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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0106D OF 2005S
BETWEEN:
GANESH CHAND
PLAINTIFF
AND:
REGISTRAR OF TRADE UNIONS
1ST DEFENDANT
ATTORNEY-GENERAL OF FIJI
2ND DEFENDANT
FIJI BANK & FINANCE SECTOR EMPLOYEES’ UNION
3RD DEFENDANT
DEVENDRA DASS
4TH DEFENDANT
PRAMOD RAE
5TH DEFENDANT
Plaintiff: In Person
Counsel for the 1st & 2nd Defendants: Ms M. Lord: Attorney-General’s Chambers
Counsel for the 3rd & 4th & 5th Defendants: V. Kapadia: Sherani & Co.
Date of Decision: 11 November, 2005
Time of Decision: 9.30 a.m.
DECISION
This is the 1st and 2nd Defendants’ Summons to strike out the Plaintiff’s Writ action pursuant to Order 18 rule 18 (1) (a) and (d) of the High Court Rules namely, that it discloses no reasonable cause of action, and is otherwise an abuse of the process of the Court.
The facts of the case can be summarised as follows! The Plaintiff was a candidate for the post of National Secretary of the Fiji Bank and the Finance Sector Employees Union, the 3rd Defendant, in the Union’s 2004 election. The Returning Officer for the election was the 4th Defendant who is a member of the relevant Union. On 23 February 2004, the Returning Officer, pursuant to regulation 10A of the Trade Union (Amendment) Regulations 1991, notified the Registrar of Trade Unions, the 1st Defendant, of the Union’s intention to hold the ballot for the vacant post of National Secretary. The balloting process began, according to the evidence provided by the Plaintiff on 3 March, 2004.
After the counting of ballot papers on 20 March, the 5th Defendant was declared the winner.
On 14 March 2005 the Plaintiff filed a Writ against all the Defendants alleging that the election was unfair and undemocratic and in breach of the Trade Unions Act Regulations, and the Union’s Constitution.
The details of the breaches are set out in the Writ but can be summarised as follows:
The reliefs sought by the Plaintiff are as follows:
“ (a) A DECLARATION that the election processes were contrary to law, and/or in breach of the principles of conducting free, fair and democratic elections.
(b) A DECLARATION that the conduct of the 3rd, 4th and 5th Defendants breached the legitimate right and/or expectation of the Plaintiff to a copy of the voter roll for election.
(c) A DECLARATION that the election for the post of National Secretary of the Fiji Bank and Finance Sector Union held in February/March 2004 as null and void.
(d) AN ORDER for the Defendant to resist from breaching the provisions of Trade Union Act and Regulations.
Defendants’ Arguments
The 1st and 2nd Defendants base their application to strike out the Plaintiff’s Statement of Claim on the ground that the 1st Defendant’s actions being challenged are in the exercise of his public legal duties under the Trade Union Regulations (Amendment) Regulations of 1991and the Trade Union Regulations. As such, the action ought to have begun under Order 53 as a judicial review. In support of the application, the 3rd, 4th and 5th Defendants argue that the Plaintiff’s challenge of the 1st Defendant’s decision can only be catergorised as raising public law issues and accordingly it is an abuse of the process of the Court for him to proceed by way of an ordinary action.
All the Defendants referred to the leading case of O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237. In that case, the four Plaintiffs were prisoners and were charged with disciplinary offences before the Board of Visitors to the Prison. The Board held an inquiry and found the Plaintiffs guilty of the charges and imposed penalties on each of them. Three of the Plaintiffs brought Writ action in the Queen’s Division of the High Court against the Board alleging that it had acted in breach of the Prison Rules and the rules of natural justice. They sought a declaration from the Court claiming that the Board’s finding and penalties were void and of no effect. The fourth Plaintiff proceeded by Originating Summons in the Chancery Division against the Home Office and the Board alleging bias. He also sought a declaration that the Board’s adjudication was void for want of natural justice. The Defendants applied to strike out the proceedings. The Court of Appeal struck out the proceedings on the ground that they were an abuse of the process of the Court. The Court held that the only proper remedy was by way of judicial review.
