Attorney-General v Wheeler [1990] SBCA 3; CA-CAC 006 of 1989 (2 August 1990)

SOLOMON ISLANDS COURT OF APPEAL

THE ATTORNEY GENERAL AND
THE CHAIRMAN OF THE PUBLIC SERVICE COMMISSION

-v-

WHEELER

(Connolly P. Kapi and McPherson JJA)

Hearing:
Judgment: 2 August 1990

R. Teutao for the First and Second Appellants
T. Kama for the Respondent

CONNOLLY P: I have had the advantage of reading the judgments prepared in this case by Kapi and McPherson JJ.A. I agree entirely with the conclusion reached by each of my Lords that none of the relief granted by the judgment of Cooke C.J. Vanuatu sitting as a Judge of the High Court of Solomon Islands in Action 207 of 1989 can be sustained. The appropriate order therefore is that the appeal be allowed with costs, the judgment set aside and that in lieu thereof there be judgment in the action for the defendants with costs to be taxed.

KAPI JA: This is an appeal against a decision of the High Court under s.11 of the Court of Appeal Act 1978.

In order to understand the nature of the appeal it is necessary to outline the background to the case.

Mr Wheeler, the respondent on this appeal, was recruited to work in the Solomon Islands as a senior stores officer in the Ministry of Transport, Works and Utilities. He was recruited in the United Kingdom under the Overseas Service Aid Scheme and signed an Agreement of Service dated 14 May, 1988.

On 22 May, 1989, Mr Wheeler received a letter from the Office of the Prime Minister terminating his appointment. It was in these terms:

"1. I am directed to inform you that in line with the new government's re-organisation and review of provisions in ministries, it is seen in the interest of the public service of Solomon Islands that your services as senior stores officer (MTWU) are no longer required.

2. Accordingly, under Clause 12(b) of your Agreement of Service, you are given 3 months' salary in lieu of this letter which serves as notice of your termination.
   

Your assignment terminates as from 23 May, 1989."

At that time, the Prime Minister was also responsible for the Public Service. On 2 June, 1989, Mr Wheeler in a letter appealed to the Public Service Commission. The Public Service Commission considered the appeal and reached the conclusion that it would not hear the matter as Mr Wheeler was never formally appointed by the Commission.

Mr Wheeler then, by originating summons, applied to the High Court to clarify certain questions of law. Two questions were raised for consideration by the court:

"1. Does the Minister responsible for the Public Service have the power to terminate the applicant from his employment under the terms of an Agreement of Service dated 14 May, 1988 since the applicant is deemed to be an officer under the same agreement?

2. Does the Public Service Commission of Solomon Islands have jurisdiction to decide on the termination and/or to hear and determine the appeal against the termination of a public officer employed under a contract of employment, in particular the applicant whose contract states that he is "subject to and entitled to the benefits of the appropriate service commission regulations, general orders of Solomon Islands or instructions for the time being in force insofar as the same are applicable?"
   

It is curious that the originating summons was couched in these terms. I am not aware of any cause of action which may be instituted in these terms. Essentially the summons sought advisory opinions from the court. The proper cause of action would have been to apply for the judicial review of the decision of the Minister responsible for Public Service and the Public Service Commission under the rules of the High Court. Such a cause of action would have raised the two questions posed in the summons. I mention this in passing because the High Court has no jurisdiction to give advisory opinions. It has jurisdiction only to deal with a cause of action arising under the law. However, that is not a relevant issue in this appeal.

The originating summons came on for hearing before Ward C.J. on 31st August, 1989 and he published his opinion on 4th September, 1989. For the purposes of this appeal, Ward C.J. expressed the following opinions:-

"1. That the Minister responsible for the Public Service does not have the power to terminate Mr Wheeler. That power is vested in the Public Service Commission.

2. That the Public Service Commission has jurisdiction to decide the termination of employment of a contract officer.
   
3. That certain provisions of the Regulations did not apply to termination of an officer under a contractual term such as Clause 12(b) of the Agreement of Service as this is expressly reserved from the Regulations by regulation 77."
   

Ward C.J. consequently ruled that the termination of Mr Wheeler by the Office of the Prime Minister was invalid with the effect that Mr Wheeler remained a public officer under the Agreement of Service.

After this decision, things did not go smoothly with Mr Wheeler. It is not necessary to set out all the facts except to say that the Minister for Transport, Works and Utilities, Under-Secretary (Works) Ministry for Transport, Works and Utilities and other officers within the department made it difficult for Mr Wheeler to return to work.

