IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 311 OF 1992

Between:

RAM PRASAD
s/o Ram Rattan
Plaintiff

and

THE ATTORNEY GENERAL OF FIJI
Defendant

Mr. A. Seru for the Plaintiff
Mr. D. Singh for Defendant

DECISION

On the day of the hearing counsel agreed that I decide the following issues first (being the issues stated in the Pre-Trial Conference Minutes) as a preliminary point and depending on the outcome they will then decide whether to proceed to the hearing of the action or not:

"1.	Whether the Plaintiff being a Civil Servant at the time of dismissal ought to have pursued his claims by way of Judicial Review rather than by way of wrongful dismissal by ordinary action.

2.	Whether section 28 of the Employment Act, Cap. 92 applied in the instant action."

Counsel were ordered to file written submissions. Although the learned counsel for the defendant filed his in time, the Plaintiff's submission did not reach me until after I had written my decision herein.

The Plaintiff seeks a declaration in the Writ of Summons dated 9 July 1992 that he was wrongfully dismissed from the Public Service on 17 December 1985. In the Statement of Claim he states that "due to the non-compliance of the Defendants its agents and/or servants with the said Regulations the Plaintiff had been wrongly dismissed from the Public Service". He asks to be reinstated to the post he held. He further claims "losses" suffered by him as a result of his wrongful dismissal such as nett salary in the sum of $36,636.00 backdated to date of interdiction, Fiji National Provident Fund contribution in the sum of $5129.00, increases in wages since 1st January 1989, general damages and interest on all sums calculated to date of settlement at the rate of 13.5% per annum.

Counsels' contentions

I have considered the submissions made by both counsel. On the authorities referred to by Mr. Singh he submits that this action raises questions of public law which should properly have been brought by the plaintiff by way of Judicial Review rather than by ordinary civil action. He says that it is an abuse of the process of the Court to have proceeded by writ of summons. Mr. Seru argues otherwise and cites authorities.

On the second issue Mr. Singh says that the Employment Subsidiary legislation Cap. 92 includes the Employment (Application) Order. The First Schedule (paragraph 2) shows that the Employment Act does not apply to workers in the service of the Government. On this issue Mr. Seru submits that it does not apply to the Plaintiff whose disciplinary procedures are laid down in the PSC (Constitution) Regulations.

Factual Background

At the relevant time the plaintiff was employed by the Government of Fiji as an Assistant Accounts Officer at the Headquarters of the Ministry of Primary Industries in Suva. After having been charged with the offence of conspiracy to defraud contrary to s86 of the Penal Code he was interdicted on 18 December 1985. Subsequently on 11 February 1991 the Director of Public Prosecutions entered a nolle prosequi.

Thereafter on 14 August 1991, 26 disciplinary charges were laid against the Plaintiff. He denied the allegations and despite that he was dismissed from the employ of the Government by letter of 15 January 1992 effective from 17 December 1985.

The Plaintiff claimed in the statement of claim that the defendant failed to comply with the provisions of the Public Service Commission (Constitution) Regulations at the material time in force prior to effecting the Plaintiff's interdiction or dismissal; and due to non-compliance of the said regulations the Plaintiff has been wrongly dismissed from the Public Service.

Consideration of the issue

In this case, on the facts I find that a public duty is imposed on the defendant. Therefore the plaintiff has to show a "sufficient interest" (Or 53 r 3(5)) to have standing to enforce this public duty by way of Judicial Review. The concept of "sufficient interest" was discussed by the House of Lords in INLAND REVENUE COMMISSIONERS v NATIONAL FEDERATION OF SELF-EMPLOYED & SMALL BUSINESSES (1982) AC 617.

The action by the defendant in this case was taken against the plaintiff in accordance with the procedure laid down in the Public Service (Constitution) Regulations 1990 (the "Regulations") and rightly so, and I agree with Mr. Singh that the plaintiff is governed by those Regulations. In fact the plaintiff admits that and I therefore fail to understand why he had not applied for a Judicial Review of the defendant's decision.

