A warrant of prohibitory injunction cannot be issued if the action it is being asked to stop has already taken place. This was decided in a decree delivered on 22 April 2025 by Mr Justice Ian Spiteri Bailey in John Attard vs Steve Agius et.
The Applicant filed a warrant of prohibitory injunction against Identity Malta, the Permanent Secretary of the Ministry for Internal Affairs and Wasteserv Malta Ltd. He asked the court to order the defendant not to transfer or redeploy him from Identity Malta to Wasteserv Limited. Attard, the Applicant explained that he was employed with Identity Malta in June 2016. He was responsible for internal auditing which meant that disciplinary action was taken against other staff members following his investigations.
He is 58 years old, and obtained a Light Passenger Transport Service Operator licence which would allow him to work after he starts his pension. He is also a director of a company, which the CEO of Identity Malta (IM) is aware of. Again, this is part of his plan for when he leaves IM on pension. In January 2025, he wrote to the CEO informing him that he would need to apply for work permits of third country nationals. The CEO of IM referred this request to the Compliance Unit for their review.
On 10 March 2025, the CEO of Wasteserv Malta Limited informed the Applicant that there were rumours that he was to be seconded to Wasteserv. This was confirmed officially on 1 April 2025. No official reason was given for this move. The Applicant blamed the fact that he requested to start processing work permits and therefore, it could have been interpreted as a conflict of interest. The Applicant insisted that he did not process any applications for work permits and does not work at the work permit section of IM. A formal letter outlining that the Applicant did have a conflict of interest and therefore was being deployed to Wasteserv.
Attard claims that this deployment is contrary to law and the Manuel on Resourcing Policies and Procedures issued by the government and the Public Administration Act.
The Defendants did file a statement of defence against the injunction in which it was stated that the Applicant had been previously deployed to ARMS in 2018 and returned to IM a few months later.
The Defendants argued that the request was not for him to apply for work permits after his retirement but to do so immediately. The company where the Applicant is a director had been operating since 2023 and offers taxi services. He even asked for information on pending applications. It is for this reason that the Applicant is being deployed to a government agency where he will not have a conflict of interest. The Defendants challenged that a redeployment is contrary to law.
The Defendants also challenged whether the Applicant has a prima facie right in terms of Article 873(2) of the Code of Organisation and Civil Procedure. The Applicant is suggesting that there is no conflict of interest, but it is the government that has to address the issue of the conflict of interest of its employees. The Applicant did not bring any evidence that if he is deployed to Wasteserv then there is no remedy. The Defendants argued that the Applicant can file a judicial review action.
Mr Justice Spiteri Bailey pointed at the articles of law which are relevant to the warrant. These are Article 873(1) and (2) of the Code of Organisation and Civil Procedure (COCP). There are two elements to the warrant of prohibitory injunction. The first the warrant is to protect the rights of the claimant and that this must be proved prima facie. The Court quoted from Grech pro et noe vs Manfre decided on 14 July 1988 where the court then held that these elements are object and not subjective and do not depend on the judge’s discretion.
Therefore, when the government is involved, there are two additional elements. These are that the action intended to be stopped will take place and that the prejudice that will take place the warrant will be a unproportionate reaction. These elements must all exist. If the warrant is upheld, it does not mean that the right exists because a court action will have to follow.
The Court further considered that the Applicant’s request is clear in that he is asking to court to stop to his redeployment. This is because the decision has been taken. The decision was taken after the circumstances were referred to the Conflicts of Interest Committee. Therefore, the Court cannot stop something that has already taken place. The Conflicts of Interest Committee had taken its decision. The Applicant at this stage can take other measures with regard to a decision taken. In fact, the Applicant has a wide range of remedies before him to contest the decision taken.
The Court then turned down the request for a warrant of prohibitory injunction.
Av. Malcolm Mifsud
Founding Partner
Mifsud & Mifsud Advocates
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