| Fiji Islands - Port Workers and Seafarers Union of Fiji v Ports Authority of Fiji - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
AT SUVA
Appellate Jurisdiction
CIVIL APPEAL NO. 0055 OF 2000
Between:
PORT WORKERS AND
SEAFARERS UNION OF FIJI
Appellant
- and -
PORTS AUTHORITY OF FIJI
Respondent
Mr. K. Bulewa for the Appellant
Ms. G. Phillips for the Respondent
RULING
On 3rd November 1999 Byrne J. delivered a judgment in the present case setting aside an award of the Arbitration Tribunal for various `errors of law’ more particularly identified in the judgment. Judgment was sealed on 10th November 1999 and served on the appellant’s Union’s counsel on 12th November 1999.
Ten (10) months later on 6th September 2000 the appellant issued a summons for leave to appeal out of time against the judgment supported by an affidavit deposed by the General Secretary of the appellant Union.
It is common ground that the time for appealing the judgment expired, in this case, on or about the 17th January 2000 i.e. six (6) weeks from the date of sealing and excluding an intervening legal vacation see : Dr. Patrick Muma v. U.S.P. and Others 37 F.L.R. 109 read with item (4) of Gazette Notice No : 1877 dated 6th September 1999 and published in the Fiji Islands Government Gazette dated 10th September 1999.
The position of an appellant where time for appealing has expired was accurately described by Richmond J. in Avery v. Public Service Appeal Board (No.2) [1973] 2 N.Z.L.R. 86 at p.91 as:
`(Suffering) a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence
by the Court. The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he
be given an opportunity to attack the judgment from which he wishes to appeal.’
and further in Revici v. Prentice Hall Incorp and Others [1969] 1 ALL E.R. 712 it was held :
`(2) if there was non compliance with the rules it must be explained ; and prima facie if no excuse was offered no indulgence
should be granted.’
In this latter regard the affidavit of the General Secretary of the appellant union deposes:
`(4) That Notice of Appeal was lodged on or before the 25th February 2000. It was returned by the Registry as being several days out of time. The law clerk that filed the papers objected
because it appears the Registry had taken into account the legal vacation as well as the public holidays.
(5) That there were other pressing issues regarding the Union which engaged the time of its officials and its lawyers. These included union recognition, stevedoring contract, the reversal of the ports reform and programmes,
the intervention of the civilian coup d’etat. Most of these matters are now behind us and it is our wish to pursue the appeal.’
There is not the slightest doubt in my mind that the delay in this case is, viewed objectively, both excessive and inordinate. Whatsmore the `reason(s)’ advanced by the appellant for excusing the delay are both vague and unsatisfactory and do not, in any event, explain or excuse the forty two (42) day delay between the 17th January 2000 and 25th February 2000 when the first attempt was made to lodge the appeal papers. On that score alone this application ought to be refused.
I turn however to consider whether the appeal has any prospect of succeeding. In this regard it should be noted that the affidavit
in support of the application did not, as it should have done, annex a copy of the proposed Grounds of Appeal, but the Court was nevertheless provided with a copy at the hearing of the application.
The grounds of appeal are as follows:
(1) That theLearned Judge erred in law in holding that the two distinct line of authorities for the requirement for judicial review in
Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. and Pearlman v. Harrow School Governors (1979) Q.B.56 were :
(a) incompatible and mutually exclusive
(b) that the Anisminic Ltd’s case was being followed in Fiji.
(2) That the learned judge erred in law and fact in misconstruing the proper and broader approach which the Tribunal was compelled to
follow in this case without the need to refer to the trite law of financial accountability of public authorities.
(3) That the learned trial judge erred in law in his ruling on 22nd May 1998 on the effect of the Parliamentary motion of 6th December 1996.
At the outset appellant’s counsel submitted that the appeal raised a question of law of some public importance as to the reviewability
of `errors of law’ committed within and beyond jurisdiction. In this regard I am satisfied that the question has been addressed and decided by the
Court of Appeal in Re : Manoa Bale (1985) 31 F.L.R.89 where the court said at p.94 (after considering several leading authorities) :
`Lord Lane’s exposition of the law (in Pearlman’s case) must now be taken as authoritative.’
No question of general importance arises on this ground.
The second ground of appeal concerns the correct approach of the Arbitration Tribunal in awarding compensation under the Trade Disputes Act Cap.97 and which Byrne J. rejected as an `error of law’ ; `unreasonable’ as being `inconsistent with the Employment Act’ ; and finally, `...... in not intimating to the parties that he was considering awarding ...... compensation ......, (the Tribunal) failed to accord the (respondent) natural justice ......’
If I may say so, any one of the above reasons would have been sufficient to support the order setting aside the Tribunal’s compensation award and as such this second ground of appeal has little prospect (if any) of succeeding.
The third and final ground of appeal refers, according to counsel’s oral submission before me, to a parliamentary resolution which
it is claimed, superseded the proceedings and obliged government to make the payment of compensation awarded by the Tribunal.
This submission was rejected by Byrne J. in an interlocutory ruling delivered on 22nd May 1998 and although it could have been appealed (with leave) at the time, was not pursued by the appellant. In any event neither the ruling
or the resolution is before this Court and neither was mentioned in the judgment sought to be appealed. This ground is misconceived
and without any legal or factual basis at all.
I accept that it is not for this Court, at this juncture, to finally determine the substantive appeal, nevertheless, as a material
factor in the exercise of the Court’s discretion to grant the indulgence sought, I agree with counsel for the respondent’s assessment
that the appeal as framed, is `prima facie destined to fail even if leave is granted’.
Then there is a further factor to be considered by the Court and that is the degree of likely prejudice to the respondent. In this
regard the Manager Legal of the Maritime and Ports Authority of Fiji (being a co-successor to the successful applicant before Byrne J.) deposes :
`(7) ......(MPAF) would be materially prejudiced by any attempt to re-open this litigation now. The redundancy compensation
(award) relates to the years 1988, 1989 and 1990. The matter was litigated before the Arbitration Tribunal in 1995 and the judicial review
proceedings over the period 1996-99.
(8) Even the possibility of altering compensation payments to the affected employees raises issues of where such employees might be found, payments to dependants and accessibility of records.
Many of the PAF officers who were involved in the implementation of the redundancies are no longer employed by MPAF, which was,
comprehensively restructured in 1998. The affected operations have not been in place since 1988 and the relevant staff have long
since left MPAF.’
Plainly the respondent Authority considers that it would be seriously prejudiced by allowing this fairly dated matter to proceed any
further and given appellant counsel’s concession that Byrne J’s decision does not finally conclude or resolve the dispute between the parties which may still be reagitated before the Permanent Arbitrator, I agree with counsel for the respondent that the interests of justice would be better served by bringing this litigation to a close.
The application is accordingly refused with costs which are summarily assessed at $1,000.00 for this application as well as the costs of the proceedings before Byrne J.
D.V. Fatiaki
JUDGE
At Suva,
10th August, 2001.
ABU0055D
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