(d) Loss of the use and enjoyment of
Government Quarters.
(e) General damages:
Loss of opportunity for promotion.
The affidavit of Charles Walker sworn in support of the Defendant's Summons on 18th of July 1996 alleges that the Plaintiff voluntarily
retired from the Police Force and on the 9th of November 1994 wrote a letter to the Public Service Commission to this effect and
stating that he wished to be paid gratuity and a reduced pension on his retirement. On the 4th of November 1994 in a letter exhibited
to Mr. Walker's affidavit the Public Service Commission wrote to the Commissioner of Police stating that at a meeting of the Police
Service Commission held that date the Police Service Commission had accepted and approved the Plaintiff's voluntary retirement from
the Police Force.
On the 17th of November 1994 in a copy letter also exhibited to Mr. Walker's affidavit the Sery for the Public Service wice wrote
to the Plaintiff stating that his application to retire from the service was approved under the Pensions Act of 1983 and Regulation 28(b) of the Public Service Commission (Constitution) Regulations 1990 and stated that his retirement would
take effect from 6th May 1995. The letter concluded with an expression of appreciation by the Commissioner of Police and the Plaintiff's
many colleagues in the service for the Plaintiff's 30 years of service in the Force.
Earlier in time afts acquittal in the Magistrate's Court of all charges of larceny and the filing on the 27th 27th of October 1993
by the Director of Public Prosecutions of a Nolle Prosequi of a charge of Abuse of Office the Plaintiff was informed by the Police
Service Commission that he was likely to face disciplinary charges not related to the criminal charges. These related to alleged
other wrongful activities committed by the Plaintiff in 1991.
Mr. Walker then deposes that the Plaintiff had a meeting with the Commissioner of Powho explained to him the cohe consequence of disciplinary
charges after which the Plaintiff opted to voluntarily retire.
Mr. Walker thates that the Defendant did not thereafter institute disciplinary action against the Plaintlaintiff, and the Plaintiff
received the following:
(i) gratuity of $67,962.25 together with a
(ii) reduced pensio$16,310.94 per annum on his retirement from service with efth effect from 6th May 1995.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr. Walker then states that to the best of hisledge and belief no pressure was exerted on the Plaintiff fiff for him to retire from
the Police Force and furthermore that if any pressure was brought to bear on him his solicitor should have taken immediate action
to deal with the mater.
I take this latter stat to be a plea of confession and avoidance.
The Plaintiff swore an Affidavit in Reply to Mr. Walker's affidavit in which he generdenies most of the allegatiegations made against
him by Mr. Waler. It is unnecessary to refer to these here.
The Court's power to strit an action has always been exercised very sparingly and Lindley M.R. in Hubbuck v. Wilk Wilkinson (1889) 1 Q.B. 86 at p.91 said that it is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 18
of the Rules of the High Court. In Nagle v. Feilden (1966) 2 Q.B. 633 at p.651 Salmon L.J. began his judgment by saying:
"It is well settled that a statement of claim should not be struck out anut and the plaintiff driven from the judgment seat unless
the case is unarguable."
There are now numerous other authorities on the question many of whive been cited to me and whid which are familiar I think to most
practitioners in this jurisdiction. I do not propose to refer to them, being content to rely on the two cases I have just mentioned.
The question I have to answer is whether I should take this very draconian step on the material at present before the Court.
The Defendant alleges that the Plaintiff is estopped from taking anyon law action against the Dthe Defendant because he has voluntarily
retired and accepted a gratuity and reduced pension. Lord Denning M.R. in Amalgamated Investment of Property Co. Ltd. (in Liquidation) v. Texas Commerce International Bank Ltd. (1981) 3 ALL E.R. at page 584 said:
"If parties to a contract by their course of dealing, put a particular interpretation on the terms of it, on the faith of which
each of them to the knowledge of the other acts and conducts their mutual affairs, they are bound by that interpretation just as
if they have had written it down as being a variation of contract."
He goes on further on the same page at paragraph G:
".......whether due to misrepresentaor mistake (it makes no difo difference), on which they have conducted the dealing between
them, neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the
case demands."
