that reason, this application also succeeds.
    

Whether the judicial review claim is out of time.

27. Rule 15.3.8 requires applications for quashing orders to be made within 6 months from the date of making the decision being challenged. The decision by the PS/MPS was made on 3 September 2012. This claim was filed on 2 July 2013. It is more than 9 months out of time. Of course, the court has power under rule 26.6 to extend the 6 months period if need be and I note that the Respondent has sought leave to file the claim out of time. Unfortunately, no valid reason has been put forward for the delay in filing the claim and, in any event, the circumstances of this case has made it inappropriate to grant any extension of time. The application also succeeds on this ground.
    

Decision and orders.

28. For the reasons stated above, I am satisfied the claim is frivolous and vexatious and discloses no reasonable cause of action and should be dismissed.
    
29. The orders of the court are:-
    

[1] The application is granted.

[2] The claim is dismissed.

[3] The Respondent shall pay the costs of the defendant on standard basis.

THE COURT
_________________________
James Apaniai
Puisne Judge.