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Digicel Fiji Ltd v Pacific Connex Investments Ltd [2009] FJCA 64; ABU0049.2008S (8 April 2009)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

Civil Appeal No. ABU0049 OF 2008S
(High Court Civil Action No. HBC0345.2007S)

BETWEEN:

DIGICEL FIJI LIMITED
Appellant

AND:

PACIFIC CONNEX INVESTMENTS LIMITED
1^st Respondent

MINISTER FOR INFORMATION, COMMUNICATIONS
AND MEDIA RELATIONS
2^nd Respondent

ATTORNEY GENERAL OF FIJI
3^rd Respondent

Coram: Byrne, JA,
Pathik JA,
Bruce JA,

Hearing: Tuesday, 10^th March 2009, Suva

Counsel: H. Nagin for the Appellant
D. Sharma for the 1^st Respondent
M. Rakuita for the 2^nd and 3^rd Respondents

Date of Judgment: Wednesday, 8^th April 2009, Suva

JUDGMENT OF THE COURT

Introduction

1 The Appellant appeals by leave of the High Court (Jitoko J) against an interlocutory order of Jitoko J made on 3 July 2008 in which that learned judge refused to strike out an action in which Pacific Connex Investments Ltd was the Plaintiff and Digicel Fiji Ltd was a Defendant. The 2^nd and 3^rd Respondents to the appeal were, respectively the 1^st and 2^nd Defendants to that action.

2 The order of Jitoko J arises from a notice of motion dated 22 February 2008 in which Digicel sought orders that the action should be struck out with costs because:

(a) the Statement of Claim discloses no reasonable cause of action;

(b) the Statement of Claim is also scandalous, frivolous and/or vexatious; and

(c) the Statement of Claim may prejudice, embarrass or delay the fair trial of the action; and

(d) it is an abuse of the process of the court.

3 The submissions filed in support of this application by the Minister for Information, Communications & Media Relations and the Attorney General submitted that the proceedings were, in effect, an application for a mandatory injunction in so far as the court was asked to order the Minister to grant Pacific Connex a licence. In this regard it was contended by the Minister and the Attorney General that this was implicit or by reason of section 15 of the State Proceedings Act. Further, the Minister and the Attorney General contended that the claim for relief that no further licences be issued was, in effect, a usurpation of the Minister's powers under the Posts and Telecommunications Decree 1989. Those submissions were supported by Digicel. The position of the Plaintiff in this regard was that while it was conceded that the grant of a mandatory injunction is limited to exceptional cases, there was authority in both Fiji and England which supported such a course. In this regard, counsel for the Plaintiff cited Attorney General of Fiji v Silatolu [2003] FJCA 12 and Re M [1993] UKHL 5; [1994] 1 AC 377. Counsel for the Plaintiff contended that, consistent with Re M, the answer to the contention that the mandatory injunction was barred by the terms of section 15 of the State Proceedings Act is answered by section 18 of that Act. It was submitted (see paragraph 33 of the written submissions of the Plaintiff at first instance) that even if an injunction in mandatory form is not available, that the Court can simply make a declaration about the two matters. At paragraph of 34 of the submissions, counsel for the plaintiff submitted "This is not a case which required a judicial review. It is a case properly commenced by writ action whereby the causes of action are based in tort rather than in breach of any statutory provision.... The claim made by the Plaintiff is that all conditions precedent have been satisfied and the withholding of any final approval is unlawful."

4 To the extent that the application invoked Order 18 Rule 18, the Plaintiff submitted to the learned judge that unless there was a clear abuse of process or, on the pleadings, the court cannot see any reasonable cause of action, the proceedings should not be struck out. Paragraph 37 of the submissions of the plaintiff submitted that an alternative was to grant the Plaintiff leave to amend the pleadings to put them in regular form.

5 The second focus of the application to strike out the Statement of Claim was that the proceedings were an abuse of process of the court. At paragraph, 3.6 of the written submissions filed on behalf of the Minister, it is contended that Pacific Connex should have instituted its proceedings by way of judicial review because the matters raised belonged to the realm of public law and not private law. As the submission observes at the conclusion of paragraph 3.6:

"In this case, the plaintiff seeks to get the third defendant to make decisions in accordance with the Post and Telecommunications Act 1999. These are matters best dealt with in the realm of Judicial Review."

In this regard, the submission of the Minister and the Attorney General sought to invoke O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 which was followed in Ram Prasad v Attorney General [1999] FJCA 52. This position was supported by submissions on behalf of Digicel.

6 Jitoko J gave a brief ex tempore ruling. He held that "there are serious issues of law that places this case beyond the reach of any successful challenge based on Order 18, Rule 18." The learned the judge added: "Whether the case exclusively deals with public policy raising public law issues and also at the same time intrudes into private law matters are in my view, proper considerations best left to be addressed fully in the hearing of the claim, later." The learned the judge added that issues as to the proper form of action can be looked at later.

The claim by Pacific Connex

7 On 31 July 2007, Pacific Connex issued a Writ of Summons against the Minister for Information, Communications and Media Relations and the Attorney General. The Statement of Claim recites that Pacific Convex applied for a licence to operate a mobile cellular telecommunications system in Fiji. On 27 April 2006, the government through the then Minister for Information, Communications and Media Relations granted what has been characterised as approval in principle for the company to operate such a mobile telephone network. Paragraph 5 of the Statement of Claim also asserts that Digicel also received a similar approval in principle. The text of the letter is of some importance in this regard. In part the letter says:

"I am happy to inform you that after a lengthy deliberation regarding your application, Cabinet has approved the granting of "approval in principle to both applicants and that the issuance of your mobile licence is subject to the outcome of the VFL v MICMR and AGMJ Court case." This is subject to further conditions -

"That the two operating companies be owned by Fiji citizens and that the two applicants submit their shareholding agreement to the satisfaction of the government".

