Zaku v Public Service Commission; Harold v Public Service Commission [1999] SBHC 34; HC-CC 063 of 1999 & 079 of 1999 (13 April 1999)

HIGH COURT OF SOLOMON ISLANDS
Civil Cases No. s: 063 of 1999 & 079 of 1999

BROWNLESS ZAKU AND OTHERS

v

PUBLIC SERVICE COMMISSION

AND

JOSEPH HAROLD AND ANOTHER

v

PUBLIC SERVICE COMMISSION

High Court of Solomon Islands
Before: Palmer J.
Civil Cases No.s: 063 of 1999 & 079 of 1999

Hearing: 12 April 1999
Ruling: 13 April 1999

R. Teutao for the Applicants
Attorney-General for the Respondents

PALMER J: These two proceedings have been consolidated for purposes of hearing the application to strike out by the learned Attorney-General filed on 22^nd March 1999. The application is based on non-compliance with Order 58 of the High Court (Civil Procedure) Rules, 1964.

THE CASE FOR THE APPLICANTS.

The case for both Applicants had been commenced by originating summons. In civil case 063/99, the originating summons was filed on 26^th February 1999. It sought declarations and or orders under Order 58 inter alia, as follows:

"1. A declaration that the decision by the Public Service Commission on 21^st November 1997 terminating the employment of Brownless Zaku, the 1^st to 6^th Applicant respectively as public officers from the post each Applicant was holding in his respective Ministry in the Public Service was null and void for breach of the audi alteram partem rule of natural justice by the said Commission.

2. If the declaration sought in 1 above is granted for a further declaration that Brownless Zaku,... the 1^st to the 6^th Applicant respectively has never ceased and has always remained a public officer each holding his respective post in his respective Ministry in the Public Service."
   

In civil case 079/99, the originating summons was filed on 4^th March 1999 and sought declarations inter alia, as follows:

"1. A declaration that the decision by the Public Service Commission terminating the employment of Joseph Harold and Allan Tomu as Under Secretary (Admin.) and Chief Accountant respectively with the Ministry of Health and Medical Services with effect from 5^th July 1995 was null and void for breach of the audi alteram partem rule of natural justice.

2. A declaration that the decision by the Public Service Commission rejecting and dismissing the Applicant's appeal to it under regulation 14 of the PSC Regulations 1979 was also null and void for breach of the rule of natural justice as to a fair hearing."
   

THE APPLICATION TO STRIKE OUT.

The learned Attorney-General relies on Order 58 of the High Court (Civil Procedure) Rules for the application to strike out. He argues there is no question of construction arising in any provision of law regarding the legal or equitable rights of the Applicants and therefore does not fall within the ambit of Order 58.

ORDER 58.

Order 58 Rules 1 and 2 of the High Court (Civil Procedure) Rules reads:

"1. Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.

2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of any provision of a written law, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed."
   

Rule 1 is not relevant to this application. Rule 2 is the relevant part. The crucial elements are (1) any claim of any legal or equitable right and (2) which is dependent upon a question of construction of any provision of law.

APPLICATION TO THIS CASE.

What is the legal or equitable right claimed in the application of the Applicants? Respectfully the legal right claimed if any is the right to a fair hearing, based on the principles of natural justice and not on any construction of law. In both cases the claim is based on breach of the audi alteram partem rule. Now this rule is not founded on any written law but on the common law. It had been held by clear case authority that the rule is of universal application. See Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40, per judgment of Lord Hodson at page 130:

"The cases seem to me to show that persons acting in a capacity which is not on the face of it judicial but rather executive or administrative have been held by the courts to be subject to the principles of natural justice."

Also see the case of R v. Gaming Board for Great Britain ex. p. Benaim and Khaida [1970] EWCA Civ 7; [1970] 2 QB 417 at 430 where Lord Denning summed up the rule as follows:

"At one time it was said that the principles of (sc. of natural justice) only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v. Baldwin. At another time it was said that the principles do not apply to the grant or revocation of licences. That too is wrong."

In O'Reilly v. Mackman [1983] UKHL 1; [1983] 2 AC 237 at 276, Lord Diplock pointed out that the right of a man to be given-

"a fair opportunity of hearing what is alleged against him and of presenting his own case is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement." [Emphasis added]

What is clear therefore, the audi alteram partem rule relied on is not necessarily based on any written law. It in fact exists independent of any written law. Even if it is not included in the written law, the courts will imply it as applying to any judicial and or administrative decisions of any executive or administrative body. The simple issue in this case therefore is whether the Public Service Commission had made a decision in breach of that rule and thereby rendering its decision a nullity. That does not arise from any construction of law. It is more a question of fact.

CONCLUSION.

In my respectful view, the application by originating summons had been misconceived. The proper course of action to be taken is to be by way of prerogative writs, the Issue of orders of certiorari to have the decision of the Public Service Commission brought up to this court to be quashed on the grounds of breach of natural justice. No amendment will cure the inappropriateness of proceeding under Order 58. In the circumstances, the proper order to make is to grant the application of the learned Attorney-General and have the Applicants Originating Summons quashed as inappropriate under Order 58 of the High Court (Civil Procedure) Rules, with costs.

ORDERS OF THE COURT:

1. STRIKE OUT BOTH ORIGINATING SUMMONS AS INAPPROPRIATE AND OUGHT NOT TO BE DETERMINED UNDER ORDER 58 OF THE HIGH COURT (CIVIL PROCEDURE) RULES.
   
2. APPLICANTS MUST BEAR THE COSTS OF THE RESPONDENT.
   

THE COURT