HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 257 of 1997
GEORGE KUPER
v
TRADE DISPUTES PANEL
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High Courtolomon Islands
Before: Lungole-Awich, J
C Civil Case No. 257 of 1997
Hearing: 16 February 1998
Judgment: 27up> March 1998
/p>
Counsel: A Radclyffe for the Applicant
JUDGMENT>
(LUNGOLE-AWICH,
J):
Application for Mandamus: The applicant, George Kuper, has applied
for order of mandamus, compelling the respondent, the Trade Dispute Panel
(The
Panel), to pronounce decision in a trade dispute case that the panel
inquired into on 26.10.1995. The dispute was that Mr.
Kuper had been
unfairly dismissed by his employer, Solomon Telekom Limited. The applicant
was represented, at the inquiry
of the Panel, by his solicitor, Mr. A.
Radclyffe, who also appeared as counsel in this application. Leave required
under
Order 61 r2 to bring mandamus application was duly obtained by order
of Palmer J on 4.11.1997. In the statement required from
the applicant, he
states that the ground for his application is that the respondent, “has
failed to deliver its decision
… within reasonable time”. He filed affidavit
of his solicitor, Mr. Radclyffe, in support.
<
he Facts
This application, the supporting avit and statement required ired were all
served on the respondent. Affidavit of service
has been filed. The
respondent has not responded at all to the case papers served on it and has
not appear at the hearing.
As the respondent Panel is a creation of statute,
the Trade Dispute Act, No 3 of 1981, and a public entity, I adjourned the
case and asked that the case papers be served on Attorney general, as a
matter of courtesy to the state, to give him
opportunity to consider whether
he might wish to be heard. Attorney General has now sent a letter stating
that he discussed
the matter with the Chairperson of the Panel and as the
result, the Attorney General did not wish to be heard. The other reason
for
adjournment was to give time to counsel for the applicant to file further
submission, which he has done.
This is not a case of the respondent not being aware of the proceeding
against it; the respondent simply has nothing to
say in response to the
facts deposed. The applicant’s account of the facts must be accepted as the
facts of the case.
The facts are embarrassing to any conscientious worker.
The applicant’s trade dispute case, No UD181/93, was inquired into
by the
respondent Panel, chaired by the chairperson, on 26.10.1995, some 2 years
and 5 months ago. Applicant’s solicitor
has written up to 7 letters, copies
of which have been exhibited with affidavit of the applicant's solicitor.
The chairperson
has ignored all those letters. The solicitor also deposed
that he spoke to the chairperson about bringing application for order
of
mandamus. If there is any suggestion that service of case papers was
irregular, the court condones because there is
much to show that the Panel
was aware of this case being pursued and was aware that it would be heard on
16.2.1998. The
Panel has simply ignored this court proceeding against it.
What is left is only the law applicable. Before I turn to the law
applicable
I have to mention that in his submission, Mr. Radclyffe suggested that there
are many cases not being attended
to by the Panel. That suggestion is not
material to this case, I do not take it into account; each case must be
dealt
with on its own facts. The other point to note is that courts deal
with only cases presented to courts.
The Law
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The firsal issue is whether mandamus is available against the PanelPanel.
Mandamus may issue only when a person or body
is required to perform a
public duty. It is most commonly used to compel the exercise of discretion
required to be made
by a person or body performing public duty. An example
is order compelling a subordinate court to do its work, not to compel
it to
make a particular decision - see R -v- Graham Campbell Ex Parte Herbert
[1963] 1WLR 279. That part of the submission of learn counsel, Mr.
Radclyffe, that suggests that order of mandamus does not
apply to court, is
only true in the case of superior courts such as the High Court and the
Court of Appeal - see a case
involving a county court judge in England, R
v Judge Fraser Harris ex parte The Lciety [19> [1955] 1 QB, 287, in
which mandamus issued to compel a judge of subordinate court, the County
Court, to make a legal aid order. The order
of mandamus can issue to co
statutory tribunals tals that exercise some judicial discretion such as the Trade
Dispute
Panel does, to discharge its duty, if the tribunal refuses, ignores
or neglects its duty. see The King v Housing Tribunal [1920] 2 KB
334. There are numerous cases of mandamus having issued against bodies
created by statutes. The respondent Panel is created by section
2 of the
Trade Dispute Panel Act.
ndamus Granted
The order of mandamus is disonary and consideration mayn may be given to
factors such as whether the applicant has other
remedies or has made demand
for the performance of the duty he has applied to compel. In this case there
is no other
remedy available to the applicant; he has already submitted a
trade dispute for inquiring into under section 6, he is entitled
to an award
or dismissal of the dispute. It is only after having known the decision of
the Panel that he may consider
whether or not to appeal to the High Court.
Applicant has made numerous inquiries including by 7 letters. He even gave
notice of intention to apply for mandamus. What else is left? The applicant
is entitled to an order of this court compelling
the respondent Panel to do
its work. I accordingly grant order of mandamus to issue against the
respondent, the Trade
Dispute Panel, compelling it to pronounce its decision
within 21 days of today, in trade dispute case NO UD181/93, in which
the
applicant, George Kuper, was a party, heard on 26.10.1995. If the Panel
fails to do so the chairperson will be required
to appear before court to
answer personally, charge of contempt for which she may be personally
penalised. I considered
awarding costs against the chairperson personally,
but decided that she will need to be given opportunity to say something
about it first. That will add to the delay before Mr. Kuper knows his fate.
Costs is awarded to Mr. Kuper against the
Trade Dispute Panel.
Delivered and Dated this 27th day of March 1998<1998
At the High Court
Honiara
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Sam Lungole-Awich
JUDGE
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