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State v Arbitration Tribunal, Ex parte Air Pacific Senior Staff Association [1992] FJHC 23; HBJ0001d.1992s (17 June 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 1 OF 1992

STATE

v.

THE ARBITRATION TRIBUNAL
Respondent

EX PARTE: AIR PACIFIC SENIOR STAFF ASSOCIATION
Applicant

Mr. M.B. Patel for the Applicant
Mr. P. Cowey for the Respondent
Mr. B. Sweetman for Air Pacific Limited

RULING

This is an opposed application for leave to issue judicial review proceedings against the award of the Arbitration Tribunal (hereafter referred to as 'the Tribunal') appointed under Section 20(1) of the Trade Disputes Act (Cap. 97) to resolve a trade dispute between Air Pacific Limited (hereafter referred to as 'the Company') and its Senior Staff Association (hereafter referred to as the 'Association') concerning the relocation of employees of the Company from its Suva/Nausori bases to Nadi.

The award which runs to almost 100 pages was delivered on the 4th of November 1991 and the present proceedings were instituted on the 16th of January, 1992.

Learned counsel for the Association in moving the application for leave submits that the threshold requirements for the grant of leave, namely, that the applicant have a 'sufficient interest' in the matter and a prima facie genuine grievance on substantial grounds were more than adequately satisfied by the affidavit and statement filed on behalf of the Association.

Learned counsel for the Tribunal submits however that as the referral to arbitration was made under Section 6(1) of the Trade Disputes Act (Cap. 97) which expressly requiries "... both parties consent ..." therefore the rights of the parties and the authority of the Tribunal is founded in contract rather than on a statutory provision and accordingly the Tribunal's award was not susceptible to judicial review which is a 'public' as opposed to a 'private' law remedy.

In support of this proposition learned counsel for the Tribunal cited the decisions of Rooney J. (as he then was) in Judicial Review No. 2 of 1985 R. v. The Arbitration Tribunal ex parte F.P.S.A. and the more recent decision of the House of Lords in O'Reilly v. Mackman (1982) 2 ALL E.R.

I am grateful however to learned counsel for the Company who not only conceded that the applicant had a right to seek judicial review as a person with a "sufficient interest" but more particularly for the citation of the decision of the Fiji Court of Appeal in Civil Appeal No. 49 of 1986 Satish Chandra v. The Arbitration Tribunal of Fiji in which the Court after a comprehensive review of the relevant provisions of the Trade Disputes Act Cap. 97 [including Section 6(1)] and various decisions in Fiji and the U.K. (including the 2 relied upon by learned counsel for the Tribunal), held:

"... that the arbitration tribunal exercising power under Section 6(1) of the Act is susceptible to judicial review."

The Court of Appeal also held:

"... that the consent and agreement required by the subsection does not put the parties to the dispute in contract and that, accordingly, the arbitration is not a contractual one."

Needless to say R. v. The Arbitration Tribunal ex parte F.P.S.A. was expressly over-ruled.

This Court is undoubtedly bound to follow that decision and therefore accept that the present proceedings are properly brought.

The more important question however upon which the court heard submissions from both counsels representing the Association and the Company was whether or not to grant a stay of the proceedings.

In this regard learned counsel for the Association began by saying that since the award was handed down the Company had begun issuing relocation notices to its members and unless the Court stayed the further execution of the award by the Company its members would be driven to accept the terms of the award or in any event the present proceedings would be overtaken by events.

Counsel for the Company however forcefully argued that it would be quite improper to order a stay of proceedings where the undisputed evidence is that the Company had begun to implement the award and in any event the application was misconceived.

This latter argument was broken down into the following component elements:

(a) There is no question that the Company as an employer was quite entitled to decide to relocate its operations to Nadi (with that there is no real dispute);

(b) The Tribunal's award in terms granted members of the Association certain rights and benefits upon their relocation to Nadi;

(c) Any "stay of proceedings" could only refer to the implementation of the award by the Company and not to the "proceedings of the Tribunal" which were completed by the rendering of the award; and

(d) In the event that the Court does grant a stay of (execution of) the award then the end result would be that members of the Association who agreed to move to Nadi would be obliged to relocate without any compensation whatsoever as provided for in the Tribunal's award.

Faced with the irresistible force of Mr. Sweetman's argument learned counsel for the Association was constrained to withdraw his application for a stay which was accordingly granted.

I turn next to consider whether or not to exercise my discretion to grant leave to the applicant bearing in mind that the implementation of the award has already commenced. In this regard having considered the 8 grounds upon which relief is sought and having heard learned counsel for the Association expand on some of the grounds very briefly I am satisfied that leave to issue judicial review ought to be and is accordingly hereby granted to the Association.

(D.V. Fatiaki)
JUDGE

At Suva,
17th June, 1992.

HBJ0001D.92S