| Fiji Islands - Fiji Teachers Union v The Permanent Secretary for Education - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION
CIVIL APPEAL NO. 11 OF 1991
(High Court Civil Action 181 of 1989)
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FIJI TEACHERS UNION
VINOD SINGH
APPELLANTS
AND:
THE PERMANENT SECRETARY FOR EDUCATION
THE PUBLIC SERVICE COMMISSION
THE ATTORNEY GENERAL OF FIJI
RESPONDENTS
Mr. H. M. Patel for the Appellants
Mr. N. Nand for the Respondents Date of Hearing: 24th February, 1993
Date of Delivery of Judgment: 13th August, 1993
JUDGMENT OF THE COURT
This appeal and another, No. 12 of 1991, were, by request, heard together. They cover a lot of common ground. Rather than repeat
that common ground in the reasons for judgment in the other matter, we have thought it preferable to make those reasons for judgment
an annexure to these.
The appeal arises from a dispute between a teacher, the second plaintiff (the plaintiff), and the Ministry of Education or Public
Service Commission, by one of which he was employed at the relevant time; there are three defendants, but it is adequate to refer
to them as "the Commission", and to use that expression to mean the employing authority, whichever it was; nothing turns
on this.
The subject matter of the dispute was what were called "leave passages". These were periodic entitlements of civil servants
who had reached a certain level of seniority, both as to wage level and period of service, to free travel for the civil servant and
his family to New Zealand, Australia or sometimes to Great Britain. The relevant explanations of this system of leave passages will
be explained later.
By way of outline it can be stated that the plaintiff, in 1982, applied for and was granted leave passages to Sydney. It seems that
we took advantage of them in 1982 and travelled overseas. It seems further that he applied again for such passages in 1985 or 1987,
which application was refused. By memorandum dated 18th September 1987, the Secretary for Education stated that the overseas passages
that had been granted to the plaintiff in 1982 had been the result of a mistake. The Secretary claimed that the passages had cost
(presumably the Commission) $2178.00; it went on to assert that the plaintiff had been entitled to some long service leave allowance,
which presumably had not been paid to him, but that when this entitlement was subtracted from the $2178.00 paid in error, it still
left $1488.00, which seem it was then claimed was owing by the plaintiff.
By originating summons filed in the High Court on 24th May 1989 the plaintiff sought the following relief:
"1. A Declaration Order that the Leave Passages paid or compensated for by the Government of Fiji to the Plaintiff in the past was legally due and payable
under the relevant provisions of the General Orders.
2. That the Government of Fiji is stopped or refrained from claiming or asking the Plaintiff to refund such payments already made to him
pursuant to the General Orders.
3. A Declaration Order that by virtue of the General Order the Plaintiff is now entitle to further Leave Passage which is lawfully due to him under the
conditions of employment existing with the Government of Fiji.
4. Such other relief as this Honourable Court may think fit.
5. Costs."
The plaintiff filed two affidavits in support of the originating summons. In the first of those he sought the following orders:
"(a) A Declaration Order be made against the Defendant that the Defendant has acted against the provisions of leave and passage
entitlements which I had opted for;
(b) That the Defendant be directed to pursue no demand of overpayment;
(c) That all arrears accrued to me since I exercised my option in 1982 be paid to
(d) That the Defendanfurther directed to pay in full all future passages due to me in accordance with GO743 (a). (a).
(e) The Defendants be directed to cease wrongful deduction from my salary and reimburse the amount wrongfully deducted."
There is no evidence that there are or have been any arrears accrued to the plaintiff. There is no evidence that any deductions,
wrongful or otherwise, have been made from the plaintiff's salary; and in no way would it have been possible for a Court to determine
anything on the affidavits of the plaintiff and its annexures; they were mis-labelled, and documents were missing. In some respects
this was made good by the affidavit in reply filed on behalf of the Commission, but this annexed 37 pages of documents and did not
draw the attention of the reader to the relevant portions of them - a great deal was not relevant.
We have drawn attention to this in the hopes that it may induce more thought and attention to be given by practitioners to the way
in which cases in the High Court are prepared and presented in discharge of the professional responsibility that lies on them.
The affidavit in reply annexed what were claimed to be the various orders and circulars which governed the matter of entitlements
to leave passages, and alleged that, having regard to them, the plaintiff had not been entitled to apply for and to be given by the
Commission the benefit that it had in fact given him. In paragraph 11 it went on "to pray to this Honourable Court for the following
reliefs:-
(a) A declaration that the leave passage granted to the Second Plaintiff in 1982 was given in error as he was not entitled to the same.