In the meantime, the Office of the Prime Minister had studied the judgment of Ward C.J. carefully and had taken steps for the Public Service Commission to consider taking the appropriate action as set out in the judgment of the Chief Justice:-

"This does not mean the Government cannot terminate the contract by invoking clause 12(b). What it means is that, if the Minister wishes to take that step as he is, of course, entitled to, he must follow the proper procedures and the termination will then be made by the Commission if it feels it is a proper case."

The Public Service Commission in a letter dated 12th September, 1989 advised the lawyer for Mr Wheeler that it would reconsider the question of termination of Mr Wheeler in the following week. Mr Wheeler was notified on 19th September, 1989 that the Public Service Commission would sit to hear the matter and that he should make representations if he wished to. He was advised that his termination would be considered under Clause 12(b) of the Agreement on the basis that his position would be localised by Mr Sam Siroouoo. Mr Wheeler and his lawyer made submissions to the Public Service Commission on the afternoon of 19th September, 1989. On 20th September, 1989 the Public Service Commission advised Mr Wheeler that it had terminated his employment with effect from 19th September, 1989 with three months' salary in lieu of notice in accordance with Clause 12(b) of the Agreement.

On 18th September, 1989, the lawyer for Mr Wheeler filed a notice of motion to be heard on 22nd September, 1989. This motion was never served on the other parties. However, the lawyer for Mr Wheeler notified the Public Service Commission on 19th September, 1989 that he had filed this Notice of Motion. There is no suggestion and there is nothing in the record to suggest that Mr Wheeler or his lawyer had requested the Public Service Commission to adjourn its hearing or consideration of the termination of employment pending the hearing of the notice of motion. This notice of motion was not heard until it came on for hearing on 14th November, 1989 before Cook C.J. of Vanuatu, sitting as a Judge of the High Court of Solomon Islands. Cook J. gave his judgment on 17th November, 1989. It is from this decision that the appellants have appealed.

Mr Wheeler sought by the notice of motion that:-

"(a) The Minister for Transport, Works and Utilities.

(b) The Minister responsible for the Public Service.

(c) The Permanent Secretary to the Public Service.

(d) Secretary to the Ministry of Transport, Works and Utilities.

(e) The Under-Secretary of Works and the Ministry of Transport, Works and Utilities,

together with any public servants or governments agents be restrained from -

(i) harassing the applicant,

(ii) preventing or attempting to prevent whether directly or indirectly the applicant from entering his place of work in the mechanical stores and its surrounding areas of the Ministry of Transport, Works and Utilities compound in Honiara,

(iii) preventing or attempting to prevent whether directly or indirectly the applicant from carrying on or performing his work as the senior store officer in the mechanical stores and its surrounding areas of the Ministry of Transport, Works and Utilities compound in Honiara.

And further that the Court declare that (i) the appointment of one Sam Siroouoo into the post of senior stores officer be null and void since the applicant was and still is at the material time the senior stores officer......."

At the time of the filing of this notice of motion, Mr Wheeler was already reinstated by the decision of Ward C.J. which was handed down on 4th September, 1989. His difficulty was that he was not allowed to perform his duties by other responsible officers in the department. This notice of motion was intended to lead to interim injunctions to restrain those named in the motion from harassing, preventing or attempting to prevent Mr Wheeler directly or indirectly from carrying on or performing his duties. The interim nature of the orders sought is clearly reflected in the usual undertaking to pay damages expressly set out in the beginning of the motion. It is curious, therefore, that the motion sought a further order for a declaration that the appointment of one Sam Siroouoo was null and void. Again I mention in passing that this is not the proper procedure for instituting such a cause of action. On 29th September, 1989 Mr Wheeler issued a writ of summons against the Attorney General and Public Service Commission seeking orders amongst others that the promotion of Mr Sam Siroouoo was void. Mr Wheeler further filed a notice of motion dated 17th October, 1989 seeking orders which appear to be an application for summary judgment on the writ of summons referred to above. As far as we have been made aware, the writ of summons and the last-mentioned notice of motion are still pending and have not been dealt with.

However, when the notice of motion dated 18th September, 1989 was finally brought on for hearing before Cook J., it is clear that the issue of the appointment of Sam Siroouoo was the subject matter of a writ of summons pending in the court.

It appears from the court record that counsel appearing before Cook J. confused the whole nature of the notice of motion filed on 18th September, 1989. The record shows that counsel made no submissions on the interim injunctions sought. They made reference to the writ of summons on the question of appointment and promotion of Sam Siroouoo and termination of Mr Wheeler by the Public Service Commission on 19th September, 1989.