On the Plaintiffs’ appeal to the House of Lords, the Court (quoting from the head notes):
“Held, dismissing the appeals, 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 public authority’s infringement of “his public law rights to seek redress by ordinary action and that accordingly, since in each case the only claim 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 the statutory tribunals.”
Lord Diplock stated, at p. 285 that
“ . . . 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.”
The House of Lords in Cocks v Thanet District Council [1983] 2 AC 286 developed the principle further by stating that not only would it be contrary to public policy and an abuse of process to allow a person to proceed by way of an ordinary action in order to establish that a public authority’s decision had infringed rights entitled to protection under public law, but also that such general rule applied in circumstances where the Plaintiff was obliged to impugn a public authority’s determination as a condition precedent to enforcing a private law right.
In this case, the Defendants argue that the Registrar of Trade Unions decision under the Trade Union Regulation is being challenged. The Registrar is a public official and the Plaintiff is claiming an infringement of his public law right. The facts of this case fall squarely under the general rule of Mackman and Cocks.
Counsel for the Defendants also referred the Court to our own Court of Appeal decisions in Praveen Prakash Palani v FEA Civil Appeal ABU0028 of 1996; Ram Prasad v. Attorney-General Civil Appeal ABU0058 of 1997 as well as the High Court judgments in Jimione Buwawa v. PS Education CA 0019.1997; Shakuntala Nair v. Secretary, PSC CA 0359.2000; and Eroni Waqaitanoa v. Commissioner of Prisons HBC0271.2002 all of which have adopted the principle laid down in Mackman.
The 3rd, 4th and 5th Defendants then referred the Court to an earlier action Faiyaz Ali v. Fiji Bank and Finance Sector Employees Union & Ors CA 0088.2004 on the same issue of the same election of the National Secretary of the Union. The action was brought by Faiyaz Ali, a member of the Union. Later, the Plaintiff in this action made a joinder of action application to join as the second Plaintiff. The Court notes that the application was refused and the action was nonsuited by consent. Winter J in observing that the truly aggrieved party in that proceedings and specifically in the election was Ganesh Chand, not Faiyaz Ali, noted at page 3 of his Trial Minutes that:
“The Pleadings are defective in a number of respect. They follow a general narrative form rather than a bare statement of allegation. There is no clear cause of action. The prayer for relief apart from an unsupported claim for damages seeks declarations and order undoing the democratic process. The pleadings and prayer appear more like a set of judicial review proceedings than anything else. They have not been brought as such.”
This, Counsel contends, lends further support to the Defendants argument that the only appropriate remedy for the Plaintiff is by judicial review.
Finally the Counsel for the 3rd, 4th and 5th Defendants submitted that the 1st Defendant, in giving evidence at the Faiyaz Ali hearing had made plain that while his office had not, from their initial report on the election, found any irregularities, he had been prevented from making a final decision by the Plaintiff’s Court proceedings. This is borne out by the facts of the case. The counting of the ballots on 20 March 2004, was in fact preceded by the Plaintiff’s action which was filed on 14 March, 2004. The declaratory reliefs sought by the Plaintiff were in effect pre-empting the final decision of the 1st Defendant which, up to now is still to be made. What the Plaintiff ought to have done is seek an order for mandamus to compel the 1st Defendant to perform his public duty, which in this case making a decision on the legality or otherwise of the election.
Plaintiff’s Arguments
In response to the Defendants’ argument that judicial review was the appropriate remedy, the Plaintiff submits that his action is not only against a public official in the exercise of his public duties, but equally against 3 others who were not public officials. In the latter case, he is, the Plaintiff contends, exercising his private rights although linked to the public law issues for which the 1st Defendant is being challenged.
There is nothing according to the Plaintiff, to prevent the exercise of private rights against a public body or official if there
is a mixture of public law and private law issues involved. In support, the Plaintiff referred to the House of Lords decision in
Roy v. Kensington and Chelsea Family Health Practitioner Committee [1991] UKHL 8; [1992] 1 AC 624, which held that where a person asserts a private law right whether by way of claim or defence, he could still proceed by an ordinary
private law proceedings notwithstanding that the proceeding might also involve the examination of a public law issue. O’Reilly v. Mackman, while remains the authority for the “procedural exclusivity” principle, is distinguished on the ground that there were no private law rights in issue.
