Taurakoto v Batic [1993] VULawRp 4; [1980-1994] Van LR 620 (3 March 1993)

[1980-1994] Van LR 620

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 107 of 1992

BETWEEN:

PETER KALOPAU TAURAKOTO
Petitioner

AND:

THE HONOURABLE ROMAIN BATIC
First Respondent

AND:

WILLIAM MAEL
Second Respondent

AND:

JACOB THYNA
Third Respondent

AND:

THE ATTORNEY GENERAL
Fourth Respondent

Coram: The Chief Justice: The Honourable Mr Justice Vaudin d'Imecourt.

Mr Silas Hakwa of the Vanuatu Bar for the Petitioner.
Mr Peter Coombe of the Queensland Bar with Mrs Heather Lini Leo of the Attorney - General's Chambers for the Respondents.

JUDGMENT

[ADMINISTRATIVE LAW - CONSTITUTIONAL LAW - EMPLOYMENT - applicability of prerogative writs to public servants]

The Petitioner was employed by the Public Service Commission under a Contract of employment which expressly included the Public Service Staff (Manual) Regulations as a term and condition of his contract and which sets out the terms and conditions of service of all members of the Vanuatu Public Service. It sets out, inter alia, the terms under which public servants (permanent or otherwise) are engaged and may be dismissed. It is common ground that the petitioner was not a permanent public servant and did not therefore benefit from the security of tenure afforded to permanent public servants under Article 57(5) of the Constitution of Vanuatu. It is also common ground that the Petitioner was not disciplined under the regulations for misconduct nor dismissed from service for the same. The Petitioner's contract of service was terminated by giving him one month's salary in lieu of notice. In short, the Petitioner who is an eminent and highly qualified Ni-Vanuatu teacher, was appointed to the post of Director General of Education by letter dated 6th March 1991, in these terms:

"I am writing to inform you that the Public Service Commission had on the 28th of February 1991 appointed you to the Post of Director General of Education ..........
The above is a Public Service Post ........... The terms and conditions of service governing the appointment and employment of Public Officers are contained within the Public Service Staff Manual, a copy of which should be available within theoffice of the Director General of Education. Please familiarise yourself with these conditions.
Your appointment shall become effective on the 11th of March 1991 and you shall be required to serve on probation for a twenty four (24) month period and after this period the Public Service Commission shall confirm your appointment onto permanent status if your performance meets the standard expected, if on the contrary your service, conduct or health are not satisfactory, the Commission shall consider extending your probation or otherwise terminate your employment after serving you a one month's notice."

By letter dated the 13th March 1992, the Petitioner's contract of service was purported to be terminated as follows:

"I am writing to advise you that under the powers of the Public Service Commission, delegated to the Director of the Public Service Department, under the law the Director of Public Service decided to terminate your appointment with effect from the 14th March 1992.
The Director of Public Service agreed to pay you one (1) month's salary in lieu of notice and that your last day of service with the Government of Vanuatu will be 13th March 1992."

As a result, the petitioner now applies for Judicial review and more particularly for the following prerogative writs of Certiorari, Prohibition and Mandamus and in the alternative he seeks a declaration that "Probationary period of service" in the Staff Manual is inconsistent with the relevant provisions of the Public Service Act [CAP 129] and the Employment Act [CAP 160] and further seeks compensatory damages against the respondents.

In an amended application dated 6th day of July 1992, the petitioner applies for judicial review as follows:

i) an order for certiorari to quash the dismissal decision of the 14th March 1992 as against the 3rd respondent.
ii) an order prohibiting the respondents from interfering with the rights and privileges of the Petitioner.
iii) an order of mandamus ordering the respondents to restore the petitioner to his former post of Director General of Education, pursuant to order 61(2) of the Western Pacific High Court (Civil procedure) Rules and the RSC order 53 r 1 or alternatively under RSC order 53 r 9 (5) for an order declaring the purported termination of service invalid and praying for compensatory damages.

