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Bong v Airport Vanuatu Ltd - Judgment [2015] VUSC 165; Judicial Review 26 of 2015 (6 November 2015)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Judicial Review Case No. 26 of 2015

BETWEEN:

PETER BONG
ALAN CARLOT
KEVIN ABEL
Claimants

AND:

AIRPORT VANUATU LTD
First Defendant

AND:

VAKE RAKAU AS ACTING COMMISSIONER OF POLICE
Second Defendant

Coram: Mr Justice Oliver A. Saksak

Counsel: Felix Laumae for First, Second and Third Claimants (the Claimants)
Daniel Yawha for the First Defendant
Kent Tari (State Law Office) - No instructions

Date: 6thNovember, 2015

JUDGMENT

Introduction

1. This Judgment provides reasons for the Declarations and Orders issued by this Court on 4th November 2015. Those Declarations and Orders are annexed and they form an integral part of this judgment.
   

Background Facts

2. It is necessary to understand the background facts that give rise to this and other past legal proceedings initiated by both these claimants against the First Defendant ( AVL) and by AVL against the claimants as follows:-
   
   1. On 21st March 2014 AVL suspended Peter Bong from duties and terminated his employment on 3rd July 2014. On 2nd May 2014 AVL suspended Alan Carlot from duties and terminated his employment on 24th June 2014. And on 27th June 2014 AVL terminated Kevin Abel's employment.
      
   2. Subsequently the Claimants challenged their suspensions and terminations by filing Judicial Review Case No.16 of 2014.
      
   100. The First Defendant simultaneously filed Supreme Court Claims No. 284 of 2014 and No.294 of 2014 against the Claimants relying on the allegations AVL had made against the claimants as the basis of their terminations of employment.
        
   4. On 3rd November 2014 this Court gave judgment in favour of the Claimants and ordered their reinstatements.
      
   5. On 5th November 2014 the Claimants and the First Defendant executed Deeds of Release settling their respective claims against each other. As a result, Civil Case No.284 of 2014 and Civil Case No. 294 of 2014 filed by the First Defendant against the claimants were discontinued.
      
   6. The Claimants resumed their duties and respective positions until 12th November 2014 when AVL again issued letters of suspensions.
      
   7. Subsequently the Claimants filed Judicial Review Case No. 30 of 2014 challenging their suspensions. The Claimants also filed contempt proceedings against the First Defendant in the Courts of Judicial Review Case No. 16 of 2014 (JR 16/2014).
      
   8. The First Defendant lodged an appeal against the judgment of JR 16/2014 resulting in the Court staying Judicial Review Case No. 30 of 2014 and the contempt proceeding on 3rd and 7th November 2014 pending the determination of the appeal by the Court of Appeal.
      
   9. On 8thMay 2015 the Court of Appeal determined the appeal in JR 16/2014 and dismissed AVL's appeal.
      
   10. As a result and subsequently AVL discontinued their Judicial Review Case No. 30 of 2014 because-
       
       • (i) Of the existence of the Deeds of Release dated 5th November 2014.
         
       • (ii) The claimant's contracts had expired
         
       • (iii) The claimant's claims for employment entitlements were before the Court in normal civil claims or actions.
         
   11. On 26th September 2015 the Second Defendant caused to be published on the front page of the Daily Post Newspaper in Issue No. 4588 and over the television that he had appointed investigators to investigate allegations against the former management of the First Defendant.
       
   50. Prior to making these public announcements the Second Defendant's son, Jason Rakau was employed by AVL as Chief Executive Officer and was terminated at the time allegedly for serious misconduct.
       
   13. Whilst on suspension AVL alleged that Mr J. Rakau had refused entry to the members of the Board of Directors of AVL to their office to attend and conduct a Board meeting. This occurred on 16th September 2015.
       
   14. As a result AVL requested the assistance of the police to remove the Second Defendant's son from AVL's office. It is alleged the Second Defendant refused, neglected or stopped his officers from so engaging.
       
   15. On 18th September 2015 Mr Alain Lew, Chairman of the Board of Directors of AVL wrote to the Second Defendant recording displeasure and disappointments over the actions and/or in- actions of the Second Defendant and of his son.
       
   16. On 2nd October 2015 the Police under the direction of the Second Defendant applied and obtained a search warrant in the Magistrate's Court to authorise their entry and search of the First Defendant's premises and offices in the course of their investigations in relation to the allegations made against the claimants. The investigations are continuing.
       