We invite you to meet the conditions set by Cabinet whilst we attend to the matter before the courts.

8 The meaning of the terms of this letter is in dispute. It is the case for Pacific Connex that the company in reality only had to wait for the conclusion of the litigation mentioned in the letter and come up with appropriate arrangements in relation to their shareholding. In contrast, Digicel made the point during argument in the Court of Appeal that there is a great deal more to the grant of a licence than that. Section 7 of the Posts and Telecommunications Decree 1989 it is also concerned with the duration of the licence, but the licence may be subject to limitations as to localities and other conditions, exceptions and other limitations as the Minister sees fit. Digicel also pointed out that the licence may deal with the equipment and the frequencies to be used, the payment of a sum of money to the government and many other matters. In short, Digicel contends that approval in principle is a very long way from the grant of a licence. In answer, Pacific Connex contended that the terms and scope of such conditions were, in the scale of things not that important. Counsel for Pacific Connex contended that if this matter were to be tried, substantial evidence would be used in support of those contentions.

9 The Statement of Claim recites the position of the Plaintiff in relation to the history of the proceedings in Civil Action 576 of 2005. This was an action by Vodafone Fiji Ltd which sought to restrain the grant of a mobile telephone licence to anyone upon the basis that it had been granted a monopoly by the government of 25 years and that the apprehended grant of such a licence to others violated that understanding. Critically, in paragraphs 13 and 14 of the Statement of Claim complaint is made that the Minister and the Attorney General did little or nothing by way of active steps to find a resolution to that Civil Action 576 of 2005 and that the company was not informed about what steps were taken to resolve the issues in an action. In essence, Pacific Connex complains that thereafter it was kept in the dark by the government as to the position in relation to its application for a licence. The Statement of Claim complains of delay that was "unconscionable, inordinate and unreasonable, and has caused [Pacific Connex] loss and damage." The complaint is that the loss and damage continues. Particulars of the basis on which it is claimed are set out in the Statement of Claim.

Submissions on appeal

Abuse of process

10 The sole focus of the appeal by Digicel against the ruling of Jitoko J concerns the issue of abuse of process. (Given the position of Digicel, there may have been an interesting issue of standing if Digicel had invoked the State Proceedings Act.) The submissions of Digicel in this regard are supported by the Minister and the Attorney General who have, very properly, indicated that they will abide by any decision of the court in this regard. No argument was addressed either in the grounds of appeal, the written submissions filed in the court or through oral submissions as to the issue of mandatory injunction as outlined above which was, as has been seen, part of the argument before Jitoko J.

11 The contentions of Digicel might be summarised by the written submissions at paragraph 3.2 as follows:

It [is] submitted by the Appellant and it is [a]well known proposition of law that the decision of the Minister exercising a statutory or any public function can only be challenged by way of judicial review and not by way of writ of summons procedure. In this case the Respondent is making reference to the powers of the Minister under the said Decree and therefore this is a public law matter.

12 In this regard, reliance was placed on O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 and the authorities which have considered and followed it. It is contended by the Appellant that:

Time and again the Courts have emphasised the need for parties to institute different types of action as to their appropriate form. This approach to some extent has been strictly followed in Fiji, in respect of instituting proceedings against public authorities involving public law i.e. Public Law versus Private Law.

13 The Appellant contends that to the extent that the claim of the Plaintiff is founded in damages this is available via judicial review. The Appellant says that the matter ought to be struck out and ought not to proceed to a full hearing. The submission concludes "Since it is established that it is an abuse of process, it is in the best interest of justice that the same be struck out."

14 In reply, counsel for Pacific Connex contends that judicial review was not the appropriate remedy in this case and that judicial review is not the exclusive remedy even where public law issues are at stake. He contends that the claim for damages is based on equitable rights for breach of an undertaking. To that extent at least, it is contended that the claim is a private law claim.

The claim by Pacific Connex for damages

15 Although the Attorney General and the Minister indicated that they would abide by the decision of the court, counsel representing them made the point that the claim for damages was firmly fixed to a public law issue. In short, damages could not conceivably flow unless it was established that there had been a breach of promise or undertaking in respect of the grant of licence and the decision in connection with that was purely a public law matter.

A possible complication: Telecommunications Promulgation 2008

16 Counsel for the Attorney General and the Minister informed us that the issue of the grant of a licence to run a mobile telephone network is no longer a matter which is in the hands of the Minister under the Posts and Telecommunications Decree. She says that the arrangement under that decree have been superseded by the Telecommunications Promulgation 2008 (Promulgation No. 1 of 2008). It would appear that the Promulgation was published in the Government Gazette on 21 January 2008. We are informed by counsel for the Minister and the Attorney General that it came into effect on 1 August 2008.

17 The scheme of this promulgation may best be seen in paragraph 17 of the promulgation where the powers given to an authority created under the promulgation include a power under paragraph 17(c) to grant licences with respect to telecommunications and a spectrum licence for using radio spectrum. In other words, so counsel contends, two of the major components of the relief sought in the Plaintiffs Statement of claim may not now be granted by the Minister because that power has by the Promulgation been taken from him.