(b) A declaration that the Defendants are entitled to recover the net over-payment in the sum of $1,488.00 (One thousand four hundred and eighty-eighty
dollars) being the cost of providing the passage which was in the sum of $2,178.00 less the value of his leave allowance in the sum
of $690.00.
(c) A declaration that the Second Plaintiff is not entitled to any future passages under his existing terms and conditions with the Government of Fiji.
(d) An Order that the Defendants continue to deduct from the Second Plaintiff's salary until the amount is paid in full.
(e) Such other relief as this Honourable Court seems just.
(f) Cost of this action."
There was no cross summons. Paragraph 9 asserted:-
"9. THAT paragraph 7 of the affidavit is admitted, but the said passage granted to the Second Plaintiff was as a result of a factual error
in computing his correct leave and passage entitlement."
We draw attention to the provisions of Order 15 rule 2(1) of the High Court Rules:-
"2.-(1) Subject to rule 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy
against plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action,
make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence."
Rule 5(2) is not relevant here.
The matter came before Jayaratne J on 1st August 1990. It appears that it was agreed that His Lordship should decide the matter on
written submissions. He did so, dismissing, the plaintiffs declarations and making declarations as sought by the Commission together
with an order for costs. The plaintiff appealed to this Court.
This Court has tried to sort out the position from the almost unintelligible documents that were placed before him, and to explain
it. It is by no means sure that it has been able to do so. It has reached the conclusion that the factual result reached by the Judge
was the correct one, notwithstanding that the written submissions made to him and to us are singularly unhelpful. We shall deal with
what we believe should be the consequences of the factual result in due course.
The plaintiff was appointed a teacher in what was then the Education Department of the Civil Service following his acceptance of
an offer made to him in a document dated 28th November 1968. His appointment was on a probationary basis for a period of three years
with effect from the date of your appointment", which was 1st January 1969 (record p15). His salary was at the rate of L348
a year "according to a stated scale which is quite unintelligible and was not explained; we presume it does not matter. The
document of appointment stated:
"Your incremental date will be 1st January". It went on to state: "If you are confirmed, you will be placed on the
pensionable establishment..." (in accordance with a certain pensions ordinance). Clause 6 of the document of appointment provided
(record p15):-
"6. You will be subject to the provisions of the Colonial Regulations and of General Orders and Financial Orders now in force
or which may from time to time be promulgated by the Governor. You will be subject to the provisions of the 1964 Leave and Passage
Grant Conditions."
The 1964 Leave and Passage Grant Conditions, or some of them, were in evidence in the other matter. But they were not put in evidence
in the case from which this appeal arose, and did not get a mention there. The only evidence filed on behalf of the Commission stated
"that the ... Plaintiff when appointed to the teaching profession and (sic) fell under the 1964 leave and passage conditions
under General Order 733B" (record p13). We have accepted this, as did the trial Judge, and proceeded accordingly. We have annexed
a copy of GO733B to these reasons for judgment. The first portion reads (record p 16):
"733B:
A teacher appointed to the permanent establishment on or after the 28th September, 1964, employed in day school:-
(a) will be required to take his leave annually during the school vacations;
(b) after serving a minimum tour of four years, will be eligible during any school vacations for passages to the place where he intends
to spend his leave in the Colony, subject to the limitations imposed under General Order 754 (a);
(c) if on a salary of between $1,243 and $2,184 if not in a post formerly carrying post allowance $2,472 otherwise, inclusive, will
be eligible during the long school vacation for up to three adult tourist class air passages to Australia or New Zealand at nine-yearly
intervals..."
The remaining portion of sub-clause (c) went on to deal with higher salary brackets and shorter intervals between passages. The only
General Order 754 (a) that either Court had before it read (record p 29):-
"754 (a) These Orders shall apply to all local teachers except that they will enjoy their school holidays instead of annual leave,
vacation leave and long service leave."
We hope they did.
It seems that the plaintiff applied for overseas passages by letter to the Permanent Secretary of Education dated 7th September 1987.
He received in reply a memorandum from the Secretary dated 18th September 1987 in the following terms (record p 11):-
"Your letter dated 7.9.87 is acknowledged.
