Emelee v Lini [2004] VUSC 89; Civil Case 002 of 2004 (19 March 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 02 of 2004.

BETWEEN:

CHRISTOPHER EMELEE
First Claimant

AND:

HON. HAM LINI
First Defendant

AND:

THE ATTORNEY GENERAL
Second Defendant

AND:

MR. LENNOX VUTI
Third Defendant

Coram: Justice PI Treston

Mr. Warsal for Claimant
Mr. Aru for First and Second Defendants
No appearance of Third Defendant

REASONS FOR DECLINING TO HEAR CLAIM
AND STRIKING CLAIM OUT

CLAIM

The Claimant in an amended claim for Judicial Review has sought the following: -

(a) A quashing order against the decision of the First Defendant made on 6 January 2004 terminating him as Chairperson of the Vanuatu Maritime Authority, and;

(b) A declaration that the appointment of the Third Defendant as de-facto Chairperson by the First Defendant was ultra vires and null and void.

The grounds for the grant of order (a) were that the First Defendant did not provide reasons to the Claimant for his decision to terminate his position and while it was accepted that the First Defendant had power to terminate his position it was argued that the First Defendant abused his power.

It was argued that the First Defendant being a leader must act fairly and must respect the principles of natural justice in the exercise of his powers and that the minister’s power could only be exercised after giving full details to and in consultation with other Authority members. The Claimant submitted that the Chairman of the Authority was elected by other members and that reasons for termination of a board member must be the same as for the chairman. It was argued that there were no valid reasons to terminate the chairpersonship of the Claimant which was a plot.

As to order (b) it was contended by the Claimant that on or about 10 December 2003 the First Defendant purported to appoint the Third Defendant as acting Chairperson and since that date the Third Defendant had been performing the role of the Chairperson of the Authority which was an abuse of power because the Third Defendant had disposed for his personal interests of a part of Government property designated to the Vanuatu Maritime Authority which had caused serious conflict of interest. It was argued that the Third Defendant was performing the role of Chairperson in breach of the Vanuatu Maritime Authority Act No. 29 of 1998 (“the Act”)

In support of his claim the Claimant filed a sworn statement dated 17 March 2004. The First Defendant filed a sworn statement dated 16 March 2004.

The Third Defendant was not present at the hearing.

The First and Second Defendants filed a defence to the claim on 16 March 2004.

FACTS

The Claimant was appointed as a member of the Vanuatu Maritime Authority by an instrument of appointment dated 11 March 2003 being Order no. 9 of 2003. On or about 12 March 2003 it seems that the Claimant was approved by the Minister as Chairperson on the nomination of the Authority pursuant to section 28 (1) of the Act.

By letter dated 10 December 2003 the Minister, the First Defendant, removed the Claimant as Chairperson of the Authority because it seemed that the Claimant had been charged with offences and he had told the Minister that investigations by the police amounted to nothing and that he was cleared of all allegations. The Minister advised that he had consulted with the State Law Office who had indicated that certain charges were still being pursued. The Minister said to the Claimant that he had provided false and misleading information to him as Minister responsible and had consequently destroyed the fundamental principle of trust and a good working relationship and thus he would be removed as Chairperson. In another letter dated the same date the First Defendant approved the Third Defendant as acting Deputy Chairperson.

The Claimant wrote to the Minister by letter dated 11 December 2003 and denied the allegations.

By letter dated 11 December 2003 the Minister revoked his decision of 10 December 2003.

By letter dated 24 December 2003 the First Defendant again wrote to the Claimant as Chairperson setting out that as the Claimant had been charged with the offence of conspiracy to pervert the cause of justice contrary to section 79 of the Penal Code [CAP 135] which carries a maximum sentence of seven years imprisonment. The charge concerned allegations of preventing the outcome of criminal proceedings in relation to criminal prosecution of the maters of two fishing vessels. The First Defendant said that he was considering removing the Claimant once more as Chairperson. The Minister said:

“It is my view that as the alleged offence relates to matters clearly associated with the operation of the Vanuatu Maritime Authority, it is inappropriate for you to remain as Chairman of the Authority while the charge is before the Court”.

The First Defendant gave the Claimant until 3pm on Tuesday 30 December 2003 to submit any matters that he required him to take into consideration in writing.

The Claimant replied in detail by letter dated 2 January 2004 but the Minister wrote again on 6 January 2004 inter alia as follows: -

“Having considerate your response, I hereby remove you as Chairman of the Vanuatu Maritime Authority with effect from the date of this letter.”

It is that decision which the Claimant seeks to review.

SUBMISSIONS

The Claimant had filed the papers himself and a previous conference had occurred on 5 February 2004. Another conference was allocated for 8am on 19 March 2004 when Mr. Warsal advised that he had been appointed as counsel for the Claimant. As his appointment had been only the night before conference he applied for an adjournment and I stood the matter down until 3pm on 19 March 2004 for submissions to be made.

On behalf of the Claimant it was submitted that there was an arguable case as, although it was accepted that the Minister had discretion under Section 28 (3) of the Act, that discretion must be exercised subject to the principles of natural justice and although the Claimant had been given notice and was given an opportunity to reply, it was submitted that his removal was politically motivated and that the First Defendant was biased.

