| Fiji Islands - The State v the Ministry of Labour & Industrial Relations; Ex parte Fiji Mine Workers Union - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 1 OF 1998
THE STHE STATE
v
THE MINISTRY OF LABOUR AND INDUSTRIAL RELATIONS
ATTORNEY-GENERAL OF FIJI
Respondents
EX-PARTE: FIJI MINE MINEWORKERS UNION
Applicant
Mr. J.K.L. Maharajthor the Applicant
Mr. S. Sharma for the Respondents
DECISION
This is the Fiji Mine Workers Union's (the 'applicant') application for leave to apply for judicial review under order 53 r3 of The High Court Rules 1988.
It is the decision of the Permanent Secretary for Labour (the "first respondent" - R1) which is being impugned. By letter dated 27 October 1997 the R1 informed the applicant that:
"We regret to inform you that after careful consideration of the objections in respect of our Notice of Intention to deregister
your union, we had decided to cancel the registration of the Union. Attached is the Certificate of Cancellation of Registration".
The application for leave is opposed by the respondents.
Although the application was filed on 16 January 1998 the applicant did not file its affidavit in support until 3 April 1998. The
respondents filed affidavit in reply on 6 May 1998. Because of applicant's counsel's non-availability and his subsequent engagement
in a legal aid murder trial the matter did not come up for hearing inter partes until 23 April 1999 when I heard oral argument and
also had written submissions from the Respondents.
I have before me for my consideration the affidavit of the applicant sworn 1 April 1998 and the Respondent's Reply thereto sworn 5
May 1998.
Applicant's contention
It is the applicant's contention that despite its reply to the first respondent's intention to deregister the applicant Union, that
it had complied with all the requirements under the Trade Unions Act and that the Union is not 'defunct', the R1 went ahead and cancelled its registration as a Union.
The applicant complains that the 'Registrar did not properly consider the responses that were made to him against his intention to deregister the said union.'
It says that the Registrar's decision to cancel the registration of the union (a) has been unreasonable, (b) he took into account
irrelevant considerations, (c) he is in excess of jurisdiction and (d) there was lack of evidence to support such a decision.
The applicant, in the main, seeks the relief that certiorari go to quash the first respondent's decision to cancel the registration
of the Union.
Respondents' grounds of opposition for leave
The Registrar of Trade Unions, Mr. Anare Jale for the first respondent filed an affidavit in response on 5 May 1998 setting out in
detail the reasons which led to the cancellation of registration of the Union. In short, the applicant failed to hold its Annual
General Meeting for a number of years despite extension of time having been granted to do so. Also no 'Returns' as required under
the Trade Unions Act Cap. 96 have been filed by the Union.
Consideration of the issue of leave
In dealing with the issue of leave before me I have given due consideration to the contents of the applicant's affidavit and to the
submissions of its counsel Mr. Maharaj and to the submission made by Mr. Sharma for the respondents.
The applicant is within time to apply for judicial review under Or.53 but it has not availed itself of the 'appeal' provision under
s16 of The Trade Unions Act Cap 96 first which is an alternative remedy available to it.
In the absence of exceptional circumstances a remedy by way of judicial review will not be granted where an 'alternative remedy' of
gaining an adequate redress is available. This doctrine operates as a discretionary bar to the grant of a remedy but not an absolute
bar to the jurisdiction of this Court.
The Courts have held that judicial review will not be granted where 'appeal' is available except in exceptional circumstances. In
R v BIRMINGHAM CITY COUNCIL ex parte FERRERO LTD CA [1993] All E.R. 530 TAYLOR LJ at page 538 said:
'Accordingly, in the present case, there was available an appeal specifically provided by Parliament to enable a party aggrieved by
a suspension notice to challenge it. The appeal was at least as expeditious, if not more so, than judicial review. It was more suited
than judicial review to the resolution of issues of fact. The statutory scheme leant in favour of up-holding the notice unless the
goods were shown to be safe; but, should they turn out on appeal or otherwise to be safe, any aggrieved party was entitled to compensation'.
Also in R v EPPING AND HARLOW GENERAL COMRS., Ex p GOLDSTRAW [1983] 3 All E.R. 257 SIR JOHN DONALDSON M R stated at 262J:
'it is a cardinal principle that, save in the most exceptional circumstances, [the judicial review jurisdiction] will not be exercised
where other remedies were available and have not been used'.
The above statement should not be taken to mean that judicial review was never available in cases where there was an alternative remedy.
SIR JOHN DONALDSON MR at 485 C-F in R v SECRETARY OF STATE FOR HOME DEPARTMENT, ex p SWATI [1983] 1 WLR 477 repeated the proposition he had put in R v Chief Constable of Merseyside Police, ex p Calveley [1986] QB 424:
"that judicial review would not be granted where there was an alternative remedy by way of appeal, save in exceptional circumstances.
By definition, exceptional circumstances were impossible to define: but where Parliament provided an appeal, judicial review had
no place, unless the applicant could distinguish his case from the type of case for which the appeal procedure was provided." (JUDICIAL REVIEW by Superstone & Goudie p343)
In the case before me the Union was deregistered pursuant to section 14; and in section 16 of the Trade Unions Act, which provides for an appeal, it is stated:
"(1) - Any person aggrieved by the refusal of the Registrar to register a trade union, or by an order made by the Registrar under section 14, may within one month of the day of the refusal or order as the case may be, appeal against such refusal or order to the High Court, and from such appeal
the High Court may order as it thinks proper, including any directions as to the costs of the appeal.
(2) - The High Court in hearing any such appeal shall have all the powers which it may exercise in the hearing of a civil suit." (emphasis added)
The applicant did not avail itself of this section which it should have. Mr. Sharma referred the Court to Court of Appeal decision
in Fiji Public Service Association v The Registrar of Trade Union & Fiji Air Traffic Control Officer's Association (Civ. App. No. 51 of 1991, 20.8.93) which interpreted s16 as follows:
"With respect to the learned Judge, we fail to understand his reliance on the permissive terms of section 16. The two provisions
set out above impose no obligation to appeal but they clearly demonstrate, in our view, that there is an intention to give finality
to the Registrar's decision. ... We cannot accept the contention that an unsuccessful applicant for registration, by not lodging
an appeal, can in some way keep the way open for endless re-applications any more than an unsuccessful objector can continue to challenge
a registration."
The proper course for the applicant would have been to have appealed to High Court without delay to resolve any disputes it had with
the first respondent.
In the outcome for these reasons leave to apply for judicial review is refused with costs against the applicant in the sum of $250.00
to be paid within 14 days.
D. Pathik
Judge
At Suva
14 May 1999
Hbj0001d.98s
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