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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Action No. HBJ 28 of 2007
IN THE MATTER of an Application by NEW INDIA ASSURANCE COMPANY
LIMITED for a Judicial Review under Order 53 of the High Court Rules of Fiji 1988
AND
IN THE MATTER of the Decision made by the PERMANENT SECRETARY OF LABOUR,
INDUSTRIAL RELATIONS, TOURISM AND ENVIRONMENT
made on or about the 11th day of July 2007 whereby he purported to accept a Trade Dispute reported by
FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
BETWEEN:
THE STATE
AND:
PERMANENT SECRETARY OF LABOUR, INDUSTRIAL
RELATIONS, TOURISM AND ENVIRONMENT
First Respondent
AND:
FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
Second Respondent
AND:
SULOCHANA RAMAN
Third Respondent
EX PARTE:
NEW INDIA ASSURANCE COMPANY LIMITED
Applicant
Coram: Hickie, J
Date of Hearing: 14 August 2008
Appearances: Mr H. Nagin for the Applicant
Ms N. Karan for the First Respondent
Mr R.P. Singh for the Second & Third Respondents
Dr S. Shameem as Amicus Curiae
Date of Decision: 8 October 2008
JUDGMENT
A. THE BACKGROUND
[1] On 11 July 2000, a Collective Agreement was signed between the FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION (the “Second Respondent”) and the NEW INDIA ASSURANCE COMPANY LIMITED (the “Applicant”) which was then registered on 31 July 2000 with the Permanent Secretary for employment and industrial relations. Clause 14 of that Collective Agreement stated: “The employer may at its discretion retire its employees from service upon their reaching fifty-five (55) years of age.”
[2] On 1 June 2007, the Applicant wrote to SULOCHANA RAMAN (the “Third Respondent”) issuing a Retirement Notice in accordance with Clause 14 of the Collective Agreement advising that as the Third Respondent had attained the age of retirement she would be relieved of her services from the Applicant company as at the close of business on 8 June 2007.
[3] On 4 June 2007, the Second Respondent wrote on behalf of the Third Respondent to the Applicant that “she has advised you that she does not wish to retire but to continue being employed in her current position”. Attention was also drawn to the judgment Fiji Human Rights Commission v Suva City Council (Unreported, High Court of Fiji at Suva, Civil File No. HBC0073.2004, 17 November 2006, Coventry J) (PacLII: [2006] FJHC44, http://www.paclii.org/fj/cases/FJHC/2006/44.html)
wherein the Second Respondent alleged that it was held that “any decision to compulsory retire any employee on the grounds of age would constitute discrimination and offend the Constitution of Fiji”. Thus the Second Respondent provided the Applicant with the option of either withdrawing “Mrs Raman’s retirement notice and allowing her to continue in her employment pending discussions and resolution between us” or seeking either “the intervention of the Fiji Human Right Commission” or invoking “the provisions of the Trade Disputes Act for the resolution of this matter.
[4] On 7 June 2007, the Second Respondent wrote to the PERMANENT SECRETARY OF LABOUR, INDUSTRIAL RELATIONS, TOURISM AND ENVIRONMENT(the “First Respondent”) that pursuant to Section 3 of the Trades Disputes Act 1978 [Cap 97], they wished to advise as to the existence of a trade dispute being that a member of their union was being required to compulsory retire and that “the Union views the employer’s action as unfair on the grounds that it is unjust and unreasonable and constitutes unfair discrimination on the grounds of age.”
[5] On 11 July 2007, the First Respondent advised the Second Respondent (with a copy to the Applicant) that he had accepted the report of a trade dispute in accordance section 4 (1)(a) of the Trades Disputes Act and asking both the Second Respondent and Applicant to each recommend an independent person to represent each body respectively on a Disputes Committee.
[6] On 24 July 2007, the Applicant’s solicitors wrote to the First Respondent advising “that our client is of the view that the acceptance of the Trade Dispute ... is not in accordance with the law” and accordingly was seeking to challenge to this decision by way of Judicial Review.