The facts in this case fall within the purview of judicial review. The plaintiff is actually seeking to enforce a public right or the performance or proper performance by the Defendant of a public duty. The defendant as a public body and an official gets his authority to make decisions from Acts of Parliament and Regulations made thereunder. That being so the decision of the defendant will certainly be within the ambit of judicial review unless his decision is in the realm of private law. Here no doubt the defendant is performing a public law function and hence his decisions are susceptible to judicial review. However, the following extract from the book "The Applicant's Guide to Judicial Review" by Lee Bridges and others at p.5 is worth noting:

"However, if there is a contract between the aggrieved person and the public body then it is likely that any actions or decisions the body makes in relation to that person will be governed by private law rather than public law. The individual will not therefore be able to challenge them by judicial review: his or her remedy will be to sue for damages (and/or a declaration or injunction) in an ordinary civil court or tribunal".

In my view in this case there is no contract between the Plaintiff and the defendant and here no question of private law arises. It is however accepted that whether a case raises issues of 'public' or 'private' law is not always easy. As Bridges (supra) ibid at p.6 says:

"The question will depend to an extent on the kind of body to be challenged and, more so on the functions they are exercising in the particular case".

In this context it is pertinent to note the decision in R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, ex parte BENWELL (1984) 3 All E.R. p.844 at 855 where it was held:

"Since the applicant's employment as a prison officer was governed by the code of discipline which derived its authority from statute, and since the Secretary of State had a duty to apply the code when deciding whether to dismiss a prison officer, the Secretary of State had been required to perform a duty imposed on him as part of the statutory terms under which he had exercised his disciplinary power when he dismissed the applicant, and that imported a sufficient public law element into the applicant's dismissal to give him the right to apply for a judicial review of the Secretary of State's decision".

As in BENWELL (supra) at p.868, the Plaintiff in this case was a civil servant whose employment was governed by the Public Service Commission (Constitution) Regulations 1990 which set out, inter alia, the procedure to be followed when disciplining an officer. In this regard PURCHAS L.J. in Ex p WALSH (1984) 3 All E.R. 425 at 479 said:

"There is a danger of confusing the rights with their appropriate remedies enjoyed by an employee arising out of a private contract of employment with the performance by a public body of the duties imposed on it as part of the statutory terms under which it exercises its powers. The former are appropriate for private remedies inter partes whether by action in the High Court or in the appropriate statutory tribunal, whilst the latter are subject to the supervisory powers of the court under Ord. 53".

It is the leading case of O'REILLY v MACKMAN (1983) 2 AC 237 which lays down the law on the issue before me. There the House of Lords held, inter alia:

"that since all the remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule it would be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a public authority's infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in each case the only claim made by the plaintiff was for a declaration that the board of visitors' adjudication against the plaintiff was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals".

A situation akin to the present case arose in DOYLE (below) when a summons to strike out the writ and Statement of Claim and to dismiss the action under the English RSC Or 18 r 19 (1)(b) (similar to our Or 18) was made. I would like at this stage refer to the following passage from the judgment of HENRY J in DOYLE and OTHERS v NORTHUMBRIA PROBATION COMMITTEE (1991) 1 W.L.R. 1340 at 1344 which I consider pertinent:

"Under Order 53, where the plaintiff wrongly brings his claim in the form of an application for judicial review, the court has power to order that claim to be continued as though it had been commenced by writ. But where a claim is wrongly commenced by writ, the court has no power to convert it into a claim for judicial review".

What the Plaintiff's position is in view of the above statements would appear to be as in the rest of the above passage in DOYLE (supra):

"And if the plaintiffs were now to bring a free-standing application for judicial review, their delay has been such that I would find it difficult to envisage the court granting leave to them to apply for such judicial review. Therefore it seems to me that if the defendant committee succeeds in the application that it is making, that will be end of the plaintiffs' claim."

The Plaintiff in this case has not pleaded breach of contract. It is more an alleged wrongful interdiction under the Public Service (Constitution) Regulations 1990. Since the issue here is essentially of a public law nature the Plaintiff should have proceeded by way of judicial review but if there is a breach of contract or for any tort the proceedings must be begun by writ (Or.5 r2 High Court Rules). The Plaintiff's action in this case is actually a public law challenge disguised as a private law action.

