BETWEEN:
FIJI TEACHERS UNION
a trade union registered under the
Trade Unions Act of Fiji [Cap. 96]
Plaintiff
AND:
THE PERMANENT SECRETARY FOR EDUCATION
1st Defendant
AND:
THE SECRETARY FOR PUBLIC SERVICE COMMISSION
2nd Defendant
G. Prasad for the Plaintiff
D. Singh for thendants
Dates of Hearing and Submissions : 12th November 1997,
16th March 1998
Date of Interlocutory Judgment : 21st July 1998
INTERLOCUTORY JUDGMENT
The Plaintiff in this action is a trade union registered under the Trade Unions Act of Fiji Cap. 96 and has among its membership teachers who are civil servants as well as some 1077 teachers in Non-Government secondary
schools who are employed by the managements of such schools and teach alongside their civil servant counterparts. The Ministry of
Education assesses their salaries and contributes to committee schools 80% or for specialist teachers the full amount to meet the
salaries of the aided teachers. These so-called private school teachers are known as Grant-in-Aid Teachers. It is alleged by the
Plaintiff and, so far not disputed by the Defendants that the terms and conditions of the employment of civil servant teachers are
governed by the Public Service Decree 1988 and its Regulations and the General Orders.
The terms and conditions of the employment of the grant-in-aid teachers are governed by the Education (Grants and Assistance to Schools)
Regulations 1984 ("the Grant-in-Aid Regulations").
The Grant-in-Aid Regulations provide, inter alia, as follows:
"1.(a) An aided school is a non-government or junior secondary school receiving recurrent grant-in-aid either in cash or kind from the Government.
(b) An aided teacher is a teacher teaching in an aided school and part or whole of whose salary is met by the Government.
2. The Permanent Secretary for Education, may, with the approval of the Minister, offer recurrent grant-in-aid to a school in accordance with these Regulations, and on such
other conditions as may be laid down from time to time."
Regulation 5 states:
"Recurrent Grant-in-Aid will comprise:
5.(a) A Salary Grant comprising:
(i) not less than 80% of the salary of each aided non-government teacher as assessed under Section 6 below; and not less than 80%
of any allowance(s) for which he may be eligible;
(ii) not less than 80% of the approved salary of a clerical assistant employed by the Controlling Authority in the school with the
prior approval of the Permanent Secretary; and
(iii) not less than 80% of the employers' contribution to the Fiji National Provident Fund in respect of each aided teacher and of
the clerical assistant."
Regulation 6 states so far as relevant:
"The salary and any approved allowances in respect of aided non-government teacher shall be assessed by the Permanent Secretary according to the criteria currently used for the assessment of salaries of Government teachers. The Controlling Authority of an aided
school shall pay all aided non-government teachers their salaries and allowances as so assessed."
On the 20th of January 1997 the Plaintiff issued a Writ with an annexed Statement of Claim which, after reciting the above background
information goes on to allege the following:
(1) Grant-in-aid teachers often have academic and professional qualifications similar to those of civil servant teachers, work together
in school environments under the direction and leadership of the same school principal and carry out teaching and administrative
responsibilities in the schools similar to civil servant teachers.
(2) Grant-in-aid teachers have also received cost of living increases whenever civil servant teachers received such increase.
(3) In accordance with the Grant-in-Aid Regulations 1984 the 1st Defendant contributed 80% of the salaries and allowance and the controlling
authorities or school committees provided the remaining 20% of payment of such salaries and allowance to grant-in-aid teachers.
(4) In 1984 the Government of Fiji imposed a national wage freeze following which payment of increments to civil servants as well
as grant-in-aid teachers ceased.
(5) In 1987 when the Government of Fiji imposed a 15% reduction in salary of civil servant teachers and other public servants the
grant-in-aid teachers also suffered a similar reduction.
(6) In 1991 the wage freeze was lifted and the Defendants then resumed payment of salary increments to civil servant teachers. The proportion of any such increase in each case depended on the salary scale of each individual civil servant teacher. No such
increment of salary was given to or provided to the grant-in-aid teachers.
The Statement of Claim then alleges that the Plaintiff on the basis of the established and previous practice and the Grant-in-Aid
Regulations then requested the 1st Defendant to provide for increment of salaries to the grant-in-aid teachers.