18 This point in relation to the power of the Minister does not appear to have been either taken before Jitoko J or, alternatively taken into consideration by that learned judge. It would appear to us that it is the former and not the latter because nowhere in the submissions of either of the Appellant or the Respondents is this point mentioned. The Promulgation came into effect after the order of Jitoko J but, at the time of the learned judge's determination, it had been published for just less than five months.

Discussion

19 The critical issue in this case is the scope and impact of the decision of the House of Lords in O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237. The Appellant says, supported by the Attorney General and the Minister, that either there is a hard and fast rule that proceedings of this kind have to be brought by judicial review or, alternatively, to the extent that there is a discretion in this matter the authorities so inform the exercise of the discretion at striking out the statement of claim was the only realistic remedy. Plainly, if this Court were to accede to this line of argument it exposes Pacific Connex to the possibility - if not probability - that it will be without a remedy because, it might be argued, that if a judicial review was instituted now it would be hopelessly out of time. Obviously, if the contention of the Appellant is correct and judicial review is the only remedy open to Pacific Connex, there would be a discretion to extend time. Quite how meaningful such a discretion would be in view of the time elapsed is something which is conceivably only academic.

O'Reilly v Mackman

20 The precise scope of O'Reilly v Mackman needs to be looked at with some care. In that case, four prisoners in an English prison were charged with disciplinary offences before a Tribunal known as the Board of Visitors to the prison. In each case, the charges were found to be proved and penalties were imposed. Three of these prisoners instituted proceedings by way of writ in the Queen's Bench Division of the High Court alleging that the Board of Visitors had acted in breach of the Prison Rules and the rules of natural justice. One prisoner proceeded through the Chancery Division of the English High Court. The prisoners sought a declaration that the Board of Visitors' findings against them and the penalties awarded were awarded were of no effect. Without reviewing vicissitudes of the proceedings, the English Court of Appeal ordered the proceedings struck out on the ground that they were an abuse of process of the court and that the only remedy for the prisoners was by way of judicial review under Order 53 of the Rules of the Supreme Court. This ruling was confirmed by the House of Lords.

21 The principal speech in the House of Lords was given by Lord Diplock. His Lordship reviewed something of the history of judicial review. Speed and certainty in administration was of fundamental importance. The rationale for such an approach was explained by Lord Diplock as follows:

The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is necessary in fairness to the person affected by the decision.

22 Lord Diplock made the point that many of the procedural disadvantages of applications for relief by way of mandamus, certiorari and prohibition had been done away with by amendments to the Supreme Court Act 1981 and the re-formulation of Order 53 of the Rules of the Supreme Court. Those rules now provided that a declaration could be sought in judicial review proceedings. The rules also provided for discovery and cross examination. In short, Lord Diplock held that the new Order 53 had removed all of the disadvantages of the previous procedure in this regard. In the result, Lord Diplock held:

In the instant cases where the only relief sought is a declaration of nullity of the decisions of a statutory tribunal, the Board of Visitors of Hull Prison, as in any other case in which a similar declaration of nullity in public law is the only relief claimed, I have no hesitation in agreement with the Court of Appeal, in holding that to allow the actions to proceed would be an abuse of the process of the court. They are blatant attempts to avoid the protections for the defendants which Order 53 provides.

This is a passage upon which the Appellant places great reliance. However, this passage should not be viewed in isolation. Earlier in his speech, ([1983] 2 AC 237, 285A) when speaking of the use of the inherent power of the court to prevent an abuse of the process of the court by the use of the methods of seeking to enforce public law rights, His Lordship said:

I do not think that your Lordships would be wise to use this as an occasion to lay down categories of cases in which it would necessarily always be an abuse to seek in an action begun by a writ or originating summons a remedy against infringement of rights of the individual that are entitled to protection in public law.

Later in his speech, (and this passage immediately precedes the passage upon which the plaintiff most particularly relies in this case) Lord Diplock observed ([1983] 2 AC 237, 285F):

My Lords, I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law or where none of the parties objects to the adoption of the procedure by a writ or originating summons. Whether there should be other exceptions should, in my view, at this stage in the development of procedural public law, be left to be decided on a case by case basis.

23 In other words, while the House of Lords was laying down a general rule, it contemplated that there could be cases where it would not be applied. It might be thought that this is consonant with the very nature of the remedy to discourage the institution of claims that public law rights have been violated through the medium of a writ or originating summons. In its nature, a stay of proceedings is a discretionary remedy. What Lord Diplock appears to have been saying is that in many if not most cases the discretion to stay would be informed by the imperative to use proceedings under Order 53. However, it is plain that he left open the possibility that there would be cases where this would not be the appropriate order to make.

24 On the very same day that O'Reilly v Mackman was decided the House of Lords gave judgment in Cocks v Thanet District Council [1983] 2 AC 286. In that case it was held that as a general rule it would be contrary to public policy and an abuse of process to allow a person to proceed by way of an ordinary action in order to establish that a public authority's decision had infringed rights entitled to protection of the public law. In that case, the House of Lords held that this rule applied in circumstances where a plaintiff was obliged to impugn a public authority's determination as a condition precedent to enforcing a statutory private law right. A number of points arise out of this case. The first is that the fact that the claim involved a mixture of both public law and private law rights could not prevent ordinary proceedings being stayed as an abuse of process where public law rights were invoked. However, it is plain from reading the speech of Lord Bridge of Harwich that care was taken to make it plain that the rule was not a hard and fast one.