Mr. Singh, you were appointed to service on 1.169. You had completed your tour of four (4) years on 31.12.1972. I have been informed
by the Salaries Section that you were in receipt of a salary of $1404.00 per annum on 1st January 1973 and as such you were eligible for local passages under the 1964 teachers leave condition (General Order 733 B (b)). You should have exercised your option to transfer into the 1972 leave
conditions before proceeding on the 1972 Christmas Vacation and could have either taken full local leave passages or be compensated
for it and would have entitled to leave allowance in future.
However, when you exercised your option in 1972, you were granted three (3) adult passages to Sydney costing $2178.00 in ERROR. Therefore you have been paid $1488.00 in excess of your entitlement as follows:-
Cost of three (3) adult return passages to Sydney - $2178.00
Less Long Service
L/All. due on 28.1.86- 00
L/All. due on 28.1.85 - $230.00 &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp; p; &nbp; &nbp; ;&nbpp; &nnsp;& -sp; - $ 690.00<0.00
l Oveent & &nbp; &nsp; &bsp; nbs>$ $1488.1488.00<
Hope I have helped you to settle your doubt on the above matter."
We pause here to state four matters.
First, the letter of 7.9.87 would seem to be an application for further passages made by the plaintiff in 1987; this was not revealed
in the evidence.
Second, if the completion of 4 years service was the correct date for entitlement for assessing the eligibility for passages (as
the Secretary seems to be inferring), and if the figure of $1404.00 was the correct salary of the plaintiff and if GO733B applied,
and if the qualifying salary level for eligibility for overseas passages was the level at the expiry of a "tour of four years",
then it would seem that he qualified for passages under GO733B.
Third, we would assume that the reference in the Secretary's memorandum to the exercise of the option in 1972 is meant to refer to
1982, when the plaintiff in fact exercised his option.
Fourth, the memorandum did not settle any doubt, certainly not ours.
In the only affidavit filed in the proceedings on behalf of the Commission, and sworn by the Director of Industrial Relations, this
matter is referred to in paragraph 7(b). We think it relevant to set out the whole of his edifying explanation (record p 13):-
"7. THAT paragraph 5 of the affidavit is denied and in reply I say as follows:-
(a) The 1972 leave regulations were introduced vide Department of Public Service Circular No. 44/71, a copy of which is annexed herewith
marked 'G'.
In terms of the said Circular the Second Plaintiff was allowed to complete the required period of service to be eligible for the
grant of local passages under the provisions of General Order 733(b) (1963 edition). At the said time (1/1/72) the Second Plaintiff
was in the process of completing this required four year service as from 1/1/69.
(b) The Second Plaintiff's four years ended on 31/12/72 and in which event he should have exercised his option 28 days before reaching 31/12/72. At the said date he was not in receipt of a salary which would have qualified him for passages to Australia or
New Zealand at nine yearly intervals in terms of General Order 733 B as the Second Plaintiff was on a salary of $1,332 when the qualifying
salary for Australian or New Zealand passages was $1,776.
(c) The Second Plaintiff was only eligible for local passages at the end of his four years as at 31/12/72 or to receive compensation
in lieu of it.
(d) The Second Plaintiff was ineligible under the Regulations to delay exercising his option until 18/8/82 and his salary then was no criteria for determining
his leave and passage entitlement."
We can add that there is no sworn evidence to explain the discrepancy between his figures and those of the Secretary, and in particular
nothing to substantiate the figure of $1,776 mentioned there.
Now, doing our best to put the pieces together, we believe the picture which emerges is this.
By circular emanating from the Department of Public Service numbered 44, and dated 30th December 1971, sent to the Commission, or
its predecessor, new leave regulations were introduced. They applied to serving officers. They commenced on 1st January 1972. It
seems they were to be embodied in or become Chapter VII-A of General Orders; it also seems that this substantively occurred and we
have before us what appear to be the relevant parts of such General Orders; they commence at GO720, and appear to end at GO754. Circular
44 states that the regulations apply, so we assume that they applied until so embodied - we do not know when that was. Whenever it
was, Part II of what appears to the Chapter VII-A, headed "1972 Leave Conditions", commences: "The following conditions
are a repeat of the 1972 Leave Regulations and are effective from 1.1.72 ...", subject to a 1977 amendment, which does not seem
to be material. It probably fixes the embodiment in General Orders as being part - 1977. There is a later 1982 amendment, to one
of the new GOS, but it does not seem to affect the position.
