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Nave v Principal Engineer, Suva Water Supply [2003] FJHC 154; HBC0431D.2002S (31 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0431 OF 2002

Between:

PITA NAVE
Plaintiff/Respondent

and

1. THE PRINCIPAL ENGINEER,
SUVA WATER SUPPLY

2. PERMANENT SECRETARY FOR WORKS,
TELECOMMUNICATIONS, ENERGY,
ROAD TRANSPORT & SHIPPING
Defendants/Applicants

Mr. S. Valenitabua for the Plaintiff
Ms. N. Karan for the Defendants

DECISION

By summons filed herein on 10 February 2003 the State (for the defendants) seeks an order as follows pursuant to Order 18 Rule 18(1)(a) and (d) of the High Court Rules, 1988:

(i) that the Originating Summons filed in the High Court in this action on 15th of October 2002 be struck out on the grounds:

• (a) that it is an abuse of the process of the Court;
  
• (b) that the Plaintiff/Respondent has no reasonable cause of action.
  

This interlocutory application arises out of this civil action commenced by way of Originating Summons dated 15 October 2002 seeking the following relief:

1. A Declaration that the termination of the Plaintiff’s employment by the 1st Defendant on 3 August, 1999 was wrong in law and in equity in that the said termination was double jeopardy for one misconduct by the Plaintiff.
   
2. A Declaration that the Plaintiff’s re-appointment by the 2nd Defendant as a New Appointee to the position of A-Grade Fitter on 12 October, 1999 but with the subsequent erasure of his record of long service was wrong in law and in equity in that the said erasure of the Plaintiff’s said record was a third penalty for one misconduct by the Plaintiff.
   
3. A Declaration that the 1st Defendant breached the rules of natural justice when the 1st Defendant failed to provide the Plaintiff with an opportunity to be heard before penalising him.
   
4. An Order directing the 1st and 2nd Defendants to re-instate the Plaintiff as an A-Grade Fitter together with his record of long service as A-Grade Fitter for 20 years.
   
5. An Order that the Defendants whether jointly and/or severally by themselves, their servants and/or agents pay to the Plaintiff the following:-
   
   • (a) Damages;
   • (b) Costs.
     

Applicants’ submission

In short, it is the applicants’ submission that the circumstances which led to the respondent’s termination contained a public law element and therefore this action by Originating Summons should have begun by way of judicial review. Counsel referred to a number of authorities in support of her argument.

In these circumstances the applicant say that the procedure adopted is an abuse of process of the Court and that he has no reasonable cause of action.

It is further submitted that the first applicant had written a memorandum to the respondent on 6 October 1999 advising him that the Permanent Secretary had disallowed his appeal and on humanitarian grounds he has been given a position as a new appointee. It was not until 15 October 2002 that the respondent filed the present action.

Counsel further submits that by proceeding by way of Originating Summons the respondent is trying to overcome the ‘delay’ aspect under Order 53 r.4 of The High Court Rules, 1988.

Respondent’s submission

Mr. Valenitabua, the learned counsel for the respondent/employeer submits that it was a claim for wrongful termination of employment and has therefore brought this action by way of originating summons.

He submits that this is a case of master and servant relationship similar to the case of Praveen Prakash Palani & Another v FEA (Civ. Appeal No. ABU0009 of 1996). He says that the respondent is the subject of a private relationship of master and servant in employment. Counsel says that judicial review does not apply in the circumstances of this case.

He further submits that on the facts of this case there is a reasonable cause of action. The respondent was penalised twice for one misconduct and this raises the issues of ‘double jeopardy’. He was penalised first by forfeiting his day’s wages. He was then penalised again for the same mistake by terminating his employment. Also there was a denial of natural justice before dismissing him from employment.

Mr. Valenitabua says that there is a question of law which needs to be addressed in Court.

Consideration of the summons

Background facts

The Plaintiff was A grade fitter with the Public Works Department. On the 2nd of July 1999 the Plaintiff committed a serious act of indiscipline as he was found drinking rum during working hours. His employment was terminated on the 3rd of August 1999 in accordance with Section 37 of the JIC Agreement (Joint Industrial Council Agreement for the un-established employees). The plaintiff appealed against his termination which failed. Later the plaintiff was re-appointed as a new appointee.

Is this a judicial review matter?

On the facts of this case and the nature of plaintiff’s employment, this indeed is a ‘public law’ matter.

As stated by Ms. Karan, the plaintiff’s terms and conditions of employment were governed by the JIC Agreement. He was not engaged in a contract but rather his employment was conditional on his continuing to render satisfactory service in accordance with the conditions stipulated in clause 34 of the JIC agreement. Therefore this brings in the public law element making it imperative that the Plaintiff institutes this action via judicial review.