Allegations

3. The Claimants therefore allege that-
   
   1. The First Defendant are acting in breach of the Deeds of Release executed on 5th November 2014.
      
   2. They are at high risk of being arrested by the Police.
      
   100. The Second Defendant has no standing to lodge a complaint against the claimants.
        
   4. The Second Defendant in doing so is acting in a conflict of interest, and in bad faith and with ulterior motives.
      

Reliefs Sought

4. The Claimants seek the following reliefs-
   
   1. A Declaration that AVL is estopped by law from lodging any criminal complaint to the Police against the claimants for allegations the subject of judgments in JR 16/2014, Court of Appeal Case No. 46 of 2014, Supreme Court Civil Cases No. 284/2014 and No. 294/2014 and the Deeds of Release dated 5th November 2014.
      
   2. A Declaration that Vake Rakau, as the Acting Commissioner of Police has no standing in law to initiate in his own right investigations into matters of concern to the First Defendant as a local incorporated company.
      
   100. An Order of Prohibition stopping the AVL and the Commissioner of Police and/or anyone working under their supervision and/or direction from investigations made against them by the First Defendant which was the subject of JR 16/2014, Court of Appeal Case No. 46 of 2014, Supreme Court Civil Cases No. 284/2014 and No. 294/2014, and the Deeds of Release dated 5th November 2014.
        
   4. Costs of and incidental of this application.
      
   5. Any further or other orders as deemed fit and necessary.
      

Evidence

5. The Claimants filed their Judicial Review Claim on 12th October 2015 together with the supporting sworn statement of Peter Bong of even date. This statement has 12 annexures as PB1, PB 2, PB 3, PB 4, PB 5, PB 6, PB 7, PB 8, PB 9, PB 10, PB 11 and PB 12.
   

These documents were served personally on the Second Defendant at his residence.

Application for Shortening of Time

6. Mr Laumae also filed an application for abridgment of time on 14th October 2015 together with a sworn statement confirming reasons for urgency and the grounds. Counsel confirmed to the Court at the hearing that these documents were also served on the Counsel for the First Defendant and on the Second Defendant personally.
   
7. Discussions
   

7.1. Mr Tari told the Court he had no instructions to act for the Second Defendant as he had not been served with any applications and their supporting documents. As such Counsel could not assist the Court any further. Counsel urged the Court to proceed on the basis of the materials and submissions of Counsel for the applicants and the First Defendant.

7.2. Mr Yawha did not object to the application for shortening of time. Counsel referred the Court to the letter dated 18th September 2015, written by Mr Alain Lew to Mr VakeRakau, Acting Commissioner of Police. See Annexure PB 12 to the sworn statement of Peter Bong. Counsel submitted that AVL's position on this matter is clearly stated in that letter. Counsel made a verbal request that all files and documents belonging to AVL seized by the Police under the search warrant issued by the Magistrate's Court on 2nd October 2015 be returned immediately as the operations of AVL are grossly prejudiced by the absence of those documents. Counsel confirmed that all parties have settled their grievances by Deeds of Release dated 5th November 2014 and submitted it was important that those arrangements be maintained and respected by the parties to the Deeds. Counsel also referred to his letter dated 9th October 2015 to Mr Laumae in response to his letter of 7th October 2015. These letters are Annexure FLTK 2 and FLTK 3 to the sworn statement of Mr Laumae.

7.3. Mr Laumae made oral submissions based on the grounds stated in both the application for shortening of time and the judicial review application and in the sworn statement filed in support of those applications by Mr Bong and Mr Laumae himself.

The Issues

7.4.1. Was there urgency to warrant abridgment of time for filing of defences or responses?

The Court was satisfied that there was both urgency and the risk of the claimants being arrested for allegations which were and now res judicata.

The sworn statement of Peter Bong annexes Issue No. 4588 of the Daily Post Newspaper ( Annexure PB 11) carrying on its front page an Article entitled " Investigations Launched – Police Investigate VPL CEO and AVL Management". And it depicts the photograph of Mr VakeRakau as Acting Police Commissioner appointing his Police investigating team. This Issue was published on Saturday 26th September 2015. This occurred some 8 days after Mr Lew had written on 18th September 2015 to the Police Commissioner expressing the views of AVL. There was no response to that letter. Then there is in evidence a search warrant ( Annexure FLTK 1) dated 2nd October 2015 issued by the Magistrate's Court. For those reasons the Court allowed the claimants' application to shorten time for the filing of defences by the defendants and proceeded to hear Counsel in relation to the judicial review claim.

Rule 17.8 (3) - Whether Court satisfied tests were made?

7.4.2. The First Defendant conceded the application for shortening of time and to the judicial review claim. In their view AVL would benefit from the applications therefore in effect they had no defence. Their positions are clearly expressed in the letter written by Mr Yawha to Mr Laumae on 9th October 2015 in response to Mr Laumae's letter of 7th October 2015 (See Annexure FLTK 2 and FLTK 3).

