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Lal v Chand [2012] FJHC 859; HBC160.2011 (7 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 160 OF 2011

BETWEEN:

RAJESH LAL of Drasa Vitogo, Lautoka, Lecturer at Fiji National University.
PLAINTIFF

AND:

GANESHWAR CHAND aka DR. GANESH CHAND Vice Chancellor / Academic, Fiji National University, Suva, Fiji.
1ST DEFENDANT

AND:

FIJI NATIONAL UNIVERSITY an Educational Institution incorporated under the Higher Education Act, Suva, Fiji.
2ND DEFENDANT

AND:

SISH RAM NARAYAN Saint Giles Psychiatric Hospital, Suva. Doctor.
3RD DEFENDANT

AND:

MINISTRY OF HEALTH Dinem House, 88 Amy Street, Toorak, Suva.
4TH DEFENDANT

Plaintiff in person.
Mr Anu Patel for the 1st and the 2nd defendants
Mr J Lewaravu, State Counsel, for the 3rd and the 4th defendants
Date of Hearing : 09 December 2011

ORDER

1. The plaintiff, by his writ of summons dated 05 October 2011, instituted action seeking inter alia a declaration against the 2nd defendant that the plaintiff's employment was terminated by the 2nd defendant without a lawful excuse or justification. The plaintiff also sought a declaration that such termination was mala fide, unlawful and was in breach of rules of natural justice.
   
2. The plaintiff also sought a declaration against the 3rd defendant on the basis that the 3rd defendant's actions were uncalled for, malicious and disrespectful.
   
3. The plaintiff, accordingly, sought to found claims for damages, both general and aggravated, against the 2nd and the 3rd defendants.
   
4. In his pleas for special damages, he claimed a sum of $ 10, 00,000.00 against the 2nd defendant; and, a sum of $ 150,000.00 against the 1st defendant on alleged bases of unlawful, malicious, disrespectful and derogatory actions. The plaintiff, in addition, sought a sum of $ 150,000.00 against the 3rd defendant, who is a medical practitioner at St. Giles Psychiatric Hospital in Suva under the 4th defendant-Ministry of Health, on alleged grounds of malpractice and negligence.
   
5. The basis of the claims is admittedly founded on the termination of the plaintiff's employment with effect from 01 November 2010 at the 2nd defendant-university. It could be deduced from the statement of claim, as pleaded by the plaintiff, that the termination of his employment was the culmination of an unsavoury relationship that he has had with the 1st defendant. The plaintiff further pleaded that the alleged conduct of the 1st defendant caused him anxiety, depression, sleeplessness and instilled traumatized fear of uncertainty and uneasiness.
   
6. The plaintiff stated that, as the above symptoms surfaced, he took leave for medical treatment in August 2010 and consulted Dr Kiran at St. Giles Hospital. The 3rd defendant too assessed his condition at the hospital.
   

6. The plaintiff stated that he had requested for a report on the diagnosis of his alleged conditions; but, the 3rd defendant refused to give such report. The plaintiff claimed that the 3rd defendant was acting on dictation and that the refusal by him to issue a report was a breach of his professional duty and that he was acting beyond his jurisdiction.

7. The 1st defendant, in his statement of defence, denied the allegations. The 1st defendant, by his notice of motion dated 07 November 2011, moved that the action be struck-out in terms of O 18 r 18 of the High Court Rules as the statement of claim did not disclose a reasonable cause of action against him and asked that costs be awarded on indemnity basis.

8. The 2nd defendant, in his answer, denied the claims and stated that the plaintiff's claims, if any, should be adjudicated under the Employment Relations Promulgation 2007. The 2nd defendant, by his notice of motion dated 07 November 2011, moved court that the proceedings be permanently stayed having regard to the provisions in Section 110 (3) of the Employment Relations Promulgation 2007.

9. In the statement of defence of the 3rd and 4th the defendants, it was stated that the 3rd defendant was not in a position to write a report to support [premature] retirement for the plaintiff on medical grounds. These defendants too denied the averments in the statement of claim and stated that, the matter being employment-related, should have been initiated before the Employment Relations Tribunal in terms of Section 211 of the Employment Relations Promulgation 2007. The defendants, accordingly, sought that action be struck-out.

10. The case was taken up for hearing pursuant to the notices of motion by the 1st and 2nd defendants with notice to the plaintiff on 09 December 2011.

11. At the hearing, Mr Anu Patel, learned counsel for the 1st and the 2nd defendants strongly contended that this court did not have jurisdiction insofar as employment-related matters are concerned after the enactment of the Employment Relations Promulgation 2007. Mr Jeremaia Lewaravu, learned State Counsel appearing on behalf of the 3rd and the 4th defendants, associated himself with the submissions of Mr Patel and submitted that this court lacked jurisdiction to hear cases arising out of employment relationships in light of the Employment Relations Promulgation 2007.

12. The plaintiff was called upon to address court in response to the notices of motion for striking-out under O 18 r 18 of the High Court Rules in light of the submissions by learned counsel for stay and/or summary dismissal of the action. As the plaintiff, who was appearing in person, was not ready to meet the arguments of the learned counsel, court directed the defendants to compile their jurisdictional objections in the form of written submissions and the same be served on the plaintiff for his response. Learned counsel in compliance with the direction of court filed comprehensive written-submissions with notice to the plaintiff.

13. The plaintiff replied the submissions of the defendants and stated that the case should proceed as the relief sought was not confined to grievances arising out of employment but on the negligence of the 3rd and the 4th defendants. The plaintiff stated that the Employment Tribunal did not have jurisdiction to hear matters pertaining to the negligence of the 3rd defendant; hence, the High Court was the proper forum to adjudicate the matters simultaneously.

14. I have considered the statement of claim, the statement of defence of each defendant, the notices of motion and the submissions of the parties.

15. I agree with the submissions of Mr Patel, learned counsel for the 1st and the 2nd defendants, that this court had ceased to have jurisdiction over the employment-related matters with the enactment of the Employment Relations Promulgation 2007. In the circumstances, I hold that the writ of summons and the statement of claim against 2nd defendant are misconceived and constitute an abuse of process of court. I accordingly permanently stay the proceedings against the 2nd defendant. As regards the 1st defendant, the statement of claim does not disclose a reasonable cause of action and it is scandalous, frivolous and vexatious and also constitutes, in the circumstances, an abuse of process of court. Accordingly, in the exercise of power under O 18 r 18 of the High Court Rules, I strike-out the statement of claim against the 1st defendant and dismiss the action.

16. I have considered the averments against the 3rd defendant, who is a medical practitioner at St. Giles Hospital in employment under the 4th defendant. The statement of claim does not disclose any reasonable cause of action against the 3rd defendant to found a case on negligence. I also do not find any legal or factual basis to have joined the 3rd and 4th defendants in an action together with the 1st and the 2nd defendants. It appears that this misjoinder has been effected with the mala fide motive of bringing the suit before this court. Any joinder of parties and/or causes of action will not confer jurisdiction to this court, which it otherwise doesn't have. In the circumstance, I hold that there is no reasonable cause of action disclosed against the 3rd defendant and that the purported action is scandalous and frivolous, which in turn makes the institution of these proceedings against the 3rd and the 4th defendants an abuse of process of court. I, in the exercise of power under O 18 r 18 of the High Court Rules, strike-out the statement of claim against the 3rd and 4th defendants.

17. Each defendant individually shall be entitled to costs on indemnity basis. The Master of this court is directed to assess costs on such application by defendants.

18. Proceedings terminated. Orders, accordingly.

Priyantha Nāwāna
Judge
High Court

Lautoka
07 February 2012