Garae v Public Service Commission [2022] VUSC 106; Judicial Review 3707 of 2021 (15 July 2022)

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

Judicial Review Case No. 21/3707 SC/JUDR

BETWEEN:	Harkinson Garae Claimant
AND:	Public Service Commission First Defendant
AND:	Republic of Vanuatu Second Defendant

Date of HEARING and Oral Decision : Date of Written Decision Published:	13th July 2022 15th July 2022
Before:	Justice Oliver A Saksak

In Attendance:

Mr Philip Fiuka Agent for Mr James Tari for the Claimant Mr Julian Wells for the Defendants

JUDGMENT

Background

1. The claimant filed a Supreme Court claim on 9^th November 2021 claiming for severance and a multiplier under the Employment Act [ Cap.160]
   
2. In his reliefs he sought an order for reinstatement, arrears of salaries, interests at 5% and costs.
   
3. On 17^th December 2021 Andrée Wiltens J recorded in the Minute that Mr Tari had reconsidered and that he wished to amend the case to reflect a Judicial Review. The Judge then directed the amended pleadings be filed by 31^st January 2022.
   
4. On 31^st January 2022 Mr Tari filed the “ Amended Judicial Review claim.”
   
5. His client’s complaint is about his resignation on 30^th September 2020 to be effective on 30^th December 2020.
   
6. However before the effective date was due, the Director of Finance Mrs Dorothy Erickson had informed the client by letter dated 11^th November 2020 that the claimant’s resignation was received and accepted to take effect from 30^th December 2020.
   
7. Subsequently on 17^th November 2020 the claimant replied to Mrs Erickson acknowledging receipt of her letter of confirmation and acceptance of resignation of 11^th November 2020 but went further to inform the Director that he was revoking his resignation as of 17^th November 202.
   
8. On 26^th January 2021 the Public Service Commission (the PSC) wrote to the claimant informing him that his voluntary resignation had been approved by the Commission by its Decision No.53 of meeting held on 26^th November 2020.
   
9. On 17^th February 2021 the PSC informed the claimant again about its Decision No.4 of 10^th February 2021 meeting that the PSC did not accept his revocation of resignation as per his letter of 17^th November 2020.
   
10. Finally on 13^th July 2021 the PSC decided in its Decision No.49 to accept the claimant’s resignation.
    

Reliefs sought

11. The claimant sought a quashing order against that decision together with an order for reinstatement, an order for payments of arrears of salaries, interest of 5% costs.
    

Discussion

12. I gave oral decision dismissing the claimant’s claim on 13^th July 2022. I now publish the reasons.
    
13. This is a very confusing claim. What started as a Supreme Court in November 2021 turned out to be an Amended Judicial Review claim in January 2022. That could not possibly be done as the original claim filed was not a Judicial Review claim. Therefore there was an abuse of process evident.
    
14. Even if it was correctly filed as a Judicial Review claim from the beginning, it was out of time and leave should have been sought. That did not occur and again that is an abuse of process.
    
15. The hearing today was pursuant to Rule 17.8 of the Civil Procedure Rules No. 49 of 2002. It states:

“Court to be satisfied of claimant’s case

17.8 (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 subrule (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 subrule (3), the judge must decline to hear the

claim and strike it out.”

16. Rule 17.8 (3) requires the claimant to show to the satisfaction of the Court that:
    • - He has an arguable case;
    • - He is directly affected by the decision;
    • - There was no undue delay; and
    • - There was no other remedy to resolve the matter fully and directly.
      
17. From the facts in evidence from both the claimant, Mrs Erickson and Mr James Melteres the claimant voluntarily resigned on 30^th September 2020 to be effective from 30^th December 2020, 3 months later.
    
18. That decision to resign was confirmed and accepted on 11^th November 2020. The Public Service Commission endorsed that Decision on 26^th January 2021. The revocation was declined on 10^th February 2021. By this date the resignation had taken effect on 30^th December 2020. There was therefore no arguable case.
    
19. The Republic conceded the claimant had been directly affected by the decision, but there was undue delay on the claimant’s part to take appropriate action.
    
20. Judicial Review claims should be filed within 6 months from the date of decisions sought to be reviewed. In this case the claimant seeks to review decisions of the PSC of 10^th February 2021 and 13^th July 2021. He filed his Amended JR claim on 31^st January 2022, well outside the 6 months requirement of the Rules. And he had not sought leave for an extension of time to do so.
    
21. The claimant had other remedies. He initially filed a Supreme Court claim claiming for his arrears. However that was overtaken by the fact he filed his Amended Judicial Review claim.
    
22. Evidence by the Republic shows the claimant has been paid in full the sum of VT 2.500.426 being severance for 9 years 3 months and 24 days.
    
23. The claimant has no evidence that he has arrears of salaries which have not been paid. He has no arguable case or a cause of action.
    
24. Accordingly I declined to hear this case further and ordered that the claim and proceeding be dismissed.
    
25. The claimant has put the defendants to costs. The defendants claim for VT 50.000 costs which are very reasonable. I order the claimant to pay VT 50.000 to the defendants within 28 days from the date hereof.
    

DATED at Port Vila this 15^th day of July, 2022

BY THE COURT

...........................

Oliver Saksak

Judge