Fiji Posts and Telecommunications Ltd v Permanent Secretary for Labour & Industrial Relations [1994] FJHC 123; Hbj0006d.1994s (21 September 1994)

IN THE HIGH COURT OF FIJI
(SUVA)
CIVIL JURISDICTION

ACTION NO. HBJ0006 OF 1994

BETWEEN:

FIJI POSTS & TELECOMMUNICATIONS LIMITED
APPLICANT

AND:

THE PERMANENT SECRETARY FOR LABOUR & INDUSTRIAL RELATIONS
FIRST RESPONDENT

AND:

THE FIJI POSTS & TELECOMMUNICATIONS,
MANAGEMENT & STAFF ASSOCIATION
SECOND RESPONDENT

Mr Fa for Applicant
Mr Nand for First Respondent
Mr Maharaj for Second Respondent

RULING

In this ruling I intend to deal with two applications together, the first, is one made by the Plaintiff/Applicant and the second by the two Defendants/Respondents.

I regret that the delivery of this ruling has taken rather longer than I would have wished.

On 25th March, 1994 the Plaintiff/Applicant made an application to cross examine the deponent Fani Vosaniveibuli on her affidavit sworn on 7th March, 1994. Mr.Isireli Fa argued that the contentions and the issues raised by the affidavits cannot be dealt with on the affidavits alone but can only be effectively dealt with by cross-examining Fani Vosaniveibuli. Without the benefit of cross examination the facts in issue cannot be sufficiently ventilated to allow the applicant's case to be heard.

Mr. Fa based his application on Order 38 Rule 2 of the High Court Rules, 1988 which reads:

(1) The Court may, at or before the trial of an action begun by writ, order that the affidavit of any witness may be read at the trial if in the circumstances of the case it thinks it reasonable so to order.

He argued that the deponent's affidavit offends Order 41 Rules 5 & 6 of the High Court Rules and therefore should be struck out.

Mr. Vijay Maharaj who opposed this application by Mr.Fa for the Second Defendant/Respondent argued that cross-examination of deponents are very rare indeed, and at this stage the Court is not looking into the merit of the case. The affidavit of Fani Vosaniveibuli contains substantive issues which are proper matters to be dealt with in the trial proper. He urged the Court not to grant the application to cross examine Fani Vosaniveibuli.

Mr. Nainendra Nand for the First Defendant/Respondent supported the argument advanced by Mr. Maharaj and added that in his experience he has never come across any case where a deponent of an affidavit was allowed to be cross examined at this stage of a case.

At the end of that brief hearing I refused the application and intimated that I would give my brief reasons at a later date as I was in the middle of a criminal trial at that time.

I now give my reasons for refusing Mr. Fa's application.

Firstly, the order craved for by the Plaintiff/Applicant in accordance with Order 38 Rule 2 of the High Court Rules is discretionary and the Court will only make such an order "if in the circumstances of the case it thinks it reasonable so to order". Having perused the affidavit in question I do not think it reasonable to make such an order, and at this juncture I come to my second reason and i.e. if the Plaintiff's/Applicant's application is granted it would mean a traverse of the procedures in that the Court would then be looking into the merit of the case rather than the preliminary issues pertaining to it.

Finally, it is only on very rare occasion that a party would be allowed by the Court to cross examine a deponent of an affidavit and I'm afraid this is no such case.

I now come to deal with the application of both Defendants/Respondents.

LEGAL SUBMISSIONS

On 7th day of March, 1994 the Second Respondent filed Summons and Affidavit for dissolution of the interim injunction obtained by the Plaintiff on 22nd day of February, 1994 against the First and Second Respondents on Ex-Parte basis.

The arguments on dissolution of Injunction both for and against were presented by both First and Second Respondents and by the Applicant on 15th March, 1994. After hearing the arguments I indicated that I was minded to immediately dissolve the injunction but I acceded to the application by the Plaintiff's Counsel to file further written Submissions in response.