I noted that the leave necessarily required under the rules had not been applied for but with consent of the parties I granted leave to apply for the prerogative writs out of time. It has always been the practice of the Supreme Court of Vanuatu to apply jointly with the Western Pacific High Court (Civil procedure) Rules, 1964, the rules of the Supreme Court as contained in the 'White Book' and which form part of the practice of the Supreme Court of England and Wales. It is a practice I propose to continue.

The evidence in this case was heard on the 28th, 29th and 30th of October 1992 and on the 22nd February 1993, with legal submissions made on the 23rd February 1993 by counsel.

The evidence was given in chief mostly on affidavit with cross examination by counsel. The petitioner was called, his affidavit was read and he was cross-examined by Mr Coombe, no other evidence was called for the Petitioner. For the Respondents the following witnesses were called and cross-examined, Mr Jacob Thyna, His Excellency the Minister of Education, the Honourable Romain Batic, Mr William Mael, the Chairman of the Public Service Commission and Mr Matthew Lengone.

On the evidence, I find as follows: that the Petitioner was appointed as Director General of Education by the Public Service Commission under the terms and conditions stipulated in his letter of appointment dated the 6th March 1991, (annex 10 to the Petitioner's affidavit dated the 6th July 1992). Having read the affidavit of Mr Jacob Thyna and having considered Exhibits 1, 2 and 3 in this case; Exhibit 1 being the minutes of the 7th session of the Public Service Commission held on the 6th March 1992, Exhibit 3 being the letter dated the 6th March 1992 to Mr Jacob Thyna, I am satisfied that at the meeting held on the 6th March 1992, the Public Service Commission did delegate its powers pursuant to section 9(1) of the Public Service Act CAP 129 to Mr Jacob Thyna, to be effective from the 9th March 1992. Section 9(1) of the Public Service Act states as follows:

"The Commission may from time to time either generally or particularly delegate any of its powers and functions under this Act...... to a Commissioner."

Having considered the evidence of Mr Jacob Thyna and having seen and considered exhibits 1 and 3 in this case and having considered section 9 of the above mentioned Act, clearly, there were no other powers which the Commission could have delegated. If any doubt remained, Exhibit 2, the minutes of the 8th session of the Public Service Commission held on the 19th day of March 1992, makes it clear that it was the powers of the Commission granted to Mr Thyna on the 6th March 1992 that was removed or revoked on that occasion. So that I am satisfied that Mr Jacob Thyna, the Deputy Director of the Public Service Department, was telling the truth and that he held a Commission from the Public Service Commission from the 9th March 1992. I considered this point with care, because Exhibit 1, the minutes of the 7th session of the P.S.C, read as follows:

"The Public Service Commission approved the delegation of powers from the Chairman of the Public Service Commission to the Deputy Director of Public Service from 9th March until further notice"

Whereas the letter Exhibit 3 sent to Mr Thyna reads as follows:

"I write to advise that the Public Service Commission in accordance with the Public Service Act, CAP 129, Section 9(1) decided to delegate its powers and functions to you effective 9th March 1992 until further notice."

and I note that Exhibit 2, the minutes of the 8th session of the Public Service Commission reads as follows:

"1. Revocation of delegation of Public Service Commission powers to the Deputy Director of Public Service Department."

As I mentioned above, the Public Service Act CAP 129, only entitles the Commission to delegate its powers (and not those of the chairman) to a Commissioner, this leads me to find as a fact that those were indeed the powers conferred to Mr Jacob Thyna. The importance becomes only too clear when one considers that under Article 60(1) of the Constitution of Vanuatu (the Supreme Law of the Republic: see Article 2):

"The Public Service Commission shall be responsible for the appointment and promotion of public servants."

and that under section 21 of the interpretation Act:

"Where an Act of Parliament confers powers on any authority to make any appointment that authority shall also have power....... to remove ...... any person appointed in the exercise of the Power."

So, therefore, the powers to appoint a public servant and to remove him from office, vest in the Public Service Commission and where the Commission's powers have been delegated under section 9(1) of the Public Service Act to a Commissioner, similarly, the power to remove a public servant vests in the Commissioner. Therefore when the Petitioner was appointed, it was the Public Service Commission that appointed him and he could only have been removed, if at all, by the Commission or by a Commissioner empowered by the Commission itself.