In determining whether the decisions of a particular body were subject to judicial review, it was held in R v Panel in Take-overs and Mergers, ex-parte Datafin [1987]1 All ER 564 that:

“In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body’s powers and duties but to look at their nature. Accordingly, if the duty imposed on a body imposed whether expressly or by implication, was a public duty and the body was exercising public law functions the court had the jurisdiction to entertain an application for judicial review of that body’s decision”. (emphasis mine)

Further De Smith, Woolf and Jowell in the book “Judicial Review of Administrative Action” (Sweet and Maxwell (London) 1995) at page 190 paragraph 3 – 064 state:

“Where the dispute is as to some decision of a disciplinary or other body established under the prerogative or by statute in which the employer or employee is entitled or required to refer the dispute affecting relationship, the issues are likely to be one of public law. This is because the supervision of inferior tribunals including disciplinary bodies which are of public, as opposed to private or domestic in nature, have always been appropriate subjects for pubic law proceedings. Where there is such a disciplinary body, and then frequently within the Public Service there will be one form of appeal. If this is a situation, the courts will normally expect the internal forms of appeal to be exhausted before there is an application to the courts and may refuse if this has not been done. However, this does not alter the nature if the issues which were involved”.

Also in this regard counsel referred to the case of R v East Berkshire Health Authority, ex-parte Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425 where Sir John Donaldson MR stated at p.430 after referring to the cases of Vine v National Dock Labour Board [1956] 3 All ER 939, Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66 and Malloch v Aberdeen Corp [1971] 2 All ER 1278, stated:

“In all three cases there was a special statutory provision bearing directly on the right of a pubic authority to dismiss the plaintiff. In Vine’s case the employment was under the statutory dock labour scheme and the issue concerned the statutory power to dismiss given by that scheme. In Ridge v Baldwin the power of dismissal was conferred by statute (s.191(4) of the Municipal Corporations Act 1882). In Malloch’s case again it was statutory (s.3 of the Public Schools (Scotland) Teachers Act 1882). As Lord Wilberforce said, it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a higher grade or is an officer. This only makes it more likely that there will be special statutory restrictions on dismissal or other under pinning of his employment... It will be this underpinning and not the seniority which injects the element of public law.”

I have dealt with the aspect of ‘public law’ and ‘private law’ quite comprehensively in Ram Prasad s/o Ram Rattan and The Attorney-General of Fiji (Civil Action No. 311 of 1992 – judgment 12 September 1997). This judgment was on 27 August 1999 upheld by the Court of Appeal. I would suggest that counsel read these judgments carefully.

In this case the defendant was relying and acting upon the JIC agreement which governed the unestablished employees of the Public Service. On the authority of Ram Prasad (supra) the issue in the case before me involves a ‘public law’ matter and therefore has to be dealt with by way of judicial review.

In this regard the following passage from the judgment of Lord Diplock in the Court of Appeal case of O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 285 hits the nail on the head:

“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.” (emphasis mine)

Mr. Valenitabua repeated that this was a case where there was a master and servant relationship and he referred the Court to Palani & Another v Fiji Electricity Authority C.A. ABU0028 of 1996 (judgment 18 July 1997). The case of Palani does not apply here. There Palani applied for judicial review following his suspension and subsequent dismissal by the respondent in that case. As stated by Court of Appeal at p.8 of judgment:

“Lyons J held that he could not proceed by judicial review, a decision which was upheld by this court. This was because there was in that case a strict master and servant relationship between the appellant and the respondent sufficient to give rise to a private law obligation. The Court adopted the approach of Sir John Donaldson MR in R v East Berkshire Health Authority ex parte Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425.

In the case before me the respondent is governed by the JIC Agreement and the Regulations. It was the provision of the agreement which injected the element of public law and hence giving rise to the application of remedies of administrative law’. The distinction was stated by Purchas L. J. in ex parte Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425 at 439 thus:

“There is a danger of confusing the rights with their appropriate remedies enjoyed by an employee arising out of a private contract of employment with the performance by a public body of the duties imposed on it as part of the statutory terms under which it exercises its powers. The former are appropriate for private remedies inter partes whether by action in the High Court or in the appropriate statutory tribunal, while the latter are subject to the supervisory powers of the court under Ord 53.