At all material times the controlling authorities or school committees of the grant-in-aid teachers were willing to pay their 20%
portion of the salary increment provided the Defendants met their obligation and contributed 80% of such increment as was done in
the past.
The Plaintiff alleges that in breach of the established and past practice, the Grant-in-Aid Regulations and in face of the willingness
of the controlling authorities or school committees to contribute their 20% portion of the increment the Defendants have refused
to contribute 80% of salary increments for grant-in-aid teachers to ensure that salary increments to grant-in-aid teachers are similar
to those paid to civil servant teachers.
Further, until 1994, in all other respects, the grant-in-aid teachers enjoyed the same rights as civil servant teachers which included
inter alia, school holidays, sick leave, bereavement leave, maternity leave, same salary scale at commencement of service, and entitlement
to acting allowance for posts of responsibility in schools.
Further in 1995, in breach of the past and established practice in the profession and the Grant-in-Aid Regulations the 1st Defendant
decided that no allowance was to be paid to civil servant teachers.
The Plaintiff alleges that the failure or refusal of the 1st Defendant to make any contribution for the increment of salaries for
grant-in-aid teachers or to pay allowances to such teachers for acting in posts of responsibility is contrary to the established
previous practice and the Grant-in-Aid Regulations; creates two classes or categories of teachers doing the same work in breach of
the principle of equal remuneration for work of equal value and is therefore unfair, unreasonable, discriminatory, unjust and unlawful.
Accordingly the Plaintiff claims a declaration that the Defendants' failure or refusal to make the 80% contribution for increment
of salaries and allowances to grant-in-aid teachers is contrary to and in breach of the established former practice in the profession
and Grant-in-Aid Regulations; creates two classes of teachers doing the same work and is therefore discriminatory and unlawful.
The Plaintiff then seeks an order that the Defendants immediately make their contributions as aforesaid backdated to the day when
such payments ceased.
The Writ was served on the Attorney-General's chambers on 21st January 1997 and on 27th March 1997 the Plaintiff's solicitors reminded
the Solicitor-General that as the time for filing an Acknowledgment of Service and a Statement of Defence had long expired if no
defence was delivered by the 3rd of April 1997 the Plaintiff would apply for leave to enter Interlocutory Judgment against the Defendants.
In response the Defendants through the Attorney-General on the 4th of June 1997 issued a Summons to strike out the Writ of Summons
on three grounds:
(i) That it discloses no reasonable cause of action;
(ii) That it is scandalous, frivolous or vexatious;
(iii) That it is therefore an abuse of the process of the Court.
On the 23rd of July 1997 the parties appeared before me in chambers when I suggested that it might be worthwhile for them to discuss
possible settlement of the Defendants' application. This proved impossible so that on the 12th of November I directed that written
submissions be filed and served by the parties which has now been done.
The submission by the Defendants is very straight-forward. It simply says that the Plaintiff has chosen the wrong procedure and that
it should have proceeded by way of Judicial Review rather than by way of an action begun by Writ of Summons because the action raises
questions of public law and not private law.
Reliance is placed particularly on two cases, O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237 and Cocks v. Thanet District Council (1983) 2 A.C. 286.
Both judgments of the House of Lords were delivered on the same day and may be said to complement each other. It is probably fair
to say I think that between them, these two cases but particularly O'Reilly v. Mackman have become some of the most criticised decisions of the House of Lords on Judicial Review in recent years.
Lord Diplock with whom the other members of the House agreed in O'Reilly v. Mackman made four points which I summarise thus:
(i) Order 53 provides a procedure whereby every type of remedy for the infringement of the rights of an individual that are entitled
to protection in public law can be obtained.
(ii) Built into those procedures are protections against groundless, unmeritorious or tardy harassment of public bodies.
(iii) Such protections are necessary to satisfy the public policy which requires speedy certainty in the resolution of such disputes
in the interests both of good administration and the protection of rights of third parties indirectly affected by the challenged
public law decision.
(iv) So where an action is commenced by way of writ, where the challenge should have been mounted under Order 53, unless such an action can be struck out summarily as an abuse of the process of the court, then the whole purpose of the public policy
towards which Order 53 is directed would be defeated.