Why judicial review in public law cases?

25 It is appropriate at this stage to note a decision which predated O'Reilly v Mackman. This is Heywood v Board of Visitors of Hull Prison [1980] 1 WLR 1386. There, the court noted that the application of Order 53 should be used in cases where public law rights would be enforced because of the important protection afforded by the leave mechanism. That requires a court to consider whether case brought by judicial review is reasonably arguable before it will be permitted to go on. Intervention in this regard at an early stage promotes an element of certainty about administrative decisions. Other authorities adopting this theme have also pointed out the advantage of requiring evidence, even at the initial stages, to be verified by oath or affirmation. O'Reilly v Mackman itself makes the point that challenges to administrative decisions should be taken as soon as possible and the use of the processes of proceedings by writ or originating summons conceivably mean that a party could wait for up to six years before challenging the administrative decision. Plainly that is undesirable. Lord Diplock in O’Reilly v Mackman observed:

The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. In contrast, allegations made in a statement of claim or an endorsement of an originating summons are not on oath, so the requirement of a prior application for leave to be supported by full and candid affidavits verifying the facts relied on is an important safeguard against groundless or unmeritorious claims that a particular decision is a nullity. There was also power in the court on granting leave to impose terms as to costs or security.

The concern for speedy determination of challenges to decisions by public bodies in the context of public law was also emphasised by Doyle CJ in Hall & Ors v City of Burnside & Ors [2006] SASC 283, 245 LSJS 440 where His Honour observed:

[The] relatively short limitation period [ permitted for judicial review] reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected, in a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.

26 A further advantage in the employment of Order 53 proceedings is the requirement that parties have standing and the exclusion from the proceedings of those to do not. That, in a general way, increases the efficiency of proceedings brought to enforce public law rights by limiting the parties to the proceeding by reference to whether or not they have an appropriate interest in the proceedings. In this regard, but for the claim by Pacific Connex for an order that there be no other licences granted than that to Pacific Connex is the only basis upon which Digicel would have any standing had these been judicial review proceedings.

27 One possible disadvantage of judicial review is that as a matter of practice cross-examination is not permitted without leave. This problem may be more apparent than real. It has been said that leave is granted frugally. In George v Secretary of State for the Environment (1979) 77 LGR 689, Lord Denning MR held that it would be only on rare occasions that the interests of justice would require that leave be given for cross-examination. That said, of course, where there were challenges to factual matters it may well be appropriate in judicial review proceedings to allow cross-examination. Indeed, in O’Reilly v Mackman itself, Lord Diplock observed that the grant of permission to cross-examine a witness in applications for judicial review "is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires," See also to the same effect the Full Court of the Federal Court of Australia in: Re Minister of Immigration Local Government and Ethnic Affairs v Mele Fakaola Taveli; Inoke Pau Taveli Faka'Osi- Taveli Uikilifi and Tailiili Taveli Faka'Osi [1990] FCA 169; 23 FCR 162.

Application of O'Reilly v Mackman

Britain

28 There have been attempts to narrow the impact of O'Reilly v Mackman. For example, in Wandsworth LBC v Winder [1984] UKHL 2; [1985] AC 461, it was held that an attack to a public law issue would not be required to be brought within Order 53 if the public law issue was not central to the case. In Roy v Kensington and Chelsea Family Practitioner Committee [1991] UKHL 8; [1992] 1 AC 624 the House of Lords held that a claim by a doctor to pay, even though governed by statutory regulations and by a discretionary decision of the committee, was essentially a matter of private law and enforceable by ordinary action, free from the constraints of judicial review. In adopting that view, the House of Lords approved the statement of Goff LJ in the Court of Appeal in Wandsworth LBC v Winder:

I find it difficult to conceive of a case where a citizen's invocation of the ordinary procedure of the courts in order to enforce his private law rights, or his reliance on his private law rights by way of defence in an action brought against him, could, as such, amount to an abuse of the process of the court.

Lord Lowry's speech in Roy v Kensington and Chelsea Family Practitioner Committee thought that there were two possible approaches to O’Reilly v Mackman. The first was to limit the effect of that decision to cases where only public law rights were at stake. The second was that all such proceedings must be by judicial review, subject only to some exceptions where private law rights were involved. His Lordship preferred the former but, in the end, made no definitive decision. Further, in Lonrho plc v Tebbit [1991] 4 All ER 973 it would appear that a collateral challenge will be allowed even if proof of a public law matter is an integral part of the action as a whole.

Fiji

29 In general, the courts of Fiji have followed O'Reilly v Mackman. These decisions include Ram Prasad v Attorney General of Fiji [1999] FJCA 52, In that case, the Appellant, who commenced proceedings by writ and statement of claim brought an action for wrongful dismissal following the termination of his employment at the Ministry of Primary Industries. The Appellant had been dismissed from his employment in the public service following being found guilty of some 26 disciplinary charges involving the mishandling of money. In his statement of Claim, the Appellant had alleged that the employer (the government) had failed to comply in material respects with the Public Service Commission (Constitution) Regulations. This was said to take the proceedings into the realm of public law. The judge at first instance (Pathik J) held that the proceedings should have been commenced by way of judicial review and struck out the Writ and Statement of Claim as an abuse of process. The Court of Appeal quoted with approval the observations of Pathik J as follows:

Now that all remedies for infringement of rights protected by public law can be obtained upon an application for judicial review, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.