In the Supreme Court of Gibraltar in the case of MOROCCAN WORKERS ASSOCIATION v ATTORNEY GENERAL (1995) 1 Law Reports of the Commonwealth 451 (SC) (vide Commonwealth Law Bulletin July 1995 p.747-749) following O'REILLY (supra) it was held, inter alia, as follows which is pertinent to the action before me:

"Matters of public law and administration ordinarily fell within the purview of s.31 of the Supreme Court Act 1981 and RSC Ord 53. The remedies therein provided that judicial review ought to be the normal recourse in all cases where allegations were made that rights under public law were being infringed, eg where a private person was challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty. The institution of proceedings by originating notice of motion for purely declaratory relief without any explanation of the delay that occurred before their institution in February 1993 and which were brought for the purpose of challenging matters of public law and administration was an inappropriate procedure and an abuse of the process of the court."

The same issue as in this case also arose in PRAVEEN PRAKASH PALANI and FIJI ELECTRICITY AUTHORITY EXECUTIVE OFFICERS' ASSOCIATION v FIJI ELECTRICITY AUTHORITY (Civil Appeal No. 28 of 1996) where in a judgment delivered 18 July 1997 the Fiji Court of Appeal held that judicial review was not available to the Applicants.

The Court of Appeal at p 8 of the judgment said:

"in our view the law is now clear that judicial review is only available where an issue of public law is involved in master and servant cases; it does not apply where the issue is a private law obligation".

The above is the situation here, although I bear in mind that "the mere fact" of the Plaintiff "being employed by a public statutory authority is not sufficient" (PALANI supra). In PALANI (supra) the Court found that the Plaintiff "was in a strict or pure master and servant employment situation. He was employed by a statutory authority under a private contract of employment".

Just as in the action before me, in the case of MANUVAVALAGI DALITUICAMA KOROVULAVULA v PUBLIC SERVICE COMMISSION (Civ App. No. 6 of 1994, FCA), the Court stated that:

"Korovulavula clearly held a public appointment to which he had been appointed under an express statutory provision and public law applied to it. Judicial review was clearly the appropriate procedure".

In view of what I have stated above this is clearly a case in which the judicial review procedure should have been invoked under Order 53. On the applicability of judicial review and review of administrative decision the Court in PALANI (supra) at p.15 of judgment said:

"It must be remembered judicial review is not a cause of action. It is a procedure by which a person may apply to the High Court for an order of mandamus, prohibition or certiorari; and if such an application has also been made, and the Court considers it would be just and convenient, it may also grant a declaration and an injunction. It is fundamental, however, that some person must have grounds on which to seek the orders of mandamus certiorari and prohibition. See Order 53. Thus judicial review is not a procedure to be invoked, as it were, in a vacuum. It is no doubt the case that all administrative decisions and discretions of statutory bodies are made or exercised by them are subject to review by the Courts in some circumstances. But anyone who seeks to challenge such a decision or administrative action must establish some ground relevant to the decision or action challenged and have the status to challenge it".

The ratio of O'REILLY as found in LORD DIPLOCK'S speech at p.285 was extended to COCKS v THANET DISTRICT COUNCIL (1983) 2 A.C. 286. There the action was commenced by writ and "it was stopped in that course, in that it was struck out as an abuse of the process of the Court in the House of Lords" (HENRY J in DOYLE & OTHERS v NORTHUMBRIA PROBATION COMMITTEE (1991) 1 W.L.R. 1340 at 1346).

There has been a wealth of authority since O'REILLY and COCKS (supra) in which courts have been zealous to protect "the evasion of Order 53 protections". Based on subsequent decisions and as stated by HENRY J in DOYLE (supra) at p.1347 three main principles emerge from those decisions:

"(i) In cases within the O'Reilly v. Mackman [1983] 2 A.C. 237 doctrine, the courts will be astute to see that there is no evasion of the Order 53 protections designed to eliminate groundless, unmeritorious or tardy harassment of local authorities by the use of an action by writ which in reality is seeking redress for the infringement of public law rights. (ii) However, in cases not within the rule there is no necessary or overriding objection to public law issues being litigated in writ actions, whether in the Queen's Bench Division or in the Chancery Division: see Davy v. Spelthorne Borough Council [1984] A.C. 262, Wandsworth London Borough Council v. Winder [1985] A.C. 461 and Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112. (iii) Order 53 should not be used for the litigation of private law claims."