The matter is further complicated by the fact that Cook J. did not make any rulings on the grounds that were advanced before him. With respect, not only did he go outside the issues raised by the notice of motion but decided the main issue on a proposition of law which was not advanced by counsel. In his reasons for his decision Cook J. set out the terms of the motion and continued:-

"The Public Service Commission having been informed of the notice of motion before the High Court should have taken cognisance of it and allowed the process of justice to continue and postponed the hearing of the termination of plaintiff's contract and the reconfirmation of the appointment of Sam Siroouoo to plaintiff's post.

Their action, in ignoring the notice of motion before the High Court was unconstitutional and illegal as the matter was sub-judice."

Counsel for the appellants contests this alleged principle. His submission is simple and that is that there is no principle of law which supports such a proposition. There simply is no authority directly on point. Counsel for the appellants has referred to a number of cases dealing with the question of sub-judice in a different context. In the case of Wallersteiner v. Moir (1974) 3 All E.R. 217 the question was whether the issue of a writ of summons for libel stops investigation or discussion of the issues raised in litigation. It was suggested in argument that to continue to discuss or investigate the matters which arise in the pending litigation would amount to contempt of court. Lord Denning at p. 230 said the following:-

"I know that it is commonly supposed that once a writ is issued, it puts a stop to discussion. If any one wishes to canvas the matter in the press or in public, it cannot be permitted. It is said to be 'sub-judice'. I venture to suggest that it is a complete misconception. The sooner it is corrected, the better. If it is a matter of public interest, it can be discussed at large without fear of thereby being in contempt of court. Criticisms can continue to be made and can be repeated. Fair comment does not prejudice a fair trial. That was well pointed out by Salmon L. J. in Thompson v. Times Newspaper Ltd. The law says - and says emphatically - that the issue of a writ is not to be used so as to be a muzzle so as to prevent discussion. Jacob Factor tried to suppress the 'Daily Mail' on that score but failed. See R. v. Daily Mail (Editor) Ex parte; Factor. Lord Reid has said that a 'gagging' writ ought to have no effect - see the Sunday Times case. Matters of public interest should be, and are, open to discussion, notwithstanding the issue of a writ.

So here I would hold that a discussion of company affairs at a company meeting is not a contempt of court. Even if a writ has been issued and those affairs are the subject of litigation, a discussion of them cannot be stopped by the magic word 'sub-judice'."

The respondent can gain very little support from this line of authority.

In the context of courts having concurrent jurisdiction in the same cause of action, the respondent can also find very little support for the proposition formulated by Cook J. In the case of In re Harris [1936] NSWStRp 57; (1936) 37 S.R. (N.S.W.) 17 Jordan C.J. set out the issue on p. 26:-

"The difficulty in the present case arises through the existence in several courts of concurrent jurisdictions. Wherein a number of courts have jurisdiction to deal with the same subject matter and the matter has been deal with, or some step has been taken toward dealing with it, in one of the courts, the position that arises if it is sought to litigate the matter in one of the other courts may depend to some extent on the stage which the matter has reached in the court which has dealt with it. If the matter is one capable of being disposed of finally and irrevocably, and suitor has obtained relief of a final character in respect of it in a subordinate court, he cannot subsequently seek relief in respect of the same matter in a superior court Clarke v. Yorke (47) L.T. 381), Birmingham v. Allsopp (119) L.T. 775). But the mere fact that a proceeding has been begun in one of the courts does not necessarily prevent another of the courts from entertaining a proceeding in the same matter. It is no answer to an action in a superior court that a proceeding in respect of the same matter is pending in a subordinate court. Laughton v. Taylor (6M & 695). Where the proceedings are begun in two courts of coordinate jurisdiction, these courts will put the party to his election as to which of the proceedings he will prosecute". See also M'Murrary v. Wright (1862) 11 W.R. 34.

Counsel for the appellants has submitted that this court should extend the principles enunciated in the above cases and formulate the principle in Solomon Islands that the mere fact that a proceeding has been begun in a court of law does not necessarily prevent a party to the agreement of service exercising a right under the agreement.

Where a cause of action is commenced in the High Court, the High Court Rules make provision for any party to either preserve or restrain the other party from performing certain acts until the matter pending before the court is dealt with.

Similarly, on the question of appeal against a decision of the High Court to the Court of Appeal, filing of a notice of appeal does not automatically act as a stay of proceedings. An application may be made to a single judge of the Court of Appeal for an order to stay execution or make any interim order to prevent prejudice to the claims of any party pending appeal. Section 19(f) of the Court of Appeal Act 1978.

