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Fiji Times Ltd v Fiji National Provident Fund [2001] FJLawRp 117; [2001] 1 FLR 488 (21 December 2001)

FIJI TIMES LIMITED v FIJI NATIONAL PROVIDENT FUND & ATTORNEY-GENERAL

High Court Civil Jurisdiction

civil practice and procedure – whether proceedings begun by originating summons and containing issues of fact should be allowed to continue as if begun by writ - declaration sought whether inserters ‘employees’ within meaning of s13 of Fiji National Provident Fund Act and within terms of regulation 12 of Employment Regulations – Fiji National Provident Fund Act ss13, 49(1)(b); Fiji National Provident Fund Regulations; Employment Regulations reg.12; High Court Rules O.28 r.8(1)

criminal practice and procedure – D1 prosecuted criminal charges against the Plaintiff to exert pressure on the Plaintiff to enforce agreement between them to seek a declaration on the status of inserters – whether to stay proceedings to signal that circumvention of criminal proceedings will not be countenanced - Criminal Procedure Code s201(2)(b)(ii); Fiji National Provident Fund Act s56

In an action begun by Originating Summons, the Plaintiff sought a binding declaration that the civil rather than the criminal forum was the proper forum to resolve a dispute about whether inserters are employees. The Plaintiff had earlier sent a copy of legal advice to D2 that the inserters were not employees, but the Solicitor-General advised otherwise and required the Plaintiff 7 days to regularise the employment status of the inserters by giving them leave entitlements. The Plaintiff did not comply but instead agreed to institute action to clarify the legal status. It failed to do so and over a year later faced 12 criminal charges in the Magistrates' Court by D1 of failing to pay contributions. D1 subsequently withdrew the charges a year after the present proceedings commenced. The Court admonished D1 for treating criminal proceedings as anything less than serious. Nevertheless, it allowed the proceedings to continue as if begun by writ.

Held – Where substantial issues of fact are involved in litigation it is not appropriate to commence proceedings by way of Originating Summons. The Court may direct under O.28 r.8(1) of the High Court Rules that the matter continue as though commenced by writ. The Court may order the affidavits to stand as pleadings or it may order pleadings to be served.

(2) The decision to prosecute is an extremely serious one and must not be brought unless criminal conduct is believed to have occurred; it is not to be taken lightly and certainly not for merely tactical reasons. In exercising its discretion to prosecute D1 must be guided by the principles set out in the Director of Public Prosecutions’ Office Manual, January 1990, Appendix C. If it merely wanted clarification of the law D1 should proceed under section 56 of the Fiji National Provident Fund Act.

Present action to proceed as if commenced by writ. Plaintiff to file a statement of claim within 21 days. Action to will take its normal course.

Cases referred to in Decision
Imperial Tobacco Ltd v Attorney General [1981] AC 718; [1980] 1 All ER 866
John Alexander Watson v Bish Limited (FCA Reps 85/179)
R.v DPP ex parte Camelot Group PLC [1997] EWCA Civ 1393

Feizal Y. Haniff for the Plaintiff
Peter Knight for the First Defendant
Sharvada Sharma for the Second Defendant

Scott, J

These proceedings were commenced by Originating Summons filed on 13 March 2000.

As will be seen from the supporting affidavit of Ubendra Rao, the Plaintiff's Company Secretary, the Fiji Times has for many years employed a number of people on a part time basis as and when required. These people called "inserters" insert newsprint or glossy supplements such as calendars, posters or advertising materials into copies of the Fiji Times.

In early February 1998 after intervention by the Fiji Women's Rights Movement a dispute arose as to the precise employment status of the inserters. The question was first, whether the inserters are to be classified as employees within the meaning of Section 13 of the Fiji National Provident Fund Act (Cap 219) and secondly, whether they are employees within the terms of Regulation 12 of the Employment Regulations 1965 (Cap 92 – Subs).

In June 1998 the Fiji Times forwarded a copy of a legal advice which it had received from its legal advisers to the Ministry of Labour. A copy if Exhibit EU 3 to Mr. Rao's affidavit. The advice was that the inserters were not employees.

In September 1998 the Ministry replied (Exhibit UR 5). It advised the Fiji Times that legal advice had been obtained from the Solicitor-General. The advice received was that the inserters were indeed employees. The Ministry gave the Fiji Times seven days to regularise the inserters' status by granting them leave entitlements as provided by regulation 12. The penultimate paragraph of the Ministry's letter reads as follows:

"I have been directed to proceed with legal action should you fail to adhere to the above within the specified time since the matter has been pending for some time."

The Fiji Times did not comply with the Ministry's request but, according to an affidavit in reply filed by Valentine Low on 20 April 2000 on behalf of the First Defendant it was instead agreed in 1999 that the Fiji Times would institute civil proceedings in the Suva Magistrates' Court to clarify the inserters legal status.