The Petitioner's appointment was terminated by the letter dated the 13th day of March 1992:

This letter was signed by Mr Thyna who was then the Acting Director at a time when he held the Commission under Section 9 (1) of the Public Service Act. On the face of it therefore he had power to dismiss an employee when the letter was written.

This case raises a number of interesting points. Is this a simple case of master and servant governed by an ordinary contractual relationship? or on the other hand, does this case involve a situation where the "body" employing the man is under some statutory or other restriction as to the kind of contract that it can make with its servants or the grounds on which it can dismiss them? If the former, it is clear law that the courts will not review by way of prerogative writs a situation which amounts in reality to a domestic breach of contract of employment. If the latter, then the Petitioner's removal from office would, in law, be a nullity and he would continue to have the right to be treated as a public servant with all the benefits which by statute, that status conferred on him, and this court would then be entitled to issue the prerogative writs.

Prerogative writs were ancient remedies at common law which at one time went to inferior courts. Later they were extended to statutory tribunals, sometimes to cases where citizens rights were affected e.g. a Constitutional right. It was eventually extended to cases in which decisions of an administrative officer can only be arrived at after an inquiry of a judicial or quasi-judicial character. See R v Manchester Legal Aid Committee Ex p. R.A. Brand & Co Ltd [1952] 1 All ER 480, [1952] 2 QB 413; and again R v Criminal Injuries Compensation Board Exp. Lain [1967] 2 All ER 770 at 778; [1967] 2 QB 864 at 882, in which Lord Parker C.J. referring to the case of R v Manchester Legal Aid Committee Exp. R.A. Brand & Co Ltd (above) stated:

"We have as it seems to me, reached the position when the ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects provided always that it has a duty to act judicially"

In R v British Broadcasting Corp, Ex parte Lavelle [1983] 1 All ER p 241 at 248 Woolf J referring to RSC Ord 53, R1 said:

"There is nothing in R1 .......which expressly extends the circumstances in which the prerogative remedies of mandamus, prohibition or certiorari are available. Those remedies were not previously available to enforce private rights but were what could be described as public law remedies. They were not appropriate, and in my view remain inappropriate remedies, for enforcing breaches of ordinary obligations owed by a master to his servant."

In Lee v Showmen's Guild of Great Britain [1952] 1 All ER 1175 at 1183, [1952] 2 QB 329 at 346, involving a case brought by an action and which therefore did not involve an application for a prerogative writ and is therefore strictly speaking, obiter on that particular point, Denning LJ said:

"In the case of statutory tribunals, the injured party has a remedy by certiorari, and also a remedy by declaration and injunction. The remedy by certiorari does not lie to domestic tribunals, but the remedy by declaration and injunction does lie and it can be equally effective, if not more effective than certiorari. It is, indeed, more effective because it is not subject to the limitation that the error must appear on the face of the record."

In Vidyodaya University of Ceylon and others v Silva [1964] 3 All ER 865 in the Privy Council (Lord Morris, Lord Hudson, Lord Guest and Lord Cohen) this was a case involving a University established and regulated by statute, that did not involve that contracts of employment made with teachers and subject to the Act were other than ordinary contracts between master and servant; in that case, the respondent was not shown to have any other status than that of a servant, and, since procedure by certiorari was not available where a master summarily terminated a servant's employment, certiorari had been wrongly granted. At page 867 Lord Morris said:

"The law is well settled that if, where there is an ordinary contractual relationship of master and servant, the master terminates the contract the servant cannot obtain an order of certiorari. If the master rightfully ends the contract there can be no complaint. If the master wrongfully ends the contract then the servant can pursue a claim for damages."

The principle was previously stated in a decision of the House of Lords in the celebrated case of Ridge v Baldwin and Others [1963] UKHL 2; [1963] 2 All ER 66; at p 71 [1963] UKHL 2; [1964] A.C. 40 at p 65 by Lord Reid as follows:

"The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them."