The principle adopted by Cook J. would have drastic practical effect. The whole of business and government activity would come to a complete stop if, on the filing of a proceeding in the court, jurisdiction or right to act in accordance with the law is suspended or is stayed automatically. Having regard to the analogous situations discussed in the above cases and examination of other matters set out above, I have reached the conclusion that a mere fact that a proceeding has been begun in the courts does not necessarily prevent or suspend the performance of any other lawful act. I am satisfied that the rights of Mr. Wheeler, if any, which may have arisen as a result of the commencement of the action are well protected by the present law. In this case the rights of Mr Wheeler could have been protected by an application of an interim injunction to preserve the status quo, that is, an order preventing the Public Service Commission from proceeding with termination until the notice of motion was determined in the High Court. Mr Wheeler and his lawyer were well aware of the proceedings before the Public Service Commission because they were notified of the proposal to reconsider the termination of Mr Wheeler on 12th September, 1989. The Public Service Commission did not sit until 19th September, 1989.

Even if the sub-judice rule propounded by Cook J. was correct, the matter before the Public Service Commission was the question of termination of Mr Wheeler under Clause 12(b) of the Agreement of Service. The notice of motion dated 18th September, 1989 sought interim restraining orders with regard to interference with Mr Wheeler and his work. The issue about the appointment of Mr Sam Siroouoo is related to the termination of Mr Wheeler but the question of termination is not dependent on whether the appointment of Mr Siroouoo was validly done. The only relevance, as far as termination of Mr Wheeler is concerned, is that the Public Service Commission intended to localise the position held by Mr Wheeler. Termination of Mr Wheeler under Clause 12(b) of the Agreement is expressly excluded from the Regulations by Regulation 77 as found by Ward C.J. in his judgment. Such a termination does not require notice and does not give any right of hearing. However, in this case Mr Wheeler and his lawyer were given the right to make submission before the Public Service Commission. The question of termination of Mr. Wheeler was not an issue or subject matter of the notice of motion dated 18th September, 1989. Therefore, it could not have been a matter sub-judice.

I would allow this ground of appeal and set aside the decision of Cook J. which quashed the decision of the Public Service Commission with regard to the termination of Mr Wheeler and the appointment of Sam Siroouoo. It would follow from this that the other remaining orders would have no basis to stand on and I would set them aside.

Even if the remaining orders have separate existence from the main order, there was no clear basis in law upon which the Judge could make these orders.

First I deal with the order directing the Governor-General that the Public Service Commission should be suspended for one day and appoint in its place a temporary Public Service Commission to deal with the termination of Mr Wheeler and the appointment of Sam Siroouoo. The question of suspension of the Public Service Commission and appointment of a temporary Public Service Commission was not an issue raised by the motion. In any case Governor-General was not a party to the proceedings. That would be good enough reason to quash the order.

However, the order has implications on the power of appointment and removal from the office of Public Services Commission. Under s.115 of the Constitution the Governor-General appoints the Chairman and other members of the Public Service Commission. Under s.115 sub-section (7) the Governor-General acts in accordance with the advice of the Prime Minister. Commissioners may only be removed in accordance with s.126 of the Constitution. It is not necessary to deal with the details except to say that a tribunal is appointed to deal with the question of removal and the Governor-General is advised as to whether or not such a person should be removed from office. A Commissioner may only be removed for inability to discharge the functions or for misbehaviour. There is no other provision for temporary removal of the Commission and appointment of a temporary Public Service Commission to at in its place. Section 32A of Interpretation and General Provisions Act 1978 has no relevance and application to the question of appointment and removal of Public Service Commissioners. That provision relates to making of regulations or instruments or doing of an act for the purposes of an Act of the Parliament.

There is no basis in law for Cook J. for giving the direction to the Governor-General to perform these acts. The direction by the Judge is inconsistent with s.115 subsection (7) which stipulates that the Governor-General may exercise his powers in accordance with the advice of the Prime Minister. Counsel for the respondent relied on s.138 of the Constitution as empowering the giving of these directions. This is a mis-conception and s.138 is not applicable to the issue at hand. Section 138 of the Constitution may be applicable where the issue before the court is whether the Public Service Commission has performed its function in accordance with the Constitution or any other law. This question was never raised by the notice of motion and it was not an issue to be decided before the Judge. Indeed I find that the direction by the court is an interference of the functions of the Governor-General and unconstitutional.

With regard to the order for damages, this cannot be supported on any basis. It is inconsistent with the ruling that Mr Wheeler should be reinstated in his position as a senior stores officer. An order for damages of the kind ordered by the Judge could only be made upon the finding that there was an unlawful dismissal of Mr. Wheeler. He made no such findings. Again there was no question of damages arising under the notice of motion and counsel appearing before him made no submissions with regard to damages. Clearly the order for damages was wrong and I would allow the appeal in this regard.

McPHERSON J.A. This is an appeal from a decision given in civil case no. 207 of 1989 by Cooke C.J. Vanuatu sitting as a Judge of the High Court of Solomon Islands. The proceedings in the case followed termination on 19 September, 1989 by the Public Service Commission (of which the defendant second appellant is Chairman) of the respondent plaintiff's employment as Senior Stores Officer in the Ministry of Transport, Works and Utilities of the Government of Solomon Islands. The Attorney-General, who is the first appellant, was also a defendant in those proceedings.

In order to identify the points in issue it is necessary to relate briefly the sequence of events that have led to the appeal.

The plaintiff Kenneth George Wheeler, then resident in England, was engaged under a written agreement dated 14 May, 1988 made in London by the Crown Agents acting on behalf of the Government of Solomon Islands to proceed to Solomon Islands and there perform the duties of Senior Stores Officer for a period of two years commencing on the date of his arrival there: see cl. 1(1). In specifying the term of the engagement, cl. 1(4) of the Agreement says that it shall continue until the last day of the period of resident service as earlier defined "or until the same is determined in any of the ways hereinafter mentioned". Clause 2 (c) provides that the "officer", who is Mr Wheeler, shall be subject to and entitled to the benefits of the appropriate Service Commission Regulations insofar as applicable. Clauses 3 to 10 prescribe the remuneration, allowances, supplement, and other benefits to be paid or made available to the officer and his family. Clause 12 provides, so far as material, that the Government may terminate the Agreement:-

"(a) by giving the officer not less than three months' notice in writing of the date upon which the Agreement will be terminated;

(b) by giving the officer three months' salary in lieu of the notice aforesaid; in which event the ODA will pay on behalf of the Government into his bank account, three months' supplement, subject to the terms and conditions of the relevant Letter of Intent."

The ODA referred to in cl.12(b) is the Overseas Development Administration, which undertook certain financial obligations in terms of the Agreement. There is provision in cl. 13 conferring on the officer a right or power of termination comparable with that in cl. 12(a).

The plaintiff duly travelled to Solomon Islands and took up his duties in May, 1988. On 22 May, 1989 he received a letter from the Office of the Prime Minister purporting forthwith to terminate his appointment and providing pursuant to cl. 12(b) of the Agreement for payment of three months salary in lieu of notice.

The plaintiff instituted an appeal to the Public Service Commission against this termination of his service. The Commission sat for some days to consider the matter; but in the end decided, for reasons that no longer matter, that it had no jurisdiction to determine the appeal. The plaintiff on 27 July, 1989 thereupon commenced proceedings in the High Court of Solomon Islands (civil case no. 153 of 1989) against the Attorney- General as defendant for relief in various forms including an order that the Commission rehear his appeal. Those proceedings, which were instituted by originating summons, came before Ward C.J. Solomon Islands, who in a written judgment dated 4 September, 1989, held that the purported termination of the plaintiff's service was invalid and a nullity. The essence of his Lordship's reasons was that it was the Office of the Prime Minister that had purported to terminate the Agreement, whereas the power to do so under cl. 12(b) of the Agreement was, by ss. 116(1) and 135(1) of the Constitution, vested in the Public Service Commission. He held that because the purported termination of the employment of the plaintiff was a nullity he remained a public officer under the terms of the Agreement.

The plaintiff thereupon returned to his duties. In the meantime, however, the Public Service Commission had on 1 August, 1989 promoted one Sam Siroouoo to the position of Senior Stores Officer, so that there were then two individuals purporting to occupy that office. On 18 and 19 September, 1989 the Public Service Commission sat to consider whether the plaintiff's service agreement should be terminated. In the course of those proceedings Mr Kama, barrister and solicitor, was admitted to the hearing to represent the plaintiff. On 18 September, 1989 the plaintiff filed in the High Court a notice of motion in case 153 of 1989 claiming injunctions restraining various Ministers and officers of Government and of the Public Service from (1) harassing the plaintiff; (2) preventing the plaintiff from entering his place of work; and (3) preventing him from carrying on or performing his work as Senior Stores Officer. A declaration was also sought that Mr Siroouoo's appointment to that position was null and void. The notice of motion nominated 22 September, 1989 as the hearing date and a copy of it was shown by Mr Kama to a member or members of the Commission at its hearing on 19 September. The motion itself did not come to a hearing on the date nominated. On 19 September, 1989 the Public Service Commission resolved to exercise the power conferred on the Government by cl. 12(b) of the Agreement of terminating the plaintiff's employment on three months salary in lieu of notice.

