Jonassen v Henry [1992] CKHC 6; OA 06.1990 (1 July 1992)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
OA 6/90

IN THE MATTER
of the Declaratory Judgement Act 1908

AND

IN THE MATTER
of the Applicant's remuneration as a Public Servant

BETWEEN

RENA JONASSEN
of Rarotonga, Public Servant
Applicant

AND

GEOFFREY ARAMA HENRY
Attorney General for and on behalf of the Crown
Respondent.

Counsel: Mr Holmes for Applicant
Mr Mitchell for Respondent

Date: 1 July 1992

INTERIM JUDGMENT OF QUILLIAM J

On the 16^th of May 1990 an application was filed on behalf of the applicant in respect of matters relating to his service in the Cook Islands Public Service. In effect these related to allegations that he had not received appropriate increments in grading and salary under the relevant statutory provisions. The application was made under the Declaratory Judgements Act and purported to raise matters of interpretation of the statutory provisions. In particular they concerned matters which occurred in 1979, 1980 and 1981.

On the 19^th June 1992 an amended application was filed. This altered materially the basis of the proceedings. It was in two parts. First there was an application under the Declaratory Judgement Act which, in a different manner, sought interpretation of statutory provisions affecting the same matter as those in the original application. In particular, orders were sought in the form of declarations that the applicants was entitled to certain increments in salary. There was then an application for a Consequential Order of mandamus to compel the Public Service Commissioner to carry out obligations which it was said, he had previously failed to carry out. Those obligations related to the same matters as contained in the original application, but also added a further matter which concerned actions of Public Service Commissioner in December 1991 and subsequently.

To this amended application the Respondent has filed a Statement of Defence. There is no provision for such a document; in a proceeding of this kind but it was the only way to put the Respondent’s position before the court. That Statement of Defence has raised the question of Limitation Act as it may apply to the Declaratory Judgement proceedings and also the question of the delay as it related to the mandamus application.

These questions of limitation and delay have been argued as preliminary matters and require determination now.

I should mention that the form of the proceedings has concerned me from the start. I have great difficulty in accepting that the matters the applicant wished to have resolved could ever have been properly resolved in an application under the Declaratory Judgements Act.

I deal first with the mandamus proceedings. It is common ground that no question of delay applies to that part of proceedings, which now relates to events originating in December 1991. The matter for determination concerns those earlier issues which relate to events occurring in 1981 and earlier.

From as early as 1979 the applicant, being dissatisfied with the actions of the Public Service Commissioner, had the benefit of legal advice. If at about that time he had sought by mandamus to compel the Commissioner to do what he now seeks should be done then it would seem that this would have been an appropriate proceeding. However, he did not do so. He has at the present hearing given evidence as to the delay and has attributed this to the fact that he was continually making representations to and demands upon the Public Service Commissioner. That seems to me to exacerbate the problem. Throughout the whole of this period of 11 years and more, notwithstanding that the applicant had legal advice, he took no step to issue any proceedings. What is now sought is one of the prerogative writs, which is a matter in the discretion of the Court. It is well settled that any person who seeks such a remedy must act promptly and without undue delay. In this case I think that some initial delay may have been excusable, particularly as it would have involved a public servant challenging the authority of the Commissioner. There may have been a natural desire to achieve a result by some course short of court proceedings. But this could not apply indefinitely. Even when proceedings were finally issued they were not for mandamus. That application only appeared in June 1992.

In my opinion it would be a negation of all the established principles relating to discretionary remedies to allow the present mandamus application to proceed so far as it relates to those matters in 1981 or earlier. It may, of course, proceed in respect of the matters occurring in and after December 1991.

QUIILLIAM, J.