Buwawa v Permanent Secretary for Education, Women and Culture [1997] FJHC 90; Hbc0019d.97s (22 July 1997)

Fiji Islands - Buwawa v The Permanent Secretary for Education, Women and Culture - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 19 OF 1997

BETWEEN:

:

JIMIONE BUWAWA
Plaintiff

AND:

1. THE NENT SECRETARY FOR EDUCATION, WOMEN AND CULTURE
2. THE THE SECRETARY, PUBLIC SERVICE COMMISSION
3. THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. Tuberi for the Pthe Plaintiff/Respondent
Mr. D. Singh for the Defendants/Applicants

DECISION

This is the Defendants' Summor an order that the Originriginating Summons filed in this action on 17 January 1997 and the Notice of Motion filed on 28 January 19 struck out under Order 18 r 18 r18(1) of the Rules of High Court on the grounds that the Summons (a) discloses no reasonable cause of action, (b) is scandalous, frivolous or vexatious and (c) is therefore an abuse of the process of the Court.

In the Originating Summons the Plaintiff is claiming various reliefs being 28 in number as more particularly set out therein; and in the Motion he is applying for an order that the "purported disciplinary proceedings against the Plaintiff be stayed until the determination of the Originating Summons" and a declaration that "the appointment of Jon Apted as Disciplinary Tribunal is defective therefore null and void".

Before I consider the Summons I think I should give a brief background to this action.

Background

The Plaintiff is a civil servant and the substantive post holder as the Principal (Level TE01) at Ratu Kadavulevu School and has been holding the said post since 12 January 1990.

On 31 May 1996 he was given a memorandum from the defendants instructing him to proceed on 8 days' annual leave even though he did not apply for it. He complied as instructed. Then on 11 June 1996 a further memorandum dated 7 June 1996 was handed to him at the school compound giving him approval to proceed on 54 days' long service leave even though there was no application for it. On 25 June 1996 certain articles appeared about him in the press followed by charges being laid against him by the defendants. At first he was interdicted on full salary from 8 August 1996 but later on 23 September 1996 he was informed that he was being interdicted on half salary. The Plaintiff questioned the defendants on their actions and says that they have not followed the Public Service Commission (Constitution) Regulations 1990 "or any other law to punish retrospectively". The Plaintiff sets out in detail the subsequent events in his affidavit in support of originating summons. He states, inter alia, that he has "suffered a lot of embarrassment and my character has been very badly tainted that it would almost: be impossible for me at this stage to go back to the school system". He is asking the Court to grant, inter alia, an order for damages done to his "personal and professional status". On legal advice he has instituted the present proceedings by way of Originating Summons.

Defendants' contention

Mr. Singh submits that the application by way of Originating Summons is inappropriate in the circumstances of this case and that it is an abuse of the process of the Court and that it should be dismissed. To put it in a nutshell, the Plaintiff, he says, should have proceeded by way of an application for Judicial Review under Order 53 of the High Court Rules for the reason that most of the reliefs sought therein arise out of an administrative action on the part of the defendants and this gives rise to consideration of law pertaining to public law. Mr. Singh submits that item 14 of the Plaintiff's affidavit attacks the conduct of the defendants which calls for separate cause of action altogether; that item 17 is an action in torts and negligence; and that item 23 is damages for defamation. He claims the right to be heard but before hearing of the disciplinary charges he has brought this action. Mr. Singh further argues that the affidavit is defective as the source of 'knowledge' and "source of grounds" are not revealed which is contrary to Or 41 of the High Court Rules.

Plaintiff's contention

Mr. Tuberi for the Plaintiff argues that it is the construction of the 'charges' which is in dispute and that is why he is before the Court by way of Originating Summons. The defendants have refused to consider the Plaintiff's allegation in regard to the alleged defective charges.

Mr. Tuberi says that by Summons he is only trying to clarify 'charges'. He says that it is unfair for the defendants to proceed with the disciplinary hearing.

The issue

The sole issue as I see it in the instant action is the procedure by which the reliefs ought to be sought. In other words whether in view of Order 53 of the High Court Rules it was an abuse of the process of the court to apply for the declarations etc sought in the originating summons by using the procedure laid down in the Rules for proceedings begun by Originating Summons instead of using the procedure under Order 53 for an application for judicial review.

Consideration of the issue

For the reasons given hereafter, upon a careful consideration of the facts of this case, I am of the view that the proceedings by way of Originating Summons is inappropriate to the facts and circumstances of this case.

The Plaintiff's main ground for proceeding in this manner is, as he says, because the actions of the defendants involved 'construction' of the Regulations applicable to this action before the plaintiff can agree to answer the charges laid against him. In this regard Mr. Tuberi referred the Court to English RSC Or 5 r.4(2) which states that the originating summons is appropriate for certain proceedings such as when "the sole or principal question at issue is, or is likely to be, one of construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law, or ..."

In this case the defendants took action against the Plaintiff in accordance with the procedure laid down under the Public Service (Constitution) Regulations 1990 and rightly so, as I consider that the Plaintiff is governed by those Regulations.