This decision also is significant because it makes the point that while there is a power to convert Order 53 proceedings into proceedings by way of Writ or Originating Summons, there is no power to convert proceedings by way of Writ or Originating Summons into Order 53 proceedings citing Doyle & Others v Northumbria Probation Committee [1991] 1 WLR 1340, 1344.) The Court of Appeal held that the judge was right to stay the proceedings as an abuse of process and the appeal was dismissed. In concluding, the Court of Appeal noted that the original Plaintiff still had open to him the possibility of commencing proceedings by way of judicial review albeit he would need a substantial dispensation of time. It might be observed that all of the costs and time wasted in order that the plaintiff might go around again but with the correct proceeding even though the merits could be determined on either form of proceeding has an element which ordinary members of the public might find strange. Nevertheless, Byrne J in Matea v Permanent Secretary Education and Technology [2001] FJHC 256 felt compelled to follow Ram Prasad v Attorney General of Fiji. In that case, the complaint was by a public servant who contended he should have been promoted when he was not promoted. Byrne J noted a number of criticisms that could be levelled against O'Reilly v Mackman. He observed:

Undoubtedly the decision gives many frustrations to litigants with much waste of effort, time and money, causing Sir Michael Kerr to say in the Court of Appeal in Lonrho Plc v Tebbit [1992] 4 All E.R. 161 that:

Our law ‘has suffered too much from the undesirable complexities of this over-legalistic procedural dichotomy'.

Any judge familiar with the history of Judicial Review in England since O'Reilly would respectfully agree but as a single Judge, no matter what my personal preferences may be, I am bound by authority and that authority in Fiji is among others Ram Prasad v. Attorney General.

30 The principles in O'Reilly v Mackman were also accepted as correct in Airports Fiji Ltd v Fiji Public Service Association [2002] FJHC 46. Further, in Goundar v Colonial FW [2003] FJHC 284, accepting these principles the court was concerned to determine whether the issue was primarily involved with public law rights or private law rights. There are a multitude of other decisions at first instance in which the courts of Fiji have followed these principles.

31. In following O'Reilly v Mackman, the courts of Fiji have also recognized that the decision imposes a general rule to which there may be exceptions. An example of this may be seen in Fiji Teachers Union v Permanent Secretary for Education [1998] FJHC 107. That case concerned private schools which received a grant in aid of a teacher's salary from the government. The government refused to pass on an increase to state-employed teachers' salaries to these private school teachers who were known as grant-in-aid teachers. The action was commenced by Writ supported by a Statement of Claim. The action was a mixture of private law rights and public law rights. The Permanent Secretary for Education made the same application as is being made in the instant case. Byrne J refused to strike out the Statement of Claim. He based his decision on the observations of Goff LJ cited above. In contrast, in a similar procedural situation where the proceedings were commenced by Writ rather than judicial review and an application to stay was applied for, Jitoko J in Chand v Registrar of Trade Unions [2005] FJHC 418 recognised the exception but stayed the proceedings. He suggested that the emerging case law suggested that where the public law right was peripheral or where it was raised by way of defence, the exception might apply. Nothing in his Lordship's judgment suggests that the categories or circumstances in which the exception might apply are limited. In Shireen Lateef v Digicel & Others [2008] FJHC 35, Singh J observed:

On the same day that O'Reilly v Mackman was decided, the House of Lords delivered another milestone judgment in Cocks v Thanet District Council [1983] 2 AC 286. It further extended the O'Reilly principles. It decided that where private rights are affected and which depended on prior public law decision, they must ordinarily be brought by judicial review. O'Reilly has been considered and applied by the Court of Appeal - Ram Prasad v Attorney General of Fiji ABU0058 of 1997. It says that an applicant must use judicial review in a case where he/she seeks to enforce public rightful proper performance of the respondent of public duty. [Emphasis added]

Australia

32 It would also appear that the courts of Australia have followed O'Reilly v Mackman. In Aerolineas Argentinas and Ors v Federal Airports Corporation [1995] FCA 1776, the issue concerned the power to fix aeronautical charges under section 56 of the Federal Airports Corporation Act 1986. The issue before the Federal Court of Australia was whether the validity of an administrative decision can be challenged in proceedings for recovery of money had and received or whether the validity of an administrative decision made under an enactment may only be challenged in proceedings under the Administrative Decisions (Judicial Review) Act 1977. The latter Act provides, in effect, a code for the challenge of administrative decisions. That legislation has no equivalent in either the United Kingdom or Fiji and this and other decisions in the Federal sphere have to be understood against that background. While the issues in the case were complicated, the plaintiff in that case had paid a large amount of money to the Federal Airports Corporation. The contention of the plaintiff was that it had wrongly paid the money and commenced an action in the Supreme Court of New South Wales for money had and received. Implicit in the claim for money had and received was a claim that there had been a wrongful decision by the Federal Airports Corporation. If the matter was to proceed under the Administrative Decisions (Judicial Review) Act 1977, the plaintiff was out of time. The plaintiff sought an extension of time. However, Counsel for the plaintiff submitted that even if the determination was administrative in nature, the plaintiff was still entitled to pursue the recovery proceedings, independently of bringing any administrative review proceedings i.e. it could proceed with the money had and received claim. Counsel for the respondent submitted that the scheme of the Administrative Decisions (Judicial Review) Act 1977 was such that collateral challenge was not permitted. The question whether collateral challenge is available in respect of a decision for which an order for review may be sought has not been decided in Australia. The Court observed:

