Timothy v Matevulu College [2003] VUCA 12; Civil Appeal Case 20 of 2003 (30 October 2003)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Appellate Civil Jurisdiction)

Civil Appeal Case No. 20 of 2003

BETWEEN:

JOE TIMOTHY & ISAAC ISAIAH
Appellants

AND:

THE MATEVULU COLLEGE
First Respondent

AND:

THE MATEVULU SCHOOL COUNCIL
Second Respondent

AND:

THE MINISTER OF EDUCATION
Third Respondent

AND:

THE TEACHING SERVICES COMMISSION
Fourth Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John W.von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston

Counsel: Mr Hillary Toa for the Appellants
Mr Bani for the First and Second Respondents.
Mr Edwards and Mr. T. J. Botleng for the Third and Fourth Respondents

Hearing Date: 30^th October 2003.
Judgment Date: 30^th October 2003.

ORAL JUDGMENT

This matter was listed for hearing today. Before Mr Toa commenced his submissions, on the basis of a preliminary reading of the Judgement below, the submissions filed and the available evidence, the Court raised with counsel problems which appeared to arise. After a searching discussion the Court adjourned to enable Mr Toa to consider the situation along with his clients who were present in Court.

After that adjournment we returned to Court and it appeared for the first time that there was a fundamental issue in this case which had not been articulated to any real extent at any previous time. It related to problems which emerged because there had never been an appeal under Part VII of the Teaching Service Act [CAP. 171] to the Disciplinary Appeal Board following the decision of the Teachers Service Commission to dismiss both these men entirely from the teaching service.

This was critical to the fact that there had been not only a failure to appeal but an in ordinate delay since that had occurred in going back to Court.

It was in the course of this second discussion that it became clear that it was the appellants contention that they had not known that their appeal had been heard and had been unsuccessful or that they had been dismissed entirely from the teaching service. Accordingly the appellants say they were unable to exercise a further right of appeal to the Disciplinary Appeal Board as they did not know that there was a Teaching Service Commission decision and their inaction was due to their waiting for a decision to be given.

A number of members of this court expressed a degree of cynicism about this turn of events. But it is an issue which was advanced in one line in the evidence and there is simply no evidence that the appellants actually received the letter of 30^th August 2001 so that they could have taken steps to deal with the position. The trial below, the grounds of appeal and the written submissions all failed to address this critical issue and all accept that there is an evidentiary vacuum on the point.

After a great deal of discussion between the bench and the bar the possibility was raised before lunch that a sensible resolution in this case might best be achieved if the relevant parties were to agree that today's date should be treated as the date upon which the appellants received advice of the decision of the Teachers Service Commission in August 2001 and that their appeal rights under Part VII of the Act should flow from now.

As part of the general discussion Mr Toa and his clients accepted that what happened prior to that TSC decision of August 2001 point is now history and is beyond agitation in any Court action. Under Part VII of the Act the appeal body can hear evidence and go entirely into the merits of a case. Any wrong acts or omission which are relevant still and about which there is a complaint by the appellants can be assessed in that appeal stage.

It is now sensibly accepted that the relief which included the re-employment of these men at Matevulu College is not a realistic alternative and cannot sensibly be proceeded with. Accordingly by consent the First and Second Respondents are removed from the proceeding entirely.

As far as the Minister and the TSC are concerned they remain, and it is their concession that the appeal rights under Part VII may be exercised within the statutory time limit calculated as from today which enables sensible progress to be made.

If there is a failure by the appellants to exercise those rights then they will be bound by the decision which the TSC gave in August 2001. There is a desperate need to get this case into a disciplined form free from the irrelevancy which currently bedevils it.

With that arrangement having been accepted between the parties there is nothing left in this appeal which needs to be kept on foot. If the appellants have a complaint about what happens in the new appeal process they can institute new proceedings for Judicial Review. It is now appropriate, having recorded the concession and accommodation which has been reached, to dismiss this appeal because it no longer has any substance. The appellants have achieved by the concession in this hearing the best they could ever have obtained.

There was a substantial costs Orders made in the Court below against the appellants Mr Edwards for his clients and Mr. Bani for his, seek to maintain those and further costs on this hearing on the basis that the advance which has been made by the Appellants is something which emerged only part way through the morning and that it was not an issue which they indicated or raised.

In our judgment the appropriate course is for all costs orders to be cancelled. The parties should themselves address issues of costs at the conclusion of the appeal process. There are problems as Mr Edwards own submission recognise in some of the steps undertaken by the Minister and the Teachers Services Commission in what happened. We note that there may be strength in Counsel's submission that in the exercise of the Court's discretion the errors would not have been disabling or have led to decisions being a nullity.

No one comes before this Court with totally clean hands and the appropriate course is to dismiss the appeal but to reserve to either party should they think it prudent the ability to raise questions of costs once the substance of the matter has been concluded. One would hope that after the chronicle of disasters there has been, some proportionate commonsense between the parties will prevail at that latter stage.

Dated at Luganville this 30^th day of October, 2003.

Hon V Lunabek CJ
Hon J B Robertson J
Hon J von Doussa J
Hon D Fatiaki J
Hon P Treston J