There followed an interval during which the plaintiff was not engaged in duty as Senior Stores Officer. On 29 September, 1989 he caused to be issued out of the High Court the writ of summons in this case (no. 207 of 1989) claiming relief against the Attorney-General as first defendant and the Chairman of the Public Service Commission as second defendant representing the Commission. The writ in paragraph 1 claimed declarations which, stated in broad terms, challenged the propriety of Mr Siroouoo's appointment, and in paragraph 2 claimed against the second defendant an order for mandamus requiring the Commission to refrain from terminating the plaintiff's contract of employment and to reinstate him to his position of Senior Stores Officer. Other paragraphs of the writ claimed moneys lost by virtue of alleged improper termination of the plaintiff's employment on 19 September, 1989 and damages for breach of the contract of employment.

On 14 November, 1989 proceedings in the case came before Cooke J. on a notice of motion issued by the plaintiff on 17 October, 1989 seeking judgment for the plaintiff for declarations that the plaintiff was at all material times the holder of the post of Senior Stores Officer and entitled to its benefits and privileges under the Agreement dated 14 May, 1988; and also that Mr Siroouoo had been wrongly promoted, with consequential orders requiring the second defendant to reinstate the plaintiff. After hearing Mr Kama for the plaintiff and Mr Teutao for the defendants, his Lordship quashed the decision of the Public Service Commission on 19 September, 1989 terminating the plaintiff's services and reconfirming Mr Siroouoo to the position held by the plaintiff. He further ordered that the instrument of appointment of the Public Service Commission be suspended for one day pursuant to s.32A of the Interpretation and General Provision (Amendment) Act 1986, and ordered the appointment in their place for one day of a temporary Public Service Commission "to deal with the termination of the services of the Plaintiff, if any". It was also ordered that the matter of Siroouoo's promotion be deferred. Finally, his Lordship ordered that the plaintiff be reinstated to his position of Senior Stores Officer, and that "all sums of money due to him by way of salary and supplementation shall be paid to him forthwith".

In giving judgment for the plaintiff the learned Judge said that the Public Service Commission, having been informed of the notice of motion before the High Court, "should have taken cognisance of it and allowed the process of justice to continue, postponed the hearing of the termination of the plaintiff's contract and the re-confirmation of Sam Siroouoo to plaintiff's post. Their action in ignoring the notice of motion before the High Court was unconstitutional and illegal as the matter was sub judice".

On behalf of the appellants before us Mr Teutao challenged this aspect of the decision on the grounds that there was no principle or rule of law that rendered it unconstitutional or illegal for the Public Service Commission to proceed with the matter before it on 18 and 19 September, 1989, simply because the plaintiff by issuing a notice of motion out of the High Court had caused the matter to become sub judice; and that, in any event, the matters the subject of the notice of motion and the matters before the Public Service Commission were different, so that the rule, if any, had no application.

On behalf of the respondent plaintiff, Mr Kama submitted that it was the practice for an inferior court or tribunal to refrain from proceeding with a matter before it after it was informed that it was also the subject of proceedings in a court of general jurisdiction like the High Court. It must be acknowledged that in practice it is not uncommon for an inferior tribunal to desist from hearing a matter after becoming aware that action has been taken in a superior court, particularly if a challenged to jurisdiction is involved. No doubt that is often the prudent and most convenient course to follow. If in due course the matter in issue is resolved in the superior court, or if the inferior court or tribunal is held to be without jurisdiction, much time and expense would be wasted by continuing with the hearing.