B. THE APPLICATION
[7] An Application for leave to reply for Judicial Review was filed on 28 August 2007 with leave granted by Coventry J on 10 September 2007. The matter then came before the Master on 19 September and 19 November 2007, 1 February and 11 March 2008. It was then listed before me in a general call- over 22 April 2008 whereupon an order was made that the Fiji Human Rights Commission be invited to appear as Amicus Curiae. Submissions were then filed by the Proceedings Commissioner of the Fiji Human Rights Commission with the parties given liberty to file any submissions in response and the matter was listed for hearing on 14 August 2008.
[8] The Grounds upon which the Applicant is seeking relief are, in summary, as follows:
(a) That the Permanent Secretary abused his discretion in that –
(i) He did not take into consideration the following
(ii) That he acted unreasonably and/or arbitrarily
(b) That the Permanent Secretary made the following errors of law –
(i) He misinterpreted the provisions of the Trade Disputes Act and the provisions of the Collective Agreement.
(ii) He failed to properly understand the definition of a trade dispute in the Trades Disputes Act.
(iii) He accepted the trade dispute in contravention of the Trades Disputes Act when there was no allegation of a breach of the collective agreement.
(iv) He failed to accept that a trade dispute cannot be accepted in relation to termination of contract of service in accordance with a Collective Agreement.
(v) The Second Respondent was raising constitutional issues which should be dealt with by the High Court and not under the “Trade Disputes” procedure.
(c) That the Permanent Secretary exceeded his jurisdiction and acted ultra vires the provisions of the Trade Disputes Act when he accepted the trade dispute on 11 July 2007.
(d) That the Permanent Secretary acted contrary to the legitimate expectations of the Applicant in that he failed to reject the report of the trade dispute.
[9] The Applicant filed on 28 August 2007 an Affidavit in support from the Chief Manager of the Applicant company as well as filing on 5 November 2007 two Affidavits in Reply. The Applicant also filed written submissions in support on 2 November 2007 and 4 March 2008.
C. NOTICE OF OPPOSITION AND AFFIDAVITS IN SUPPORT
[10] A Notice of Opposition was filed on behalf of the First Respondent on 12 October 2007 as well as an Affidavit in Support by TEVITA KUNATUBA, Acting Principal Legal Officer appointed as the Acting Manager for Industrial Relations in the Ministry of Labour and Industrial Relations. Written submissions were also filed on 28 January 2008.
[11] An Affidavit by PRAMOD KUMAR RAE, Secretary of the Second Respondent, was filed on behalf of the Second and Third Respondents on 28 September 2007. Written submissions were also filed on 30 November 2007.
[12] The thrust of the case of the three Respondents is that the matter was rightly accepted as a trade dispute. The Second and Third Respondents also submit at paragraph 7 of their Affidavit in Reply that:
“Clause 14 of the Collective Agreement in respect of the retiring age is discriminatory as between those aged 55 years or over and those aged under 55 years in breach of the Constitution of Fiji”.
[13] On 8 July 2008, the Proceedings Commissioner of the Fiji Human Rights Commission filed written submissions in her role as Amicus Curiae raising the following two issues:
“(i) Does the Constitution apply to Collective Agreements in the private sector?
(ii)Must a private company operating in Fiji comply with the Constitution?”
[14] On the first issue to whether the Constitution applies to Collective Agreements in the private sector, the Proceedings Commissioner submitted:
“Therefore, the law in Fiji is that neither a private company nor a person, nor a public official, nor indeed an institution, (in fact, no individual or group), can unfairly discriminate against any (other) person(s), directly or indirectly, on the grounds of (inter alia) age.
It is the duty of institutions and public officers bound by section 21 of the Constitution to ensure that this law is complied with in both public and private sectors, including in the provisions of any Collective Agreement.”
[15] On the second issue as to whether a private company operating in Fiji must comply with the Constitution, the Proceedings Commissioner submitted:
“Any company registered in Fiji must comply with the laws of Fiji. It can also be mentioned that the Trades Disputes Act applies to all employment disputes in Fiji and this therefore binds all private entities to the legal system of Fiji.”
[16] The Proceedings Commissioner, however, made the further important submission:
“Any collective agreement should have been re-negotiated by the employees (union representatives) and the company within the two-year grace period provided for this purpose by section 38 (6) of the Constitution. If the collective agreement unfairly discriminated against an employee on grounds, inter alia, of age, that collective agreement, by law, should have been brought in conformity with the Constitution. Clearly, the 2000 Collective Agreement on this point was not taken through the Constitutional screening process and is inconsistent with the Constitution and therefore invalid to the extent of the inconsistency. There is no compulsory retirement age in Fiji based on age alone.