On 14th day of March, 1994 I made an order as follows:-

"The Applicant to file and serve its further Submissions by Friday 18th day of March, 1994. First and Second Respondents to file their Submissions in reply if need be by Tuesday 22nd day of March, 1994. Ruling to be given on notice thereafter."

The Plaintiff's Counsel instead of filing his Submissions filed a Motion on Exparte basis on 18th March, 1994 seeking leave to cross examine Fani Vosaniveibuli on certain matters to which she had deposed in her affidavit in support of the Motion for dissolution of injunction. On this occasion I informed Counsel for Plaintiff that his application, although intended to be ex parte, would have to be inter partes as the application of both Defendants/Respondents for dissolution of injunction had been put on hold until the Order I had made on 15th March, 1994 had been complied with.

On 20th March, 1994 all three Counsels appeared before me and argument both for and against the application by the Plaintiff's Counsel were presented and at the end of which I dismissed the application (reasons already given above) and ordered the Plaintiff to file and serve its Submissions on the Respondents by 28th March, 1994.

I would now like to go back to the 15th March, 1994 when I heard arguments presented by both Counsels for the First and Second Defendants/Respondents in support of their application for the dissolution of the interim injunction I granted the Plaintiff on an ex parte application on 22nd February, 1994 and the reply by the Counsel for the Plaintiff. These oral arguments were subsequently supported by written arguments as ordered by this Court.

Mr Maharaj argued that the interim injunction granted to the Plaintiff ought to be dissolved as it was granted prematurely. It should be dissolved until application for leave for Judicial Review is heard. Mr Maharaj referred the Court to Michael Supperstone's and James Goudie's book on Judicial Review at page 363 "Unless the relief is of particular urgency the Judge should normally adjourn the application for an inter-partes hearing."

He contended that Plaintiff has not established the urgency of the relief sought. He also referred the Court to "Judicial Review in Public Law" by Clive Lewis Chapter 8 p.302 paragraph 3.

"There is also authority that the Courts should be reluctant to intervene in industrial disputes by grant of Mandatory injunctions. This, if a public body is prevented from performing its duties by industrial action by others, the Courts are unlikely to grant a permanent or interlocutory Mandatory injunction." (See Stephan (Harold & Co v. The Post Office (1977) 1 WLR 1172 per judgment of Geoffery Lane L.J. at p.1180.

Again at page 363 of Judicial Review by Supperstone and Goudie (Supra)

"The basis of the Courts' approach to the grant of an interim Mandatory injunction is the need for the applicant to show a strong prima facie case. This test is not identical with the more usual test applied to prohibitory injunctions in "American Cyanamid Co v. Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396. The requirement of a strong prima facie case undoubtedly means that it is logically possible to have a case good enough for the grant of leave but insufficiently strong for a mandatory interlocutory injunction. "

Mr Maharaj urged the Court to dissolve the interlocutory injunction since the Plaintiff/Applicant has failed to prove the urgency of the relief sought and has also failed to establish a prima facie case. He also argued that the interlocutory injunction should be dissolved until application for leave for Judicial Review is heard.

Mr Nand for the First Defendant/Respondent stated that the Applicant's argument in paragraph 1.1 of their Written Submission that the present proceedings are solely concerned with the application by the Second Respondent (the Union) to dissolve the injunction granted on 23 February, 1994 is not correct. It is a matter of record that Counsel for First Respondent with leave of the Court was allowed to argue the dissolution of injunction granted against the First Respondent on 14 March, 1994. The Court had also pursuant to its own inherent jurisdiction dispensed with the requirement of the First Respondent filing formal papers to dissolve the injunction. No objection to this course of action was taken by any counsel to the proceedings.

The main thrust of Mr Nand's argument centres on Section 15 of the Crown Proceedings Act, Cap. 24 which reads:

15.- (1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that-

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

(b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown. "

Although the Applicant in its submission stated that Judicial Reviews are not civil proceedings and therefore the State Proceedings Act does not apply in this case, Mr Nand, argued that although it is correct that the Court in Factortame Ltd (No.1) (1990) A.C.85 accepted that judicial review proceedings are not civil proceedings within the Act, the House of Lords held that an interim injunction was not available against the Crown in Judicial Review proceedings. The Court opined that injunctions had never been available against Ministers and other Crown servants and that Order 53 must be construed against the background of the earlier law.

