IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0298 OF 2002

Between:

JANIFA GOUNDAR
f/n Julfam Ali
Plaintiff

and

COLONIAL FIJI
Defendant

Mr. R. P. Singh for the Plaintiff
Mr. H. Nagin for the Defendant

DECISION

This is the defendant’s motion pursuant to order 18 r19(1)(d) of The High Court Rules 1988 for an order that the plaintiff’s action be struck out with costs on the ground that it is an abuse of process of the Court. An affidavit in support of Aiyaz Saiyed-Khaiyum, the Group General Counsel of the defendant has been filed. The plaintiff’s counsel Mr. R.P. Singh filed an affidavit in Reply.

Background facts

The plaintiff as an employee of the Defendant was dismissed from employment on 12 October 2000. Her Union, the Fiji Bank and Finance Sector Employees Union reported a trade dispute which was accepted by the Permanent Secretary for Labour and Industrial Relations. From the Disputes Committee the matter was referred to the Arbitration Tribunal with the reference, inter alia, ‘that the summary dismissal of the plaintiff was unreasonable, unjust and unfair and therefore seeking her reinstatement without loss of benefits’.

After a full hearing by the Arbitration Tribunal an Award was given on 5 February 2002 and the reasons for the Award are fully set out in Mr. Khaiyum’s written submissions herein. The Tribunal held that the summary dismissal of the Plaintiff was fair and reasonable.

Being unhappy with the award the plaintiff filed an application for Judicial Review being Action No. HBJ0007 of 2002, but this was subsequently withdrawn. Then on 12 July 2003 the plaintiff filed the present writ of summons in which she is now seeking to re-litigate the very issues that have already been decided by the Arbitration Tribunal.

Consideration of the issue

As already stated the application is made under Or.18 r19(1)(d) of The High Court Rules 1988.

I have before me for my consideration written submissions from both counsel as ordered.

Counsel for the defendant/applicant submits that the plaintiff’s only avenue of challenge is by judicial review if she is unhappy with the Arbitrator’s decision. Hence this application to strike out.

The learned counsel for the plaintiff on the other hand submits that it is a private law matter as the action is ‘purely for breach of agreement and in the arena of private law and not public law.’ Mr. Singh submits that he has (now on 9 October 2002) filed an Amended Statement of Claim in which paragraphs 9 and 10 of the Statement of Claim are deleted. He said that as the Statement of Defence has not been filed, no leave is necessary to file Amended Statement of Claim.

In this case the issue before the Tribunal was whether the summary dismissal of the plaintiff was unreasonable, unjust and unfair. The Arbitrator heard evidence on the issue and came to a decision. Now, the plaintiff is claiming in the writ in this action that her termination was wrongful She wants the Court to adjudicate on the legality and fairness of the termination when the very issue was before the Arbitrator and he has given his award against the plaintiff.

The question now arises as to what is her remedy against the Award of the Arbitrator. Is it to challenge the Award by judicial review or to issue Writ of Summons as she has done?

It is the defendant’s submission that it is an abuse of process for the plaintiff to relitigate the identical question which has already been decided against her even though the matter is not strictly res judicata.

On ‘abuse of process’ the following passage from Halsbury’s Laws of England 4th Ed. Vol. 37 para 434 is apt:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.

In the light of the above passage, the actions of the plaintiff in instituting the action by writ of summons is an abuse of the process of the Court.

I agree with Mr. Nagin’s submission that the decision of the Permanent Arbitrator can only be challenged by way of Judicial Review and not by way of writ of summons as the plaintiff has done in this case.

The Arbitrator in this case was performing a public duty. To challenge the decision of the Arbitrator the plaintiff should have proceeded by way of judicial review. The plaintiff’s Union took up her case for the sole purpose of ascertaining whether her dismissal by her employer was fair and reasonable or not.

The very issue before the Court was dealt with by me in Joeli Naitei and 1. The Public Service Commission 2. The Attorney-General of Fiji (Civil Action No. 256 of 2000 – judgment 7.8.01). In determining the issue I shall adopt the same reasoning as in that case and for ease of reference and for completeness I set out the same authorities at the risk of being lengthy.

Here the plaintiff is seeking to enforce a public right on the performance by the Arbitrator of a public duty. Hence the decision is susceptible to judicial review. It is different if there is a contract between the aggrieved person and the public body, and in this regard it is worth noting the following passage from the book The Applicant’s Guide to Judicial Review by Lee Bridges and Others at p.5:

“However, if there is a contract between the aggrieved person and the public body then it is likely that any actions or decisions the body makes in relation to that person be governed by private law rather than public law. The individual will not therefore be able to challenge them by judicial review: his or her remedy will be to sue for damages (and/or a declaration or injunction) in an ordinary civil court or tribunal”. (emphasis added)

In this case there is no contract between the plaintiff and the defendant and hence no question of private law arises. The “question will depend to an extent on the kind of body to be challenged and more so on the functions they are exercising in the particular case” (Bridges, ibid at p6).