It should be reiterated with some emphasis that the prohibition on unfair discrimination on grounds of (inter alia) age became a Constitutional provision in 1997. Yet, 10 years or more later, individuals are still bringing cases of unfair discrimination before the courts, mainly because their unions or worker representatives have failed to re-negotiate their Collective Agreements on this point despite the Constitutional provision, section 38 (6). It is the observation of the Fiji Human Rights commission that unions tend to depend on the Human Rights Commission and court judgments rather than their negotiation mandates to protect their members from unfair discrimination of the grounds of age. If unions do not take the opportunity provided by section 38 (6), supported by the Human Rights Commission v Suva City Council [supra] High Court direction to re-negotiate the retirement clauses in Collective Agreements, employers may well argue that the discrimination on the grounds of age in these agreements is ‘fair’ due to the fact that unions have not re-visited retirement clauses with them speedily. Unless unions show that they have attempted to re-negotiate retirement clauses in the agreements with due diligence, the Court may decide that a particular retirement clause is ‘fair’ discrimination because it is presumed that the unions have agreed to such a clause by not making the effort to re-negotiate. This presumption will be in keeping with the equal bargaining position of unions and employers in a free labour market situation. It may be shown by the union that there were mitigating circumstances which prevented it from re-negotiating the retirement clause in the Collective Agreement from the perspective of the Constitution.
The Court may be minded to make an observation as obiter from a public interest perspective that Collective Agreements must be negotiated with the Constitution in mind. Section 33 of the Constitution protects labour relations within which the issue of collective bargaining is noted. The Human Rights Commission’s view is that unless a matter is before the Court, unions must, by now, have re-negotiated retirement clauses in their collective agreements. Paragraph 69 of Coventry J’s ruling in The Proceedings Commissioner, HRC v SCC case is apposite in this regard.”
[17] Thus the Proceedings Commissioner concluded her submission offering the view that:
“1. A private company is bound by section 17 (1) and (3) (b) of the Human Rights Commission Act and section 38 (2) of the Constitution, the Bill of Rights.
2. However, if a union does not re-negotiate a retirement clause with an employer within a reasonable time after the promulgation of the 1997 Constitution (section 38(6) and the determination of the Proceedings Commissioner v the Suva City Council case [supra], it could be said to have considered the clause as ‘fair’ discrimination. The contrary can be shown by way of evidence of attempts to re-negotiate or other action, for example its own proceedings before a Tribunal or Court.”
D. THE LAW
1. What is a ‘trade dispute’?
[18] According to section 2 of the Trade Disputes (Amendment) Act, 1998, section 2 of the 1978 Act was amended as follows:
"’trade dispute’ means any dispute or difference-
(a) between any employer and a registered trade union recognised under the Trade Unions (Recognition) Act (Cap. 96A) and connected with the employment or with the terms of employment or the conditions of labour of any employee ...”
[19] The Applicant has submitted that “a Trade Dispute does not arise when one party says that a provision of the Collective Agreement is unconstitutional” as it ”doesn’t come within the definition of a Trade Dispute”. The Court notes that the Applicant in neither set of their written submissions cited any evidence or case law in support of this ground other than Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997 submitting that the decision of the Permanent Secretary to accept the matter as trade dispute is an arbitrary decision.
[20] The First Respondent in reply has submitted that the “current dispute falls under the ambit of part (a) under the definition if a trade dispute”.
[21] The Second and Third Respondents have cited section 38(2)(a) of the Constitution that a person must not be discriminated against on the ground of their age, as well as the judgment in Proceedings Commissioner, Fiji Human Rights Commission v Suva City Council (supra), to support their submission “that the 1st Respondent rightly accepted a trade dispute and the matter should have been dealt with by the Disputes Committee”.