In deference to the learned counsel for the Plaintiff's submission I have given due consideration to the authorities referred to by him most of which were considered in PALANI (supra). In this case for the reasons I have given I would not agree that the Plaintiff may "choose the Court and the procedure which suits him best". The defendant has shown, based on the authorities, that the Plaintiff has abused the Court's procedure. On this aspect Mr. Seru referred the Court to DAVY v SPELTHORNE BOROUGH COUNCIL (1983) 3 All.E.R 278 at 279 where it was held (inter alia):

"(2) The plaintiff's action was not an abuse of the process of the court because -

(a) (Per Lord Fraser, Lord Roskill, Lord Brandon and Lord Brightman). The plaintiff's claim for damages in negligence was an ordinary action in tort concerning his rights at common law and did not raise any issue of public law. Accordingly, the rights concerned were not rights to which the plaintiff was entitled to protection under public law, and the general rule that a plaintiff was not entitled to defend by way of an ordinary action a right to which he was entitled to protection under public law did not apply."

What was held there is in line with the authorities and Regulations to which I have made reference.

To complete the picture, I think I ought to refer to SCOTT J's judgment in GHANSHYAM PRASAD (f/n Ram Prasad) and THE FIJI PUBLIC SERVICE ASSOCIATION and THE ATTORNEY GENERAL (C.A. No. 275/91). That was a case of a civil servant who was retired on medical grounds. There no procedural objections were raised until counsel filed his submissions. Mr. Kapadia who appeared for the Plaintiff referred the Court to the Fiji Court of Appeal case of NEMANI BAUTANI NAISOLE, and ANOR and THE ATTORNEY GENERAL OF FIJI (Civ. App. 47/90, High Court C.A. 205/89) which was begun by way of Originating Summons. There no objection was taken by the defendant or the Court although the action commenced by originating summons. His Lordship in GHANSHYAM (supra) disallowed the submission apparently persuaded by the following passages (referred to in his Lordship's judgment):

"We have not yet reached a point at which a mere characterisation of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary courts: to permit this would be to create a dual system of law with the rigidity and procedural hardship for Plaintiffs which it was the purpose of the recent reforms to remove." (LORD WILBERFORCE in DAVY v SPELTHORNE BC 1984 AC 262 at 278)

AND LORD LOWRY in ROY v KENSINGTON and CHELSEA FPC (1992) 2 WLR 239:

"It seems to me that unless the procedure adopted by the moving party is ill-suited to disposition of the question at issue there is much to be said in favour of the proposition that a court having a jurisdiction ought to let a case be heard rather than entertain a debate concerning the form of proceedings."

It is my respectful view and my firm understanding that in the light of the many authorities on the issue before me and in view of the decisions reached by the Courts as to the form proceedings should take in matters of the nature before me I am inclined to allow the procedural objections raised by the defendant.

As far as the second issue for my determination is concerned, s28 of the Employment Act Cap 92 which deals with "summary dismissal" does not apply to the Plaintiff in that under EMPLOYMENT APPLICATION) ORDER Cap. 92 (subsidiary Legislation) which provides as follows the plaintiff is an exempted employee:

"CLASSES OF EXEMPTED EMPLOYEES

Persons employed in the service of the Government and -

(a)	who are subject to General Orders for the Public Service of Fiji, other than persons employed by way of manual labour or domestic service, or ..."

For the above reasons, on the first issue, I decide that the Plaintiff should have proceeded by way of judicial review and not by writ of summons; and on the second issue my decision is that s28 of the Employment Act does not apply to the Plaintiff as he was employed in the service of the Government and subject to the General Orders of the Public Service of Fiji.

Having decided as above on the preliminary issues, I declare that the Plaintiff is not entitled to continue these proceedings or seek the reliefs claimed by him otherwise than by application for judicial review if he is still able to do so under Or. 53 of the High Court Rules. What course he adopts is entirely for him to decide upon and proceed in accordance with the law.

The writ of summons is therefore dismissed as an abuse of the process of the Court with costs against the Plaintiff which is to be taxed unless agreed.

D. Pathik
Judge
At Suva
12 September 1997
HBC0311D.92S