DEREK ACHONG

Se­nior Re­porter

The State has been al­lowed to de­fend a law­suit over a de­ci­sion to re­clas­si­fy a pub­lic ser­vant's leave al­most a decade af­ter the is­sue was first con­sid­ered. 

De­liv­er­ing a de­ci­sion on Wednes­day, High Court Judge Frank Seep­er­sad up­held an ap­pli­ca­tion from the Of­fice of the At­tor­ney Gen­er­al and the per­ma­nent sec­re­tary of the Min­istry of Ed­u­ca­tion to con­tin­ue to de­fend the law­suit brought by An­tho­ny Ho­sein al­though their lawyers missed dead­lines for fil­ing ev­i­dence. 

Ac­cord­ing to the ev­i­dence in the case, in 2011, Ho­sein was an es­tate con­sta­ble as­signed to the min­istry. 

Be­fore be­ing trans­ferred to the Ju­di­cia­ry and then the Min­istry of the At­tor­ney Gen­er­al and Le­gal Af­fairs in 2012, the min­istry's then per­ma­nent sec­re­tary clas­si­fied his sick leave ap­pli­ca­tions to de­ter­mine his in­cre­men­tal date of first ap­point­ment. 

The ap­point­ment date, which is set af­ter com­plet­ing one year of con­tin­u­ous em­ploy­ment, is used to cal­cu­late in­cre­men­tal salary in­creas­es. 

In Au­gust 2020, the min­istry wrote to the Di­rec­tor of Fi­nance and Ac­counts and stat­ed his in­cre­men­tal date of first ap­point­ment was Au­gust 12, 2011. 

How­ev­er, short­ly af­ter the then per­ma­nent sec­re­tary of the min­istry re­clas­si­fied three pe­ri­ods of sick leave that he took be­tween 2010 and 2012. 

The min­istry ruled that there was a clean break in his ser­vice as he failed to sub­mit med­ical cer­tifi­cates for the leave pe­ri­ods. 

Ho­sein filed a law­suit chal­leng­ing the pow­er and au­thor­i­ty of the se­nior pub­lic ser­vant to per­form the re­clas­si­fi­ca­tion. 

The lawyers for the AG's Of­fice and the min­istry sought sev­er­al ex­ten­sions to file ev­i­dence in the case as they cit­ed de­lays in re­ceiv­ing doc­u­ments and in­for­ma­tion from the min­istry. 

In Oc­to­ber, last year, they were grant­ed a fi­nal ex­ten­sion and told that the case would pro­ceed as un­de­fend­ed if the dead­line was not com­plied with. 

Be­fore the dead­line elapsed, the lawyers in­formed the court of their in­abil­i­ty to meet it and ap­plied for re­lief from sanc­tions un­der the Civ­il Pro­ceed­ings Rules. 

The re­lief from sanc­tions ap­pli­ca­tion was up­held by Jus­tice Seep­er­sad on Wednes­day. 

Jus­tice Seep­er­sad ac­cept­ed their ex­cuse for non-com­pli­ance. 

"The Court not­ed that notwith­stand­ing their de­mand­ing and com­pet­ing work­loads, the lawyers act­ed pro­fes­sion­al­ly and per­sis­tent­ly," he said. 

He said that the is­sues they were fac­ing may not have oc­curred if the min­istry's records were digi­tised. 

"The ac­tu­al time­line be­tween ser­vice of the claim and the fil­ing of the af­fi­davits giv­en the cir­cum­stances which pre­vailed was, how­ev­er, not un­rea­son­able and a good and ac­cept­able ex­pla­na­tion for the rough­ly two-month de­lay has been ad­vanced," he said. 

Jus­tice Seep­er­sad ex­pressed dis­ap­point­ment that Ho­sein's lawyers chal­lenged the po­si­tion de­spite be­ing ap­prised of the rea­son for the de­lay. 

"An in­her­ent part of the du­ty im­posed up­on lawyers is the oblig­a­tion to re­spect and val­ue the Court's time and this court de­pre­ci­ates po­si­tions of op­po­si­tion which are pedan­tic and de­void of com­mon sense," he said. 

"Such pos­tur­ing should be avoid­ed as it tax­es an al­ready over­bur­dened court sys­tem," he added. 

He al­so re­ject­ed an ap­pli­ca­tion chal­leng­ing the claims made by one of the State at­tor­neys in re­la­tion to their de­lay. He said the ap­pli­ca­tion was with­out mer­it. 

Stat­ing that he had dif­fi­cul­ty in un­der­stand­ing the chal­lenge. Jus­tice Seep­er­sad said: "Lawyers are strong­ly urged to be more cir­cum­spect, to ex­er­cise cau­tion and act with dili­gence be­fore pro­ce­dur­al ob­jec­tions are ad­vanced and puerile and pedan­tic ap­pli­ca­tions have no place in the course of re­spon­si­ble lit­i­ga­tion."

The out­come of the pro­ce­dur­al ap­pli­ca­tions now means that the case will go on tri­al be­fore Jus­tice Seep­er­sad. 

Ho­sein was rep­re­sent­ed by Farai Hove-Ma­sai­sai, Bernelle La Fou­cade, and Chelsea Ed­wards.

The AG's Of­fice and the min­istry were rep­re­sent­ed by Dou­glas Mendes, SC, Clay Hack­ett, Keron May­nard, and Car­rie-Ann Grif­fith.