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Kalsakau v Wells [2006] VUSC 79; CC 097 2006 (19 October 2006)

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

Civil Case No.97 of 2006

BETWEEN:

EPHRAIM KALSAKAU & ORS
Claimants

AND:

HONOURABLE GEORGE WELLS
Defendant

Mr. Nalyal for Claimant
Ms. Molisa for Defendant

RULING

(1) This claim is for judicial review in which the remedy sought is a mandatory order requiring the defendant to take such action and issue such directives in accordance with s.26 of the Trade Disputes Act. [CAP 162] as may be necessary including arbitration to bring about settlement of the "industrial dispute" (sic) between the Vanuatu National Workers Union and employees of Air Vanuatu Operations Ltd and Vanair on the one hand and those two companies on the other hand.

(2) Under R. 17.8 of the Civil Procedure Rules the judge is required in every application for judicial review to hold a conference to consider whether he 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

(3) In order to be satisfied the judge may at the conference consider the papers filed and hear argument (R. 17.8 (4). 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 (R. 17.8 (5)).

(4) The R.17.8 conference in this case was held on 18 October 2006. The parties appeared by counsel and I heard argument. The argument covered also the claimants’ application to extend the time to make the claim beyond the 6 months time limited fixed by R17.5 (1). This is obviously related to the issues referred to in R.17.8 (3). The ruling concerns both the R.17.8 preliminary assessment and that application.

Relevant Facts

(5) As at 12 August 2005, a trade dispute existed between VNWU and its members on the one hand and Air Vanuatu and Vanair on the other hand . in view of the nature of this claim and the remedy sought, it is important to identify exactly what the "trade dispute" was which then existed.

(6) "Trade dispute" is a term specifically defined in s.1 of the Act. The definition includes a number of specific and different types of dispute between employers and workers. A notice of strike was given by the VNWU dated 23 June 2005. it indicates that the dispute concerned:

• The settlement of differential payments
  
• Maintenance of existing rate of severance payment
  
• Reinstatement of 2 dismissed employees
  
• Recognition of existing Collective Bargaining Agreement with Vanair,
  

All of these are matters which are included with the definition of a "trade dispute"

(1) On 12 August 2005, the defendant issued two orders:

(a) Pursuant to s.25 (c) of the Act, Declaration of Essential Services Order No. 1 of 2005 declaring (inter alia) air transport an essential service

(b) Pursuant to s.34 (1) (2) and (3) of the Act, Discontinuance of Industrial Action Order No. 1 of 2005 declaring that during the period 12 August 2005 to 12 October 2005, none of the persons listed should call, organize, procure or finance a strike, or any irregular industrial action, or threaten to do so, or institute, carry on, organize, procure or finance a lock-out or threaten to do so. The persons listed included all the claimants by name.

(1) On 22 August 2005 industrial action took place involving a "stop work" at the Bauerfield Airport International Terminal. Some if not all of the named claimants took part in that industrial action.

(2) On 5 September 2005 some if not all of the named claimants were given letters terminating their employment. Other staff members of Air Vanuatu have also had their employment terminated at that time or later. None of those terminated have been re-employed. It is the claimants’ case that these terminations were consequent upon their involvement in the stop work.

(3) There has been no resolution of the various differences between the parties. In February 2006, there was some further industrial action at Bauerfield which led to criminal prosecutions against some of the claimants. The Court was also advised from the bar that the claimants have issued another proceeding challenging their terminations as unlawful. It is not clear whether they are seeking reinstatement in that proceeding.

(4) This claim for judicial review was filed on 12 June 2005, outside the 6 months time limit provided for in R17.5 by about 4 months.

Discussion

(5) It is useful to deal first with the 4 issues set out in R17.8 (3) because they all bear upon the issue of substantial justice which the Court has to consider in relation to the application to extend time under R.17.5 (2).

(6) It was submitted by Ms. Molisa that the merits of the claim are marginal at best in that s.26 requires only that the Minister take such action as may appear to him necessary, and that means that he may take no action at all provided he turns his mind to the issue.

(7) Mr. Nalyal on the other hand submitted that the section requires that the Minister must take some positive action for conciliation or arbitration once the preconditions for operation of the section come into existence.

(8) In my view, on the wording of the section, Mr. Nalyal’s interpretation is at least arguable, sufficiently so that the issue should not be decided against him at a preliminary conference without much fuller opportunity for argument.

