Port Workers and Seafarers Union of Fiji v Ports Authority of Fiji [2001] FJCA 6; Abu0055d.2000s (10 August 2001)

Fiji Islands - Port Workers and Seafarers Union of Fiji v Ports Authority of Fiji - Pacific Law Materials

ass=MsoNormal align=cenn=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE FIJI COURT OF APPEAL

AT SUVA

Appellate Jurisdiction

CIVIL APPEAL NO. 0055 OF 2000

Between:

PORT WORKERS AND

SEAFARERS UNION OF FIJI

Appellant

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> - and -

PORTS AUTHORITY OF FIJI

Respondent

Mr. K. Bulewa for the Appellant

<1"> Ms. G. Phillips for the Respondent

RULING

On 3^rd November 1999 Byrne J. delivered a judgment in the present case setting aside an award of the Arbitration Tribunal for various `errors of law’ more particularly identified in the judgment. Judgment was sealed on 10^th November 1999 and served on the appellant’s Union’s counsel on 12^th November 1999.

Ten (10) months later on 6^th September 2000 the appellant issued a summons for leave to appeal out of time against the judgment supported by an affidavit deposed by the General Secretary of the appellant Union.

It is common ground that the time for appealing the judgment ex, in this case, on or about the 17^th January uary 2000 i.e. six (6) weeks from the date of sealing and excluding an intervening legal vacation see : Dr. Patrick Muma v. U.S.P. and Others 37 F.L.R. 109 read with item (4) of Gazette Notice No : 1877 dated 6^th September 1999 and published in the Fiji Islands Government Gazette dated 10^th September 1999.

The position of an appellant where time for appealing has expired was accurately descriy Richmond J. in n Avery v. Public Service Appeal Board (No.2) [1973.Z.L.R. L.R. 86 at p.91 as:

p claoNormal style="yle="text-align: justify; margin: 1 36.1 36.0pt"> `(Sufferb> a radical change. Whereasiously he was in a in a position to appeal as of rightright, he now becomes an applicant for a grant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal.’

and further in Revici v. Prentice Hall Incorp and s [1969] 1 ALL E.R. 712 it was held :span>

`(2) ife was non compliance with tith the rules it must be explained ; and prima facie if no excuse was offered no indulgence should be granp claoNormyle="text-align: justify; margin-top: 1; margin-botn-bottom: tom: 1"> <1"> b>

ass=MsoN=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In this latter regard the affi of the General Secretary of the appellant union deposes:

`(4) &nbbsp; Notice of Appeal peal peal was lodged on or before the 25^th February 2000. It was returned by egistryistry as bseverys outime. The law clerk that filed the papers objected because it appt appears ears the Rthe Registry had taken into account the leacation as well as the public holidays.

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(5) ;&nbssp; &nbbsp;&bsp; &nbp; s/i>That there were other pressing issues regarding the Unhich ed the of b>ials ts lawyers. These included union recogrecognition, stevedoriedoring cong contracntract, tht, the reve reversal of the ports reform and programthe intervention of the civilian coup d’etat. Most of these matare now bnow behind usnd us and it is our wish to pursue the appeal.’

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There is not the slightest doubt in my mind that the delay in this case is, viewed objectively, > excessive and inordinate. Whatsmore the `r(s)’n(s)’ advanced by the appellant for excusing the delay are both vand unsatisfactory and do not, in any event, explain or excr excuse the forty two (42) day delay between the 17^th January 2000 and 25^th February 2000 when the first attempt was made to lodge the appeal papers. /b>On that score alone thie this application ought to be refused.

I turn however to consider wher whether the appeal has any prospect of succeeding. In this regardhouldoted thed that the affe affidavit in support of the application did not, as it should have done, annex a copy of the proposed , but the Court was nevertheless provided with a copy at the hearinearing of the application.

The grounds of appeal are as follows:

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(1) ;&nspp;&nssp;  p; &nbp; nbsp;nbsp; That arneearned Judge erred in law in holding that the two distinct line of authorities for the requirement for judicial review in Anisminic Ltd. v. Foreign Compensation Commission (196A.C. u>Pearlman v. Har. Harrow Srow School Governors (1979) Q.B.56 were :

(a) & p; &nsp;&nbssp;&ssp;  p;nbssp;&nbp; &nbp; incoble ind mutualltually exclusive

(b)B>(b) &nbbsp; &nsp; &nbbp;&nnbp;& &nb/span>that that the Anis Anisminic Ltd’s case was being followed in Fiji.