[22] The Applicant in its Submissions in Reply has argued that as the Applicant adhered to the terms of the Collective Agreement, there has been no breach and thus no trade dispute for the Permanent Secretary to accept. At the hearing of this matter, Counsel for the Applicant cited two cases in support : Permanent Secretary for Labour and Industrial Relations v Air Pacific Ltd (Unreported, Court of Appeal of Fiji Islands, File No.ABU0023 of 2002S, 16 May 2003, Eichelbaum, Gallen and Smellie JJA) (PacLII: [2003] FJCA 19, http://www.paclii.org/fj/cases/FJCA/2003/19.html) on the issue that if a trade dispute has been wrongly accepted the decision of a Disputes Committee it can be quashed by a Court; and Suva City Council Staff Association v Suva City Council (Unreported, Civil File No.HBC0012D of 1998S, 16 January 1998, Pathik J) (PacLII: [1998] FJHC 1, http://www.paclii.org/fj/cases/FJHC/1998/1.html) that parties should be bound by their agreement.
[23] In relation on the issue that if a trade dispute has been wrongly accepted the decision of a Disputes Committee, it can be quashed by a Court, this was not in dispute in the present case. Rather the issue was whether it should have been accepted (as it had been) and which the Applicant was now disputing before this Court before that dispute had been heard by the Disputes Committee.
[24] On the question as to whether parties should be bound by their agreement, Counsel for the Applicant drew the Court’s attention to paragraph 3 of page 6 of the judgment of Pathik J in Suva City Council Staff Association (supra) wherein he asked in granting an injunction to the Staff Association “why have the agreement” if the Council was not going to follow it? It is the Court’s view, however, that the decision of Pathik J does not support the Applicant in the present case. Suva City Council Staff Association was a matter where the Suva City Council had decided to implement salary reductions “unilaterally and without any prior consultation with the [Staff] Association”. The Staff Association sought, and was granted, an interim injunction from the High Court restraining the Council “from making or implementing the salary reduction and changes to leave allowances of the Association members ... until the final decision of the Permanent Arbitrator ... and/or until further order” of the Court. Pathik J granted the interim injunction so that the matter could be fully heard by a Disputes Committee established by the Permanent Arbitrator – a procedure as set out in the Collective Agreement.
[25] Similarly, in the present case, the matter had been accepted as a trade dispute and was about to be referred to a Disputes Committee for hearing. It is also this Court’s view that the definition of what is a “trade dispute” is extremely wide being “any dispute or difference ... connected with the employment or with the terms of employment or the conditions of labour of any employee ...” Surely, even if there is a Collective Agreement in place, a party may argue before the Disputes Committee that its terms are for various reasons no longer reasonable and that is why there is now a trade dispute?
[26] Indeed, if the matter had been allowed to “run its course” as a “Trade Dispute”, it may have been that the Disputes Committee may have come to the conclusion as submitted as a possibility by the Proceedings Commissioner of the Fiji Human Rights Commission in her submissions to this Court. That is, as the Union did not re-negotiate the retirement clause with the employer within a reasonable time after the promulgation of the 1997, it could be said to have considered the clause as ‘fair’ discrimination. This issue, however, was why the matter should have been allowed first to have run its course as a hearing before the Disputes Committee rather than the Applicant seeking Judicial Review before the Disputes Committee had been formed, held a hearing and made its determination. Only AFTER that determination, if a party was dissatisfied, should Judicial Review proceedings have been implemented.
[27] It is the FIRST FINDING of this Court that the matter clearly came within the definition as set out in section 2 of the Trade Disputes (Amendment) Act, 1998, and thus the First Respondent correctly accepted the matter as a Trade Dispute.
2. What is the procedure for settlement of disputes?
[28] It is the Court’s view that the First Respondent by its letter of 11 June 2007 to the Applicant, attempted to invite a response from the Applicant concerning the report of a trade dispute. Further, the First Respondent by its letter of 11 July 2007 to the Third Respondent (a copy of which was sent to the Applicant) advised:
(a) That he had accepted the report of a trade dispute in terms of section 4(1)(a) of the Trade Disputes Act; and
(b) That in terms of section 4(1)(h) he was referring the dispute to a Disputes Committee constituted under section 5A(2) of the Act for a decision and in that regard inviting the union and the employer to each recommend an independent person to represent each body respectively on the Disputes Committee.
[29] It is the SECOND FINDING of this Court that the First Respondent has clearly complied with the procedural requirements as set out in the Trade Disputes Act.