By January 2000 the Fiji Times had neither complied with the Ministry's letter of September 1998 nor with the agreement which it had reached with the First Defendant to initiate proceedings in the Suva Magistrates' Court. On 11 January 2000 the Fiji Times was summoned to the Suva Magistrates' Court to face 12 criminal charges of failing to pay contributions on behalf of the inserters contrary to Sections 13 and 49(1)(b) of the Fiji National Provident Fund Act. A copy of a sample summons is Exhibit UR 5.

According to Mr. Rao the principal reason for bringing these proceedings in the High Court is that:

"the Fiji Times does not believe a criminal proceeding is the forum in which to resolve these issues. It seeks a declaration of law binding on the parties and the Magistrates Court."

On 4 May 2000 Tevita Kanutuba filed an affidavit on behalf of the Ministry. On 15 August a second affidavit was filed by Mr. Rao. On 25 January when the matter first came before me I pointed out that the affidavit revealed substantial issues of fact. I also referred Counsel to Imperial Tobacco Ltd v Attorney General [1981] AC 718; [1980] 1 All ER 866.

Where substantial issues of fact are involved in litigation it is not appropriate to commence proceedings by way of Originating Summons. Where proceedings have in fact thus been commenced Order 28 r 8(1) allows the Court to direct that the matter continue as though commenced by writ. The Court may order the affidavits to stand as pleadings or it may order pleadings to be served. All three Counsel agreed that the matter should continue as if begun by writ.

An even more fundamental question however was whether these proceedings should be allowed to continue at all.

In Imperial Tobacco it was held that:

"where criminal proceedings were properly instituted and were not vexatious or an abuse of the process of the court it was not a proper exercise of judicial discretion for a Judge of a Civil Court to grant the Defendant in the criminal proceedings a declaration that the facts alleged by the prosecution do not in law prove the offence charged because to make such a declaration would be to usurp the function of the criminal court without binding it and would thus inevitably prejudice the criminal trial one way or the other."

In R. v DPP ex parte Camelot Group PLC [1997] EWCA Civ 1393 Lord Justice Simon Brown spoke of:

"... the only rigid rule, following Imperial Tobacco is that once criminal proceedings have begun the Civil Courts should not intervene."

As has been seen, criminal proceedings against the Fiji Times were commenced by the FNPF well over a year after the Fiji Times failed to comply with the Ministry of Labour's direction. The present proceedings were commenced about 2 months later. As appears from an affidavit of F.Y. Haniff (who should remember that it is not proper for counsel to appear in a cause both as counsel and as witness – see John Alexander Watson v Bish Limited- FCA Reps 85/179) the criminal proceedings against the Fiji Times were withdrawn by the FNPF under the provisions of section 201(2)(b)(ii) of the Criminal Procedure Code on 27 February 2001, that is over 12 months after they were commenced and almost one year after these present proceedings were instituted.

In the light of Imperial Tobacco I was much concerned about what had happened, a concern which was in no way alleviated when Mr. Knight drew my attention to the final paragraph of Mr. Low's affidavit and told me that the prosecution by the FNPF had only been brought to bring pressure to bear on the Fiji Times to commence these civil proceedings. The FNPF, Mr. Knight suggested, was not really very interested in securing a conviction: its main concern was to seek a clarification of the legal status of the inserters.

Frankly, I found this submission quite shocking. It overlooks the fact that the decision to prosecute is an extremely serious one and not one to be taken lightly and certainly not for merely tactical reasons. It appears that the Fiji National Provident Fund needs to be reminded that in exercising its discretion to prosecute it must be guided by the principles set out in the Director of Public Prosecutions' Office Manual, January 1990, Appendix C. If all that is required is that the law be clarified then the FNPF should proceed under Section 56 of the Act. A prosecution must not be brought unless criminal conduct is believed to have occurred.

As I made fairly clear to counsel the history of this dispute has left me with a distinct sense of unease. I was strongly minded to stay these proceedings if only to emphasise that recourse by Defendants in criminal proceedings to the Civil Courts with the view to securing the avoidance, circumvention or postponement of the criminal proceedings will not be countenanced. Yet the fact is that prosecution has been withdrawn and the parties (although the Attorney-General has vacillated) seem ready to have the status of the inserters decided in the High Court. There would of course be no bar to renewed prosecution if the decision in this action were to go against the Fiji Times.

In all the circumstances and with some reluctance, I will allow the present action to proceed. It will do so as though commenced by writ. A statement of claim must be filed by the Plaintiff within 21 days. Thereafter the action will take its normal course.

Proceedings begun by originating summons to continue as if by Writ.

Marie Chan