Nelson v Attorney-General [1998] VUSC 58; Civil Case 017 of 1995 (23 September 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No.17 OF 1995

>BETWEEN:

ADELYNE NELSON
Plaintiff

AND:

THE ATTORNEY GENERAL
REPRESENTING THE REPUBLIC OF VANUATU
First Defendant

AND:

THE TEACHING SERVICE COMMISSION
Second Defendant

Counsel: t Sugt Sugden for Plaintiff;
Arthur Faerua for Respondents

Hearing: 16 September 1998

JUDGMENT OF TOMPKINS J

Introduction

>

The plaintiff claims that at all material times she was the principal of Epi Junior High School. By letter of 22 February 1994, the Minister of Education ("the Minister") suspended her from duty without salary as from that date. By letter of 4 March 1994, she appealed to the second defendant, the Teaching Service Commission ("the Commission") against that suspension.

By letter of 9 May 1994, the Commission advised that she was re-instated with effect from 23 March 1994. By letter of 30 June 1994, the Minister advised her that her posting for 1994 was at Nasareth Junior Secondary School as a class teacher.

The plaintiff challenges the validity of the suspension, certain aspects of the Commission’s decision, and what she claims was a demotion. She seeks appropriate declarations and claims for unpaid salary.

Procedural issues

These proceedings have been bedevilled by a large number of interlocutory proceedings, two of which have reached the Court of Appeal. I do not find it necessary to relate them in any detail. For the purpose of the hearing of the substantive action, there are two procedural matters that need to be resolved.

When these proceedings came before me at a pre-trial conference on 13 August 1998, the second defendant was in breach of its obligations to comply with the discovery that had been directed by the Court of Appeal to be completed almost 2 years before. Counsel for the plaintiff also submitted that discovery by the first defendant was incomplete. I made an order that the statements of defence of the first and second defendants be struck out, that order not to take effect if the first and second defendants made full discovery within 14 days of 13 August, and produced all documents for inspection within a further 7 days. If either did not strictly comply with these times, the statement of defence of the party in default was struck out without further order of the Court.

They did not comply. Further affidavits and documents have been filed but they were filed after the times I ordered. The statements of defence were therefore struck out. An affidavit has been filed on behalf of the defendants seeking to explain their default. I do not find the reasons given to be convincing. However, in the interests of justice and without active opposition from Mr Sugden, at the commencement of the hearing, I made orders that the defences be re-instated. I awarded costs of 20,000 VT plus filing fees on the motion and the affidavit to the plaintiff.

The second procedural issue is of more substance. The defendants have pleaded that the proceedings should be dismissed because the plaintiff has not applied for and obtained leave to bring these proceedings within six months of the action complained of, as required by O.61, r.3 of the High Court (Civil Procedures) Rules 1964. Put shortly, it is the defendants’ contention that the plaintiff’s proceedings are in effect proceedings for prerogative writs to which O. 61 applies. It is submitted on behalf of the plaintiff (who has abandoned the claim for a writ of mandamus sought in the amended statement of claim) that the proceedings are for declarations and lost salary, to which O.61 does not apply.

The amended statement of claim seeks declarations that the following decisions are illegal and of no effect, namely that of the Minister of 22 February 1994 to suspend the plaintiff from duty, that of the Commission of 9 May 1994 dismissing the plaintiff’s appeal, that of the Minister directing the plaintiff to take up duties as a class teacher at Nazareth Junior Secondary School, and that of the Minister of 16 September 1994 to suspend all payments to the plaintiff until she does so. It also seeks declarations that the plaintiff was at all times since 22 February 1994 entitled to be discharging the duties and receiving the salary and benefits as the principal of Epi Junior Secondary School, and that she is entitled to a like declaration as from 22 March 1994. The statement of claim further seeks an account of the sums due to the plaintiff since 1 January 1994 and payment by the defendants (presumably the Commission) of all money she should have received but did not.