In Cocks v. Thanet District Council proceedings had been started in the County Court for a declaration that a District Council was in breach of its duty to provide permanent
accommodation for the Plaintiff under the Housing (Homeless Persons) Act. He was taken to the House of Lords on the preliminary issue whether he should have sought Judicial Review in the High Court. The
House of Lords held that before he could begin a private law claim he had to show that his public law rights had been infringed and
could only do this by Judicial Review. If he was successful in his application for Judicial Review then he would have to proceed
then, but only then, as he had begun to, in private law because if the authority was obliged to provide housing this was a matter
of private law enforceable by injunction and damages.
In their book Judicial Review of Administrative Action de Smith, Woolf and Jowell, 5th Edition 1995 the authors comment on pages 194
and 195 that although the logic of Cocks v. Thanet is impeccable, since it results in the body whom the legislation had entrusted with the responsibility for taking the decision, retaking
the decision if its first decision was flawed, this results in a complex procedure involving more than one set of proceedings which
was hardly a practical result in an area of the law such as housing, where justice requires expedition.
In the 7th Edition of Administrative Law by Wade and Forsyth at page 682 the authors are very critical of O'Reilly v. Mackman. They say:
"The rigid dichotomy which has been imposed, and which must now be explained, must be accounted a serious setback for administrative
law. It has caused many cases, which on their merits might have succeeded, to fail merely because of choice of the wrong form of
action. It is a step back towards the time of the old forms of action which were so deservedly buried in 1852. It has produced great
uncertainty, which seems likely to continue, as to the boundary between public and private law, since these terms have no clear or
settled meaning. It has increased costs, since judicial review is available only in the High Court."
In Doyle v. Northumbria Probation Committee (1991) 1 WLR 1340 at page 1348 Henry J. described one consequence of O'Reilly v. Mackman as shown by subsequent cases as being that the forms of action abolished by the Common Law Procedure Act 1854 (17 & 18 Vict.
c. 125) in the 19th century "appear to be in danger of returning to rule us from their graves".
It should be remembered however that Lord Diplock stated in O'Reilly v. Mackman (1983) 2 A.C. at page 285 that:
"I do not think that your Lordships would be wise to use this as an occasion to lay down categories of cases in which it would
necessarily always be an abuse to seek in an action begun by writ or originating summons a remedy against infringement of rights
of the individual that are entitled to protection in public law."
Nevertheless the criticism of O'Reilly has continued until as late as 1997 in England and here I am indebted to Mr. Singh, counsel for the Defendants, who in the last few
days has given me a photocopy of part of the ALL ER Annual Review 1997. In the section dealing with Administrative Law written by
Keith Davies, Professor Emeritus of the University of Reading, reference is made to the English Court of Appeal decision in British Steel plc v. Customs and Excise Commissioners (1997) 2 ALL E.R. 366 where Saville L.J. (now Lord Saville) said at 379:
"The old forms of action have doubtless long been laid to rest, but others have sprung up in their place, giving rise once again
to litigation which is devoted to the question whether the right form of action has been used, rather than addressing and resolving
the real dispute between the parties."
This of course does not help Mr. Singh's case here but in the best tradition of advocacy he saw fit to give the extract to me for
my assistance and I have found it of much help.
I have dwelt at some length on these criticisms of O'Reilly v. Mackman to show, I hope, that although the case has been a legitimate part of the tools of trade of lawyers for the last sixteen years, and
will probably continue to be for at least some years to come, the criticisms and the number of times which on particular facts it
has been distinguished indicate clearly in my view that it should not be used indiscriminately as a cure- all for the many problems
which arise and will arise in the field of public and private law in Judicial Review cases. I am not suggesting for a moment that
counsel for the Defendants has sought to do that here; I merely sound a warning of the risks entailed in attempting to apply O'Reilly v. Mackman to situations in which it cannot be applied on any reasonable view of the facts of a case. I leave the matter there.
The Defendants next submit that in the instant case, the Plaintiff has not pleaded breach of contract in its Statement of Claim, (presumably
conceding that if it had it would be entitled to proceed as it has). With respect I disagree. The Plaintiff has clearly alleged a
breach of the Grant-in-Aid Regulations by the Defendants and as such by implication breaches of the terms and conditions of their
employment by teacher members of the Plaintiff for which they are seeking relief in these proceedings. In my judgment this is correct.
