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Nalpini’s appeal dismissed

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The Court of Appeal has dismissed Albert Nalpini’s appeal against the Judgment of the Supreme Court dated August 2nd, 2019 striking out the Appellant’s claim in Judicial Review Case No. 19/1234 (the “Second Claim”) on the basis that the Appellant had earlier discontinued Judicial Review Case No. 3128 (the “First Claim”).
In the First Claim he alleged a lack of knowledge of the reasons behind his suspension, and discontinued his allegation of the apprehension of bias on the part of the members of the Second Respondent which is Police Service Commission or Disciplinary Committee. The primary judge held that the discontinuance prevented the Appellant bringing the Second Claim which was made on the same case.
The Appellant was the duly appointed Commissioner of Police for Vanuatu as from 4 May 2017. He was suspended from office on 26 September as disciplinary charges were lodged against him. During the period of his suspension, Police Service Commission appointed an investigation team to carry out investigation on the disciplinary allegations against him.
On 8 November 2018, the Appellant filed the Judicial Review Case No. 3128 of 2018 (“the First Claim”) against the Respondent. The Appellant has sought a quashing order of the suspension made against him by the First Respondent who is the President of the Republic of Vanuatu who appointed him. The basis of the First Claim was that he was not afforded natural justice because he was not notified of the allegations made against him and the reasons for his suspension.
On 5 December 2018, the Appellant filed an interlocutory application, among other matters, seeking an order from the Court to uplift his suspension to allow him to resume his duties as Commissioner of Police pending the hearing of his disciplinary matters.
On 7 December 2018, a conference was held in the First Claim. During the discussion between the primary Judge and Counsel in regards to the Appellant’s interlocutory application, it was agreed by Counsel that the Second Respondent will serve the Appellant with the allegations (the disciplinary charges) which was relied upon in support of the Appellant’s suspension. At the conference, it was also agreed that as the Second Respondent’s findings on the disciplinary proceedings against the Appellant were imminent, Counsel for the Appellant agreed to wait on the outcome of the disciplinary proceedings before the Appellant further progress his case in Judicial Review Case No. 3128 of 2018 (“the First Claim”).
The Court made directions reflecting the discussions with Counsel by deferring the proceeding in Judicial Review Case No. 3128 of 2018 (“the First Claim”) until the outcome of the Disciplinary Hearing/proceeding is known. Following directions were made by the Court of 7 December 2018:
1. It appears that the best course to adopt is to await the outcome of the Disciplinary Hearing which is now scheduled for 20 December 2018. The application is to be served today with the evidence relied on.
2. Accordingly, all matters are simply deferred until the outcome of the hearing is known.
On 20 December 2018, before the hearing of the Appellant’s disciplinary case, by letter dated 19 December 2018, the Appellant raised the issue of apprehension of bias on the part of the members of the Second Respondent as persons acting as investigators and decision makers.
The disciplinary hearing was commenced on 20 December 2018 and then adjourned at the request of the Appellant to allow him more times to appraise him of the disciplinary allegations made against him. The hearing was resumed on 21 January 2019.
On 23 January 2019, the Court in Judicial Review Case No. 3128 made further directions as follows:
1. Mr. Aron advised the Disciplinary Hearing is continuing. This is in the order of 16 witnesses to be called.
2. There will be a further call over to monitor progress at 8.30am on 6 March 2019.
The Disciplinary Hearing was completed and parties were directed to file written submissions on 6 March 2019.
On the same date of 6 March 2019, a conference was held by the Court to monitor the progress of the disciplinary matter. The Court then issued the following directions:
1. Mr. Aron advised the Disciplinary Hearing will be completed today. The indication is that a decision will be published on Monday 11 March 2019.
2. There will be a further call over to monitor the progress at 8.15am on 15 March 2019.
On 18 March 2019, the Second Respondent delivered its written decision on the disciplinary matters against the Appellant.
On 28 March 2019, the Respondents in the First Claim filed the sworn statement of Job Boe disclosing the outcome (decision) of the Disciplinary Hearing of the charges that were laid against the Appellant. In that statement, Job Boe confirmed that that decision was delivered to the Appellant on 18 March 2019. Paragraphs 30 and 31 of the Second Respondent’s decision on the disciplinary matter stated:
“30. We concluded that the actions of the commissioner are serious misconduct and having explored all other avenues, we are convinced that a dismissal is appropriate in the circumstances.
31. For completeness, we advice the office of the President on our decision after consultation with the Honorable Minister of Internal Affairs Mr Andrew Napuat.”
The Appellant was appraised with the decision of the Second Respondent dated 18 March 2018. It is noted the Appellant did not progress his claim and apply to amend his First Claim to pursue the complaint of likelihood as bias as raised in his letter of 19 December 2018.
On 28 March 2019, the Appellant filed a Notice of Discontinuance discontinuing the proceedings in Judicial Review Case No. 3128 of 2018 (the First Claim) against the Respondents.
On 18 April 2019, the President of the Republic of Vanuatu (the First Respondent) dismissed the Appellant as Commissioner of Police of Vanuatu on the advice of the Second Respondent.
The second claim was filed on 22 May 2019. The Appellant sought to quash the First Respondent’s order to dismissing him on the basis that the Second Respondent had not acted independently, nor had it acted in a timely manner. The Appellant also sought related orders in his Second Claim.
In his sworn statement filed in support of his claim, the Appellant stated clearly that there was an apprehension of bias due to the chair of the commission (Second Respondent) and the chair of the Disciplinary Committee acting as complainants and investigators on the matter. The same complaint was again raised regarding the lack of information provided to the Appellant while he was suspended, and the length of time the inquires took while he was suspended.
The Court of Appeal also noted that there was a great deal of duplication in the grounds for both claims, although the subject of the decision was different, the First Claim relating to the Appellant’s removal from the office of Police Commissioner and that the First Responded (President) was involved in both claims, as he was responsible for acting on the advice made to him. He was not and could not be criticised for so acting as it was the actions of the Second Respondent and the Disciplinary Committee that were at the heart of the Appellant’s allegations.
At the end of the long judgement delivered on Friday 15 November, Chief Justice Vincent Lunabek said, “We consider that the Appellant’s allegations of the application subsection 50 (3) and (4) of the Employment Act has no basis and is misconceived.
The appeal was dismissed and the Respondents are entitled to costs assessed at Vt50,000 to be paid within 28 days. (Photo: DP)