On 6 October 1995, the Court of Appeal, Martin and Los JJ delivered a judgment on an appeal by the plaintiff against orders made by Lenalia J. on 5 June 1995 and orders made by the Chief Justice on 14 June and 10 July 1995. It is unnecessary to relate all the issues that were before the Court of Appeal. But one was the claim by the first defendant, the respondent on the appeal, that the plaintiff had instituted proceedings without obtaining leave, as required by Order 61 Rule 2. On that issue the Court of Appeal said :

"The application for leave must be made within 6 months (O.61(3)). It was submitted on behalf of the plaintiff/applicant that by virtue the operation of O.56 leave is not required in this case because the rules permit mandamus to be claimed by writ, for which no leave was required. It is our view that O.56 requires claims to be endorsed on a writ, but it does not alter the requirement for leave in O.61(2).

It was also suggested in argument that no leave was required because the plaintiff only sought declaration. There is no merit in this suggestion. The declaration sought has the same effect as mandamus. All other relief sought would flow from those declarations.

In our view, leave was required before this action could be brought."

Later in the judgment the Court said:

"This action seeks an order for mandamus against the Republic. In practice Courts do not make such orders against the State. They make declarations as to the rights of the parties which are normally complied with by the Government of the day."

At the time that decision was delivered, the plaintiff was seeking declarations similar to those to which I have referred. She was also seeking the following relief.

"(iv) A mandamus commanding the defendant to reinstate the plaintiff as principal of Epi High School forthwith and pay to her all her unpaid entitlements to salary and allowance and continue to do so according to law ; or

(v) (in the alternative) a mandamus commanding the Teaching Service Commission to determine the plaintiff’s appeal by letter dated 19 July 1994 according to law."

In the first passage in the Court of Appeal judgment to which I have referred, the Court of Appeal held that, although O.56 permits the plaintiff to claim a mandamus in any action, O.61(2) providing that no application for an order for mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule, still applies. So if mandamus is sought, leave is required.

That decision was sufficient for the Court to conclude that leave was required. The following passage stating that leave was also required because the plaintiff only sought a declaration was, in effect, obiter dicta. It was not necessary for the Court’s decision. For that reason I do not consider that that observation is binding on this Court.

Order 62 Rule 2 sets out the prerogative writs in respect of which leave is required:

"(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule."

The rules do not provide expressly for declaratory judgments. However O.71 provides that where no provision is made by the rules, the procedures, practice, and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force. O.15, r.16 of the High Court rules in England provides :-

"No action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed."

Under those rules an action for a declaratory judgment is quite separate and distinct from what is now in England an application for review. The distinction between declarations and prerogative writs has long been recognised. In 1949, Lord Denning, in a public lecture, Freedom Under the Law, at 126 said :-

"Just as the pick and shovel is no longer suitable for the winning of coal so the procedure of mandamus, certiorari and actions on the case are not suitable for the winning of freedom under the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence."

In most modern common law jurisdictions the prerogative writs have been replaced by the application for review.

Lord Denning returned to this subject when sitting on the Court of Appeal in England in Bernard v. National Dock Labour Board [1953] 2QB 18, 41. The plaintiff brought proceedings claiming a declaration that a notices of suspension were ultra vires and invalid. It was contended that the decisions could be set aside only by an order of certiorari, and that the Court had no jurisdiction to inquire by way of an action for declaration into the matters complained of. Lord Denning rejected that approach. He held that the Courts had power to interfere with the decision of a statutory tribunal not only by certiorari but also by way of declaration. He went on to say :-

"I know of no limit to the power of the Court to grant a declaration except such limit as it may in its discretion impose upon itself; and the Court should not, I think, tie its hands in this matter of statutory tribunals. It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law what is to be done? The remedy by certiorari is hedged around by limitations and may not be available. Why then should not the Court intervene by declaration and injunction? If it cannot so intervene it would mean that the tribunal could disregard the law which is I think no one can do in this country."

Lord Denning went on to refer to several cases where the Court had intervened to declare actions unlawful other that by certiorari.