It is clear from these sections that the [Administrative Decisions (Judicial Review) Act 1977] provides a scheme for review of administrative decisions which fall within the Act. In doing so, it withdraws certain jurisdiction from the State courts: s 9. It recognises other avenues of review: s 10, and thus is not an exclusive means of review of federal administrative action. However, there is no provision in the act which deals directly with the issue in contention - namely whether a collateral challenge to an administrative decision is possible, It is thus necessary to consider the circumstances in which the general law has allowed collateral challenge, and to then determine, in the light of that, whether collateral challenge is available having regard to the scheme of the [Administrative Decisions (Judicial Review) Act 1977].

Beasley J described O'Reilly v Mackman as a seminal decision and noted that the courts had sought to narrow the impact of the decision to permit a collateral attack in limited circumstances. In the result, the Court held that collateral challenge remains available in Australia for jurisdictional error.

33 In Hall & Ors v City of Burnside & Ors (No 4) [2007] SASC 460, it was held that it was undesirable that a party could employ equitable proceedings to walk around the time limit imposed under the rules for judicial review. The court held that the approach in O'Reilly v Mackman had a continuing relevance. In an equitable action to challenge a planning decision of a local government authority which was well outside the time for challenge by way of judicial review, the courts will look at the motive for bringing the alternative action. On the facts of that case, it was held that the only apparent purpose for seeking to proceed by way of declaration and injunction was to avoid the protection afforded to a public authority and its processes by the time limitation contained in the South Australian equivalent of Order 53. No other reason had been suggested for the inclusion of the declaration and injunction. To allow that to occur would constitute an abuse of process of the Court.

Criticism of O'Reilly v Mackman

34 It is no understatement to say that the principles enunciated in O'Reilly v Mackman have hardly been received with universal approbation. Not the least difficulty identified was the true borderline between public law and private law. See for example Davy v Spelthorne Borough Council [1983] UKHL 3; [1984] AC 262, 276. Further, the editors of Judicial Review of Administrative Action fifth edition, page 160-161 fn 30 collect some of these disparaging comments. Perhaps the most trenchant of these comes from Sir William Wade in Wade & Forsyth Administrative Law (7th edition, 1994) where Sir William observed (page 642):

The rigid dichotomy which has been imposed, and which must now be explained, must be accounted a serious setback for administrative law. It has caused many cases, which on their merits might have succeeded, to fail merely because of choice of the wrong form of action. It is a step back towards the time of the old fortes of actions which were so deservedly buried in 1852. It has produced great uncertainty, which seems likely to continue, as to the boundary between public and private law, since these terms have no clear or settled meaning. It has increased costs, since judicial review is available only in the High Court.

Additional weight must be given to these observations as this passage is cited with approval by Byrne J in Fiji Teachers Union v Permanent Secretary for Education [1998] FJHC 107.

35 A more genteel criticism appears in R v Secretary of State for Employment, ex parte Equal Opportunities Commission & Another [1994] UKHL 2; [1995] 1 AC 1, 34 where Lord Lowry observed:

I feel bound, however, to add (as can perhaps be inferred from a speech in Roy v Kensington & Chelsea & Westminster Family Practitioner Committee [1991] UKHL 8; [1992] 1 AC 624) that I have never been entirely happy with the wide procedural restriction for which O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 is an authority, and I hope that case will one day be the subject of your Lordships further consideration.

Resolution

36 Notwithstanding the observations of Lord Lowry in R v Secretary of State for Employment, ex parte Equal Opportunities Commission & Another, in view of the decision in Ram Prasad v Attorney General of Fiji [1999] FJCA 52, it appears to us that it is not open to the Court to revise this important component of the procedural law in relation to cases which invoke consideration of rights and liabilities under public law. It seems to us that if such a review were to be undertaken it would be better done in the context of a broader review of the procedure prescribed in Order 53. It might be said that the time for such a broader review has long since arrived.

37 Of some significance in our deliberations in connection with this case is the clear implication that if the appeal is successful it will have the effect of shutting out Pacific Connex from a possible remedy or remedies. It may be that the impact of the Telecommunications Promulgation 2008 is to remove from consideration two of the important components of the relief sought by Pacific Connex. It may be that all that Pacific Connex could possibly now have is a damages claim. Even leaving aside the possible impact on the claim by Pacific Connex of the Telecommunications Promulgation 2008, we can easily see that the claim by that company in this action will be, to state the obvious, a very challenging case upon which to succeed.

38 In this regard, counsel for Pacific Connex places considerable reliance on the letter from the Minister dated 27 April 2006, the text of which we have cited above, which would seem to imply that all the company had to do was provide satisfactory evidence of ownership and abide the event of the civil proceeding referred to in that letter. It appears that the Minister was satisfied as to shareholding arrangements. However, as was rightly pointed out by counsel for Digicel, there is a world of difference between approval in principle and the grant of a licence especially given the complications and technical, social and financial considerations which are required in this regard. Although the letter of the CEO Information Communications & Media Relations dated 30 September 2005 predates the "in principle" agreement of the Minister by some 6 months, it has a flavour of some of the requirements of the government in relation to this matter.