(9) It is therefore unnecessary to consider the subsequent issue of whether in fact the Minister did turn his mind to the question of possible conciliation or arbitration. As no sworn statement has bee filed on behalf of the Minster, there is simply no evidence about that matter at this stage.

(10) There is no doubt that the claimants are directly affected by the decision.

(11) The question of delay is always important in connection with judicial review of governmental decisions because the business of government requires certainty and finality. Here the claim is in the context of an industrial dispute which can often move and metamorphose quickly.

(12) It is plain from the sworn statements filed in support of the application to extend time that that is what has happened here. A further sworn statement in support of the claim itself by Oliver Stephens makes it clear that it is the termination of his employment on 5 September 2005 which is the main focus of the dispute from his point of view.

(13) There have also been sworn statements filed from no less than 11 former employees in support of the application for extension of time all in very similar terms. These statements are not about the trade dispute existing in August 2005 referred to in Para 6 above. All of them complain that their termination of employment on 5 September 2005 or after was invalid and that they have been unemployed since and are facing hardship.

(14) It is clear from the sworn statements filed that the focus of the industrial dispute has moved on from the original issues to the question of the termination of the claimants’ employment as a result, they say, of their taking part in industrial action relating to the original dispute. Indeed the two persons whose dismissal was the subject of the original dispute are not even named as claimants in this proceeding.

(15) In my view the dispute now is a separate and different trade dispute to the original one. In fact it arose after the decision (or failure to make a decision) by the Minister had taken place.

(16) While the original trade dispute is still unresolved, the tenor of the claimants’ sworn statements is that it is no longer the real issue. The terminations are now the real issue.

(17) If the claimants were successful, the best they could achieve is an order that the Minister take some step towards conciliation or arbitration of the original trade dispute. They could not obtain an order in relation to the subsequent dispute relating to the terminations.

(18) I do not accept Mr. Nalyal’s submission that the whole series of events is just one continuing dispute. In a loose sense that may be so. But in terms of the definition of a trade dispute contained in the Act, these are clearly separate disputes albeit connected with each other.

(19) As well as that the Minister’s powers in s.26 are predicated on the existence of the threat of a serious disruption of, or interference with the maintenance or management of an essential service. While such may have existed in late August 2005, there is nothing to indicate that that sort of situation exists now. So there is something unreal in litigating now to require the Minister to exercise a power given to him to exercise in relation to a threat of disruption to an essential service which existed over a year ago, but which has long since passed. For this reason, even if the claimants made out their case, it is quite likely that in its discretion, the Court would decline to grant the mandatory order sought.

(20) There has really been no adequate explanation for the delay that has occurred since August 2005. The claimant Joseph Neil has made 2 sworn statements in relation to the issue dated 4 June 2006 and 6 October 2006. He deposed that the claimants did not know what steps to take to legally address their grievance but they have instructed three different local lawyers (Mr. Nalyal being the last) and one overseas lawyer. They have also tried unsuccessfully to resolve their issues in other ways and, of course, money is a constraint. But there is no direct explanation as to why this claim took so long to file.

(21) It is plain that under R17.8 (3) (c), the Court has to look at the delay since the decision not just since the R.17.5 time limit expired. That follows because R17.8 applies to all claims both within and outside the time limit.

(22) I am not satisfied that there has been no undue delay in making this claim. I am also satisfied that the delay has made the claim of little practical use.

(23) As to whether there is another remedy that resolves the matter fully and directly, that raises again the issue of what "the matter" is. If it is the terminations, the proceeding challenging the lawfulness of those is a much more direct and full way of resolving it. If the matter is the original dispute, it is difficult to know where claimants can go if, as they say, the employer refuses to negotiate in any way.

(24) In any event, my finding in relation to R.17.8 (3) (c) is decisive. I am therefore required to decline to hear the claim and strike it out and I do so.

(25) I also refuse the application to extend the time for bring the claim. For the reasons discussed in relation to R. 17.8 (3), I am not satisfied that substantial justice requires it.

(26) The defendant is entitled to costs which the Court will fix on request if the parties cannot agree. It may be however, that the defendant will see fit to take a compassionate attitude in that regard given that most if not all of the claimants are unemployed as a result of the loss of their positions and are facing hardship

Dated AT PORT VILA on 19 October 2006

BY THE COURT

C. N. TUOHY
Judge