In my view an action for a declaration is not an application for a prerogative writ. The requirement for leave in O.61,r.2 (2) does not apply. The proceedings have therefore been validly brought.

If I were wrong in this respect, I would have no hesitation in granting the plaintiff leave to bring the proceedings. The six month time limitation in O.61,r.3 does not apply, as that relates only to an order for certiorari. That remedy is not being sought. The plaintiff has filed an affidavit explaining the reasons why these proceedings were not commenced until March 1995, 13 months after the initial suspension. There has been no suggestion of prejudice by the defendants. The interests of justice require that the plaintiff should be allow to proceed with her challenge to the decisions. If it be required, leave for her to continue with the proceedings she has commenced is granted.

The suspension

The events that occurred

In January and February 1994, there was considerable industrial unrest in the schools. Strike action was taken by some but not all of the teachers. The schools affected included Epi Junior High School.

On 22 February 1994, the plaintiff telephoned Antoine Thina in Port-Vila and told him that the teachers at Epi Junior High School, apart from her and an ex-patriate teacher, had gone on strike. On 26 February 1994, Antoine Thina came to the school and handed the plaintiff a letter dated 22 February 1994 signed by the Minister. It read :-

"SUSPENSION FROM DUTY

I am suspending you from duty without salary as from today the 22nd day of February 1994.

It has come to my attention that you have deliberately refrain from teaching today the 22nd of February 1994. As a principal in the Teaching Service for quite a number of years, your deliberate intention not to teach shows a complete disobedience and disregard of the direction applicable to you as a teacher. Your negligence of the direction given by the authority have resulted in the deprivation of the children’s right for education.

The Teaching Service Commission is informed by copy of this letter and any further action to be taken is a matter for the Teaching Service Commission to decide."(sic)

On 4 March 1994, the appellant exercised the right given to her by s 33 of the Teaching Service Act [CAP 171] to appeal to the Commission against the suspension. In a lengthy letter, she pointed out that the accusations made against her were incorrect, that she had never been a principal under the Teaching Service "for quite a number of years" (she had been posted to this position in December 1993), that she was not involved in the strike action at all, and that she was the only ni-Vanuatu teacher principal who kept the school going. She also made reference to what she described as false accusations that had been made about her in a radio broadcast on Radio Vanuatu on 4 March 1994.

It took the Commission two months to respond to her appeal. The decision was contained in a letter to the plaintiff signed by the Acting Chairman of the Commission dated 9 May 1994. It read :

"UPLIFTING OF YOUR SUSPENSION FROM DUTIES

We would like to advise you that the Commission duly considered your suspension as issued to you by the Honourable Minister of Education dated 22nd February 1994; and your appeal letter dated 5th March 1994, and having considered the alleged misconduct made against you as contained in your suspension letter the Commission resolved that :

(a) despite of the fact that you made some attempt to avoid your school’s involvement in the teachers strike, your teachers did go on strike.

(b) had you kept your entire school from going on strike you would not have been suspended by the Minister of Education, therefore your suspension is proper and legal.

(c) your letter of appeal clearly evidence that you did not join either the VTU strike or, the so called VCTU strike but having approved your suspension we would advise you that you will not be paid for the duration of your suspension.

The Commission considers that the alleged misconduct made against you is unable to warrant a further disciplinary action against you, but we are pleased to advise that you are reinstated to service effective as from 23rd March, 1994, and we would request you to resume your normal duties immediately if you have not done so yet."(sic)

The no evidence ground

The decision to suspend is challenged by the plaintiff on two grounds. First, the plaintiff submits that there was no evidence to support the suspension. Another way of putting this ground is that the decision of the Minister contained an error of material facts. Mere factual mistake has now become a ground of judicial review, described as misunderstanding or ignorance of an established and relevant fact or acting upon an incorrect basis of fact: see Wade and Forsyth Administrative Law 7th ed. 316 and the cases there referred to. In a leading case, Secretary of State for Education and Science v. Tameside MBC [1976] UKHL 6; [1977] AC 1014, 1047 Lord Wilberforce said :

"If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, and whether the judgment has not been made upon other facts which ought not to have been taken into account. If those requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge."