But it is another question entirely whether in those circumstances the jurisdiction of the inferior tribunal is ousted, or it becomes bound to exercise a discretion to refrain from hearing or determining the matter before it, the more so where the matter is one apparently within its jurisdiction. The course of authority is opposed to any such conclusion. In Bissell v. Williamson [1861] EngR 905; (1861) 7 H. & N. 391; 158 E.R. 525, it was held that the authority of a county court to determine ejectment proceedings before it was not affected by the institution of similar proceedings in Exchequer. That was a decision of the Exchequer Chamber, which was applied by the Queen's Bench in the following year in M'Murray v. Wright (1862) 11 W.R. 34. Certiorari to remove for trial (as distinct from certiorari to quash) in a superior court of common law was at one time an absolute right in such cases; but it has latterly been much qualified by statute: see Halsbury, 3rd ed., vol. 11, paragraphs 233-238, at 126-128; 4th ed., paragraphs 1532-1535, at 808-810. Section 84 of the Constitution, on which some reliance was placed by Mr Kama, seems to me to be directed to preserving such a jurisdiction in the High Court. It refers specifically to criminal or civil proceedings "before any subordinate court", and it must therefore be at least doubtful whether it extends to a tribunal like the Public Service Commission. The section tends to contradict the proposition that the jurisdiction of an inferior court is ousted before any such order removing for trial is made.

In England there is a series of decisions, of which Knott v. Knott [1935] P. 158 is the most prominent, recognising that courts of summary jurisdiction ought to refrain from hearing and deciding maintenance proceedings between husband and wife pending determination of a divorce petition in the High Court. the underlying object is to avoid conflicts of evidence or inconsistency of findings on the same issues between the same parties in different courts. See Lanitis v. Lanitis [1970] Qd.R. 365, at 364-365, and Boyd v. Halstead, ex parte Halstead [1985] 2 Qd.R. 249, where it was held that the jurisdiction of an inferior court or tribunal acting within power is not destroyed by the pendency of proceedings involving the same matter in a superior court. The established rule is that where jurisdiction is concurrent in both courts, the superior court is cautious in granting relief by injunction or declaration having the effect of halting proceedings in the inferior court: see Stannard v. Vestry of St. Giles, Camberwell [1882] UKLawRpCh 56; (1882) 20 Ch.D. 190, at 196; Grand Junction Waterworks v. Hampton U.D.C. [1898] UKLawRpCh 89; [1898] 2 Ch. 331, at 345-346. It would, as was recognised in Boyd v. Halstead, ex parte Halstead [1985] 2 Qd.R. 249, at 256, be quite inconsistent with such a rule to hold that the mere institution of proceedings in the High Court prevents an inferior court or tribunal from determining a matter that is within its statutory jurisdiction.

The result is, in my opinion, no different if approached as one of contempt of court. Filing the notice of motion may in a sense be said to have made the matter sub judice; but the notion that it was thereby placed beyond consideration, comment or decision by the Public Service Commission seems to me, with respect, to be quite untenable. The fallacies of that view of the effect of a writ were exposed in Thomson v. Times Newspapers Ltd. [1969] 1 W.L.R. 1236, at 1240; [1969] 3 All E.R. 648, and Wallersteiner v. Moir [1974] 1 W.L.R. 991, at 1004; [1974] 3 All E.R. 217. Proceedings conducted in private before the Public Service Commission can scarcely be compared to public dissemination of information likely to prejudice the fair trial of an action, for which the ordinary remedy is attachment for contempt. The proposition that, without more, it constitutes a contempt of court justifying relief by injunction for a domestic tribunal to proceed against an individual pending determination of an action by him involving to some extent the same issues in a superior court was rejected by Kelly J. in Burton v. Harris [1979] Qd.R. 548.

It follows in my respectful opinion that the Public Service Commission was not acting either illegally or unconstitutionally or in contempt of court in ignoring the fact that the plaintiff had on 18 September, 1989 filed a notice of motion in the High Court in case no. 153 of 1989. It is, I consider, also correct to say that the relief sought by way of injunction in that notice of motion did not raise any issue of the same kind as that which was before the Commission on the same day. The relief sought in the High Court assumed that the plaintiff was validly employed in office and sought to prevent interference with his performance of the duties of that office. The proceedings before the Commission also assumed he was validly employed in office; their purpose was, however, to decide whether the plaintiff's employment in that office should be terminated. The notice of motion did not set out to restrain any such termination. The maters for decision in court and by the Commission were therefore different and not inconsistent. It is true that the plaintiff also sought the declaration of the High Court that Sam Siroouoo's promotion and appointment to the same office was invalid. That was a matter which, it seems, was also due to come before the Commission; but, whether valid or not, Siroouoo's appointment did not deprive the Commission of authority to decide whether or not to exercise the power under cl. 12(b) of the Agreement to terminate the plaintiff's employment. The validity or otherwise of Siroouoo's appointment was in law not relevant to that decision.

