Avock v Government of the Republic of Vanuatu [2002] VUCA 44; CA 22-02 (1 November 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL APPEAL JURISDICTION
Civil Appeal Case No.22 of 2002
BETWEEN:

SAMSON AVOCK

Appellant
AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU

First Respondent
AND:

THE JUDICIAL SERVICES COMMISSION

Second Respondent

Coram: Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver A. Saksak

Counsels: Mr. Hillary Toa for the Appellant
Mr. Michael Edwards and Miss Emma Robertson for both Respondents

Hearing date: 29th October 2002
Judgment date: 1st November 2002

JUDGMENT

This is an appeal against a refusal to grant leave to apply out of time for leave to apply for judicial review contained in a ruling delivered by Justice Coventry in the Supreme Court Vila on the 4^th of October 2002 and against the striking out of the appellant’s total proceedings.

Mr. Avock was employed for a number of years as the Sheriff of the Supreme Court of the Republic of Vanuatu.

In 1998 an issue arose with regard to a sum of VT100,000. When the money was found to be missing the fact was reported first to the Chief Registrar and to the then Acting Chief Justice both of whom were naturally involved in investigating such a serious matter.

On 23^rd March 1999 the Acting Chief Justice suspended Mr. Avock from his duties on the grounds that he had misappropriated the VT100,000 which was missing.

The appellant was subsequently criminally charged in connection with the missing money. However on 6^th June 2000 in the Supreme Court sitting at Port Vila there was a nolle prosequi and the criminal charge was accordingly finally disposed of.

On 25^th June 2001 Mr. Avock appeared before the Judicial Services Commission where he was called to account for the misuse of the same VT100,000. He was represented by counsel.

On 12^th July the Judicial Services Commission terminated the appellant’s employment on the basis of the theft of the VT100,000.

Mr. Avock alleges that the Judicial Services Commission when it heard his case on 25^th June 2001 had as one of its members the then Acting Chief Justice. He was both a witness and complainant in the case but sat as a member of the Judicial Services Tribunal which determined to terminate his employment.

Mr. Avock also says that as the VT100,000 which was the subject of the criminal charge in the Supreme Court was the same matter which led to his termination he had been placed in double jeopardy. That argument has no sense or substance. The issues were quite different. The ground need not trouble us further. It has nothing to do with Article 5 (2) (h) of the Constitution.

It is common ground that when the initial inquiry was undertaken Mr. Avock admitted taking the money and appropriating it to his own use. He subsequently said that he made an untrue admission ostensibly to protect other members of the Court staff and on the understanding that he could just repay the money to the Finance Department Salary Section. When he later realized the consequences of doing this he wanted to recant and tell the true story. On its face that all appears somewhat unlikely for a man who has been employed in the Court system for a substantial number of years although he does have the possibility of some support in that for whatever reasons the criminal proceedings against him were permanently stayed at the instigation of the public prosecutor.

There is an area of dispute as to when exactly Mr. Avock came to know of his dismissal which in fact occurred on 12^th July 2001. Justice Coventry although a little sceptical on the point was prepared to treat the matter as having come to the applicant’s knowledge not later than 8^th October 2001. If he wished to apply for judicial review of the decision then he had to do so within a period of six months.

Order 61 Rule 3 provides:-

“Leave shall not be granted to apply for an order of certiorari to remove any judgment order conviction or other proceeding for the purposes of it being quashed unless the application for leave is made not later than six months after the date of the proceedings”.

Order 64 (5) provides for the enlarging of time. We reject Mr. Edward’s submission that its operation is prohibited by Order 61 Rule 3. The two provisions can properly be read in tandem.

When there is an application for leave which is at least four months out of time (and may be even longer) there is a heavy onus on the person to explain why they have not commenced the proceedings in the time which is provided. Obtaining finality is always an important ingredient in matters which can lead to judicial review.

There are however two aspects of this matter which in our view require particular attention. The first is the fact that there are associated proceedings in which the appellant seeks relief under the Employment Act. Those are not affected by this short time limit. These are proceedings which can be commenced at any time within the 3 year limitation period and they still have to be determined. We are unclear as to whether this has been particularly weighed by the trial judge. It raises a fascinating jurisprudential issue. The appellant acknowledges, in our view sensibly, that reinstatement could not in all the circumstances be contemplated. The remedy he seeks is damages for unjustified dismissal. Can he challenge the validity of his purported dismissal on the basis that the decision to do so was wrong either procedurally or on the merits in the Employment case? Is he forced by Judicial Review to have the decision set aside so that it does not act as a bar? Should he be forced to take out a Constitutional petition alleging a breach of Article 5 (2) (a) to get the issue determined? Everyone agrees that in this case the important thing is to get to the substance.

Secondly on the face of the proceedings it is alleged that the learned Chief Justice sat on the Judicial Services Commission when it determined this matter. If this is correct it must be arguable that he was effectively the complainant in respect of the matter and perhaps a witness in determining the issues involved, as well as one of the adjudicators.

This is alleged to constitute actual bias. Mr. Avock would not have to establish anything more than a perception of bias for relief to be considered in such circumstances. It is a fundamental issue which goes to the very heart of our system of justice that no person can be both witness and judge in his own cause. On the face of the application as currently pleaded it is arguable that the Chief Justice did have a dual role in the determination which occurred. Mr. Edwards suggested that perhaps Mr. Avock waived the point by not raising it before the tribunal. We doubt that could be so, but it can be open for argument.

Not only must justice be done but it must manifestly be seen to be done. We are concerned that in respect of this matter if an opportunity to have his day in Court is denied to the appellant, there is a possibility that the perception will arise that the legal establishment is closing ranks by denying him the opportunity to air his grievance.

We certainly are not of the view that Mr. Avock will necessarily succeed. But all these matters need to be in contention in the substantive inquiry which there needs to be in the proceedings which are still to be heard and in respect of which the 6 month limitation period has no application.

In those circumstances we are of the view that justice will better be done (and as importantly be seen to be done) if what would normally be an inexcusable period of delay is not treated as a barrier. By consent the parties agreed that there should be a one-off-hearing of the employment case with no challenge being taken to all the outstanding issues being agitated and determined in it.

The appeal is accordingly allowed. The substantive Employment Act proceeding as Civil Action No. 140 of 2002 is reinstated and remitted to Justice Coventry for hearing in its entirety as soon as possible.

There will be no costs orders in respect of this hearing or the previous hearing in the Supreme Court.

Dated at Port Vila, this 1^st day of November 2002.

BY THE COURT
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak