IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0359 OF 2004

BETWEEN:

LALIT PRITAM SINGH
1ST PLAINTIFF

SUGAR MILLING STAFF OFFICERS’ ASSOCIATION
2ND PLAINTIFF

AND:

FIJI SUGAR CORPORATION LIMITED
DEFENDANT

Mr Bosewaqa for the Plaintiffs
Mr Hanif for the Defendant

Date of Hearing:	12 July 2005
Date of Judgment:	12 July 2005

ORAL JUDGMENT OF FINNIGAN J

The Plaintiff has filed an Originating Motion [24 November 2004] and the Defendant has filed a summons for an order to strike it out [17 January 2005]. The 1st Plaintiff is seeking remedies for his dismissal from employment by the Defendant.

In their motion the Plaintiffs seek five declarations to the effect that the labour practice of the Defendant is contrary to Article 33 (3) of the Constitution of Fiji and that the Defendant breached the right to life of the 1st Plaintiff guaranteed by Article 22, by depriving him of his means of livelihood by unfair labour practice contrary to Article 33(3). He seeks also 3 mandatory injunctions to remedy his grievance. He seeks also general penal and aggravated damages. The Defendant seeks an order striking out that motion as disclosing no cause of action upon the grounds that Articles 22 and 33(3) of the Constitution do not apply to private persons in their relationships between each other. 

I have had full written submissions in advance and was able to consider them before the hearing. I have had brief oral submissions today. 

It is my considered opinion that the law provides to the Plaintiff a protective network of statutory and common law provisions and principles by which his employment was and is to be governed. It is to that network that he must have recourse for a remedy for his claimed wrongful dismissal. Remedies are provided there for him. The only constitutional challenge which he can mount is a challenge to a statute or common law principle within that network as being not compliant with Articles 22 and 33(3) of the Constitution.

From among the authorities cited to me by the Plaintiff I draw his attention to Castlemaine Tooheys Ltd –v- South Australia (1986) 161 CLR 148. From the opening words of the judgment of Mason ACJ one can see that the action was brought against officials who were taking action under certain legislation. In the action the Plaintiffs “seek declarations of invalidity of the provisions already mentioned, as well as other provisions in the legislation, including certain regulations, and notice under Section 5b(2) of the 1986 amending Act on the ground that they contravened S.92 of the Constitution.

There the Plaintiffs sought to attack the actions of the officials but did so by challenging the legislation under which the officials acted, claiming that the legislation was bad because it did not comply with the Australian Constitution. They did not challenge the actions of the officers directly. They were trying to have the law which allowed them to take those actions declared invalid. The Plaintiffs did not directly seek to have the actions of the officials declared unconstitutional, as they have here.

I turn to another authority cited by the Plaintiff NBF Asset Management Bank –v- Tuimasi Lutu aka Samisoni Tuibale Civil Action No 146 of 2002. I cite parts of the passage upon which Counsel relied; 

“An abuse of the process of the Court arises …….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”.

Finally, I turn to an authority relied on more by the Defendant Central Manufacturing Company Ltd –v- Yashni Kent Civil Appeal No. CBV0010 of 2002, Judgment 24 October 2003 [Supreme Court of Fiji]. In that case the Supreme Court, making a final determination of Law for Fiji, struck down a common law principle which had previously restricted a right to damages after wrongful dismissal, because it could no longer co-exist with Section 33(3) of the Constitutional Fiji. It was the common law principle that was declared unconstitutional. That has little impact on the Plaintiff’s grievance in the present case.

Therefore I hold that if the Plaintiff wishes to litigate his constitutional rights, he must do so in the context of the relevant provisions of the Employment Act and/or of some common law principle(s) under which the employer claims to have been entitled to act in dismissing him, and under which he is provided with a remedy.

I have considered converting this action into an action commenced by writ but, particularly after hearing Counsel, am satisfied that would achieve nothing. The Plaintiff needs to conceive an entirely new cause of action and seek different remedies. 

I make the following orders;

1.	On the Defendant’s interlocutory summons filed on 17 January 2005 there is an order striking out the Plaintiff’s originating motion filed on 24 November 2004. The whole action is hereby dismissed.

2.	The injunction made thereon on 24 November 2004 is to be discharged. The discharge will become effective at 4.00pm on Wednesday 20 July 2005.

3.	The Defendant has a liberty to apply for assessment of damages arising from the injunction granted on 24 November 2004, on 7 days’ notice. 

4.	Costs are summarily assessed at $1,500.00, to the Defendant.

D.D. Finnigan
JUDGE

At Lautoka
12 July 2005