Gaugela v Trade Disputes Panel [2001] SBHC 143; HC-CC 105 of 2001 (21 September 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 105 OF 2001

REUBEN GAUGELA

-V-

TRADE DISPUTES PANEL AND
SOLOMON ISLANDS POSTAL CORPORATION

HIGH COURT OF SOLOMON ISLANDS
(PALMER ACJ)

HEARING: 26th July 2001
JUDGMENT: 21st September 2001

D. Hou for the Applicant
S. Manetoali for the First Respondent
C. Hapa for the Second Respondent

PALMER ACJ: The Applicant applies by Notice of Motion filed 26th June 2001 for orders inter alia of certiorari to have the decision of the Trade Disputes Panel (“the TDP”) dated 5th December 2001 brought up and quashed and the matter referred back to the TDP hearing pursuant to section 6(1) of the Unfair Dismissals Act [Cap. 77].

The Background facts

The Applicant was a former employee of Solomon Islands Postal Corporation (“SIPC”). He held the post of Postmaster at Auki Post Office since 1980. He was dismissed from service by letter dated 4th October 1999. The reason given was that he had driven a Post Office vehicle without authority and gotten involved in a traffic accident. On 16th November 1999 he filed a complaint with the TDP for unfair dismissal under the Unfair Dismissal Act [Cap. 77]. The TDP registered his complaint as UDF 66/99. On 16th February 2000, SIPC filed appearance with notice to defend the claim. A public solicitor, Kenneth Averre from Auki represented the Applicant throughout. His address of service was Public Solicitors Office, PO Box 44, Auki, Malaita Province.

Following the events of 5th June 2000, Kenneth Averre, an expatriate VSO was evacuated together with other expatriates for their own safety. The Public Solicitors Office in Auki at the same time ceased functioning and was closed. He was the only public solicitor manning that office at that time. No replacements have been made to that office and it has not re-opened to date.

On 5th December 2000, the TDP convened and dealt with the Applicant’s case. The TDP dismissed the Applicant’s claim for non-attendance and want of prosecution. The Applicant was informed of that decision by letter dated 12th December 2000. On 28th May 2001, the Applicant filed summons under Order 61 rule 2 for leave to apply for order of certiorari to have the decision of the TDP quashed. Application was heard on 6th June 2001 and granted same day.

The Applicant’s Submissions

The Applicant’s submissions are premised on principles of natural justice, the “audi alteram partem” rule, that a decision maker must afford an opportunity to be heard to a person whose interest is or may be adversely affected by the decision. Learned Counsel Hou for the Applicant cited the cases of Jones v. National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 67 and Hanson v. Church Commissioners for England & Another [1977] 2 WLR 848 at 855 in support. Applied in Solomon Islands in Clement Kakano v. Attorney General HC-CC 214 of 1991, Desmond Nimepo v. Premier of Guadalcanal Province HC-CC 379 of 1995, Hanley Simata v. Goldie College Secondary School Board of Management, and Guan Lixia v. Attorney General HC-CC 134 of 1998. Part of the requirement of that rule is that a person so affected must be given notice of the hearing date. Mr. Hou submits that due to the closure of the Public Solicitor’s Office in Auki when Mr. Averre was evacuated from Solomon Islands, no notice was served on his client and thereby denying him the fundamental right to appear and be heard.

The Second Respondent’s Submissions

Learned Counsel Hapa for the Second Respondent submits that as far as his client was concerned notices had been sent out to both parties by the TDP. He states in his affidavit filed 26th July 2001 that he received a letter from the TDP on 14th November 2000 addressed to Mr. Averre and copied to them listing the pre-hearing of the Applicant’s claim for 5th December 2000. He attended on said date but neither the Applicant nor his Counsel was present. He then applied for the Applicant’s claim to be dismissed for non-appearance and was granted. The records of the TDP read as follows:

“CH: The applicant has a legal representative in this matter. Neither applicant nor his lawyer attend although notice of hearing was sent to them. I apply to have this matter dismissed for non-appearance of applicant and his lawyer.

Panel: Dismissed for non-appearance of the applicant.”

The Issue

The issue in this case is whether due notice of the hearing had been given to the Applicant. The Applicant says he has not been duly served with the notice of hearing in view of the closure of the Public Solicitor’s Office in Auki. The Second Respondent argues service had been effected in accordance with the requirements of Rule 16 of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules (“the Rules”) and that accordingly the TDP was entitled to dismiss the Applicant’s claims.

The law on service of notices of hearing

The law on service of notices of hearing for our purposes has been set out conveniently in rule 16 of the Rules. Sub-rule (16)(1) provides:

“Any notice given under these Rules shall be in writing and service under these Rules shall be deemed effected if served in accordance with this rule.”

Sub-rules 16(3) and (4) provide:

(3) All notices and documents to be sent or given to any person may be sent by post or delivered to or at: -

(a) the person’s address for service specified in a complaint or in a notice of appearance;

(b) if no address for service has been so specified, the person’s last known address or place of business in Solomon Islands.

(4) Where a person is represented service upon that representative is service upon that person.”

Of relevance is sub-rule (4) as Counsel Averre represented the Applicant.

Application of the law to the facts

The issue for determination can be narrowed further to the question whether service had been effected on Applicant’s representative, Mr. Averre. The simple answer to that question would have to be no. Mr. Averre had left the country as part of the contingent of expatriates that were evacuated after the events of 5th June 2000. His office (the Public Solicitor’s Office) at Auki was closed thereafter. The TDP ought to have taken judicial notice of those facts, as it was common knowledge in the country that most expatriates were evacuated after the events of 5th June 2000. The TDP ought to have made enquiries even before sending out the notices of hearing whether Mr. Averre was still at his post and whether the Public Solicitor’s Office at Auki was open and manned by another solicitor from the Public Solicitor’s Office in Honiara. It would not have taken much effort to confirm those details from the Public Solicitor in Honiara or someone from his Office. No effective service accordingly was made on Mr. Averre and in turn on the Applicant in accordance with sub-rule (4). The alternative step would have been to effect service in accordance with sub-rule (3)(b). There is no evidence that this was done.

Breach of natural justice

As a result of non-service of the notice of hearing on the Applicant, the TDP had no right to dismiss the claim of the Applicant. As a result, an error of law on the face of the record had been committed resulting in a decision being made which is wrong in law and ultra vires. But this error of law can also be viewed as giving rise to a breach of the audi alteram partem rule. As a result of that mistake the Applicant was not given opportunity to be heard before his claim was dismissed. I am satisfied in the circumstances the order of certiorari sought ought to be granted in this case.

ORDERS OF THE COURT:

1. Grant order of certiorari for purposes of having the order of the TDP dated 5th December 2000 dismissing the Applicant’s claim be brought up to the High Court forthwith and quashed.
   
2. Direct that the matter be restored to the TDP cause list for hearing.
   
3. The Applicant is to file with the TDP within 7 days his new address of service.
   
4. The Plaintiff is to have his costs in this appeal.
   

THE COURT