Michel v Director of Finance [1997] VUSC 40; Civil Case 068 of 1997 (8 October 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No.68 OF 1997

MAURICE MICHEL
Appellant

AND:

THE DIRECTOR OF FINANCE
1^STondent

AND:

THE ATTORNEY-GENERAL OF VANUATU
2^nd Respondent

Coram: Mr Justice Vice Vincent Lunabek, Acting Chief Justice
Mr Justice Bruce Robertson
Mr Justice John von Doussa

Counsel: Mr Robert Sugden for the Appellant
Mr Jack Kilu for the Respondents

REASONS FOR REFUSING LEAVE

On 8th October we heard an application for leave to appeal to the Court of Appeal against the decision delivered in the Supreme Court by Justice Oliver Saksak on 27th June 1997 when he revoked leave that had been granted on 16th June 1997 and ordered payment of the Respondents’ cost by the Appellant. We refused leave and now provide reasons.

On 10th May 1995, the Appellant was appointed Auditor General by the Public Service Commission. The letter of Appointment did not refer to the term during which he was to hold office, but Section 2 of the Audit of Public Accounts Act [CAP. 165] provides in Subsection 2 that the Auditor General shall hold office for the term of 6 years. On its face the Appointment by the Public Service Commission was in conformity with Section 2(1) of that Act.

Section 2(2) specifically provides that although the term is 6 years, he may be removed for cause by resolution of Parliament at any time.

There has been no resolution of Parliament as regard to the Appellant holding office as Auditor General.

The Ombudsman of her own volition, on 24th May 1995, commenced an enquiry into the conduct of the Public Service Commission in the Appointment of Maurice Michel as Auditor General.

She released a public report dated 6th March 1997 upon the subject.

Subsequently, the Public Service Commission wrote a letter to Maurice Michel on 30 May 1997 advising that his "purported Appointment" was "illegal from the start, in breach of the Constitution and procedures and laws of this country" and indicating that from then he would "cease to hold office as Auditor General."

Not suprisingly, Mr Michel sought legal advice. Following some correspondence between his solicitor and the solicitor for the Respondents an ex parte application for leave was filed in the Court on 12th June 1997. This was made pursuant to the provision of Order 61 of High Court (Civil Procedure) Rule (1964) which provides that no application for an Order of mandamus, prohibition and certiorari shall be made unless leave therefore have been granted in accordance with the Rules. Rules 61(2)(2) provides that an application for such leave has to be made ex parte to the Court.

We discussed with Mr Sugden the manner in which matters transpired on the date of hearing of this leave application on16th of June. We are advised that Mr Kilu sought to be heard on behalf of his clients and Mr K. Crossland also sought to be heard on behalf of the Ombudsman. We have doubts about Mr Crossland having an audience. The Ombudsman Act No. 14 of 1995 makes it clear that her powers are recommendatory only. We are not satisfied that it was appropriate for her to seek audience on a matter of the sort. Having published a public report she had concluded her task. It was then for others to act upon it if they are minded to do so. She may apply to the Court under Section 30 (2) only if those responsible fail and the procedures must be strictly followed.

The position of Mr Kilu was quite different notwithstanding the ex parte nature of a leave application. This is a mechanism by which the Court can in certain circumstances have a degree of control over the issue of a process. As this present case has amply demonstrated, the fact that the application must be made ex parte does not necessarily mean that no opportunity should be provided for the intended Respondent to be heard.

There had already been communication between the legal representatives of the parties. This was a matter of important constitutional and statutory significance. A failure to hear the Respondent on the leave application rather than enhancing the administration of justice simply added a further tier of procedure and has not assisted the parties. The effect has been to slow down the eventual determination of the important issues which this case presents.

The learned Judge on the basis of information which he had made the following orders:

1. That the Applicant be given leave to apply to the Court for an Order of Mandamus requiring the Respondents to pay his salary entitlements as Auditor General for mid-June, 1997 and thereafter.

2. That until further Order of the Court the Respondents pay the Applicant’s salary entitlement of mid-June, 1997, and thereafter.

3. That the costs of and incidental to the application for an order of Mandamus.

Predictably, there was an immediate application filed by the Respondents under Order 55 of the High Court (Civil Procedure) Rule 1964 seeking:

(a) The ex-parte Orders issued by this Honourable Court dated 16th June, 1997 be set aside or dismissed forthwith.

