A judgement is no certificate

The First Hall of the Civil Court on 26 September 2013 decided that an action cannot be instituted if its intention is that the court merely issues a declaration: an action must seek a remedy.

The First Hall of the Civil Court on 26 September 2013 decided that an action cannot be instituted if its intention is that the court merely issues a declaration: an action must seek a remedy. This was held by Mr Justice Anthony Ellul in Josanne Schiavone v Reverendu Soru Claudio Zammit on behalf of St Francis School, Revenendu Soru Josephine Xuereb on behalf of the Franciscan Order, Fr Dominic Scerri on behalf of the delegate of the Archbishop of the Catholic Education Secretariat and Dr Michelle Tabone on behalf of the Curia.

Schiavone instituted the action after St Francis School issued a call for the post of assistant head on 27 May 2010. She applied for that post and was placed second among the candidates. The Malta Union of Teachers drew the school's attention to the need for a second assistant head, since this was stipulated in the collective agreement. Notwithstanding this, the second assistant head position was given to Sr Dorotea Mizzi, who took her post on 11 January 2011. Then the school failed to adopt the order of merit as listed by the adjudication board. Schiavone asked the court to order the defendants to follow the order of merit of the adjudication board and declare that Mizzi's appointment to assistant head had been illegal.

The defendants pleaded that Scerri and Tabone should not have been included in this action. Furthermore, they said they were not bound to follow the order of merit and Mizzi's appointment was in line with the collective agreement.

The court examined the facts of the case. The adjudication board had been composed of Scerri and Fr David Cilia. On 16 June 2010, the plaintiff was informed that she had not been chosen. Subsequently there was a need to appoint a second assistant school head, but this time there was no call in accordance with clause 4.1 of the collective agreement, which allowed the school to appoint any member of the religious order or congregation. Schiavone expected that she would be appointed the second assistant head of St Francis School. From the examination of the evidence, it was evident that the decision had been taken by the head of school and not by any of the other defendants.

In Schiavone's examination for evidence she was asked what she expected from the case, and she replied that she did not expect to be appointed assistant head but wanted justice to be done. She explained that she did not want other teachers to have the same experience she had gone through. In a subsequent sitting the plaintiff testified that at present she is head of the primary department within the Curia's literacy section, which, according to her, is equivalent to being an assistant head of a Church school. She added that she had no intention of moving from that post. Immediately, the defendants raised an additional plea.

From Schiavone's testimony, the court understood that all she was interested in obtaining was a declaration that the school's decision to employ Sr Mizzi was irregular and she should have been given the job instead. Mr Justice Ellul quoted from a previous judgement, Gordon Mizzi et al v Dr John C Grech et al, decided on 29 April 2008, which stated that one cannot ask the court to pronounce a declaration without the intention of it being effectively enforced. The court has to be convinced that the declaration sought is not merely an academic exercise.

In the particular case, the court pointed out that Ms Schiavone was not seeking to do anything else and wanted a "certificate" from a court that she should have been appointed assistant head. Ellul held that court cases should not be instituted to declare that the plaintiff is correct and full stop, as may be done in constitutional cases. Schiavone merely wanted personal satisfaction that she was right, which should not be the only thing to establish a judicial interest.

Mr Justice Ellul held that this had been evident from the beginning of the case and therefore upheld the defendant's additional plea and held that they should not be condemned.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates

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