We have to examine these 1972 leave provisions introduced by the regulations and embodied in General Orders because Circular 44 had
this provision in it (record p 33):-
"SERVING OFFICERS ON PRE-1972
CONDITIONS
3. The new Regulations shall apply to serving officers also and there are provisions for compensation for leave and passages foregone.
A copy of the option form in respect of Regulation 21 is also enclosed. As will be noted, officers are required to exercise their
options at any time after the 1st January, 1972, but at least 28 days before applying for their leave and passages under their pre-1972
conditions.
....
6. A more detailed set of conditions in respect of teachers will be issued shortly."
Regulation 21 is embodied in GO 743, and we will come to that. The more "detailed self conditions" does not rate a further
mention. The difficulty that this option presents we will return to.
It is probably relevant to mention here that the plaintiff used the option form on 18th August 1982, and indicated this as follows:
(record p 10).
"a) Passages
I wish to take the full passages for which I will be eligible at the end of my tour.
....
b) Future Passages or Leave Allowance
I wish to receive passages to Auckland, New Zealand, in future."
....
It was obviously an official form. The trial it offered the officer an opportunity to "exercise any option under Regulation
20 of the 1972 Leave Regulations ....", a regulation that had nothing to do with options, we suppose is immaterial.
The 1972 Leave Regulations and equivalent General Orders applied to a great variety of categories of leave for various categories
of officers. GO 741, with its heading, has (record p 25):
"Special Provisions for Officers Serving on Pre-1972
Leave and Passage Conditions
741. Permanent Officers: Before being required to transfer to these conditions, permanent officers will be allowed the following:
(a) An officer whose current tour of service will be completed after 1 January 1972 will be permitted to enjoy the leave and passages
for which he may become eligible at the end of his tour.
(b) An officer who may be on vacation leave on 1 January 1972, will be permitted to enjoy another tour of service under his former
leave and passage conditions.
(c) An officer in (a) above whose vacation leave has been deferred with the approval of the Public Service Commission before 1 January
1972, for more than six months, will be allowed leave and passages under his former conditions in respect of one additional tour;
provided that if he exercises his option to be compensated for leave and/or passages in respect of his current tour he shall not
be allowed leave and passages in respect of an additional tour.
GOs 742 and 743 provided:
Compensation for Service Officers
742. For the purpose of compensation, an officer's leave and passages shall be determined at the end of his tour provided that in
the case of an officer allowed to serve another tour under his former conditions in accordance with G.O. 741(c) above, his eligibility
shall be determined at the end of the additional tour.
Compensation Options
743. An officer will be required to exercise the following options on or after 1 January 1972, but not later than 28 days before he
is due for his next leave and passages. These options shall be irrevocable:
Leave:
(a) To take his full leave at the end of the tour which he ill&nill serving on 1 January 1or t or to accept compensation in accordance
with these Orders.
Passages:span>
(b) To take his full passages at the end of the tour he is still sill serving on 1 January 1972, or to accept compensation in accordance
with these Orders.
Future Passages or Leave Allowance:
(c) To receive up to three adult economy class return passages for himself, his wife and children below the age of eighteen years
to Auckland, New Zealand, every alternate tour on becoming entitled to long service leave under Categories A and B provided that
the officer was eligible for overseas leave under his pre-1onditions, and every very tour when Leave Allowance is payable under
Categories C and D; or to receive Leave Allowance under tOrde Order.
Further, any officer under Category was eligible for Australasralasian passages every tour under his pre-1972 conditions shall enjoy
such eligibility every tour as for officers falling under Categories C and D.
Accumulated Leave:
(d) To receive compensation for any accumulated leave either immediately or at the end of his tour which he is still serving on 1
January 1972."
Categories of officers, from A to D in ascending order of salary range, were set out in GO 723 "Tour" was defined in GO
722, as meaning "person of resident service of three years commencing on the appointment or after expiry of a ground of vacation leave",
(record p 19). As mentioned earlier, the plaintiff used the official option form, after the expiry of 13 years from appointment,
to exercise his option to take the full passages for which he was entitled at the end of his tour, and to receive passages to Auckland
in future.
The plaintiff's affidavit states that at the end of 1982 he "received leave and passage in accordance with any leave and passage
conditions" (record p 8). It appears he was given 3 passages to Sydney. He goes on to state that his application for similar
leave and passage was rejected; presumably this was in September 1987; whether it was also an application for passages to Sydney
we do not know. For good measure the plaintiff added that his salary at the time he exercised his option (1982) was $9690.00.