In a leading New Zealand case, Daganayasi v Minister of Immigration [1980] 2NZLR 130, Cooke J. now Lord Cooke, held that a Minister’s decision was invalid for failure to take into account the true facts, a medical referee having misled him by an inadequate report.

The Minister has filed no affidavit giving any reasons for his decision or the factual material upon which it is based. On the evidence before the Court, the only conclusion that can be drawn is that the Minister made his decision on several significant and material errors of fact. On the plaintiff’s evidence, that has been accepted by the Commission, she did not refrain from teaching on 22 February 1994 or on any other date. She did not go on strike. On the contrary the Commission found that she made an attempt to avoid the school’s involvement in the strike. She had not been a principal under the Teaching Service for quite a number of years. She did not demonstrate a deliberate intention not to teach. She did not show a complete disobedience and disregard of the direction applicable to her as a teacher. Her action did not result in the deprivation of the children’s right for education. These gross errors of fact are sufficient to justify setting the suspension aside.

The rules of natural justice

The second ground is that the Minister breached the rules of natural justice. The plaintiff was not informed of the charges the Minister was investigating, and was not given an opportunity to be heard before the Minister made his decision to suspend.

I need not elaborate on this ground. Mr Faerua responsibly accepted that there is no reason shown why the Minister could not have given the plaintiff notice that he was considering suspension, that the plaintiff had no opportunity to be heard, and that the Minister ought to have given the plaintiff that opportunity.

A leading authority in the application of the rules of natural justice to a decision to suspend is the decision of the Judicial Committee of the Privy Council in Rees and others v Crane [1994] 1 All ER 833. A judge of the High Court of Trinidad and Tobago had been suspended pending investigation by the Judicial and Legal Services Commission on whether the removal of the judge ought to be investigated. Lord Slynn, after a review of the authorities, accepted that there were many situations in which natural justice does not require that the person must be told of the complaints made against him and given the opportunity to answer at a preliminary stage of an inquiry. But there is no absolute rule to that effect. The question was whether, at any particular stage, fairness required that the audi alteram partem rule be applied. It was held that in that case it did.

I consider it applied in this case also. There is no evidence of an emergency requiring an immediate decision. The Minister’s decision was not a preliminary step in an investigation. His decision was final, but for the right of the plaintiff to appeal to the Commission. Subsequent events have shown that the Minister was relying on inaccurate information. The plaintiff was not only suspended, but her pay was also stopped. And there can be little doubt that a suspension in these circumstances is a slur on her reputation. Had she been given an opportunity to be heard, even by submitting a written response, the Minister would have been informed of the correct position, with the likely result that no order of suspension would have been made.

For these two reasons I am satisfied that the Minister’s action in suspending the plaintiff was invalid and unlawful.

The duration of the suspension

There is a further aspect. The power of the Minister to suspend an officer is conferred by s.32. It provides that, if the requirements set out in sub s.(1) are fulfilled, the Minister "may suspend him from duty for a period not exceeding one month". The letter advising the plaintiff of her suspension contained no time limit. To the extent that it purported to continue in effect after 22 March 1993, it was clearly ultra vires.

The decision of the Commission

The plaintiff challenges the decision of the Commission dismissing her appeal on the grounds set out in the Commission’s letter of 9 May 1994, which I have set out above.

The statutory provisions

The Commission’s power on an appeal against suspension is contained in s.33 of the Act. Subsection (1) gives an officer who has been suspended the right to appeal to the Commission. Subsection (2) provides :

"(2) where an officer appeals to the Commission under subsection (1) the Commission shall determine the

appeal by-

1. revoking the suspension ;or
2. dealing with the matter under section 34 or 35,

and the Commission’s decision shall be final."