(2) ;&nbssp; &nsp; &nsp;  p; &nnsp;& That that the learned judge erred in law and fact in misconstruing the proper and broapprohich ribuns comd to w in this case case without the need to refer to the trie trite late law of w of finanfinancial cial accountability of public authorities.

(3) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp; The lear learned tred trial judge erred in law in his ruling on 22^nd May 1998 on the effect of the Parliamentary motion of 6^th December 1996.

At the outset appellant’s counsel submitted that the appeal raised stion of law of some public importance as to the reviewabilwability of `errors of law’ committed within and beyond jurisdiction. In this regard Iatisfied tied that the question has been addressed and decided by the Court of Appeal in Re : Manoa Bale (1985) 31 F.L.R.89 where the court said at p.94 (after considering several leading authorities) :

`Lord Lane’s exposition of the lapan> (in Pearlman’s case) must now be taken as authoritativeative.’

No question of general importance arises on this ground.

The second ground of appeal concerns theect approach of the Arbitration Tribunal in awarding compensation under the Trad Trade Disputes Act Cap.97 and which Byrne J. rejected as an `error of law’ ; `unreasonable’ as being `inconsistent with the Employment Act’ ; and finally, `...... in not intimating to the parties that he was considering awarding ...... compensation ......, (the Tribunal) failed to accord the (respondent) natural justice ......’

If I may say so,one of the above reasons would have been sufficient to support the order sett setting aside the Tribunal’s compensation award and as such this second ground of appeal has little prospect (if any) of succeeding.

The third and final ground of appeal refers, according to cous oral submission before me, to a parliamentary resolution tion which it is claimed, superseded the proceedings and obliged government to make the payment of compensation awarded by the Tribunal.

This submission was rejected by Byrne J. in an interlocutory ruling delivered on p>nd May 1998 and> and although it could have been appealed (with leave) at the time, was not pursued by the appellant. In any event neither the ruling or the resolution is before this Court and neither was mentioned in the judgment sought to be appealed. This g is misconceived andd and without any legal or factual basis at all.

I accept that it is not for this Court, at this juncture, to finaetermine the substantive appeal, nevertheless, as a materiaterial factor in the exercise of the Court’s discretion to grant the indulgence sought, I agree with counsel for the respondent’s assessment that the appeal as framed, is `prima facie destined to fail even if leave is granted’.

Then there is a further factor to be considered by the Court and that is the degree of likely prejudice to the respondent. In this regard the Manager Legal of the Maritime and Ports Authority of Fiji (being a co-successor to the successful applicant before Byrne J.) deposes :

`(7) & p; ......(....(MPouldPould be materially prejudicjudiced by any attempt to re-open this litigation now. The redundancy compensarelates to the years 1988, 1989 and9 and 1990 1990. Thter was litigated beforeefore the Arbitration Tribunal in 1nd the judicial review proceedings over the period 1996-99.6-99.

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(8)  p;&nbven the possibiliibiliibility of altering compensation payments to ffected empl raissraissues ere such employees might be found, payments to dependants and accessibissibility lity of reof records. Many of the PAF officerswere involved in the implementation of the redundancies ares are no longer employed by MPAF, which was, comprehensively restructured 98. The affected operations have not been in place since 1988 and the relevant staff taff have long since left MPAF.’

Plainly the respondent Authority considhat it would be seriously prejudiced by allowing this fairly dated matter to proceed any funy further and given appellant counsel’s concession that Byrne J’s decision does not finally conclude or resolve the dispute between the parties which may still be reagitated before the Permanent Arbitrator, I agree with counsel for the respondent that the interests of justice would be better served by bringing this litigation to a close.

The application is accordingly refused with costs which are summarily assessed at $1,000.00 for tpplication as well as the cthe costs of the proceedings before Byrne J.

D.V. Fatiaki

JUDGE

At Suva,

10^tsup>th August, 2001.

ABU0055D