Lonsdale v Attorney General [2013] SBHC 39; HCSI-CC 356 of 2012 (17 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 356 of 2012.

BETWEEN:

DOREEN KULU LONSDALE
Claimant.

AND:

ATTORNEY-GENERAL
Defendant.

Date of Hearing: 10th April, 2013.
Date of Decision: 17th April, 2013.

Mr A. Rose for the Claimant.
Mr E. Kii for the Defendant.

DECISION

Faukona J: This is a claim for judicial review. Among other things, the Claimant seeks Court to quash the decision made by the Defendant on 28th March, 2012, terminating the employment of the Claimant and declares the Defendant wrongfully terminates the Claimant. In consequent of that the Defendant reinstates the Claimant to the position she held before termination. In the alternative to reinstate the Claimant and to pay all her entitlements up to the date of judgment.

2. In a claim for judicial review, at conference stage, the Court must be satisfied of the requirements as expressed in Rule 15.3.18. That there must be an arguable case; that the Claimant is directly affected by the subject matter; there has been no undue delay and there is no other remedies that resolves the matter fully and directly.

Claimant has an arguable case:

3. From submissions; it is apparent that the major issue or requirement contested by the Counsels is reflected in Mr Kii's submissions premise specifically on arguable case.

4. The requirement by the Rules of an arguable case, in my view, is a general proposition. There is no emphasis whether such arguable case must be of any merit or otherwise. The rationale is simply that the case be at least contain some point of argument, not necessarily to a degree of higher level argument, but at least points of argument of which can be entertained by the Court in the substantive hearing.

5. I have read the sworn statements and critically analysed their values. The Claimant admits obtaining the cheque payable to Mr Papabatu with authority from him. And agrees money was given to support other colleague. Sworn statement of Alison Papabatu's filed on 3/4/2013 confirms that a letter written by himself dated 5/3/12 that he authorized the Claimant to collect his cheque on his behalf. And agreed that some money be given to support a colleague whose mother was passed away.

6. Contrary to that is an earlier letter written by Mr Papabatu dated 1/11/2011, which he mentioned that one of the officers had abused his salary wages amounted to $5,000.00. The payment was from March to July 2009.

7. At an interview exposed by the report dated 9th March 2013, Mr Papabatu confirmed he did not write an authorized letter of consent to the Claimant to collect and cashed his cheque as he was out in the Province.

In his sworn statement filed on 3rd April 2013, he denied writing a memo on 1st November 2011 that a colleague had abused his money. In the same statement he says he had recovered all the moneys.

8. By sworn statement of Claimant filed on 3rd April, 2013, she affirms that Mr Papabatu did verbally authorize her to collect and cashed the cheque. That was confirmed by sworn statement of Papabatu filed on 3rd April 2013.

9. It appears fizzy that the authorization letter was dated 5/3/2012 whilst the alleged offence was committed in August, 2009.

10. The evidence reveals certain anomaly and very strong arguments. Those controversies are arguable issues, which must be tested through the trial process in the substantive hearing. Hence, it would not be in the best interest of justice to determine and strike the case at this stage.

11. The second arguable issue pertaining procedures to be applied. Mr Kii points out that the Defendant had complied fully with the procedures provided for in the Public Service commission Regulation 1998, in particular Regulation 14, 15 and 16.

12. An opposing view is advanced by the Mr Rose that the Defendant had failed to invite the Claimant to be present at the hearing of her appeal. As such it is an absolute breach of rule of natural justice. In furtherance Mr Rose argues that reporting procedures were not complied with as well.

13. Once again that is an arguable issue which must be heard and determined at the hearing proper. There may be other issues more but those two alone is suffice to satisfy this Court that there exists arguable case which is a requirement under the Rules.

14. Other issues as required by the Rules do not attract much argument. In fact they are straight forward and the claimant has compiled with them.

15. The bottom line issue here is a claim for unfair dismissal. There is no dispute that the Claimant was an employee of Public Service. Upon dismissal by the decision of Public Service Commission on 5th March 2013, it apparently has direct impact and directly affects the employment of the Claimant. Having being informed of the determination on 14th March, 2012, she appealed against the determination on 20th March, 2012. There was no undue delay displayed. In fact she responded instantly. From the circumstances of the case it appears that there is no other remedy that will resolve the matter except to file a case for judicial review against the executive decision of the Public Service Commission.

16. In conclusion, I am satisfied that the requirement under Rules 15.3.18 has been fulfilled and the case should proceed further for the claim for judicial review is heard in a trial.

Orders:

1. Case to proceed further to the next stage. Case adjourn to 25/4/2013 9:30 for mention and Court to fix a date for trial.

2. Cost in the cause.

The Court.