3. Has the First Respondent considered the retirement age clause in the Collective Agreement as ‘fair’ discrimination?
[30] This issue, as raised in the written submissions by the Proceedings Commissioner for the Fiji Human Rights Commission, is that as the First Respondent union has not re-negotiated the retirement clause in the Collective Agreement with the Applicant employer within a reasonable time after the promulgation of the 1997Constitution, then can it be said that the First Respondent has thus considered the retirement clause in the Collective Agreement as “fair” discrimination?
[31] The problem, as also raised in the written submissions by the Proceedings Commissioner for the Fiji Human Rights Commission, is that the Applicant ‘is bound by section 17 (1) and (3) (b) of the Human Rights Commission Act and section 38 (2) of the Constitution’. That is, as with any form of contract, one cannot, as it were, “contract out” of the provisions of the Constitution as the supreme law of the Fiji Islands.
[32] If unions do not re-negotiate such agreements and, as has been observed by the Proceedings Commissioner for the Fiji Human Rights Commission, “tend to depend on the Human Rights Commission and court judgments rather than their negotiation mandates to protect their members from unfair discrimination of the grounds of age”, the solution is not to penalise individual workers (who may then, in turn, need to take separate legal proceedings against their respective union for negligence). Similarly, however, employers should not be penalised (even though surely most would be well aware 10 years on, either directly or through their respective legal advisers, as to the discrimination provisions of the Constitution).
[33] What then is the solution? Both employers and unions should be re-negotiating their respective Collective Agreements (as they are joint agreements). If, however, this is not done it CANNOT be said that a union has thus considered a discriminatory clause in a Collective Agreement as “fair” discrimination as no individual or body can “contract out” of the provisions of the Constitution. Instead, if legal proceedings are brought as a result of a discriminatory clause in a Collective Agreement not having been re-negotiated, then either party may ask the Court to consider awarding costs against the other party (and perhaps even indemnity costs) though this may prove difficult to sustain as a Collective Agreement is a joint agreement, or at least that each party be liable for their respective costs of the action.
[34] It is the THIRD FINDING of this Court that the First Respondent has not by its acquiescence in NOT re-negotiating the retirement age clause in the Collective Agreement, considered such clause to be ‘fair’ discrimination.
4. Other Grounds upon which the Applicant is seeking relief
[35] Returning to the grounds upon which the Applicant is seeking relief, the Court makes the following findings in relation to other issues raised by the Applicant not already covered above, they being:
(a) That the Permanent Secretary abused his discretion in that he did not take into consideration that the Third Respondent as an Assistant Manager of the Applicant was not entitled to be represented by the Second Respondent –
(i) The Court notes that the Applicant in neither set of their written submissions, nor at the hearing, cited any evidence or case law in support of this ground;
(ii) Thus, it is the FOURTH FINDING of this Court that the Third Respondent was clearly entitled to be represented by the Second Respondent and the First Respondent did not abuse his discretion in accepting a trade dispute in which the Third Respondent was being represented by the Second Respondent.
(b) That the Permanent Secretary abused his discretion in that he did not take into consideration that the Second Respondent was raising constitutional issues that should have been dealt with the High Court and not under the “Trade Dispute” procedure –
(i) The Court notes that the Applicant in neither set of their written submissions cited any case law in support of this ground;
(ii) At the hearing, Counsel for the Applicant cited State v Arbitration Tribunal; Ex parte Suva City Council Staff Association (Unreported, Civil File No.HBJ0014 of 1999S, 30 March 2000, Scott J) (PacLII: [2000] FJHC 51, http://www.paclii.org/fj/cases/FJHC/2000/51.html).
