Solomon Islands Ports Authority v Attorney General [2009] SBHC 11; HCSI-CC 119 of 2006 (9 March 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

SOLOMON ISLANDS PORTS AUTHORITY
Applicant

AND:

ATTORNEY GENERAL (representing the Minister of Commerce)
Respondent

Date of Hearing: 3 March 2009
Date of Decision: 9 March 2009

Mr. P. Tagini for Applicant
Mr. S. Woods for Attorney General

DECISION ON DECLARATIONS SOUGHT
IN AMENDED ORIGINATING SUMMONS

Cameron PJ:

1 The applicant seeks a declaration as to whether the relevant Minister acted ultra vires in approving gratuity payments to former members of the Solomon Islands Ports Authority at a time when their term of office had already expired and a new Authority had been appointed.

2 For the two year period February 2002 to 2004 the Solomon Islands Ports Authority consisted of ten members. When their term expired in February 2004, they had received no salary or other gratuity for their services, other than some daily allowances which are of no significance.

3 In February 2004 a new Authority was appointed for a further two year period February 2004 to 2006 which again consisted of ten members, eight of whom had served as Authority members during the February 2002 to 2004 period.

4 During the February 2004 to 2006 period, the relevant Minister approved a gratuity of $12,000 to each current member for that term only, payable at the expiry of their tenure in February 2006.

5 Those Authority members then lobbied the Minister for payment of the same gratuities for those who had served as Authority members in the previous two years. Financial accounts of the Authority for the relevant years were provided in support of the request.

6 By letter of 25 January 2006 the Authority was advised that the Minister had decided to pay the gratuities for the February 2002 to 2004 period as well, in effect reversing a decision he had previously made not to do so.

7 The challenge in this application is as to the legality of that decision.

8 It is argued that the Minister had no power to grant these gratuities retrospectively, and that if there was that power it was exercised unreasonably using the test in Associated Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1; (1947) 2 All ER 680.

9 Section 6 of the Ports Act establishes the Authority. Section 7(1) specifies that the Authority shall consist of a Chairman and at least two members, all appointed by the relevant Minister. The relevant part of section 7(2), dealing with remuneration of those members, states:

"The Authority shall pay to the members thereof such salaries, gratuities and allowances as may be determined by the Minister:"

10 There is nothing in section 7(2), or any other provision of the Ports Act, which specifies or even suggests that the Minister’s power to determine the form and level of remuneration ceases to exist once the relevant term has expired. Nor is there any policy reason why this should be so. To the contrary, in some instances there may be good reason to defer the fixing of remuneration until financial results of the relevant entity are known. I therefore consider that the Minister did have the power to fix the form and level of remuneration following the expiry of the term.

11 The remaining issue is whether the Minister’s decision to do so was so unreasonable that no Minister could have come to it (the test in Wednesbury’s case). Relevant to this is the fact that it has not been suggested that fixing a gratuity of $12,000 a member for the two year term February 2004 to 2006 and for successive terms was unreasonable. In other words, there is no challenge to the form or level of the gratuity for the terms from February 2004 onwards, which are identical to the form and level retrospectively determined as appropriate for the preceding two year period. Nor has it been suggested that the service the Authority members provided in that earlier period was less deserving than that provided in the subsequent years and for which gratuities were paid.

12 This points to the real complaint being that it was nearly two years after the expiry of the period before the decision to pay a gratuity in respect of it was made. While this delay is significant, it is apparent that from March 2005 there was ongoing dialogue with the Minister’s office about the matter, with financial statements for the relevant years being provided in support of the claim in about November 2005. In other words, it was a live issue for a considerable period before the determination, and was not in the nature of a decision given without proper deliberation.

13 I accept Mr. Wood’s submission for the Attorney General that there is no evidence to suggest the members in the February 2002 to 2004 period did not serve the Authority properly. For that they had received no salaries. In those circumstances, it can hardly be said that a decision to pay a gratuity had no proper basis.

14 I conclude that the decision made by the Minister was not so unreasonable that no reasonable Minister could have come to it.

15 Mr. Woods raised some concerns as to the standing of the applicant to bring this proceeding, and in particular whether in fact the previous in-house legal counsel who initiated this proceeding in the name of the applicant had the authority of its General Manager to do so. Although the affidavit evidence is not entirely satisfactory on this point, I am prepared to infer from that legal counsel’s first affidavit that he did in fact have that authority, and therefore the necessary standing.

16 I consider the Minister’s decision was intra vires and therefore not invalid. The subsidiary argument that in determining that a gratuity would be paid the Minister breached a statutory duty of care to the applicant by giving an undue preference to members within the meaning of section 9(2)(b) of the Ports Act is without any merit. The Act provides that it is the Minister who determines the pay to the members, so it follows that the exercise of that power does not of itself constitute an undue preference to that category of persons.

17 I answer no to the questions asked in paragraphs 1 and 3 of the amended originating summons. The other questions are not pursued.

18 I order that each party shall bear its own costs.

BY THE COURT