The first matter to be decided is whether the plaintiff was entitled to the passages that were given to him in 1982, seeing that
the grant of them was claimed by the Secretary to be the error prompted the demand for re-payment of money.
Taking first of all the Secretary's memorandum of 18th September 1987, it seems that he has of the view that GO 733B applied to the
plaintiff, at least so far as paragraph (b) if it was concerned.
The memorandum made it quite clear that the plaintiff was entitled, after service for 4 years, i.e. as and from 1st January 1973,
to local leave under that Order. What is meant by the next portion viz.:
You should have exercised in future.
We have no idea, and it was not explained to the trial judge or to us. In fact the 1972 leave conditions were applied to the plaintiff
and everyone else first by means of the 1972 Leave Regulations, and then by the GOS, "repeated" in GOs 720 et seq., which
came into force some time in or after 1977; the only option was that referred to in regulation 21 repeated in GO 743 (set out above),
which gave an option to take leave, or passages, or accept compensation. In so far as to regulation and GO 743 specifies the time
for exercise of any option, it requires such exercise "on or after 1st January 1972 but not later than 28 days before he is due for his next leave and passages" (emphasis added). What is meant
by "due for his next leave and passages" we have no idea, seeing that GO 733B, if it applied, gave him only an eligibility
after 9 years, and there were other GOS specifying when a teacher could and could not take leave (e.g. not in holidays), and, in
any event, this was his "first" leave and passages. So far as the evidence goes, the plaintiff exercised his option after
1st January 1972 and 28 days before he was "due" for his "next" (first) leave and passages. The reasoning expressed
in the memorandum, so far as we have been able to understand it, is, in our opinion, dubious, to say the least. We shall come to
an examination of GO 733 later.
Turning to the so-called explanation given by the Director of Industrial Relations in his affidavit, which we have set out in full
above, the position becomes so clear. The Circular there referred to is the one we have quoted from (44 of 1971) and which enclosed
the Leave Regulations 1972. Assuming it was correct to say that the plaintiff was, before 1st January 1972, subject to GO 733B, and
was in the process of completing 4 years service, then subject to problems we shall late discuss, it would seem that he should have
exercised an option to take passage within the Colony (GO 733B(b), if that amounted to "his full leave at the end of the tour
which he is serving on 1 January 1972" (GO 743). On the above reasoning, it would seem also that the plaintiff should have exercised
such an option on or after 1st January 1972 but not later than 28 days before the end of a minimum four of 4 years, which latter
would have taken place on 31st December 1972. It seems that what the Director is saying in the quoted extract is that failure to
do this meant that any right under GO 733B was lost, including any right to take passages after the expiry of 9 years. If this is
what is meant, it was never explained to the judge or to us.
For various reasons we think this reasoning was also blamed, to say the least, and we shall come to that.
The salary level quoted by the Director is not supported by any evidence. However, among a number of documents that seem to be attached
to the plaintiff's written submissions to the trial judge, there is a sheet showing the salary progression of the plaintiff since
the date of his appointment. It lists a starting salary on 1/1/69 of $696. It will be recalled that the plaintiff's document of appointment
showed his salary a pounds, but we assume this is a correct translation. It will also be recalled that the plaintiff's "incremental
date" was 1st January. The list indicates that as at 1/7/72 the plaintiff's salary was $1332, and as at 1/1/73 was $1404. These
are the figures referred to in the Secretary's memorandum of 18th September 1987 and the Director's affidavit, both earlier referred
to. We shall return to them.
Taking first GO 733B, it applies to a teacher appointed to "the permanent establishment" on or after 28th September 1964.
We assume that the word "permanent" was used with a purpose and had a meaning. Whether it was one to be contrasted with
"temporary", or some other officer, we simply do not know - there is no evidence. It will be recalled that the appointment
of the plaintiff was "on a probationary bases for a period of three years" with effect from 1st January 1969. Whether he
has appointed to the permanent establishment as from that date and so fell within the ambit of GO 733B, or whether, if not he was
later appointed to the permanent establishment, and if so, when we have no idea. The terms of GO 733(e) and (f) might tend to indicate
that the Order was only intended to draw a distinction between permanent and temporary, but we are not prepared to guess.
Both the Secretary and the Director make it clear that GO 733B applied to the plaintiff, but not when. The order applies to a teacher
appointed to the permanent establishment, but in two sub-clauses deals with temporary teachers. But that is only one of the peculiarities.