That was a matter again involving the Suva City Council which on this occasion had decided to implement staff reductions by invoking a clause of its Collective Agreement with the Union pursuant to which “it gave six months notice of termination of employment to eight of its staff who had by then reached the age of 50.” It was ref as a trade disp dispute to the Arbitration Tribunal who ruled in favour of the Council. It was only on appeal that Counsel for the Union raised “that the Permanent Arbitrator’s award overlooked Section 38 of the Constitution of the Fiji Islands 1997” and specifically section 38(2)(a) that “A person must not be unfairly discriminated against, directly or indirectly on the ground of his or her: (a) ... age ...”. Thus in that case Counsel for the Union argued that the clause of the collective agreement which allowed such discrimination was “unlawful by virtue of Section 38” of the Constitution. Scott J, however, took the view that (pages 3-4):
“The question of section 38 was never specifically placed before the Permanent Arbitrator for his ruling and it seems to me that it is much too late to raise it now in Judicial Review proceedings. The Permanent Arbitraeacheeached a conclusion as to whether the Suva City Council had breached the terms of the collective agreement which was the question before him for decision.&; (My emphasis)
(iii) In the present sent case,sCounsel for the Applicant drew the Court’s attention to the judgment of Scott J in State v Arbitration Tribunal; Ex parte Suva City Council Staff Association in thatt J upheld the Arbitrator&ator’s decision despite section 38 of the Constitution. It is the Court’s view, however, that the decision of Scott J does not support the Applicant’s case. Rather, Scott J dismissed the union’s application for Judicial Review because the conflict between the Collective Agreement and Section 38 of the Constitution “was never specifically placed before the Permanent Arbitrator and ... much too late to raise it now in Judicial Review proceedings” in the High Court.
(iv) Thus, it is the FIFTH FINDING of this Court that the just because a matter raises constitutional issues does not mean that it cannot also be the subject of a trade dispute and thus the First Respondent did not abuse his discretion in accepting a trade dispute in which the Second Respondent was raising constitutional issues.
(c) That the Permanent Secretary acted contrary to the legitimate expectations of the Applicant in that he failed to reject the report of the trade dispute –
(i) The Court notes that the Applicant in neither set of their written submissions, nor at the hearing, cited any case law in support of this ground;
(ii) The Court also notes that there is a difference between a right to procedural fairness and that of a Court declaring that a Defendant has created in a Plaintiff a legitimate expectation: see Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 21; Pacific Transport Ltd v Khan [1997] FJCA 3 (Unreported, Court of Appeal Fiji Islands, ABU0021U of 1996S, 12 February 1997, Thompson, Barker and Dillon JJA) (PacLII: http://www.paclii.org/fj/cases/FJCA/1997/3.html), page 6 endorsing the judgment of Pathik J in Dewa v University of the South Pacific [1996] FJHC 125 (High Court of Fiji, No.HBJ0007J of 1994S, 4 July 1996) (PacLII: http://www.paclii.org/fj/cases/FJHC/1996/125.html; see also a recent detailed judgment on this issue in Cama v Attorney General (Unreported, High Court of Fiji, HBC051 of 2005, 25 July 2008, Hickie J) (PacLII: [2008] FJHC 149, http://www.paclii.org/fj/cases/FJHC/2008/149.html).
(iii) Thus, it is the SIXTH FINDING of this Court that the First Respondent did not act contrary to the legitimate expectations of the Applicant in accepting the report of a trade dispute.
E. CONCLUSION
[36] In view of the six findings made by this Court as set out above, the Motion for Judicial Review is dismissed. Indeed, the Court is of the view that the Application for Leave to Apply for Judicial Review was premature. Instead, the matter should have been allowed to run its course before the Disputes Committee. Only AFTER that determination, if either party was dissatisfied with the outcome, should Judicial Review proceedings have been commenced.
[37] In addition, however, the Applicant employer cannot be solely responsible for the legal costs of this matter (even though it instituted the Judicial Review proceedings). As noted above, the observations made by the Proceedings Commissioner for the Fiji Human Rights Commission are particularly pertinent. The First Respondent union had an obligation as much as the Applicant employer to re-negotiate the retirement age clause in the Collective Agreement rather than wait and "depend on the Human Rights Commission and court judgments". In these circumstances, each party shall be responsible for their respective costs.
[38] Accordingly, the Orders of this Court are as follows:
Thomas V. Hickie
Judge
Solicitors:
Sherani & Co., Barristers & Solicitors, Suva, for the Applicant
AG Chambers, Suva, for the 1st Respondent
Kohli & Singh, Barristers & Solicitors, Suva, for the 2nd & 3rd Respondents
Proceedings Commissioner, Fiji Human Rights Commission as Amicus Curiae
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URL: http://www.paclii.org/fj/cases/FJHC/2008/250.html