(b) the orders be served on all parties.

(c) The Applicant to pay the Respondent’s costs in relation to this application.

If the Judge had heard both Mr Kilu and Mr Sugden before making the original orders the need for that second application could have been avoided. The time and effort which has gone into procedural wrangles could have been avoided.

Dealing with the matter without hearing both sides simply meant that there had to be a further hearing. That was held on 27th June and as a result the following Orders were made:

1. That leave and order of the Court dated 16th day of June 1997 are revoked,

2. The Plaintiff will pay the costs of the Respondents to be taxed if not agreed,

3. This orders will be served on all parties.

On the 14th July, a further application for leave was filed on behalf of Mr Michel.

On 29th July, an application for leave to appeal to this Court against the orders of 27th June 1997 was filed.

On 5th of September leave was granted to Mr Michel in the following terms:

1. The Applicant be given leave to apply for an Order of Certiorari to issue to the First Respondent requiring (sic) its decision of about 30th May, 1997 whereby it declared void its appointment in 1995 of the Applicant to the position of Auditor General.

2. The Applicant be given leave to apply for an Order of Mandamus requiring the Second Respondent to pay to the Applicant all of his salary instalments from that of the 13th July, 1997 onwards according to law.

3. The costs of and incidental to this application for the Orders of Certiorari and Mandamus.

When the matter was listed before us, we initially questioned Mr Sugden as to what detriment his client was presently suffering as a result of this long chronology of interlocutory applications and in what way he is disadvantaged.

Mr Sugden responsibly accepted that the initial order which had been made directing the payment of Mr Michel financial benefits pending hearing was ill conceived. Apart from the issue of costs, there was no serious outstanding problem.

On that basis, it made no sense for leave to be given to appeal to the Court of Appeal about a matter which is now of historical interest only.

We should not in anyway be taken as minimising the importance the issues which are raised on the substantive proceeding. Among those are:

a) Whether the initial appointment made by the Public Service Commission was lawful and properly made.

b) If it was not, what is the means by which it should be declared that is the position.

c) What is the effect and meaning of the provision about removal of an Auditor General for cause by resolution of Parliament.

d) What rights does a person in the position of Mr Michel have to be heard by the Public Service Commission (if it has any right to deal with the matter) or if there is a proceeding in the Parliament about his removal.

Granting leave to appeal in respect of the various interlocutory matters would do nothing to advance those issues. It is not the function of an Appellate Court to provide a general declaration on legal principle in advance of a case in which the appropriate factual basis has to be established by evidence in the normal way.

Mr Sugden submitted that there could be some issues upon which there would be assistance if the Court of Appeal providing some general comments. That is not the way the Courts of this country function. First they determine the factual situation and secondly upon the basis of that then apply the law.

It is essential that at every step in a process it is remembered that any action taken should be designed to advance the speedy just and proper determination of a real dispute. Substance must have priority over form.

Except in the most exceptional circumstances every step should involve hearing all persons who have a legitimate and genuine interest in the determination which has to be made.

Experience in a number of high profile cases in recent years should demonstrate to the Bar that a step which is taken without hearing from all who have a genuine interest will not advance the case but will slow the process and eventually be to the disadvantage of the party who initiates such approach.

Apparently the practise is that leave applications which are required to be ex-parte must be considered without the other party being heard. We are not satisfied that has to be the approach. Advice of a hearing time and an opportunity to provide the other side of an issue will often be wise.

Because of this we consider all issues of costs should, in the meantime, be stayed. They can become a part of the total costs to be assessed when the final issue in this problem between the parties is resolved by the Court.

We stress again the fundamental importance of ensuring that the Court has assistance from everybody who could provide a legitimate perspective. Although a matter is filed ex-parte there is no reason why they should not be an opportunity for counsel representing the other side who are known and identifiable to be informed about the date of hearing and able to be present to provide input. To continue to adopt the present approach will only slow down processes and interfere with the delivery of justice as has happened in this case.

Leave was refused. The Court orders that any orders in respect of costs which had been made on any of the interlocutory proceedings to date be stayed to be considered as part of the total costs at the conclusion of the substantive hearing.

DATED AT PORT-VILA this 8th day of OCTOBER 1997

BY THE COURT

Vincent LUNABEK ACJ
J. Bruce ROBERTSON J
John W. von DOUSSA J