The Plaintiff, quoted extensively from Lord Slynn of Hadley’s judgment in Steed v. Home Office, (House of Lords) of 18 May 2000 on the development of the law since O’Reilly v. Mackman, recognising the Court’s growing acceptance of the proposition that a claim for private rights could be made by action even
if it involved the action of a public body acting under statute. In Fiji, the Plaintiff specifically referred to Fatiaki J’s
(as he then was) decision in Gopal v. Attorney-General of Fiji (6 November 1992) Unreported, as representing the applicable law. In that case, the Court adopted Lord Diplock’s speech in
C.C.S.U. v. Minister for Civil Service (1985) 1 AC 374 stating, at p. 409:
“For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration, by agreement between private parties to make decision) that if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned... The ultimate source of the decision-making power is really always nowadays a statute or subordinate legislation made under a statute.”
The Court observed that the mere fact that there exists a more appropriate procedure to an applicant does not preclude or exclude from him “the availability of other albeit less appropriate form of action.”
Fatiaki J continued,
“As was trenchantly observed by Lord Wilberforce in Davy V. Spelthorne Borough Council (1984) 2 AC 262, at p. 271,
“Before the expression “public law” can be used to deny a subject a right of action in the Court of his choice it must be related to a positive prescription of law, by statute or statutory rules. We have not yet reached the point at which mere characterisations of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary Courts: to permit this would be to create a dual system of law with the rigidity and procedural hardship for plaintiffs....”
The Plaintiff also referred to other authoritative publications that all support his argument that the decision of a public body can be challenged by means of private law procedure whenever there is a private right involved. In this case, his choice of challenging the action of the Registrar of Trade Unions by a Writ of action is permissible in law.
Evaluation
The general principle of law enunciated by Lord Diplock in the decision of the House of Lords in O’Reilly v. Mackman remains the recognised authority for striking out actions that ought to have begun under Order 53 on the ground that it is an abuse of Court process. But even Lord Diplock himself conceded that there would be exceptions to the general rule, giving two examples namely, where the invalidity of a decision arises as a collateral issue in a claim for an infringement of a right under private law, and where none of the parties object to the use of the ordinary action.
What constitutes private law and public law, where the former regulates the affairs of subjects as between themselves and the latter which regulates the affairs of the subjects vis-à-vis public authorities, and all with their own special remedies, are not as clear cut as they used to be. Where private rights and public law issues are linked difficulties arise as to what the most appropriate remedy should be. Emergent case law, cited by the parties, only tends to show that certain propositions hold true as exceptions to, or refinements of, Lord Diplock’s statement of law. For example, a peripheral public element will not suffice if the case is concerned with the enforcement of rights at common law (see: Davy v. Spethorne Borough Council [1983] UKHL 3; (1984) AC 262). Or, a Defendant to an ordinary action may in his defence, challenge a public authority’s decision instead of filing a separate judicial review proceedings where such defence is based on existing actionable rights (see: Wandworth L.B.C. v. Winder [1984] 3 WLR 1254).
The case law since Mackman has established, as a general rule first, the proposition that the more a case involves actionable rights, the less the Court will categorise it as suitable for the judicial review machinery; and second, that the absence of common law remedy makes it more likely that the case will be categorised as one involving public law.
In this case, the Plaintiff is asserting that the public body namely, the office of the Registrar of the Trade Union and its representative, the Registrar had breached its legal duties in not ensuring that the process of the election of the National Secretary of the Union was carried out in accordance with the law. Further, in not acting in accordance with the law, the 1st Defendant had deprived him the Plaintiff of enforcing his private law rights against the 3rd, 4th and 5th Defendants.
