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Tudrau v Chief Executive Officer of Fijian Affairs Board [2010] FJHC 271; HBC294.2009 (26 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 294 OF 2009

BETWEEN:

JOELI TUDRAU
FIRST PLAINTIFF

AND:

TIMOCI UKUVAKALOA
SECOND PLAINTIFF

AND:

THE CHIEF EXECUTIVE OFFICER OF
FIJIAN AFFAIRS BOARD
FIRST DEFENDANT

AND:

PERMANENT SECRETARY OF MINISTRY OF INDIGENOUS AFFAIRS
SECOND DEFENDANT

AND:

SETOKI SEREVI
THIRD DEFENDANT

AND :

REWA PROVINCIAL COUNCIL
FOURTH DEFENDANT

AND:

THE FIJIAN AFFAIRS BOARD
FIFTH DEFENDANT

AND:

THE ATTORNEY-GENERAL
SIXTH DEFENDANT

Ms M Ligabalavu for Plaintiffs
Ms K Vuibau with Ms V Tuimanu for Defendants

DECISION

This is an application by the Defendants for an order that the Plaintiffs’ Originating Summons be struck out on the grounds that it discloses no reasonable cause of action and is otherwise an abuse of process of the Court.

The application was by summons filed on 29 September 2009. The application was supported by an affidavit sworn by Ajay Singh on 29 September 2009 and filed herein.

The Plaintiffs filed an answering affidavit sworn by Nimilote Lua on 23 October 2009.

The application was made pursuant to Order 18 Rule 18 of the High Court Rules and the inherent jurisdiction of the Court.

The Originating Summons was filed on 10 September 2009 and was supported by an affidavit sworn by Joeli Tudrau on 3 September 2009 and filed herein.

The Originating Summons seeks three Declarations concerning the termination of Joeli Tudrau as Turaga ni Koro of Nakorovou Village, Dreketi, Rewa by the Permanent Secretary of the Ministry for Indigenous Affairs. The termination was effected by letter dated 6 August 2009.

The Plaintiffs claim that the First Plaintiff was denied natural justice and that the termination was contrary to the provisions of the Fijian Affairs (Tikina and Village Councils) Regulations 1996 (the Regulations).

The Plaintiffs also seek an order that payment of the allowance due to the First Plaintiff as Turaga ni Koro be re-instated from December 2008 and continue for as long as he remains Turaga ni Koro.

In the Plaintiffs’ affidavit filed with the Originating Summons, the designation and appointment of each of the six Defendants is clearly set out. All six Defendants are public office holders as defined in section 2 of the State Services Decree 2009 which came into effect on 10 April 2009. The definition of "public office" in the Decree is substantially the same as the definition of "public office" that was set out in section 194 of the 1997 Constitution.

Although that affidavit refers to events that occurred in 2008, the central issue is the letter dated 6 August 2009. The letter was personally served on the First Plaintiff by officials from the Fijian Affairs Board on 7 August 2009. It was in the Fijian language and an English translation was also annexed to the Affidavit in support. The letter contained this essential paragraph:

"This decision has been conveyed to the Chairman of the Tikina Council of Dreketi that your appointment has been terminated and that you have been replaced as Turaga ni Koro of Nakorovou by Setoki Serevi."

The letter makes it clear that the First Plaintiff’s appointment as Turaga ni Koro was being terminated because his appointment was not made according to law and as a result the appointment lapsed. As a result payment of the allowance had been discontinued.

The question raised by the application is whether the Permanent Secretary for Fijian Affairs (i.e. Indigenous Affairs) was a public officer purporting to perform a public duty or function when he wrote the letter informing the First Plaintiff that his appointment as Turaga ni Koro had been terminated.

The thrust of the Defendants’ submission was that the purported termination of the First Plaintiff’s appointment as Turaga ni Koro was a public law matter. It was a public law matter because it arose as a result of the purported exercise of a statutory function and not as a result of any contractual right to dismiss summarily or with notice or payment in lieu of notice.