The distinction can often be blurred as a result of the fact the employer may be a statutory body, for example, as in the present case, the Public Service Commission. The point being that in the ordinary case of master and servant, the repudiation or wrongful dismissal terminates the contract giving rise to a claim in damage, whereas where the servant has a special right guaranteed to him by statute, that right cannot be removed from him save as stipulated under the statute itself. Viscount Kilmuir L.C. said much the same in his speech in a decision of the House of Lords in Vine v National Dock Labour Board [1956] 2 All ER 939 at p 944; [1957] A.C. 488 at p 500. Vine was a registered dock labourer who as such was employed under a scheme embodied in an order made under a section of the Dock Workers (Regulation of Employment) Act, 1946. He was invalidly dismissed. Because this was so his name was not validly removed from the register of dock workers and he continued to be in the employ of the National Board. Viscount Kilmuir L.C., said:

"This is an entirely different situation from the ordinary master and servant case. There, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Here, the removal by the Plaintiff's name from the register being, in law a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which, by statute, that status conferred on him. It is, therefore, right that, with the background of this scheme, the court should declare his rights."

In the same case Lord Keith of Avonholm said at p 948; (and 500):

"This is not a straight forward relationship of master and servant. Normally, and apart from the intervention of statute, there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages."

It becomes, therefore, important to consider whether the petitioner had any other position or status than that of an ordinary employee or servant. In another decision of the House of Lords in Mallock v Aberdeen Corporation [1971] 2 All ER 1278, [1971] 1 WLR 1S78, which was a case concerning the dismissal of a Scottish teacher, a case in which Lord Reid also gave the first speech he said (at p 1282; and p 1581;):

"The first depends on a submission that the status of teachers in Scotland is simply that of an ordinary servant. At Common Law, a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."

It is submitted on behalf of the petitioner that he stands in a special position because the Public Service Commission (his employer for these purposes) is a statutory body which derives its powers from the Constitution of Vanuatu (see chapter 9 part 1 of the Constitution) and from the Public Service Act CAP 129 and that in dismissing the petitioner the Commission, or in this case, the Officer purporting to exercise the powers of the Commission, acted in a manner either not authorised by the Act or exceeded his powers under the Act. It is accepted that the powers of the Commission had been properly delegated to Mr Thyna, but it is submitted that the latter did not exercise those powers in accordance with the Act or the staff manual. It is further accepted that the petitioner was never a permanent public servant. As I have indicated before, permanent public servants have a guaranteed security of tenure under Article 57 (5) of the Constitution and can only be dismissed on disciplinary grounds under Section 11 of the Public Service Act CAP 129, apart from that, their service can be terminated on early retirement under section 4 of the same Act.

Section 3(1)(f) of the P.S.A. CAP 129 states: the Commission shall in respect of the Public Service, be responsible for:

(f) acting as the personnel authority for the Public Service.

Section 18 states:

18(1) the Prime Minister may by Order make regulations for the carrying out of the provisions of this Act and for the efficient management, control and working of the Public Service.
18(3) Without prejudice to the generality of subsections (1) and (2) the Prime Minister may in particular make regulations with respect to any of the following matters.
(3)(d) generally for prescribing the terms and conditions of service and employment of officers.
(3)(f) generally for prescribing the terms and conditions which may be imposed in or in respect of any contract or arrangements relating to the Public Service entered into between the Government on the one hand and its officers or any other persons on the other hand.

Under section 19(1) the Prime Minister or the Commission may from time to time issue Public Service Instructions covering every aspect of the work and privileges of officers.

19(3) It shall not be necessary for instructions made under this section, which shall be for the internal use, guidance, assistance and general conduct of officers to be published in the Gazette.
19(4) Whenever there is any conflict between any instruction made under this section and any regulations made under section 18 or any provision of this Act, the Constitution or any written law the regulations or Provisions shall prevail.

Section 13 of the Interpretation Act CAP 132 states:

S. 13 Every statutory order shall be published in the Gazette and shall be judicially noticed.

The commencement of statutory orders are governed by Section 14 of the same Act as follows:

14(1) Subject to the provisions of this section
(a) the commencement of the statutory order shall be such date as is provided in or under the Order or where no date is so provided the date of its publication as notified in the Gazette.
(b) every statutory order shall come into force immediately on the expiration of the day next preceding its Commencement.