That is the first matter.
The second matter is that GO 733B, was intended to take effect on appointment to the permanent establishment for all teachers, if that took place on or after 28th September 1964. It says so. It operated
on a teacher as at the date of his or her appointment, provided it was on or after that date. If a teacher had been appointed to
the permanent establishment before 28th September 1964, then he or she was presumably governed by whatever orders or regulations
applied to them. So that a post-September 1964 permanent appointee was (a) required to take annual leave during school vacations;
(b) was eligible, after 4 years, to passage within the Colony; and (c) if appointed in the appropriate salary level, eligible for
overseas passages. We do not believe that paragraph (d) of GO 733B created any exception, although it is as unclear as other aspects
of the evidence. We believe it was intended only to refer to teachers in boarding schools, and the problem created by school vacations
in those institutions (notice that it refers to "school holidays"); the reference to a permanent teacher "serving
on the staff of the Approved School under the 1964 conditions, nor what follows, makes no sense to us at all. Paragraphs (e) and
(f) refer to "temporary teachers" and "teachers appointed on a temporary basis" (quaere - any difference?) and
seems to include them as teachers "appointed to the permanent establishment."
Just turning aside for one moment, the plaintiff was appointed as from 1st January 1969 on a probationary basis for a period of 3
years. If he was, as such, appointed to the permanent establishment, the evidence does not disclose what sort of "tour"
of four years; one might be excused for thinking his original "tour" was 3 years, and came to an end on 31st December 1971.
If that be so, what "tour" he was serving on 1 January 1972 (see GO 743) presumably stated on that day. We shall return
to this.
One thing does appear to as to be clear. If GO 733B(c) is not to be read as meaning "on appointment", as we have said,
then it has nothing to do with the lapse of 4 years, if that is what is being suggested by the Secretary and for the Director. If
that Order should be read as meaning "upon reaching a salary of between ........." then not only does that complied with
the words "if on a salary " (emphasis added), but why not word it to read "upon reaching a salary of ........ be entitled to ...... and
so on; the salary bracket has no purpose unless that Order is read as we believe it should be. For the purposes of this case, we
doubt if it makes any difference.
However, we might point out that if any credence is to be given to the figures of salary progression of the plaintiff (not in evidence),
then the plaintiff would, under this reading of GO 733B, have been eligible for passage to Australia or New Zealand at nine year
intervals as from 1st July 1972, six year intervals as from 1st April 1975 and three year intervals as from 1st January 1976. We
doubt if this is what was intended for those. Although regulation 1(a) and GO 720 stated (record pp 35 and 18)
APPLICATION
1. The following Regulations will come into effect from 1st January, 1972, and will apply to every officer except -
(a) officers appointed under agreement of service who will be governed by the terms of agreement;
....
and although the plaintiff was appointed under an agreement of service, it made him subject to regulations and General Orders which
may from time to time be promulgated. GO 741 has already been set out herein. There is absolutely no evidence about when, if ever,
or how were required to transfer to the 1972 leave conditions, or whether the plaintiff did so, and if so, when. The Circular 44
of 1971 indicated that the new regulation would apply to serving officers, and would be brought into effect as from 1st January 1972.
Regulation 1 (repeated in GO 720) so brought them into effect, but also excepted (record p 35)
(a) officers appointed under agreement of service who will be governed by the terms of the agreement (see also record p 18). The plaintiff was appointed under an agreement for service dated 28th November 1968. So .....?
Anyway, assuming that the plaintiff was a permanent officer, and assuming that he was required to transfer to the 1972 leave conditions,
and assuming that thing operated on him as from 1st January 1972, he, if his current tour of service would have been completed after
1st January 1972, was permitted to enjoy the leave and passages for which he might become eligible at the end of his tour (GO 741).
Giving "tour" the meaning required by the regulations and general orders to be given to it, the plaintiff commenced his
current tour of service on 1st January 1972; that is when the provision came into force. If the plaintiff did not become a permanent
officer until after completion of his probationary term, his appointment as such was on a salary of $1404; as such he was entitled
to overseas passage in accordance with GO 733(c). If he became a permanent officer upon his engagement as at 1st January 1969, he
did not qualify. We simply do not know.