The Defendants then submit that because the claim raises a matter of public law the correct procedure for commencing the proceedings is an application for judicial review under Order 53 of the High Court Rules.

The test for determining whether a particular grievance falls under public law, was conveniently summarised in the headnote to the English Court of Appeal decision in R v. Panel on Take-overs and Mergers, ex parte Datafin plc and another [1986] EWCA Civ 8; [1987] 1 All ER 564.

The Court of Appeal held 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 policies and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication was a public duty and the body was exercising public law functions the Court had jurisdiction to entertain an application for judicial review of that body’s decision."

The Fiji Court of Appeal has expressed a similar view in Ram Prasad –v- The Attorney-General of Fiji (unreported civil appeal No. 58 of 1997 delivered 27 August 1999).

In this case the Plaintiffs claim that the Second Defendant has purported to exercise a public law function by informing the First Plaintiff that his appointment as Turaga ni Koro had been terminated when there was no duty or power given to him to do so. In other words the complaint is that the Second Defendant acted ultra vires or beyond his jurisdiction. This is one of the well established grounds for challenging a public law-maker’s decision.

I am therefore satisfied that the First Plaintiff’s grievance is a public law matter and since it does not arise under contract it should be pursued by way of judicial review.

Counsel for the Plaintiffs submitted that in view of the relief sought, it was in order to commence proceedings by Originating Summons. Counsel relied on Order 5 Rule 1. However the general enabling nature of that Rule is limited by the expression "subject to the provisions of these Rules". This means that if the Rules make express provision for the commencement of certain types of claims by a specific procedure, then the generality of Order 5 Rule 1 is displaced.

Counsel for the Plaintiffs also submitted that Order 5 Rule 4 (2) (b) enabled the proceedings to be commenced by Originating Summons. However whether there is unlikely to be any substantial dispute of fact is not the only matter that determines by which mode proceedings should be commenced. The options under Order 5 Rule 4 are only available where the Rules have not prescribed a specific mode for commencing a particular type of claim.

The existence of Order 53 being the procedure for commencing a judicial review application precludes the Plaintiffs from availing themselves of Order 5 Rules 1 and 4.

The Plaintiffs also submitted that by filing an answering affidavit to the First Plaintiff’s affidavit, the Defendants are now estopped from complaining about the wrong procedure. However it should be noted that under Order 18 Rule 18, the Court may make such an order at any stage of the proceedings. The accepted view is that the application should normally be made promptly and generally before the close of pleadings.

In this case the Acknowledgment of Service of the Originating Summons was filed by the Defendants on 28 September 2009, although the documents were served on all Defendants between 15 and 17 September 2009.

The Summons seeking the striking out orders was filed on 28 September 2009.

The time gap between service and filing for striking out was only some thirteen days. Allowing for instructions to be obtained from six named Defendants, it could reasonably be argued that the application was made promptly.

It should be noted that in any event the Defendants’ answering affidavit was filed some time after the summons to strike out had been filed.

I have concluded that as the First Plaintiff’s grievance gives rise to a public law matter, the correct procedure for pursuing a remedy is by way of judicial review.

Under Order 53 Rule 8 (5) the Court has power to allow a claim to continue as though it had been commenced by Writ in cases when the plaintiff has wrongly brought his claim in the form of an application for judicial review. However, there is no converse power under the High Court Rules to permit proceedings commenced by Originating Summons to continue as if an application for judicial review. This amounts to an abuse of the process of the Court and the proceedings must be struck out. The proceedings must be re-commenced by an application for judicial review. (See O’Reilly v. Maikman [1983] UKHL 1; [1983] 2 AC 237).

The Second Plaintiff makes no claim against the Defendants. As a result the Defendants’ application to strike out the Originating Summons is allowed with costs of the application fixed in the sum of $400.00.

W D Calanchini
JUDGE

At Suva
26 February 2010