Maesimae v Trade Disputes Panel [1998] SBHC 51; HC-CC 281 of 1997 (27 March 1998)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 281 of 1997

MARK MAESIMAE

v

TRADE DISPUTE PANEL

High Court of Solomon Islands
Before: Lungole-Awich, J
Civil Case No. 281 of 1997

Hearing: 17^th March 1998
Judgment: 27^th March 1998

Counsel: S. Manetoali for the Applicant

JUDGMENT

(LUNGOLE-AWICH, J): Application for Mandamus: The facts in this case, Mark Maesimae and Trade Dispute Panel (the Panel), are very similar to those in another, George Kuper and the Trade Dispute Panel (HC-CC257/97). In both the applicants alleged that the respondent, Trade Dispute Panel, failed to deliver its decision in trade dispute case referred to it. In this case, the applicant, Mark Maesimae, claimed that he was unfairly dismissed by his employer, Silvania Products Limited. He instructed a solicitor who had his case referred to the Panel to inquire into and make award or dismiss as the Panel would deem the results of its inquiry would warrant. The Panel heard the case on 11.12.1996, and reserved its decision to 18.12.1996. That was the start of a long and torturous effort to get the Panel to pronounce its decision, but up to the date of hearing this application, 17.3.1998, last week, the Panel had not pronounced its decision.

The Facts

Mr. Maesimae seemed to have been convinced that he would never get the Panel to pronounce its decision unless some other authority took up the matter; he made complaint to the Ombudsman who took up the complaint. The Ombudsman wrote more than 4 letters to the chairperson of the Panel, the earliest seemed to have been on 16.12.1996 and the latest on 22.10.1997. Regrettably, the well meant effort of the Ombudsman, did not produce any result, in fact the Panel did not even respond to the letters of the Ombudsman; that defies the most elementary rule of courtesy expected in the Public Service. Mr. Maesimae has now come to court seeking order for mandamus to issue. He applied for leave before Palmer J. on 13.11.97 and was granted. This application was then heard last week on 17.3.1998.

The Law

I would like to mention here that there should be no illusion that the panel is a court or that the chairman is a judicial officer. That has been decided long ago by the High Court in the case of Peter Waetoli v Public Service Commission 1988/89 SILR 25. Section 2 (7) of the Trade Dispute Act, No 3 of 1981, provides that the office of the chairman is a public office. In my view, the Panel itself is in the nature of a “public agency”, the term used in section 97(3) of the Constitution. The Panel’s decision is quasi judicial, but its non-action is administrative and in my view, the Ombudsman can inquire into the latter, but not the former.

I have already said in the case of Kuper, which judgment in I have just read, that there must be public duty which has not been carried out, for the court to consider ordering mandamus. In this case there is such a duty required of the Panel under section 6 of the Trade Dispute Act. Mr. Maesimae has filed affidavit stating failure of the Panel to carry out its duties. The Panel has not responded. There are affidavits of service which in my view confirm that case papers have been served on the Panel. If there is any suggestion of defect in service, the court condones the defects because from the case file, there is no doubt that the chairperson was made aware of this case and of the hearing date. The court must accept the facts as stated in the affidavit of Mr. Maesimae as the facts of the case. The Trade Dispute Panel has failed to carry out its public duty under section 6 of the Trade Dispute Act.

Mandamus Granted

For the above reasons, the court orders that order of mandamus issue, compelling Trade Dispute Panel to pronounce its decision in the trade dispute case of Mark Maesimae and Silvania Products Limited heard on 4^th and 11^th of December 1996, within 21 days of today’s date. If the Panel fails, the chairperson will be required to attend court to answer personally, charge of contempt for which she may be personally penalised. She is the officer charged with the responsibility to convene the Panel and must bear responsibility. Costs of the application is awarded to Mr. Maesimae against the Panel. It is a pity that at this stage, the court should order costs paid by the Panel in a matter which has arisen because of neglect of duty by a public officer.

Delivered and Dated this 27^th day of March 1998

Sam Lungole-Awich
JUDGE