The staff manual to which extensive reference has been made in this case, has never been Gazetted nor is there a commencement date stipulated. The manual was also clearly intended to be Public Service Instructions under section 19 of the Public Service Act CAP 129 and not therefore Regulations under section 18 of the same Act. The difference being that under Section 19(3) the instructions are for internal use, guidance, assistance and general conduct of Officers and shall form Part of the conditions of service of officers; they are therefore, the contractual terms upon which all officers employed by the Public Service are engaged. Under section 19(4) they are subject to certain limitations. In the event of a conflict between the instructions and regulations under section 18 or any provisions of this Act (the P.S.A.), the Constitution or any written law the regulations or provisions shall prevail.

The Petitioner was appointed by letter dated the 6th March 1991 in these terms:

"The terms and conditions of service governing the appointment and employment of public officers are contained within the public service staff manual, a copy of which should be available within the office of the Director General of Education. Please familiarise yourself with these conditions.

Your appointment shall become effective on 11th of March 1991 and you shall be required to serve on probation for a twenty four (24) months period and after this period the Public Service Commission shall confirm your appointment onto permanent status if your performance meets the standard expected, if on the contrary that your service, conduct or health are not satisfactory the commission shall consider extending your probation or otherwise terminate your employment after serving you a one month's notice."

The above set out the terms on which the Petitioner was to start his employment, and more specifically, the staff manual was to form part and parcel of the term of his contract of service. He was to be a probationer for a period certain of 2 years.

Paragraph 3.6 (a) of the staff manual states as follows:

"Each candidate for permanent appointment shall be appointed on probation for 2 years [PSI 1/82] and confirmation of his permanent appointment shall be decided by the Public Service Commission only after the expiry of the probation period and with the favourable recommendation of the Officer's head of department".

In the case of the Petitioner, his "head of department" would have been in effect the Minister of Education himself. It is submitted on behalf of the Petitioner that the terms and conditions of his appointment were illegal because the staff manual are no more and no less than Public Service Instructions under section 19 of the P.S.A. CAP 129 which are themselves subordinate to the provisions of that Act itself and the Constitution and every other Act that is found to be in conflict with it (see section 19 (4) P.S.A. CAP 129), and that paragraph 3.6 (a) of the manual is itself in conflict with Section 14 of the Employment Act CAP 160 which states:-

14(1) Every contract of Employment for an unspecified period shall be subject to a probationary period of 15 days. The period may be increased to a maximum of 6 months, including renewals; by agreement between the parties to the contract.
(2) During the probationary period a contract of employment may be terminated by either party without notice at any time.

It is submitted that therefore the longest period of probation allowed by law is one of 6 months and that the instructions contained in paragraph 3.6 (a) of the staff manual are unlawful as being in conflict with section 14 of the employment Act.

Clearly the effect of section 14 of the Employment Act [CAP 160] is that after a probationary period which can be extended to a maximum period of 6 months, during which the employment can be terminated summarily without notice, the probationer either leaves or if he is kept on, automatically becomes a full member of staff, subject of course to the fact that he still holds his employment for an unspecified period, and, under the Employment Act, the period of contract in that event is governed by section 15 which states:

15 "The maximum duration of employment that may be stipulated or implied in any contract shall in no case exceed 3 years."

Under that Act, the probationary period having ended at the end of 6 months at most, the probationer then becomes an automatic permanent member of staff. Nothing more is required of the employer except passive acceptance of the status quo.

Further, under the Employment Act, his contract can be determined under Section 49 thus:

S.49(1) A contract of Employment for an unspecified period of time shall terminate on the expiry of notice given by either party to the other of his intention to terminate the contract.
(2) Notice may be verbal or written, and, subject to subsection (3) may be given at any time.
(3) The length of notice to be given under subsection (1) -

• (a) where the employee has been in continuous employment with the same employer for not less than 3 years, shall not be less than 3 months;
• (b) in every other case:-
  • (i) where the employee is remunerated at intervals of not less than 14 days, shall be not less than 14 days before the end of the month in which the notice is given;
  • (ii) where the employee is remunerated at intervals of less than 14 days, shall be at least equal to the interval.