39 Against that background, was Jitoko J correct to hold that there was no demonstrated abuse of process? In order to answer that question it is right to consider what should inform the exercise of a discretion to order a stay of proceedings upon the ground that there is an abuse of the process of the court. As we have already noted the very authority that creates the principle that public law matters should be dealt with via Order 53 recognised that there will be exceptions to the rule. It is, with respect, difficult to determine a principled basis for the determination of which case falls within the exception. The authorities seem to support the concept that exceptions will be dealt with on a case-by-case basis.

40 It seems to us that one solution to the exercise of the discretion to stay proceedings and thus, possibly, to deny a person his day in court is to look at the proceeding commenced outside the rubric of Order 53 and ask how that proceeding would have been evaluated at the leave stage had those proceedings been instituted as a judicial review. The following questions might be apposite:

(1) Would the proceedings have been in time? The court should first look at whether the proceedings would have been instituted within time had they been instituted as a judicial review. In this case, the case for Pacific Connex is that after they were given their "approval in principle" they could not ascertain what the position was in relation to the outstanding condition ie the resolution of the Vodafone proceedings. That was, by its very nature, outside their control. Pacific Connex contends that it was never told that there had been, for example, a change of heart by either the previous government or the present government. The company contends that it persistently enquired about this issue but received no information from the government. That does not appear to have been contradicted by any of the parties. In a case such as this, in essence, of course, time would run from the making of a decision or the failure to make a decision. Thus, for judicial review purposes time would run from the time when it was apparent to Pacific Connex that either the government had determined to not make any decision or had made an adverse decision. The affidavit of Aisake Saukawa who is the company secretary of Pacific Connex deposed in paragraph 16 of the affidavit that the plaintiff remains in limbo as regards final approval of its application for a mobile phone licence. The affidavit deposes that 9 May 2007, the lawyers for the company wrote to the government enquiring as to the fate of the application but, at the date of the swearing of the affidavit, Pacific Connex had not received any decision. Finally, the affidavit refers to an advertisement dated 27 July 2007 inviting expressions of interest for the operation of a Public Cellular Mobile Telephone System. While that might not in the strictest of terms be regarded as a refusal to issue the licence, it appears to have been plain to the company that this was for all intents and purposes the end of the game. Proceedings by Originating Summons were issued on 31 July 2007, only a few days after the company came to the conclusion to which we have referred. If this had been a judicial review, it is difficult to see how the respondents to that review could have claimed that Pacific Connex was out of time. Indeed, in a somewhat perverse vein, they might have contended that no decision had been made and that the proceedings were premature. The affidavit of Aisake Saukawa was sworn on the date on which the Originating Summons was issued. The affidavit in reply of Amena Yauvoli, sworn on 31 August 2007 does not dispute anything material in the affidavit of Aisake Saukawa. Indeed, the affidavit of Amena Yauvoli does not really address the contention in the affidavit of Aisake Saukawa that Pacific Connex never got an answer. There is certainly no suggestion that the proceedings by way of originating summons were instituted to avoid the time limitations imposed by judicial review proceedings.

(2) What is the true nature of the right or rights at issue? The next issue in determining whether these proceedings ought to have been proceedings under Order 53 is to look at the true nature of the rights at issue. Are the rights purely a matter of public law or are there any private law components? The argument by counsel for Pacific Connex is that there is a private law component. In the argument before Jitoko J the contention by the Plaintiff was that the private law component of the case is a matter of the law of tort. Before the Court of Appeal it was contended that the private law rights were based on equity. Whichever they were, we certainly accept the submission of counsel for the Minister and the Attorney General that however those rights are characterised they stem from public law. At the time of the proceedings before Jitoko J it may be that the focus was on a desire on the part of the Plaintiff for an order that the licence be issued and, possibly that it be done on a basis that no one else was to get a licence. However, with the advent of the Telecommunications Promulgation 2008 that might not now be an appropriate way of proceeding. However, it would be premature to prejudge that issue. Nevertheless, on whether or not the proceedings are now focused on mandatory the orders or simply on damages, the root of both is public law. This seems to us on the authority of O'Reilly v Mackman as applied in Ram Prasad v Attorney General of Fiji of to point strongly if not immutably to a requirement that these proceedings must be brought via judicial review.

(3) Would leave have been granted if the proceedings were a judicial review? In connection with the issues ventilated in the preceding paragraph, it is right to recall that one of the critical protections offered by judicial review is that there is the leave proceeding to weed out the obviously unmeritorious case. In State v Connors, ex parte Shah [2008] FJHC 64 Scutt J correctly observed about the approach at the leave stage:

At this stage a full review of the facts is unnecessary. Nonetheless, a court is obliged to sufficiently peruse the material provide to determine whether an applicant raises an issue arguably involving an error in law, a serious error in fact; a violation of natural justice or procedural fairness, or an excess of jurisdiction by the decision-maker the subject of the application.

