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Nixon v Public Service Commission [2003] VUSC 27; Civil Case 143 of 2001 (27 May 2003)

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

CIVIL CASE No. 143 of 2001

BETWEEN:

SIMEON NIXON
Plaintiff

AND:

THE PUBLIC SERVICE COMMISSION
First Defendant

AND:

THE TEACHING SERVICE COMMISSION
Second Defendant

AND:

THE MINISTER OF EDUCATION
Third Defendant

Mr. Robert Sugden for the plaintiff
Mr. George Nakou and Ms Viran Molis for the first, second and third defendants

JUDGMENT

This is an application for summary judgment under Order 14 r.2, O. 29 r.8 of the Blue Book (then Civil Procedure Rules of 1964). By a summons (General Form) dated 1 February 2002, the plaintiff is seeking Orders to the following effect:

1. That there be judgment for the plaintiff for VT1,500,233.
2. That the action continues as to the balance of the relief sought.
3. That the defendants pay the plaintiff’s costs of and incidental to this application.

The plaintiff filed two (2) affidavits in support of the Summons. The first affidavit is that of Simeon Nixon dated 2nd February and filed on 5 February 2002. The second affidavit is filed and sworn by Mr. Sugden filed on 18 April 2002.

The application is advanced on the basis that the defendants have no defence to the plaintiff’s claim.

On 18 November 2001, the plaintiff filed before the Court a claim dated 27 November 2001. The plaintiff in his substantive action, claims for:

1. A declaration that the first defendant had no power to terminate the plaintiff for redundancy or upon any other basis.
2. A declaration that the first defendant’s letter to the plaintiff dated, 19 May, 1999 purporting to terminate his appointment as an officer of the Vanuatu Teaching Service is of no effect.
3. A declaration that the plaintiff is and at all times since 1 May, 1998 has remained an officer in the Vanuatu Teaching Service enjoying the rank of Assistant Principal on the salary scale of E8-1 with a cost of living allowance of VT 51,000 per annum.
4. An Order that the plaintiff’s entitlements to salary and other benefits in excess of 1,380,009 that have accrued since 19 May, 1999 be paid to him.
5. Costs.

I have read and consider the plaintiff’s affidavits filed in support of the Summons, I find that they cannot be relied upon as the defendants say, they defeat the purpose for the summary application. The plaintiff’s affidavits created doubt as such cannot be relied upon at this stage of the proceedings.

Furthermore, the action concerns the constitutional challenge of certain legislative provisions in relation to Public Service Commission and Teaching Service Commission. Common sense and the interest of justice in this type of case, dictate that the constitutional and/or legal challenge must be determined first before the Court can properly address and determine any issue as to liability and quantum. This constitutes a fundamental basis for which the application for summary judgment should be refused. It is so refused.

The costs for the present application are awarded in favour of the defendants.

The Court makes the following Orders:

1. The plaintiff’s application for summary judgment dated 1 February 2002 is refused.
2. The costs for the application are awarded for the defendants in the sum of VT 20,000 to be paid by the plaintiff within 30 days.
3. Liberty for the plaintiff to negotiate with the defendants via State Law Office as to how the plaintiff is to pay the said costs of Vatu 20,000 within 30 days period as ordered.
4. The matter in Civil Case No. 143 of 2001 is set for conference on 4 June 2003 at 1:30pm.

Dated at Port-Vila this 27th day of May 2003

BY THE COURT

Vincent LUNABEK
Chief Justice