State v Fiji Post and Telecommunications Employees Association [1991] FJHC 68; HBJ0005.1991 (3 December 1991)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. 5 OF 1991

THE STATE

-v-

FIJI POSTS AND TELECOMMUNICATIONS EMPLOYEES ASSOCIATION
Respondent

Ex Parte:

PUBLIC SERVICE ASSOCIATION
Applicant

H. Nagin for the Applicant
J. Semisi for the Respondent
E. Leung for the Registrar of Trade Unions

REASONS FOR DECISIONS

This matter which is an application for committal for contempt of an order of this Court dated 26 February 1991 brought pursuant to leave granted on 5 June 1991 came before me on 28 November 1991. I refused the application and three associated applications and now give my reasons.

The first application was for the hearing to be adjourned. Mr Semisi informed me that the alleged contemnors were represented by Mr Bulewa who was "handling the matter personally". Mr Bulewa had gone to Kadavu. He had written to the Chief Registrar on 21 November advising him that an application for an adjournment would be made and asking that the Chief Registrar notify the other parties. No copy of the letter was to be found on the file although Mr Nagin and Mr Leung advise me that they had both received copies.

I refused the application. For some years now, the Courts of Fiji have been plagued with applications for adjournments. Frequent adjournments are more disruptive of the smooth functioning of the Courts. When dates for hearing have been fixed, in this case on 18^th September, and a judge has been allocated, last minute adjournments result in a loss of valuable court time which can ill be afforded. The waste of Court time is most unfair to those many litigants anxious to have their cases heard. A combination of courts lying idle and a long backlog of cases awaiting disposal is clearly unacceptable. In committal cases, there is the additional factor of the courts interest in the application which must be taken into account. What, after all, is being alleged is that an order of the court has been disobeyed. The court itself has a clear interest in establishing whether contempt has in fact occurred and if so having the contempt purged. In a small number of cases of especial difficulty, a Court may sympathetically hear an application for an adjournment when counsel who has handled the matter has unavoidably and at the last moment been prevented from attending. Most cases, however, can easily be handed over to other counsel to appear. The papers in this case did not show the matter to be one of especial difficulty and as already mentioned Mr Bulewa knew by November 21 that he would be unable to attend. Alternative counsel could and should have been briefed to appear in his place. It was for these reasons that I refused the application for adjournment.

The second application came from counsel for the Applicant. He pointed out that the alleged contemnors were not present. He suggested that in view of the nature of the application the hearing should be adjourned to enable them to attend. I was not impressed with the submission. In my view, a Court considering an application for committal for contempt is not bound to adjourn the hearing of the applicant's case merely because of the non attendance of the alleged contemnors. Were it the case that where alleged contemnors decline or fail to appear the Court would have to adjourn then the procedure for applying for their committal could easily and simply be frustrated. In this case, although Mr Bulewa could not attend the hearing no reason was advanced for the non-appearance of the contemnors. No affidavit on their behalf had been filed in reply to the applicant’s supporting affidavit dated 24 May 1991. An applicant proceeding in the absence of the alleged contemnors might indeed only expect to obtain a suspended order: that situation is covered by Order 52 rule 2. In the circumstances, I saw no reason not to hear the applicant’s case despite the non appearance of the alleged contemnors.

Mr Nagin relied on the contents of the affidavit of Mr Rajeshwar Singh sworn on 24 May 1991. The only allegations of breach of the order of 26 February are contained in paragraph 4(i) to (iv) of this affidavit. In my view, the facts and matters contained in that paragraph are nowhere near sufficient to justify an order for committal. In my view, the facts and the matters contained in the paragraph are nowhere near sufficient to justify an order for committal. In my view, they do not even amount to evidence that the alleged contemnors have breached the order at all. The relevant part of the order of 26 February was to the effect that the Respondent Association was prohibited from "negotiating interfering or in any other manner whatsoever dealing with" Fiji Post and Telecommunications Ltd. (the Company). Paragraph 4 alleges that the Respondent Association has received subscriptions sent to it by the Company after the Company had deducted those subscriptions from its employees. How mere unsolicited receipt of money sent to it by the Company could amount to "dealing with" the company I fail to see. There is nothing whatever in the affidavit to suggest that the alleged contemnors were the instigators of what the company did.

Upon making my preliminary views known Mr Nagin then made another application, this time to adjourn the hearing so he could call further evidence. He explained that he had had a witness on standby whom he had not brought to Court because of Mr Bulewa's letter of 21 November but whom he had not been able to contact following my refusal to grant adjournment. I refused the application. The witness should have been present at the Court. He should not have been told not to come merely because of Mr Bulewa's letter of 21 November. Counsel should not expect adjournments to be granted merely upon request. It has been said time without number that the Court do not sit for their convenience. In any event, the grounds relied upon at the hearing of an application for committal should be those placed before the court when the application for leave is made (see Order 52 rule 5(3)). Even had the witness been present I should not have granted the applicant leave to call him unless satisfied that there was a good reason for the grounds, evidence as to which it was intended he should give, not being included in the statement filed pursuant to Order 52 rule 2. No reason at all was advanced by Mr Nagin.

The final application was an application by Mr Semisi for costs. In view of the dismal circumstances outlined above, I declined to make any order.

M.D. SCOTT
JUDGE

Dated this 3^rd day of December 1991.