I regard this case as a genuine private law claim, seeking private law remedies and a claim which in no way depends on the Plaintiff
asserting or proving any public law infringement of the rights of the Plaintiff's members. I point out that Judicial Review, as has
been so often said, is concerned with the process by which a decision has been reached, not the decision itself.
The Plaintiff submits, and I think it is certainly arguable, that in this case what is being questioned are certain decisions over
the years which have adversely affected the terms and conditions of employment of grant-in-aid teachers in Fiji. The process of the
decision-making itself is not under scrutiny. Further the Plaintiff by its Statement of Claim is not seeking to have any one specific
decision reviewed by the Court. It is asking the Court to consider the breach of or departure from the terms and conditions of employment
of its members which has occurred over a period of time. In such a situation I do not consider Judicial Review to be applicable.
As to the claim in the Summons that this action is an abuse of process of the Court, what amounts to abuse of process will always
depend on the relevant circumstances and, quite possibly here, considerations of public policy and justice. The Plaintiff claims,
and there is nothing so far before me to suggest otherwise, that it brings this action on behalf of a large number of members of
a very important profession who appear to have a grievance for which they seek redress through this Court. The Plaintiff submits
that no society should ever allow two sets of different conditions of employment for people who provide similar services to the same
community. Again I consider this very arguable.
In Doyle v. Northumbria Probation Committee Henry J. quoted from some of the cases which followed the decision in O'Reilly v. Mackman one being the remarks of Robert Goff L.J. (as he then was) in Wandsworth London Borough Council v. Winder [1984] UKHL 2; (1985) A.C. 461 when the case was in the Court of Appeal which Henry J. mentions at p.1349:
"For my part, I find it difficult to conceive of a case where a citizen's invocation of the ordinary procedure of the courts
in order to enforce his private law rights, or his reliance on his private law rights by way of defence in an action brought against
him, could, as such, amount to an abuse of the process of the court. But in any event I am satisfied that it cannot be right that
his so proceeding should be held to amount to an abuse of process if the effect would be that his power to enforce his private law
rights, or to rely upon them by way of defence, either would or might be adversely affected. I am unable to read Order 53 or section
31 of the Supreme Court Act 1981 as intended in any way to curtail a citizen's private law rights."
With respect I agree. On the basis of the principles as there expressed I consider that in all the circumstances so far known to me
here I would not be justified in regarding this claim as an abuse of the process of the Court so the application to strike it out
therefore fails. Costs will be in the cause.
JOHN E. BYRNE
JUDGE
Authorities and Cases referred to in Judgment:
Education (Grants and Aid Assistance to Schools) Regulations 1984.
High Court Rules 1988.
Administrative Law by Wade and Forsyth 7th Edition.
Judicial Review of Administrative Action, de Smith, Woolf and Jowell 5th Edition 1995.
British Steel plc v. Customs and Excise Commissioners (1997) 2 ALL E.R. 366.
Cocks v. Thanet District Council (1983) 2 A.C. 286.
ALL ER Annual Review 1997
Doyle v. Northumbria Probation Committee (1991) 1 WLR 1340.
O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237.
Wandsworth London Borough Council v. Winder [1984] UKHL 2; (1985) A.C. 461.
The following additional authorities were referred to in argument:
Halsbury's Laws of England 4th Edition Volume 36.
Castro v. Murray (1875) 10 Ex. 215.
Dawkins v. Prince Edward of Saxe Weimar (1886) 11 P.59.
Chief Constable of North Wales Police v. Evans [1982] UKHL 10; (1982) 1 WLR 1155.
Davey v. Bentinck [1892] UKLawRpKQB 216; (1893) 1 Q.B. 185.
Moore v. Lawson (1915) 31 TLR 418.
Drummond-Jackson v. British Medical Association (1970) 1 WLR 688.
Palani & Another v. Fiji Electricity Authority ABU 28 of 1996 - unreported judgment of Court of Appeal dated 18th July 1997.
Wenlock v. Moloney (1965) 1 WLR 12388.
Willis v. Earl Beauchamp (1886) 11 P.59.
--------------------------------------
Hbc0021d.97s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1998/107.html