Section 34 does not apply. Section 35 deals with disciplinary actions for misconduct. It provides :

"35.(1) Where, after inquiry as directed by the Commission, it is found that an officer has been guilty of

misconduct, the Commission may-

(a) caution or reprimand him,

(b) if the officer occupies a position to which a range of salary other than the minimum salary of that range-reduce his salary to a lower salary within that range ;

(c) if the officer occupies a position to which a range of salary is applicable and he is in receipt of a salary other than the maximum salary of that range - determine that he shall not be granted, or shall not be granted until the expiration of a specified period, the whole or such part as the Commission specifies, of a specified increase in salary within that range that would otherwise be granted to him;

(d) reduce him to a lower position and salary ; or

(e) dismiss him from the service."

It is apparent from these provisions that consideration by the Commission of an appeal against suspension requires two steps. The first is for the Commission to decide whether to revoke the suspension. The second, if it decides not to revoke the suspension, is to deal with the matter under ss 34 or 35. If it deals with the matter under s 35 the Commission may adopt anyone of the five courses listed in subs.(1).

Wednesbury unreasonableness

I now return to what I can only describe as the exceedingly curious letter from the Commission of 9 May 1994. In paragraph (a) the Commission decided that despite her making some attempts to avoid the schools involvement in the teachers strike, the teachers did go on strike. As a matter of fact that finding is correct. In paragraph (b) the Commission decided that had she kept the entire school from going on strike, she would not have been suspended. Therefore the Commission concluded the suspension is proper and legal.

Then in paragraph (c) the Commission accepts her evidence that she did not join the strikes. It goes on to say that having approved her suspension, the Commission advises that she will not be paid for the duration of the suspension.

This is one of those relatively rare cases where the decision can be categorised as one of Wednesbury unreasonableness, a term that derives from Lord Green MR’s exposition in the famous Wednesbury case [1933] 1 KB 205 at 224. Having pointed out that a person entrusted with a decision must direct himself properly in law, he goes on to say :

"Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority... It is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith...."

In Council of Civil Service Unions and Others v. Minister for the Civil Service [1985] 1 AC 374, 410 Lord Diplock classified the three heads upon which administrative action is subject to control. The second he referred to as "irrationality". He said that "…it applies to a decision which is so outrageous in it’s defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

That description applies to the Commission’s decision in this case. To conclude that her suspension was justified because she had not prevented the teachers at her school from going on strike is irrational. It is in defiance of logic. It is not a conclusion that any sensible person who had fairly applied his or her mind to the issue could have reached.

There is a further element of irrationality. The Commission has concluded that she did not join the strike. On the contrary, she made some attempt to avoid her school’s involvement. Yet the whole basis upon which the Minister had suspended her was because she went on strike. Having reach the conclusion that the Minister was wrong in his reason for suspending her, it is impossible to understand why the Commission did not exercise the power it had under s.33(2)(a) and revoke the suspension. There is no rational basis on which the Commission could possibly have concluded that her suspension was "proper and legal".

The re-instatement

In the final paragraph of the letter, the Commission refers to "the alleged misconduct". It makes no finding that the plaintiff was guilty of misconduct. It goes on to say that "you are reinstated to service effective as from 23 March 1994 and we would request you to resume your normal duties immediately if you have not done so yet". This can only be a direction to the plaintiff that she was to resume her duties as principal of the Epi Junior Secondary School. But her evidence is that she was prevented from doing so. In her affidavit she said that when she received the letter from the Commission she returned to the school but "... was unable to resume as principal as Mr Kalotiti was still acting principal although in Port-Vila at the time".

In evidence before the Court she said that when she returned to the school she was stopped by the school bursar and the chairman of the School Council from taking over as principal. They said she was not to resume her duties. They were waiting for the Minister’s decision. She also said she went to the office of the Commission in Vila several times and spoke to the Secretary General, Christopher Garu. She was told that the Commission had taken the decision and it was not their business any more. In any event she was not able to return to the school as principal. Her evidence in this respect was uncontradicted and she was not cross-examined on the evidence she gave in Court.