However, as can be seen from the Plaintiff's affidavit filed in support of the Originating Summons, he prevented the defendants from completing the procedure laid down after the laying of the charges by questioning the procedure and alleging that charges were defective etc adopted by the defendants instead of answering the charges and letting the defendants complete the procedure under the said Regulations. The defendants actions were thwarted and halted by the institution of this action.

Whether the alleged charges were properly laid or not and whether they were in accordance with the Regulations governing civil servants are matters which could have been raised in the disciplinary proceedings after the Plaintiff had answered the charges instead of putting a spanner in the works and digressing by raising an incidental issue within it which could have been adequately dealt with in those proceedings.

The facts surrounding the Plaintiff's case comes essentially within the purview of judicial review as evidenced by the contents of the Affidavit filed in support of the Originating Summons although certain other reliefs are sought on other possible causes of action and which could be the subject of separate actions if the Plaintiff is minded to institute them. It is up to the Plaintiff to decide on a proper procedure to be followed with the view to seeking reliefs.

I find that the Plaintiff is in actual fact seeking to enforce a public right or the performance or proper performance by the defendants of a public duty. The defendants as public bodies and officials get their authority to make decisions from Acts of Parliament and Regulations made thereunder. That being so the decision of the defendants will certainly be within the ambit of judicial review unless its decision is in the realm of private law. Here no doubt the defendants are performing a public law function and hence their 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 but that is not the case before me:

"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".

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] EWCA Civ 6; (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 parties 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". (underlining mine for emphasis)

It is the leading case of O'Reilly v Mackman [1983] UKHL 1; (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". (underlining mine for emphasis)

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 Or18 r19(1)(b) (similar to our Or18) 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 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:

"The institution of proceedings by originating notice of motion or summons was not: appropriate in a case where issues of fact were likely to arise. Matters of public law and administration ordinarily fell within the purview of s.31 of the Supreme Court Act 1991 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, e.g. 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. Furthermore, the text of the declarations sought were in such general terms and so unconnected with adequately particularised and specific facts that they were incapable of producing any meaningful result. Questions such as who was a worker, what those rights are, whether whose rights have been disregarded, and whether he or members of his family have been victim to such discrimination, were questions that could only be resolved after proper consideration by this court of the full circumstances of the individual claim. O'Reilly v Mackman [1983] UKHL 1; [1982] 3 All ER 1124 applied. Ray v Kensington and Chelsea and Westminster Family Practitioner Committee [1993] 1 LRC 687 considered. Duke of Bedford v Ellis [1899] UKLawRpCh 24; [1899] 1 Ch 494 referred to." (underlining mine for emphasis)

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 upheld the decision of LYONS J. There it was held 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 (Civil App. No. 6 of 1994), 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."

Mr. Singh has also raised the point that s.41 of the High Court Rules has not been complied with in that the affidavit is defective as it does not give the "source of knowledge" and "source of grounds". Having decided as above it is not necessary for me to consider this aspect of Mr. Singh's argument suffice it to say, even if I were to deal with it, I would have rejected that ground because as stated by A.L. Smith L.J. that "it is only when upon the face of it it is shown, that the pleading discloses no cause of action or defence, or that it is frivolous and vexatious, that the rule (to strike out) applies" (Attorney General of the Duchy Of Lancaster v London North Western Railway Company [1892] UKLawRpCh 134; (1892 3 Ch. 274 at 278).

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 Noble & 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] UKHL 1; [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, meritorious 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 [1994] A. C. 262, Wandsworth London Borough Council v. Winder [1984] UKHL 2; [1985] A.C. 461 and Gillick v. west Norfolk and Wisbech Area Health Authority [1996] A.C. 112. (iii) Order 53 should not be used for the litigation of private law claims".

In conclusion, on the facts of this case and on the affidavit filed by the Plaintiff with the Originating Summons I am of the view that this is a genuine public law claim and is the essence of almost the entire claim and therefore the procedure under Or 53 is the appropriate procedure to seek the relief available under that Order. It seems that to strike out this action and to require the Plaintiff to proceed by way of judicial review would not merely adversely affect the plaintiff's public law rights but "effectively divest the plaintiffs of those rights because due to the time lapse, leave for judicial review would not be granted" (to use the words of Robert Goff L.J in Wandsworth London Borough Council v Winder [1984] UKHL 2; (1985) A.C. 461 at 481).

However, if the Plaintiff has any private law right then there is nothing to stop him from exercising them provided that he proceeds by filing proper claims.

Before I depart from this matter I note that I did grant a stay of the disciplinary proceedings on the Plaintiff's application pending this decision. Now, that I have decided as above the defendants are at liberty to continue the said proceedings and come to a decision to finalize the matter before them.

In the outcome, for the above reasons, I would allow the defendants' summons and declare that the Plaintiff is not entitled to continue these proceedings or to seek most of the reliefs claimed by him otherwise than by an application for judicial review if he is still at this stage able to do so under the Rules. What course he adopts is entirely up to him to decide and proceed in accordance with the law and Regulations.

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

D. Pathik
Judge

At Suva
22 July 1997

Hbc0019d.97s