(4) Notice of termination need not be given if the employer pays the employee the full remuneration for the appropriate period of notice specified in subsection (3).

Section 6 of the Employment Act CAP 160 states:

6. Nothing in this Act shall affect the operation of any law, custom, award or agreement which ensures more favourable conditions in any respect to the employees concerned than those provided for in this Act.

The gist of the submission on behalf of the petitioner, if I have understood it rightly is this: that because paragraph 3.6 (a) of the manual is in conflict with section 14 of the Employment Act, and that because under section 19(4) of the Public Service Act instructions (which is what the staff manual is) are subordinate to any other legislation including the Public Service Act itself, the effect of the Employment Act is to make the maximum term of probationary period under the Employment Act 6 months and therefore it cannot be 2 years as per the letter of 6th March 1991 or as under paragraph 3.6 (a) of the staff manual. It follows from the submission that is being made that the effect therefore of these Acts read together would be that the probationer public servant becomes automatically a permanent public servant after the statutory 6 months maximum period (stipulated under section 14 Employment Act) and thus benefits from the security of tenure afforded to public servants under the Public Service Act and the Constitution. This attractive submission is in my judgment flawed for this reason. Article 60 of the Constitution, (which is the Supreme law of Vanuatu: see Article 2) states as follows:-

60(1) The Public Service Commission shall be responsible for the appointment and promotion of public servants, and the selection of those to undergo training courses in Vanuatu and overseas. For such purposes it may organise competitive organisation.

Although I accept the submission made that there is a conflict between the instructions (paragraph 3.6 (a) of the Public Service manual) and the Employment Act Section 14, there is also clearly a conflict between that Act (i.e. the Employment Act) and Article 60 of the Constitution which entitles only the Public Service Commission to appoint public servants without limitations as to its powers (save under the rights as guaranteed by the Constitution itself). So unlike employment under the Employment Act CAP 160 (which is an Act to govern the employment of staff outside the Public Service) where after the probationary period there is no need for the employer to do anything in order to establish the employee on his staff as he becomes so automatically; under the powers conferred by the Constitution on the Public Service Commission, it is only the Commission which can appoint, without fetter as to its discretion to appoint, a permanent member of the Public Service. The instructions, therefore, contained in the staff manual are not only the terms of engagement which forms part of the contract of employment between the Petitioner and the Commission, but are also an expression of the terms under which the Commission chose to engage the Petitioner, and in that discretion which they hold from the Constitution they cannot be limited by any Act of Parliament. It would require an amendment to the Constitution itself. So, subject to the Constitution itself, it would mean that the Commission are at liberty to impose such terms of probationary period as they see fit to someone aspiring to become a permanent public servant. Once the person is admitted to the establishment of the Public Service he then, of course, is afforded all the protection which the Constitution and the law affords a permanent public servant. Until such time, he is employed under the terms and conditions of his letter of engagement. To state otherwise would mean that a power granted by the Constitution to the Public Service Commission could be limited by an Act of Parliament. The Public Service Commission is not simply a Statutory Body subject to the Public Service Act, but a Constitutional Body deriving its powers first and foremost from the Constitution itself.

The result is that the Employment Act CAP 160 governs the employment of the ordinary man in the street, whereas the Constitution and the Public Service Act govern the employment of public servants. Article 60 (4) of the Constitution makes that clear in this way:

60(4) The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.

This does not mean, of course, that the prerogative writs would not run against them or that the limits of their powers cannot be investigated by the courts and that they are not subject to the rules of natural justice, what it means simply, is that Parliament cannot by passing an ordinary Act curtail the powers conferred on them by the Constitution.