The non-payment of salary

There is further reason why the Commission’s decision cannot stand. As I have already pointed out, the maximum period of suspension is 30 days. The suspension ended by operation of law on 22 March 1994. The Commission therefore had no jurisdiction to rule that she will not be paid for the period of her suspension, which on their ruling meant up until at least the date of their letter.

There is a further aspect. Under s 33(2) the Commission must either revoke the suspension or deal with the matter under s 35. It did not revoke the suspension, but nor did it deal with the matter under s 35. It did not make a finding that the plaintiff had been guilty of misconduct. On the contrary, its finding was that she did not misconduct herself because she did not go on strike and she made some attempt to avoid her school’s involvement. Yet the Commission, by way of penalty, ordered that she would not be paid for the period of her suspension. That is not a penalty that the Commission is empowered to impose under s 35.

Conclusion

For all of these reasons, the decisions of the Commission affirming the suspension and directing that she not be paid during the period of the suspension, cannot stand.

The posting as a class teacher

By letter dated 30 June 1994, the Minister wrote to the plaintiff in these terms :

"In accordance to the Teaching Service Act No.15 of 1983 section 15, I am pleased to advise you that your posting for 1994 is at NASARETH JUNIOR SECONDARY SCHOOL, on Pentecost where you will resume responsibilities as a class teacher.

Along with this direction, I further advise that your Job Description remains unchanged."(sic)

The plaintiff challenges the decision of the Minister on the grounds that it was a demotion, and the Minister lacks jurisdiction to demote a teacher. Mr Sugden further submits that the demotion was a significant penalty, and that before she was penalised in this fashion she was entitled to an opportunity to be aware of the grounds on which it was proposed to penalise her, and should have been given an opportunity to be heard.

If, as I conclude later in this judgment, the plaintiff had been appointed principal of the Epi Junior Secondary School, it follows that the letter from the Minister of 30 June 1994 was a demotion. I uphold the plaintiff’s submission that the Minister has no power to demote a teacher. The only body that can do so is the Commission acting under s 35. The Commission can only do so where it finds an officer has been guilty of misconduct. The Commission did not reduce her to a lower position and salary. On the contrary, it directed that she be reinstated to service and she should resume her normal duties, which can only mean, as I have held, her normal duties as principal of the school.

Section 15, the section pursuant to which the Minister was purporting to act provides :

"15. Where the Commission makes an officer or an employee available to the Minister for the performance of educational duties, the Minister may, not withstanding the position occupied by the officer or employee, make use of the officer or employee in whatever school or educational unit he thinks fit."

There is no evidence before the Court that the Commission made the plaintiff available to the Minister for performance of educational duties. The only evidence is that the Commission had reinstated her as principal of the school. Even if there were such evidence, I do not consider that that section empowers the Minister to reduce the teacher to a lower position and salary.

If, contrary to this conclusion, the Minister did have this power, there is no possible reason why he did not, in accordance with the rules of natural justice, inform the plaintiff of the possibility of demotion, and the grounds therefore, and give her an opportunity to make representations to him why she should not be demoted. The move was a serious one. Demotion from a principal to a class teacher involves a significant loss of status, and also inevitably a loss of salary. It is a severe penalty. No doubt that is why the Act provides that the only body that can impose that penalty is the Commission, after it has found that an officer has been guilty of misconduct.

Was the plaintiff the principal of Epi Junior High School?

In its amended statement of defence the Commission pleaded:

"It is admitted that the plaintiff commenced duty as principal of Epi High School in February 1994. It is denied that the plaintiff was appointed to the post of principal by the Minister of Education pursuant to the provisions of the Teaching Service Act. It is averred that such provisions are mandatory".