In paragraph 5.5 of its submission the Applicant argues that in Judicial Review No. 13 of 1992 Byrne, J. declined to dissolve his injunction granted against the Permanent Secretary for Labour and Industrial Relations. This is clearly incorrect. Byrne, J. on being informed by Counsel for the First Respondent that an injunction does not lie against the Permanent Secretary since he is a public officer, thereafter immediately dissolved the injunction. Counsel for the Applicant there consented to the dissolution. Mr Nand referred the Court to page 2 of the interlocutory judgment. The relevant portions of the last paragraph reads:

"........when the parties appeared before me, by consent I dissolved the injunction which I granted the Applicant in terms of its Motion on 16th October, 1992 against the First Respondent....."

Counsel for the Applicants has also referred to Mr Justice Cullinan's decision in Charan v Rafiq and F.S.C. This case is clearly distinguishable in that, the State was not a party to these proceedings. Hence no arguments were presented nor any ruling made on whether an injunction is available against the State.

Mr Nand argued that in terms of Section 15 of the Crown Proceedings Act, an injunction cannot be granted either against the State nor an officer of the State. The First Respondent relies upon four decisions of the High Court of Fiji.

(1) Crystal Clear Video Limited v. Commissioner of Police - Civil Action No. 331/88.

On page 2 of the judgment Mr Justice Fatiaki states,

"The first order as framed, if granted, would in effect amount to a mandatory injunction being granted against the State and an Officer of the State. This, the Court cannot do, for to do so would offend the provisions of Section 15 of the Crown Proceedings Act, Cap.24. "

(2) In the Matter of Application by Rev. Lee Roy Sherry J/R No. 28 of 1990

(3) In the Matter of an Application for Judicial Review by Mo Xing BO J/R No. 21 of 1990

(4) Yan Xiao Oiu v. Director for Immigration J/R No. 32 of 1990

Rev. Lee Roy Sherry's case concerns the grant of Leave for Judicial Review in respect of a decision made by the Director for Immigration where by he purported to cancel Work Permit No. 794/89 granted to him.

Along with leave granted on 28.9.90, the court issued an Interim Injunction against the Director of Immigration restraining him from implementing the revocation of the Work Permit and/or deporting the applicant from Fiji until further order of the court.

Mr Justice Jayaratne in the final paragraph of his Ruling has this to say;

"There is no reason for me to depart from the decision taken in 32/1990 (Yan Xiao Qiu v. Director of Immigration) when the same principle is involved. I set aside the order granted on 28.9.1990 by issuing the Interim Injunction against the Director for Immigration and also the stay order against him."

In Mo Xing Bo's case, Byrne, J. answered two Questions put to him to rule on, but for our purpose we will deal only with Question 2 i.e. Can an injunction lie against the State ?. After discussing several authorities cited to him by both Counsels, Byrne, J. ruled in the negative i.e. that no Injunction lie against the State.

The above ruling was given in favour of the Principal Immigration Officer and The Minister for Home Affairs.

In Yan Xiao Qiu's case, Jayaratne, J. again upheld the submission of Mr Nand that the stay order against the Minister had the effect of an injunction against the Minister and the Director of Immigration and thus offends Section 15 of the Crown Proceedings Act.

Mr Nand in conclusion submitted that in the light of the submissions that he had made the injunction granted against the Permanent Secretary for Labour and Industrial Relations be dissolved.

In a similar earlier case to those discussed above - Yaqoob v. Secretary of State for Home Department (1984) 1 W.L.R 290 Dillon L.J had this to say -

"I do not think this court has any jurisdiction to make an order against the Secretary of State restraining him from removing Mr Yaqoob pending the hearing of the Appeal.............. The stay sought of proceedings for removal is not a stay of the enforcement of an Order of the Court, it is an injunction to restrain the Secretary of State from exercising his executive functions and that the Court cannot grant. "

The Applicant in its Written Submission dwell on the Affidavit of Fani Vosaniveibuli for the Second Respondent, for the better part of its submission. I intend to ignore such reference by the Applicant on its need to cross examine Fani Vosaniveibuli as I had already dismissed Applicant's application to do so on 20th of March, 1994; and the reasons for such ruling are covered in the first part of this Ruling.