The difficulty I suggest the Plaintiff confronts in his action against the 1st Defendant, whether be its in his present Writ action or even in a claim for judicial review, is identifying the decision or decisions made by the 1st Defendant and upon which the action is based. Paragraph 21 of the Plaintiff’s Statement of Claim contains in a nutshell the breaches alleged to have been committed by the 1st Defendant. They in the main, accuse the Registrar for negligence in the performance of his public duties under the Regulations, and bias and abuse of his powers in carrying out his legal responsibilities. It is true that the Registrar has a supervisory function in the process of elections of trade union officials. The 1st Defendant and his officers' role and responsibilities are set out clearly in the Regulations. It is proper that any complaints of breaches of law and procedures in the conduct of elections be brought to the attention of the 1st Defendant. This the Plaintiff has done. But the 1st Defendant has yet to respond to the Plaintiff’s complaints. Neither has he made a final decision on the result of the election. Under the circumstances, I believe it highly improper and procedurally flawed to seek the Court’s intervention, be it by Writ or through judicial review procedure, to entertain an action such as this against a public body, whose final decision is yet to be made. It is premature and at the very least, pre-empts the decision to be made.
The Plaintiff’s action against the 3rd, 4th and 5th Defendants are equally based on mal-administration of the election process and breaches of the Regulations and the Constitution of the Union. As the Court stated above, the 1st Defendant has the responsibilities to ensure that all the participants to the election comply with the law. Again the final decision of whether the election of the National Secretary of the Union had been properly carried out remains to be made by the 1st Defendant. Until such decision is made, the Plaintiff do not have any substance to a cause of action. It is the 1st Defendant’s determination of the election result which gives rise to any private law rights he may wish to enforce against the 3rd, 4th and 5th Defendants. As the Court observed in Cocks v. Thanet District Council (supra) the Plaintiff is obliged to impugn a public body’s determination as a condition precedent to enforcing a private law right. In this instance, the determination or the decision is yet to be made. It is for the Plaintiff if he so wishes, to seek an order of mandamus compelling the Registrar to decide on the validity or otherwise of the election.
This brings me back finally to the question of whether the Plaintiff’s action ought to have begun by judicial review. By all accounts I am satisfied that on the facts of this case, the appropriate and only remedy available to the Plaintiff is application for judicial review. The action by the Plaintiff would be to challenge the decision of the Registrar of Trade Unions, when it is made, and, if it is a decision that would infringe the rights he was entitled to protection under public law. The decision is whether the election of the National Secretary of the Fiji Bank and Finance Sector Employees Union held in March 2004 had been conducted in accordance with the Regulations under the Trade Unions Act, the Constitution of the Union, and the established election procedures and practices. The alleged breaches identified by the Plaintiff, including those alleged against the 3rd, 4th and 5th Defendants are either relevant or irrelevant matters under the Wednesbury rule, that the Registrar may consider in his determination. In all of these the 1st Defendant is acting very much in the public domain performing public duty, notwithstanding that some of the actions that impinge on his decisions are those of private individuals and organisations. The test as set down in R v. Panel in Take-overs and Mergers, ex P Datafin [1986] EWCA Civ 8; [1987] 1 All ER 564 is satisfied.
There is another reason why the Plaintiff may only proceed by judicial review in this case. It is contained in the second limb of Lord Diplock’s quoted statement in O’Reilly v. Mackman, asserting that ordinary action to challenge the decision of a public authority may be seen as a means of evading the provisions of Order 53 and specifically the protection incorporated into the judicial review procedure for the benefit of public authorities. For example, Order 53 r. 3 (1) requiring an Applicant to obtain leave of the Court, is intended to filter out unmeritorious or frivolous claims. Under Order 53 r. 4 (1) sets a short time limit for applying for judicial review illustrating the need for speedy resolution which in turns protects the public interest in ensuing that public bodies and others are not kept in suspense as to the validity of the decision. There are in addition specific rules as to discovery and disclosure. These then are what maybe described as public policy reasons that provide the rationale for the sustaining of the judicial review exclusivity argument in challenges against decisions of public bodies.
Conclusion
In this case, I am of the opinion that the Plaintiff’s claim could only be brought under the procedure of judicial review. However such an action can only begin following the final determination by the Registrar of Trade Unions on the result of the 2004 election. Until that determination, any proceedings by the Plaintiff against the 1st Defendant would in my view, be wholly inappropriate and an abuse of the process of the Court.
For reasons above, I would allow the 1st and 2nd Defendants’ Summons and Order that the Plaintiff’s Statement of Claim be Struck Out.
I award costs against the Plaintiff which I summarily fix at $100.00 to each of the Defendants.
F. Jitoko
JUDGE
At Suva
11 November, 2005
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