Court Notices published in Govt. Gazette No. 20,468 of 25th August 2020

By means of a decree given by the Court of Appeal on the 16th June, 2020, in the records of the Application in the names Chief Government Medical Officer et vs Neville Gafà, Application Number 140/17, the following publication was ordered for the purpose of service of the respondent Neville Gafà, in terms of Article 187(3) et sequitur of Cap. 12.

By means of an Application filed in the Court of Appeal, Application Number 140/2017, in the names Chief Government Officer and the Parliamentary Secretary for Health vs Neville Gafà (ID 182574M) on the 26th February, 2020, the appellant Chief Medical Officer and the Parliamentary Secretary for Health respectfully pleaded:

1. That this is an appeal from a judgement given by the Court of Magistrates in the names above premised of the 17th February, 2020.

2. That as a factual background one finds that the cause was instituted following an employment contract of the year 2014, in virtue of which the respondent exercised the function of liaison with the OPM, with the Secretariat in the Department of Health, within the Ministry of Health, on a full-time basis. That in return the respondent was paid an annual renumeration which included any hours worked including those additional hours as well as the benefit of allowances.

3. That in brief the respondent plaintiff alleged that the amount claimed in the judicial letter with number 1234/2017 in terms of Article 446(2) for the global amount of €6,538 is not due to the appellants.

4. That the respondent reached this claim once in his opinion any amount recieved by him was passed to him in return of the additional hours he worked.

5. That as a consequence the plaintiff respondent contested the merit of the judicial letter with number 1234/2017 and instituted the present procedure.

… omissis …

8. That in its judgement of the 17th February, 2020, the Honourable Court of Magistrates rejected the pleas of the appellant and declared that the sworn declaration of the 28th April, 2017, presented in terms of Article 466 of Cap. 12 of Malta, is without effect and unfounded and this keeping in view that the Honourable Court of Magistrates enjoys the faculty to raise the nullity of the action ex officio, as presented in terms of Cap. 12 of the Laws of Malta.

9. That the interpellant appellant Chief Government Medical Officer and the Parliamentary Secretary for Health feel aggrieved by the decision of the Honourable First Court where it rejected all its pleas and declared that the present action is without effect and consequently the demand is unfounded in its entirety.

The First Grievance - Nullity of the judgement

1. That as regards the first (1) grievance it is a stipulated rule that when judgement is delivered any Court in its competence should rely on those demands raised and should give its judgement on that pleaded. That in the opinion of the interpellant appellant, the Honourable First Court in its decision of the 17th February, 2020, decided on the nullity of the action ex officio on the basis of Article 44 of Cap. 12 of the Laws of Malta, despite the fact that the respondent did not bring forward any demand based on the nullity of the action.

… omissis …

5. That it is being submitted that the evaluation as made by the Honourable First Court that the action brought forward by the appellant was not the appropriate action and the demand as regards payment of extra overtime does not fall within Article 466 of Cap. 12. That thus contrary to that decided by the Honourable First Court it could not give rise that the Court decided on a legal merit which was not raised and pleaded at any stage of the cause.

… omissis …

10. That as for that brought forward with relevance to the present cause this means the analysis de quo has to be made within the parameters as to whether the Court of Magistrates when it delivered its judgement stuck to the terms of the grounds of the respondent as brought in his application or whether it delivered its decisions on different grounds and consequently exceeded that demanded from it in the said application of the respondent.

11. That from an accurate examination of the judgement as delivered by the Honourable Court the latter in its decision passed to legal enunciations which were not before it for the purposes of the judgement.

… omissis …

16. That with the due respect thus the conclusions of the Honourable First Court which concluded that the appellants could not expect to be refunded payment due once the action as proposed was unfounded was mistaken as the same Court had no demand before it which reflected the unfoundedness and irrituality of the action and subsequently based itself on a serious of assumptions and opinions which exceed its competence.

The Second Grievance - Lack of appreciation of proof

17. That it thus follows that the decision of the Honourable First Court was primarily based on assumptions extra petitae and ultra petitae, the second grievance consists in the exigency that there be considered facts and all the proof produced and the Court reach its conclusions wheher the payment pretended is due in favour of the appellant or otherwise.

… omissis …

24. That after all the analysis of the Honourable Court had to decide that the mistake made by the Department of Health for the approval of additional payments was within the ambit of proof on a balance of probability and whether the appellants managed to proof that the payment was due, that it was the respondet himself that effectively misled the Financial Department.

26. That in consideration of that premised it resulted that once the Honourable First Court went beyond that which was expected of it, in its decision and subsequently failed to examine the merit of the present demand in the light of all the facts, that decided by the Court of First Instance was affected by serious defaults, which give rise why the arguments of the First Court do not subsist.

Thus the appellants whilst referring to the proof and all submissions brought before the Honourable First Court and whilst reserving the right to bring forward all the proof admissible according to law at this stage respectfuly pray this Honourable Court, to revoke, cancel and annul the judgement appealed decided by the Court of Magistrates, decided on the 17th February, 2020, in the names premised in so far as it decided that the sworn declaration notified to the respondent presented in terms of Article 466 of Cap. 12, by means of the judicial act of the 28th April, 2017, constitutes an executive title and whilst it rejects the demand of the respondent, with costs against the respondent.

The Application in the names Chief Government Medical Officer et vs Neville Gafà, Application Number 140/17, has been deferred to the 2nd September, 2020, at 9.00 a.m.

Notify: Neville Gafà, Argento, Flat 4, Triq il-Miġbħa, Mellieħa

ADV. FRANK PORTELLI, LLD

For the Registrar, Civil Courts and Tribunals