Logamala v Attorney General [2005] SBHC 36; HCSI-CC 346 of 2004 (16 February 2005)

HIGH COURT OF SOLOMON ISLANDS

HCSI-CC 346 of 2004

BEN LOGAMALA

-V-

ATTORNEY GENERAL

Honiara: Brown J

Date of Hearing: 16th February 2005
Date of Judgment: 16th February 2005

Public Solicitor for the Applicant
Attorney General for the Respondent

REASONS FOR DECISION

This is a matter revolving about a small issue; does handing a complaint form meant for the Trade Disputes Panel TDP-1 by giving it to the Labour Division of the Government who indicated that they would pass it onto the Trade Disputes Panel amount to “presenting to the Secretary a complaint in Form A in the Schedule.” (S.4 (1) of the Procedure Rules).

The copy Form annexed to the applicant’s affidavit has at its head.

Kindly complete this form in triplicate and lodge all three copies to:

The Secretary

The Trade Disputes Panel

PO Box G26

Honiara

The applicant representative is named as Ken Averre (the Public Solicitor’s Office, Honiara).

Mr. Baker raises these arguments to support his client’s assertion that, although the notice actually reached the Secretary some 7 days late, this court should accept earlier service on another officer of the Labour Division of the Government as sufficient for the Rule.

He also points to procedural flaws for that, the applicant has relied, to his detriment, on the assurance of the officer to whom he had given the form (to pass it to the Secretary) and it would be unfair now, to close the door on this man’s rights in those circumstances, for it was not late when given this other Labour Division officer.

Mr. Moshinski simply points to the Rule since handing the complaint to that other officer does not on its face, comply with the Rule. I should say, having the form before me that it may be argued postal service would suffice but that hasn’t happened in this case.

Mr. Moshinski quite correctly in my view, says the applicant’s submission that the offices (of the Labour Division and Trade Disputes Panel) were close to one another was not to the point, for the obligation pursuant to the Trade Dispute Act rests with the Secretary to carry out his duties (with his staff’s assistance) under the Act but that duty cannot be extended to include any other employee of the Government. If service on another clerk were to be deemed service on the Secretary, as Mr. Moshinski says the 3 month period for dispute would become a flexible time dependent, not on the Rule but on the efficiency, whim or purpose of the Government employee to whom the document was left, notwithstanding, in good faith.

Clearly the Rule does not speak of the applicant’s ability to rely on any such efficiency whim or purpose of this other employee, the Rule categorically names the Secretary as that proper officer to whom the complaint must be presented.

There is no breach of procedural fairness shown, on the part of the Trade Dispute Panel’s Secretary. The Rule has not been followed. This cause must fail.

The notice of motion is dismissed with costs.

BY THE COURT