The following extract from the judgment in O’Reilly v Mackman (1983) 2 A.C. 237 is pertinent:

“That since all the remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule it would be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a pubic authority’s infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in each case the only claim made by the plaintiff was for a declaration that the board of visitors’ adjudication against the plaintiff was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals”.

Under Order 53 where the plaintiff wrongfully brings his claim by way of judicial review, the court has power to order that that claim be continued as though it had been commenced by writ. But where the claim is wrongly commenced by writ or originating summons as in this case, the Court has no power to convert it into a claim for judicial review. As stated by Henry J in Doyle and Others v Northumbria Probation Committee (1991) 1 W.L.R. 1340 at 1344:

“And if the plaintiffs were now to bring a free-standing application for judicial review, their delay has been such that I would find it difficult to envisage the court granting leave to them to apply for such judicial review. Therefore it seems to me that if the defendant committee succeeds in the application that it is making, that will be end of the plaintiffs’ claim.”

I have considered the legal arguments put forward by the learned counsel for the plaintiff. She has raised certain points. The main hurdle that the plaintiff has to get over is whether the writ of summons is the correct mode of proceeding with her grievance. As I have said, for the above reasons, the plaintiff has adopted the wrong mode, in other words she should have proceeded by way of judicial review. There is abundance of authority on the subject and I have dealt with it at length in Ram Prasad s/o Ram Rattan and the Attorney-General of Fiji (Civil Action No. 311/92) which was upheld by the Court of Appeal which also dealt with the issues at some length. [Ram Prasad f/n Ram Rattan v The Attorney-General of Fiji, Civil Appeal No. ABU0058 of 1997S – Judgment 27.8.99].

Having decided that this was not the correct mode, I conclude with the following passage from the judgment in Moroccan Workers Association v Attorney-General (1995) 1 Law Reports of the Commonwealth 451 (SC) vide Commonwealth Law Bulletin July 1995 p747 –749.

“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 court.”

In this case judicial review was the procedure under Order 53 of The High Court Rules. The ratio of O’Reilly as found in Lord Diplock’s speech at p.285 was extended to Cocks v Thanet District Council (1983) 2 A.C. 286. There the action was commenced by writ and “it was stopped in that course, in that it was struck out as an abuse of the process of the Court in the House of Lords”.

In the outcome in the light of the many authorities on the issue before me and in view of the decision that I have reached as to the form the proceedings should take in matters of the nature before the Court I will allow the procedural objection raised by the defendant.

Before departing from this subject of distinction between private law and public law, it is accepted that Ram Prasad, a decision of the Court of Appeal, is authority for the decision in this case. A number of other cases in the High Court have been struck out for the reasons stated in Ram Prasad. Some of the cases are:

Jimione Buwawa v The Permanent Secretary for Education and Others (Suva High Court Judicial Review No. HBJ0019 of 1997, 22 July 1997, Pathik J) – dismissing an originating summons; Fiji Public Service Association v Civil Aviation Authority of Fiji & Others, (Lautoka High Court Judicial Review No. HBJ0015 of 1998 – 30 November 1998 – Madraiwiwi J); Eroni Waqaitanoa v The Commissioner of Prisons & Others, (Suva High Court Civil Action No. HBC0271 of 2000 – 7.9.2000 – Scott J); Shakuntala Nair v The Secretary, Public Service Commission & Another. (Suva High Court Civil Action No. HBC0359 of 2000 – 28.5.2001 – Scott J). For completeness I would mention that Bryne J was inclined towards a different view from his brother Judges in the Fiji Teachers Union v The Permanent Secretary for Education & Another (Suva High Court Civil Action No. HBC0021 of 1997, 21.7.98) after referring to an extract from Administrative Law by Wade and Forsyth and relying on Doyle (supra) and British Steel plc. v Customs and Excise Commissioners (1997) 2 All E.R. 366. However, His Lordship’s decision predates Ram Prasad.

For these reasons I declare that the plaintiff is not entitled to continue with his Writ of Summons or seek the relief sought by her otherwise than by application for judicial review if she is still able to do so under Order 53 of The High Court Rules. It is for her counsel to decide what course the plaintiff should take to pursue her grievance. However, I will leave the subject on this point with the following observation by the Appeal Court in Ram Prasad (supra) at p.11 for counsel’s consideration.

“As the Judge pointed out, the appellant can apply under Order 53 of the High Court Rules for leave to bring an application for judicial review. In the normal course, such a long delay from 15 January 1972, when the appellant was dismissed, would be fatal to any application for leave. However, 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. But we emphasize that on that issue we are expressing no concluded view. 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”. 

In the outcome, the defendant’s application to strike out the writ of summons is allowed with costs in the sum of $200.00.

D. Pathik
Judge

At Suva
30 May 2003