As for the Second Defendant he was aware of AVL's position from 18th September 2015 when Mr Lew wrote to him. But there was no response but it is obvious he proceeded to appoint an investigating team to carry out his intentions, hence the publication made in the Daily Post on 26th September 2015. Subsequently there was the search warrant issued on 2nd October 2015. The Second Defendant was served with this proceeding in person at his residence. However he failed or omitted to instruct the State Law Office or another Solicitor of his choice or make representation in person. The possible implication is that the Second Defendant had and has no prospect of defending this claim.

Under those circumstances, I was satisfied from the materials before the Court that-

1. The claimants had and have and arguable case.
   
2. They are directly affected by the decision of the Second Defendant.
   

100. There has been no undue delay in filing their claims.
     

4. There is no other remedy that resolves this matter fully or directly.

This issue was answered in the affirmative.

7.4.3. Whether Mr VakeRakau as Police Commissioner has standing to lodge complaints?

Mr Laumae submitted in the negative. Mr Yawha also submitted in the negative and referred to AVL's clear position in his letter dated 9th October 2015 and further to the letter by Mr Lew dated 18th September 2015. Both Counsel referred the Court to the Deeds of Release dated 5th November 2015 (Annexure PB 5). Both Counsel argued and submitted the Deeds of Release bind both AVL and the claimants regarding their past cases in JR 16/2014 ( Annexure PB 6) JR 30/2015 and Civil Cases No. 284 of 2014 and No. 294 of 2014 (A-PB3) and Civil Appeal Case No. 46 of 2014( Annexure PB 10). Both Counsel submitted that the allegations being currently investigated by the Police Commissioner are the very and same allegations used against the claimants by AVL in Civil Cases No. 284 and 294 of 2014 ( Annexure PB 3).

I found that in none of those previous cases which have now been resolved fully by the parties under the Deeds of Release dated 5th November 2014, was Mr Rakau a party. As such I am satisfied Mr Rakau as Acting Police Commissioner has no standing to lodge a complaint or carry out investigations.

7.4.4. Whether the allegations are resjudicata?

For reasons advanced in paragraph 7.4.3 this issue is answered in the affirmative. JR 16 of 2014 was appealed to the Court of Appeal in Civil Appeal Case No. 46.2014. This appeal was dismissed. As a result and subsequently AVL discontinued Civil Cases No. 284 and No. 294 of 2015 against the claimants. Those two cases contained the same allegations which are currently being investigated by the Police Commissioner on his own complaint and not on the complaint of AVL. The investigations are crippling AVL and its operations and management instead of being beneficial. Clearly the actions of the Police Commissioner are irrational as the allegations he is investigating are res judicata in the sense that AVL are bound by their Deeds of Release of 5th November 2014 and by their Discontinuance of Civil Cases No. 284 and No. 294 of 2014.

7.4.5. Whether the Police Commissioner acted in a conflict of Interest, in bad faith and with ulterior motives?

The common facts are that the Second Defendant's son Mr Jason Rakau was appointed as Chief Executive officer of AVL and was suspended and terminated. On 16th September 2015, Mr Rakau interfered with the Board of Directors' meeting scheduled for that date. When the Police were asked for assistance, their request was refused or ignored.

Subsequent events occurred directly as a result of the suspension and termination of Jason Rakau and the interference of the Board meeting by him on 16th September, 2015.

For those reasons, it is the view of this court that the Second Defendant has acted in a conflict of interest and in bad faith. This issue is therefore answered in the affirmative.

7.4.6. Would the Deeds of Release dated 5th November 2014 be breached by the First Defendant ifthey allowed the Police investigations to continue?

The First Defendant had expressed this fear and risk in their letter dated 9th October 2015 written by Mr Yawha to Mr Laumae. The answer to this issue is obviously in the affirmative.

7.4.7. Is AVL entitled to recover their files and Documents?

A search warrant was issued on 2nd October 2015. Subsequent to that AVL has complained that its operations and management are being hampered by the absence of their files and documents and have requested verbally that they be returned forthwith. The Court accepted that request on the basis the Police Commissioner has no standing and that the allegations are res judicata.
Accordingly this issue is answered in the affirmative.

7.4.8. Whether the claimants are entitled to costs?

The Court held the Claimants are entitled to their costs of this action against the Second Defendant personally. It appears the Second Defendant acted in conflict of interest, in bad faith and irrationally in the circumstances. As such liability for costs must be personal as held by the Court.

DATED at Port Vila this 6th day of November, 2015
BY THE COURT

OLIVER.A.SAKSAK
Judge