In relation to that the First Defendant submitted that Section 28 (3) gave the Minister an absolute unfettered discretion to remove the Chairperson of the Authority and that reasons did not have to be given in those circumstances although the principles of natural justice had been complied with here because the Claimant had been given the opportunity to be heard and to reply and reasons for the removal had been given by the First Defendant even though it was not necessary to do so.

Submissions were also addressed to the Court by counsel in relation to Second and Third Defendants and counsel for the Claimant accepted that it was inappropriate to join the Attorney General as a party where the relief sought was a mandatory order, and a quashing order as opposed to a declaration about an enactment. The Claimant accepted that the claim against the Attorney General should be struck out.

In relation to the Third Defendant counsel for the Claimant accepted that action against the Third Defendant was misconceived as Mr. Vuti was not a decision maker, whose actions could be subject to review. It was accepted that the claim against the Third Defendant could also be struck out.

LAW

Rule 17.8 of the Civil Procedure Rules No. 49 of 2002 provides as follows: -

“Court to be satisfied of claimant’s case

(1) As soon as practicable after the defence has been filed and served, the judge must call a conference.

(2) At the conference, the judge must consider the matters in sub rule (3).

(3) The Judge will not hear the claim unless he or she is satisfied that:

(a) the claimant has an arguable case; and

(b) the claimant is directly affected by the enactment or decision; and

(c) there has been no undue delay in making the claim; and

(d) there is no other remedy that resolves the matter fully and directly.

(4) To be satisfied, the judge may at the conference:

(a) consider the papers filed in the proceeding; and

(b) hear argument from the parties.

(5) If the judge is not satisfied about the matters in sub rule (3), the judge must decline to hear the claim and strike it out.”

Section 28 of the Act provides as follows: -

“CHAIRPERSON AND DEPUTY CHAIRPERSON

(1) The Authority must nominate for the Minister’s approval one of its permanent members to be the Chairperson and another to be the Deputy Chairperson.

(2) If a nomination is not approved by the Minister, the Authority must make another nomination.

(3) The Chairperson and Deputy Chairperson each hold office until removed by the Minister.”

FINDINGS

According to the rules the conference which took place on 19 March 2004 concerned matters set out in subsection 3 of rule 17.8. The matters that a judge must consider are conjunctive and not disjunctive, and it is provided that the judge must decline to hear the claim unless he is satisfied as to all the matters set out in subsection 3.

I considered that the Claimant did not have an arguable case against the First Defendant. Under Section 28 (3) the Minister has an unfettered discretion to remove the Chairperson. Although the discretion is unfettered it must be exercise pursuant to the principles of natural justice. In this case, I find that it was clear that the Minister did exercise his discretion under the principle of natural justice. He set out the reasons for his intention to remove the Claimant as Chairperson and allowed the Claimant to answer the allegations. The Claimant did so. The Minister then exercised his discretion after considering the submissions of the Claimant. It is clear on the evidence of the Claimant himself that the principles of natural justice were complied with and that there was no arguable case which could be mounted to the contrary.

I was also of the view that the alleged offences in relation to the fishing vessels, as the First Defendant said in his correspondence, were clearly associated in a general way with the Functions of the Authority as set out in S.6 of the Act in relation to the marine industry and seafarers. Clearly in the face of unresolved criminal proceedings against the Claimant of that nature the Minister was justified in removing the Claimant as Chairperson to maintain the integrity of the Authority.

There was no sufficient evidence of a plot or political interference.

It is also of significance that the Claimant failed to directly refer to the charge of conspiracy in his sworn statement.

It is significant that the Claimant remained and remains to this day an Authority member. Throughout his pleadings, the Claimant submitted that it was the Authority who “elected” him as Chairperson. Clearly that was misconceived as Section 28 (1) of the Act provides that the Authority must nominate for the approval of the Minister one of its permanent members to be the Chairperson. Under subsection 2 the Minister has the discretion not to approve a nomination and the Authority must then make another nomination. Clearly under the legislation it is the Minister who may approve the Chairman and it is the Minister who removes the Chairman under subsection 3.

Another matter of concern was raised by Exhibit CE13 of the Claimant’s sworn Statement whereunder he wrote to the New Zealand High Commissioner lodging a complaint “In my capacity as duly appointed Chairman of the Vanuatu Maritime Authority”. Clearly as of the date of that letter Monday 16 February 2004 the Claimant had been removed as Chairperson.

SUMMARY

The First Defendant was not required to provide reasons for his decision of 6 January 2004 although he had provided such reasons in earlier correspondence. It is clear that the Claimant was given procedural fairness.

As to the other matters raised in rule 17.8, while the Claimant was directly affected by the decision to remove him as Chairperson there was no particular details set out by the Claimant as to the consequences of his removal. As I have already said, he remains a member of the Authority and the only submission made was that he suffered a lost of prestige in being removed as Chairperson. Section 27 of the Act provides that members are not to be paid any fees salaries or allowances except for business travel expenses.

I accepted that there was no undue delay in making the claim and that there may have been no other remedy that resolved the matter fully and directly but I was not satisfied that the claimant had an arguable case and under rule 17.8 (5) I declined to hear the case and struck it out.

These are the reasons for my decision.

DATED AT PORT VILA, this 19^th day of March 2004

BY THE COURT

P. I TRESTON
Judge.