We turn now to GO 743 (regulation 21), which is set out earlier herein, and deals with options. The first option (a) was to take
his full leave at the end of the tour he was serving on 1st January 1972; for reasons given earlier, that appears to be 31st December
1974; it is to be noted, en passant, that the order or regulation did not permit him to exercise that option by 1st January 1972,
and had to exercise it before 3rd December 1974. In fact he did not exercise any such option. The option form which he filled in
1982 made no provision for exercising this option, no doubt because if the provision had become out of date and redundant by them.
Turning to GO 743(b) (regulation 21(b)) namely "Passages", the plaintiff purported to exercise an option to take his full
passages (see earlier); he purported to do so in 1982. But if we are correct in our interpretation of the general orders and regulation,
he had to do so at the latest by 3rd December 1974. So the option was not exercised. Why the provision enabling this option to be
purportedly exercised was retained in the form after 1974 we do not know.
The plaintiff also exercised his option to receive future passages pursuant to GO 743(c) (regulation 21(c)). On our interpretation
of this provision it gave the plaintiff a right to receive three passages to Auckland provided (i) he had, by the time of exercise
of option, become entitled to long service leave under one of the Categories and (ii) he was eligible for overseas leave under his
pre-1972 Conditions. By "overseas leave" we assume the order and regulation meant passages. By "pre-1972 Conditions"
may be meant "1964 Leave and Passage Grant Conditions" (see the plaintiff's document of employment); but, as earlier mentioned,
it seems to be assumed that GO 733B was applicable. We also mention that GO 743 appears to have been amended in 1982, but as far
as we can make out, the amendments have no bearing on this case.
The following matters can be noted concerning GO 743 (regulation 21). Firstly the option did not have to be exercised within any
time except "not later than 28 days before he is due for his next leave and passages". We are not required to work out
when the plaintiff then became so entitled, if he did. If may depend on when he reached a certain Category, or it may not. If he
was entitled, he certainly did not have to exercise it before 31st December 1972, as is suggested, or before 3rd January 1974. If
he had to exercise it at some time referable to GO 733b, well, so be it.
Secondly, we have no idea, even with the assistance of the unauthenticated wage details of the plaintiff, what Category the plaintiff
fell into or when. This might have a bearing on whether he was entitled to passages to Australia as distinct from Auckland.
Thirdly, and most importantly, there was not before the Court the information that would enable a finding to be made as to whether
or not the plaintiff was eligible for overseas passages.
Fourthly, there was and is no material before the Court that would enable it to say whether the plaintiff was, in 1982, entitled
to long service leave. If his period as a probationary officer is to be taken as forming part of his entitlement, then GO 726 (which
differs from regulation 5) may be relevant. This may have no bearing on when the plaintiff became a permanent officer.
We have not overlooked GO 746.
The conclusion of this tortuous examination of the documents that were put in evidence, which were never explained to the judge nor
had the relevant portions extracted - nor to this Court, is that the reasoning of the Secretary and the Director of Industrial Relations
for reaching the conclusion that the plaintiff was not entitled to the passages that were given to him were wrong. On the material
that was before the Court, it is impossible to determine whether the plaintiff was right or wrong. If, by commencing an action, the
plaintiff took it upon himself to satisfy any onus of proof, be failed. Equally, if the Commission sought to establish that it acted
correctly, it failed. The result is that all the orders made in the High Court will be vacated, and otherwise the appeal will be
dismissed.
We would like to order the respondents to this appeal to pay the whole of the costs - both in the High Court and in this Court. The
reasons for taking the action that was taken, and for claiming a return of money were totally flared; to do this after the relevant
authority had supposedly made an error in allowing the passages, in indeed any error was made, and to seek repayment of a paltry
sum might give us good reason to do so.
To this can be added that the respondents sought declarations and orders in a manner that was impermissible and which would have
entitled the unfortunate trial judge to refuse to make them or require them to be put into proper form.
No doubt the plaintiff brought these proceedings because we believed or was told, that he was being denied his rights. However, he
did not, in his case or upon the whole of the material, establish any right to relief nor succeed in his appeal. In all the circumstances
we believe the proper course is to order that each party bear its or his own costs both in the High Court and in the Court of Appeal.
The formal orders will be:
1. Order that the declarations and orders made in the proceedings in the High Court be vacated
2. Otherwise appeal dismissed
3. Order each party to pay its or his own costs both in the High Court and in this Court.
Mr. Justice Michael M. Helsham
President Fiji Court of Appeal
Sir Moti Tikaram
Resident Judge of Appeal
Sir Peter Quilliam
Judge of Appeal
Abu001u.91s
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