Plainly, the step of considering whether the case is sufficiently meritorious to warrant the grant of leave is not available where there is a Originating Summons. Where proceedings for a stay of proceedings alleging abuse of process are instituted it would be appropriate to take this into account but, consistent with what we have already said in respect of this, to ask whether the proceedings, verified as they were by affidavit, would have obtained leave had the proceedings been instituted by way of judicial review. The answer to that issue in the instant case is complicated by the Telecommunications Promulgation 2008. On one view, as we have observed already, that may cut the heart out of the action instituted by Pacific Connex. On that view, all the company is left with is a claim for damages based on the premise that its public law rights to the licence were violated. It is not to be forgotten that although it was in the context of argument in connection with whether the proceedings should be struck out under Order 18, the argument of counsel for the Plaintiff conceded that mandatory injunctions should only be granted against government ministers in exceptional circumstances. In other words, in view of the relief claimed had this been a judicial review, it is a fair question to ask whether it would have survived the leave stage. It may be that it is implicit in the judgment of Jitoko J, albeit he expressed himself in terms of Order 18 Rule 18(1), that he thought the case was sufficiently arguable to proceed. However, that specific question was not asked of him. It seems to us that the approval in principle was, in reality, a fairly preliminary matter. This, it seems to us, is the principal hurdle that the Plaintiff has to overcome. In our judgment, on the material presently before us, the most that we can (or should) say is that the case for the plaintiff is conceivably arguable. However, we cannot ignore that had this been a judicial review the Minister and the Attorney General may have framed their factual case differently.

(4) Was the initial case for the plaintiff verified by affidavit? The short answer to this question is yes. An affidavit was filed on behalf of the Plaintiff at the same time that the Statement of Claim was filed.

(5) Was there any bad faith on the part of the plaintiff? It is also fair to ask whether there was any component of bad faith or any demonstrated desire to avoid the rigours of the judicial review process. In other words, was the process of the court used not in good faith or for improper purposes but as a means of vexation or oppression or for ulterior purposes? To put it more simply, was the process of the court being misused? There is no evidence that the choice of Originating Summons as opposed to judicial review was motivated by something of this nature.

(6) If the proceedings had been by way of judicial review, would the plaintiff have been disadvantaged thereby? The next consideration as to whether it was appropriate to stay the proceedings as an abuse of the process of the court would be to ask whether the Plaintiff would be in any material way disadvantaged if its case had been by way of judicial review proceedings. The short answer to that would appear to us to be no.

(7) Are there questions of fact to be determined which might more conveniently be dealt with in "ordinary" civil proceedings? The fact that there are issues of fact or law to be determined does not appear to us to be determinative of the issue. While cross-examination and the presentation of evidence under challenge is less ordinarily a feature of judicial review than proceedings by way of Originating Summons, they are by no means shut out and, as Lord Diplock observed in O'Reilly v Mackman, the interests of justice always predominates, if in a judicial review it was necessary to determine facts in this way, we have no doubt that the court would proceed accordingly.

(8) What would be the harm in permitting the plaintiff to proceed by "ordinary" civil proceedings? The authorities to which we have had occasion to refer in this judgment are testament to that. It might fairly be asked against that background what would be the harm in permitting the Plaintiff to proceed in accordance with the Originating Summons. Doubtless the processes of the court are sufficient that if there was, for example, any foot-dragging on the part of the plaintiff the remedy of abuse of process remains open.

(9) What prejudice would there be to the other parties if the matter was to proceed by way of "ordinary" civil proceedings? It is also appropriate to consider whether the institution of or the continuation of proceedings by way of Originating Summons in the instant case would in any material way prejudice the Minister, the Attorney General or Digicel. Subject to the observations about the foot-dragging that is always conceivable in civil proceedings, we can see no prejudice to the Minister, the Attorney General or to Digicel.

(10) Have the other parties done anything to prejudice the rights or interests of the Plaintiff? It also might be appropriate to ask whether the Respondent or Respondents have by their conduct done anything to prejudice the rights, such as they may be, of the Plaintiff. It is to be noted that the application for these proceedings to be struck out was instituted approximately 6 months after the institution of the Originating Summons. If it had been instituted within the three-month period it might have given the Plaintiff the option of discontinuing the Originating Summons and proceeding under Order 53. However, this is hardly a compelling criticism and it seems to us that subject to this other mild criticism which might be characterised as a counsel of perfection, nothing can be detected in the conduct of the parties which might inform the exercise of the discretion required in determining whether to stay proceedings as an abuse of the process of the court.

41 In our view, if one asks the question how these proceedings would have measured up to their requirements for judicial review one clear point stands out. These were public law issues. It may be the claim for damages is based on tort (as originally contended by Pacific Connex) or to equity as contended for in this Court. However, on any view the root of the claim is in public law. The consequence of this, on the authorities is that the proceedings should have been brought by judicial review. To bring them via Originating Summons was an abuse of the process of the court. We have not lost sight of the fact that this may lead to the Plaintiff being deprived of its remedy simply because it chose the wrong procedural route. It is not open to amend the proceedings to convert such proceedings to a judicial review. The only real course open to the Plaintiff would appear to be to now apply for judicial review out of time and pray in aid the wrong choice of proceedings as a possible basis for motivating the High Court to permit the proceedings to proceed notwithstanding the time issue.

Orders

42 For the reasons outlined above, we allow this appeal. The orders of the Court are:

(1) Appeal allowed;

(2) Appellants to have costs which we fix at $5,000 for Digicel and $2,500 for the Minister and the Attorney General.

BYRNE, JA
PATHIK, JA
BRUCE, JA

Solicitors:
Sherani and Company, Suva for the Appellant
Patel Lawyers, Suva for the 1^st Respondent
Office of the Attorney General Chambers, Suva for the 2^nd and 3^rd Respondents