A contract entered into by the Public Service Commission is not subject to and limited by any other Act of Parliament where that Act seeks to remove a right conferred upon the Commission by the Constitution. In practice they can make whatever contract they choose and subject to the length of probation they choose with 3rd parties and those 3rd parties would not move onto the "establishment" and become permanent civil servants until the Commission decide to place them there. The effect of this in this case, means that the petitioner has an ordinary contract of service, creating an ordinary relationship of master and servant with the Commission and subject to the terms and conditions of that contract, not only as to the effect of the contract itself as between the parties, but very much subject to the rules enunciated in Ridge v Baldwin [1963] 2 All ER p 71 and Vidyodaya University of Ceylon and Others v Silva [1964] 3 All ER p.865; and the other cases I have cited in this judgment with regards to the limitations imposed on the courts as to the issue of prerogative writs and as to the Court's inherent powers to grant declarations.

Applying, therefore, those rules to the present case, it is my view that the court cannot issue certiorari, mandamus or prohibition as requested, against the respondents, as judicial review is not the appropriate remedy in an ordinary master and servant relationship.

In my judgment this application for review by prerogative writs is misconceived and is bound to fail. I therefore dismiss this motion with costs.

Although this is all I need say about this case, since it was begun by motion and not by writ, I will nevertheless look at the contractual agreement between the parties to see whether a claim for damages would have succeeded or not. We know that the Petitioner was dismissed by Mr Thyna in a letter dated 13th March 1992. It was conceded during submissions, that Mr Thyna did hold the Commission's powers at the time, so that he would have had the authority to terminate the agreement or contract made on the 6th March 1991 with the Petitioner. We know that the terms of that agreement is subject to the Public Service manual. We know that the Petitioner was not a permanent public servant. Under paragraph 3.6. (a) of the manual he would be only a candidate for permanent appointment.

It is submitted in the alternative for the Petitioner, that the letter of appointment of the 6th March 1991, amounted to a fixed term of probation which could only be determined at the end of 2 years, and not before, by giving 1 month's notice. If that submission is right, although I am far from certain that it is, the Petitioner is therefore an officer who is "other than a permanent Officer" within the meaning of paragraph 14 (5) [a] of the manual which states:

"The services of an officer other than a permanent officer may be terminated by giving due notice in accordance with the terms of his engagement and if no period of notice is specified therein, by giving one month's notice or one month's salary in lieu of notice."

Therefore, since no period of notice is specified in the period of 2 years ' probation, in any event the Public Service Commission need only have given him one month's notice or one month's salary in lieu, in order to terminate his employment. If this had been a case started by action for damages for breach of contract, I would have had no hesitation in saying that strictly, the Commission had acted lawfully in the manner in which they terminated his employment. There appears to have been no real reasons for dismissing the Petitioner, except that they wished to terminate his contract. Whatever their motive, and I do not know what that is, is neither here nor there, they had the right to terminate it without giving any reasons and that is what they did. Again, I cannot put it better than in the words of Lord Morris of Borth-y-Gest in the Vidyodaya University case (above):

"If the master rightfully ends the contract there can be no complaint."

I believe therefore, that I would have been bound to dismiss a claim founded on breach of contract brought on the facts of this case. If I have expressed a view at all on the contractual relationship between the parties, it is merely to allay any fears that Mr Hakwa or his client may be left with, that an action for breach of contract might have succeeded if I had acceded to Mr Hakwa's application, which was opposed, to join with this motion an action for breach of contract. All the arguments, it seems to me, which might be put before a court in an action for breach, were before me in this case and I do not see what else could have been added. But I make it clear that my ruling only extends to dismissing this motion and is in no way to be regarded as being a ruling on a case brought by writ for breach of contract as it is totally outside the ambit of this case. I have indicated during the course of submissions by counsel, that in the event that this motion should fail, I would express a view as to the contractual relationship between the parties, and I have, but it is not to be regarded as binding upon any other court before which such an action, if it is brought, is argued. That must be a matter for Mr Hakwa and his client.

Since cost must follow the event, I award costs of this motion to the Respondents.

Dated at Port Vila this 3rd day of March 1993.

CHARLES VAUDIN D'IMECOURT
CHIEF JUSTICE