Section 20(1) provides that the Minister may fill a vacant position by allocating an officer on engagement, transferring an officer, or promoting an officer to the vacant position. Subsection (2) provides:

"(2) Except where the Commission otherwise directs-

(a) all vacant positions which the Minister wishes to fill; and

(b) all allocations, appointments, transfers, promotions and confirmations of promotions,

shall be notified in the Gazette by the Minister or in such other publication as the Commission directs."

The plaintiff’s appointment to Epi Junior High School was not notified in the Gazette. There is some evidence from the Commission on this issue in answers to interrogatories administered by the plaintiff. From this evidence it is clear that the procedure of notification in the Gazette, or any other publication, has never been followed by the Minister in respect of any officer being appointed or promoted. The universal and only way in which such appointments and promotions have been announced is over Vanuatu Radio, normally in December of the year preceding the year when the appointment was to take effect. The interrogatories state:

"To the best of our knowledge the usual practice occurs whereby the Minister of Education finalises and confirms the transfers and appointments at the end of each academic year. The teachers concerned are then informed of their transfers and new postings...through a broadcast by radio on Radio Vanuatu".

These interrogatories also confirm that appointments, transfers and promotions are not, and never have been, notified in the Gazette. The answers say that there are 1200 teachers in the Teaching Service Commission. This means of communication "is important when considering that the majority of those affected reside and teach on outer islands around the country".

In her affidavit the plaintiff says that when she took up her duties as principal of Epi Junior Secondary School, it was her first appointment as a principal, her promotion having occurred just before the end of the 1993 school year. During 1993 she had been a classroom teacher. I infer from the evidence contained in the answers to the interrogatories that she learnt of her promotion by the means referred to, namely the broadcast on Vanuatu Radio.

There no evidence from the Commission or the Minister or any person on their behalf to support a claim that her appointment had been anything other than a proper and regular appointment. Mr Faerua submitted that evidence of her pay indicated that she had not been appointed principal. Mr Sugden accepts that the pay information produced showed that she had been paid at the rate of grade E7.1 of the Commission’s pay scale. Counsel informed the Court, although there is no direct evidence of it, that a principal would be on scale E8.1 or above. I am not prepared to accept this, in the absence of any additional evidence, as proof that she had not been properly appointed. Indeed, the Minister’s own letter suspending her, does so on the basis that she was the principal of the school. Further, the Commission‘s letter of 9 May 1994 certainly proceeds on the assumption that she was at the school as principal, not as a class teacher. I conclude that at the time of suspension she had been appointed the principal of the school.

Remedy

Having found that the suspension by the Minister, the decision of the Commission on the appeal to confirm the suspension and the deprivation of pay, and the demotion by the Minister, are all unlawful for the reasons I have expressed, it follows that the Commission was in breach of its obligations to the plaintiff in failing to pay her the salary to which she was entitled as principal of the school.

Counsel are agreed that the amount she should have been paid on the E8.1 scale from 1 January 1994 to 15 September 1998 was 5,406,800VT. It is also agreed that in 1994 until the Commission ceased paying when she refused to take the position as class teacher, she received 615,997VT from the Commission. Since February 1996 she has been employed at a private school, earning from that source from then until now 1,830,000VT. Her loss, being the difference between what she would have been paid and what she has been paid, is 2,960,803VT.

Mr Faerua also agrees that, in the event of liability being found and there is an assessment based on these figures, there also should be an order that the Commission makes up the VNPF payments due on the loss of salary now awarded.

The result

There will judgment for the plaintiff against the Commission for 2,960,803VT. There will also be an order that the Commission pay on behalf of the plaintiff to the VNPF, the VNPF payments on that amount.

I do not consider that there is any need to make the declarations that the plaintiff sought.

The plaintiff is entitled to costs on these proceedings as agreed, or failing agreement, as taxed.

There may be other outstanding costs issues on the interlocutory proceedings and appeals. Leave is reserved to apply in respect of any outstanding costs issue. In the event of there being an application, this may be dealt with by a Vanuatu Judge, as by the time the application is made, I will not be in Vanuatu.

23rd of September 1998.

BY THE COURT

TOMPKINS J.