In Ram Prasad (supra) at p6-8 (Court of Appeal) is discussed as to when a contract of service exists in relation to employment by the Government. The Court said, inter alia, that ‘the common law rule is that a person employed as a public officer by the Government is not employed under a contract of service’. Thus in Inland Revenue Commissioner v Hambrook [1956] 2 QB 641, 654 Lord Goddard CJ said:

“...an established civil servant is appointed to an office and is a public officer, remunerated by monies provided by Parliament, so that his employment depends not on a contract with the Crown but an appointment by the Crown, though there may be...exceptional cases as, for instance, an engagement for a definite period, where there is a contractual element in or collateral to his employment.”

Application under Or.18 r.18(1)(a) and (d)

Under Or.18 r.18(1)(a) on the facts and circumstances of this case in the light of what I have stated in connection with judicial review aspect the procedure adopted is an abuse of the process of the Court.

In coming to this conclusion I have, inter alia, borne in mind the following Notes to Or.18 r.19 in The Supreme Court Practice 1979 Vol I, 312 that: ‘it is only in plain and obvious cases that recourse should be had to the summary process under this Rule’ and that ‘it can only be adopted when it can be clearly seen that a claim or answer is on the fact of it obviously unsustainable’. (A.G. of Duchy of Lancaster v L. & N.W. Ry. Co [1892] UKLawRpCh 134; [1892] 3 Ch 274, C.A.).

On this aspect Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywod & Clark Limited [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 at page 91 said:

“...summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases”.

The second ground on which the applicant wants to strike out is that there is no reasonable cause of action. From what the respondent has stated in the relief that he is seeking as per his Originating Summons, he definitely has a grievance but that cannot be resolved without the trial of the action. But because the procedure that he has adopted in my view is wrong I cannot say anymore on that aspect of the matter. Why has he waited about three years to come to Court? Can that be taken against him? That reminds me of the words of Priestley JA in Cohen v McWilliam and Another (1995) 128 FLR, Court of Appeal N.S.W. 263 at 264 when he said:

“I know of no authoritative decision which says that court efficiency is more important than, or takes priority over, deciding cases on their merits”.

What remedy he has or what procedure to be adopted is not for me to advise the parties on. However for the present purposes I can only say that this procedure is an abuse of the process of the Court.

Conclusion

In the outcome, for the above reasons, in the light of the many authorities bearing on the issue before me and in view of the decisions reached by the Courts as to the form the proceedings should or the procedure to be adopted in a matter of the nature before me I will allow the application to strike out the originating summons as an abuse of the process of the Court.

The following passage from the judgment in Moroccan Workers Association v Attorney-General (1955) 1 Law Reports of the Commonwealth 451 (SC) vide Commonwealth Law Bulletin July 1995 p747 –749 is apt:

“Matters of public law and administration ordinarily fell within the purview of s.31 of the Supreme Court Act 1981 and RSC Ord 53. The remedies therein provided that judicial review ought to be the normal recourse in all cases where allegations were made that rights under public law were being infringed, eg where a private person was challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty. The institution of proceedings by originating notice of motion for purely declaratory relief without any explanation of the delay that occurred before their institution in February 1993 and which were brought for the purpose of challenging matters of public law and administration was an inappropriate procedure and an abuse of the process of the court.”

I might add before I depart from the subject that because the plaintiff has a grievance against the decisions of the defendants/respondents for the reasons given hereabove that he may have a reasonable cause of action, the course open to him would have been by way of judicial review but he is well out of time for that. The plaintiff has to rely on a proper advise from his counsel as to what course is available to him. The Court of Appeal in Ram Prasad (supra) at p.11 said that it is not “expressing” any “concluded view” as to what will happen if an application is made for judicial review after such a long delay. It did however say:

“in the end the dominating consideration would be the interests of justice. Provided that it can be established that this delay was not due to the appellant personally it may well be that in these somewhat exceptional circumstances the granting of leave may be appropriate.”

The Court concluded by saying that:

“If an application for leave is brought, it will be for the Judge before whom it comes to decide whether the appellant should be allowed to proceed at this very late stage.”

Having stated the Court of Appeal’s sentiments I shall conclude with the statement of Sir Samuel Griffith that:

“...the right of every man to a fair hearing before he is condemned lies at the root of the tree of justice.”

It is not possible to convert this Originating Summons into a claim for judicial review for Henry J in Doyle and Others v Northumbria Probation Committee (1991) 1 W.L.R. 1340 at 1344 said that:

“Under Order 53, where the plaintiff wrongly brings his claim in the form of an application for judicial review, the court has power to order that claim to be continued as though it had been commenced by writ. But where a claim is wrongly commenced by writ, the court has no power to convert it into a claim for judicial review”.

For these reasons, the plaintiff’s originating summons is struck out as an abuse of the process of the Court with no order as to costs.

D. Pathik
Judge

At Suva
31 October 2003