Against that Mr. Gates fo Plaintiff submits that the Plaintiff did not voluntarily retire at all; rather he was cons constructively
dismissed from the Police Force. Quoting from Selwyn on the Law of Employment (1993) p.290 the author says:
"Thus, if the eer tries to impose a unilateral change in employment terms,erms, such as a change in the job, a lowering in earnings
(Hill Ltd v. Mooney), a significant change in the location of employment (Courtaulds Northern Spinning Ltd v. Sibson), a demotion,
then provided there is no contractual right to do so, such conduct will entitle an employee to resign."
Mr. Gates submits if a Plaintiff has been treated oppressively and robbed of choice he can not be said to havo have accepted freely
what was clearly overbearing conduct on the part of his employer, in this case the State. He further says that the conduct of the
Commission was reprehensive in that it failed to act with reasonable speed or to consider appropriate action against the Plaintiff.
He claims that as a responsible employer the Commission should not have "allowed the Plaintiff to fester on a 3½ years of half-pay
or no-pay interdiction". In effect he says the Plaintiff was squeezed out of his employment without criminal or disciplinary
process. I confess to serious reservations about the strength of the Plaintiff's claim at this stage but I intend to remain open
to persuasion at least for the time being, bearing in mind Lord Justice Salmon's remark in Nagle v. Feilden and his later remark at p.654 (F).
"One of the principal functions of our courts is, whenever possible, to protect the individual from injustice and oppression.
It is important, perhaps today more than ever, that we should not abdicate that function."
/p>
I have no doubt that that remark is as true today as it was in 1966. In my judgment it would be unfair to the Plaintiff to shut him
out from the judgment seat at this stage. It seems to me that the case raises what could be difficult questions of law for example
on the question of repudiation of the contract. In this regard I note the statement of Devlin J. in Universal Cargo Carriers Corporation v. Citati (1957) 2 Q.B. 401 at p.426 on renunciation of contracts:
"The test of whether an intention is evinced by conduct is whether the party renunrenunciating has acted in such a way as to
lead a reasonable person to the conclusion that he does not intend to fulfil his part of the contract."
I expect to much argument on this question at the trial. I therefore order that the Defendant's Summonummons of 19th July 1996 is
dismissed. Costs will be in the cause.
JOHN E. BYRNE
JUDGE
The following legislation and authorities referred to in ruling:
Police Act Cap. 85.
Police Service Commission Regulations.
Rules of High Court Order 18 Rule 18.
Amalgamated Investment of Property Co. Ltd. (in Liquidation) v. Texas Commerce International Bank Ltd. (1981) 3 ALL E.R. at 584.
Hubbuck v. Wilkinson (1889) 1 Q.B. 86.
Nagle v. Feilden (1966) 2 Q.B. 633.
Universal Cargo Carriers Corporation v. Citati (1957) 2 Q.B. 401.
Selwyn on the Law of Employment (1993).
The following additional cases were mned in argument:
Dreyfus v. Peruvian Guano Company [1889] UKLawRpCh 36; (1889) 41 Ch.D. 151.
Drummond-Jackson v. British Medical Association (1970) 1 ALL E.R. 1094.
Dyson v. Attorney-General [1910] UKLawRpKQB 203; (1911) 1 K.B. 410.
Attorney-General v. Shiu Prasad Halka 18 FLR 210.
Bavadra v. Attorney-General Supreme Court C/A No. 487/87.
C/A No. 644 of 1993 Ratu Mosese Tuisawau and Another v. Attorney-General of Fiji - unreported judgment of Chief Justice.
Attorney-General of Lancaster v. London and North Western Railway [1892] UKLawRpCh 134; (1892) 3 Ch. 274.
Castro v. Murray [1854] EngR 673; (1875) 10 Ex. 213.
Kemsley v. Foot & Others (1952) A.C. 345.
Howard v. Pickford Tool Co. Ltd. (1951) 1 K.B. 417.
Goodson v. Grierson [1908] UKLawRpKQB 32; (1908) 1 K.B. 761.
Lawrence v. Lord Norreys [1890] UKLawRpAC 14; (1890) 15 App. Cas. 210.
Labour Law by Anderman 2nd Edition 1993.
Post Office v. Strange (1981) IRLR 515, EAT.
Robertson v. Minister of Pensions (1949) 1 K.B. 227.
Westen v. Fairbridge (Executors) and Others (1923) 1 K.B. 667.
Hbc0293d.96s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1997/187.html