The Applicant also moved this Court not to dissolve the interlocutory injunction and it seeks the continuation of the relief against both Respondents until further Order.

It is not the function of these proceedings to embark upon the merits of the application for Judicial Review. The Applicant relies upon those proceedings in aid of the invocation of the Court's jurisdiction to grant the injunction.

Further until the application for leave is heard there is no stay to the decision under review which means and necessitates the Applicant seeking a stay on such terms as can be accommodated.

The decision, the subject of review is referred to in the application for leave and concerns the statutory right that the Applicant would enjoy in that it would be heard with respect to the Compulsory Recognition Order (C.R.O.) to include employees who were properly excluded by virtue of Section 10 of Trade Union (Recognition) Act, Cap. 96A or amended by the Trade Union (Recognition) Act (Amendment) Decree 1991. It is the expectation to be heard on those employees who need to be excluded for confidentiality reasons, that is one of the basics of the injunction sought.

In short the injunction did no more and no less than a successful application for leave to apply for Judicial Review would have done by imposing a stay upon being granted.

The Applicant further argued that the grant of the interlocutory injunction in this case was both proper and conventional. It submitted that with the amendment to Order 53 and the delay incurred in leave applications being heard litigants must be able to invoke the equitable remedies to augment their public law rights. This is such a situation where the importance of the public law has created a situation for the use of the interlocutory injunction.

This may be so, but in my view if application for leave for Judicial Review is heard quickly the need for interlocutory Injunction may be very rare, except in very exceptional cases.

The Applicant further submitted that the requirement of proof at this interlocutory stage is exemplified by the dictum of Lord Upjohn in Stratford v. Lindley (1964) 3 W.L.R. 559 where he said:

".........an appellant seeking an interlocutory injunction must establish a prima facie case of some breach of duty done by the respondent to him."

According to the Applicant the breach of duty occasioned here is two fold:

(a) the failure to allow confidential recipient employees to be excluded; and

(b) the failure to accord natural justice to allow the Applicant to be heard by the First and Second Respondents in breach of Sections 3 and 10 of the Acts and Decree respectively.

With respect in my view these two alleged breaches on the part of both Respondents are not strong enough or persuasive at this stage for an order for interlocutory injunction to be made or continued. In all the circumstances of this case it is my view that the two above matters would properly be dealt with in the application for leave. Furthermore I am not convinced that the alleged Irreparable Harm alleged in the dissemination of confidential material by fifty personnel in union positions cannot also be properly dealt with when the application for leave is heard. If I may add, that if the fifty personnel in union positions were to be excluded from the Second Respondent (Union) there is no fool-proof method of controlling dissemination of confidential material by them or others like them to the Union secretly if they are in sympathy with the Union, can be devised. It is hoped that the tension between the Applicant and Second Respondent will be substantially defused by the new Board of Directors of the Applicant Company.

I have in this Ruling tried not to intrude into the sphere of looking into the merit of the case but confined myself to the application for dissolution of the interlocutory injunction I had made in favour of the Applicant against both Respondents.

In the light of the authorities and reasons discussed above, I am satisfied that no injunction can be ordered against an officer of the State as it offends Section 15 of the Crown Proceedings Act, Cap. 24. I will therefore, dissolve the interlocutory injunction I had ordered against the First Defendant/Respondent on 22nd February, 1994.

As for the Second Defendant/Respondent, I am also convinced with the authorities and arguments advanced by Mr Maharaj and discussed above that the interlocutory injunction ordered against it on 22nd February, 1994 cannot stand. I will therefore, also order that the same be dissolved forthwith.

I will make no order as to cost.

S W Kepa
JUDGE

21st September, 1994

HBJ0006J.94S