Under ss.116(1) and 135(1) of the Constitution, the Public Service Commission was authorised to exercise the power conferred by cl. 12(b) of the Agreement. Like cl. 13, to which it is reciprocal, cl.12(b) provides a contractual power to terminate the Agreement in a specified way. No breach of contract is involved and no damages can result from doing so. The Commission validly exercised the power and so put an end to the plaintiff's contract of service with the Government.

For these reason, the decision of the learned Judge quashing the decision of the Public Service Commission and ordering that the plaintiff be reinstated must be set aside. In my opinion the same result follows with respect to those parts of the decision below that ordered suspension of the instrument of appointment of the Public Service Commission and the appointment in their place of a temporary Commission. Section 115(1) of the Constitution provides for a Public Service Commission consisting of a Chairman and members to be appointed by the Governor General for a term of three to six years as specified in the instrument of appointment. Section 115(4) prescribes four circumstances in which the office of a member of the Commission may become vacant. Only the fourth is relevant here:-

"(d) If he is removed from office in accordance with section 126 of this Constitution".

Section 126(1) provides for removal from office "only for inability to discharge the functions of offence ...... or for misbehaviour", adding that a person holding office to which the section applies "shall not be removed except in accordance with the provisions of this section". Subsections (2) and (3) prescribe a procedure providing for the appointment of a tribunal to investigate and report to the Governor-General and advise him whether the Commissioner ought to be removed under the section. It is plain from s. 126(7) that the act of removal is that of the Governor-General acting on the advice of the Prime Minister.

None of the conditions precedent for removal of members of the Public Service Commission was fulfilled in this instance. That being so, I can see no justification in law for an order that they be removed from office, which is in any event a function not vested by the Constitution in the Court but in the Governor-General. No power of suspension is conferred by the Constitution. The learned Judge rested his authority to order suspension of the "instrument" appointing the Commission upon the provisions of s. 32A of the Interpretation and General Provisions Act 1978. It speaks in s. 32A(a) of a power to suspend a "regulation or instrument"; it is clear from the context of the section and the Act as a whole that the instrument there referred to is a legislative instrument comparable with a regulation or perhaps a proclamation, and not an instrument under hand or seal like that by which members of the Public Service Commission are appointed pursuant to s.115(1) of the Constitution.

In my opinion the power of appointing and of removing members of the Public Service Commission is vested by s.115 of the Constitution exclusively in the Governor-General. The High Court does not under the provisions of s. 32A of the Interpretation and General Provisions Act 1978 have any power to order suspension of the instrument or instruments of appointment of members of the Commission, or to order the constituting of a temporary Commission to act in their place.

Finally, there is the matter of damages. The writ of summons does, as I have said, contain a claim for damages comprising salary from 20 December, 1989 to 3 June, 1990, gratuity, return airfares to the United Kingdom, local leave for 10 days, ODA supplement 20 December, 1989 to 3 June, 1990, and holiday pay for the same period. Cooke J. awarded all of these damages, other than the supplement payment, to the plaintiff. There was, I am satisfied, no authority to make such an award on the hearing of the motion of that date did not seek an assessment of the damages claimed in the writ, it being the intention of Mr Kama for the plaintiff that the claim for damages should be brought to trial at a later stage. Accordingly, he did not ask for damages to be assessed at the hearing on 17 November, 1989 and no evidence was presented to the Court on which such damages could properly be awarded. In those circumstances, the judgment for damages cannot stand. The precise state of accounts between the Government and the plaintiff must be left for future determination in the ordinary way.

In view of the conclusions I have reached I would allow the appeal with costs. I would set aside the following orders made in the Court below:-

(1) the order quashing the decision of the Public Service Commission on 19 September, 1989 terminating the services of the plaintiff and re-confirming Sam Siroouoo to the plaintiff's post;

(2) the order suspending the appointment of the Public Service Commission for one day and appointing in their place a temporary Public Service Commission to deal with the termination, if any, of the services of the plaintiff;

(3) the order reinstating the plaintiff to his position as Senior Stores Officer and that he be paid forthwith the salary and supplementation due to him and damages as claimed in the writ of summons.

The notice of appeal also asks that the ruling that the Commission's decision to terminate the plaintiff's services was unconstitutional and illegal be set aside. However, this "ruling" was not, as I see it, an order made by Cooke J. against which an appeal can be brought, but simply part of the reasoning by which the learned Judge arrived at his conclusion. I have already expressed my respectful view that his Lordship's reasoning on that aspect of the matter is incorrect.

No other parts of the judgment below are appealed against.