Waqaitanoa v Commissioner of Prisons [2000] FJHC 98; Hbc0271d.2000s (7 September 2000)

Fiji Islands - Waqaitanoa v The Commissioner of Prisons - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 271 of 2000s

Between:

ERONI WAQAITANOA

Plaintiff

and

THE COMMISSIONER OF PRISONS

First Defendant

THE PERMANENT SECRETARY FOR

THE PUBLIC SERVICE COMMISSION

Second Defendant

and

THORNEY-GENERAL

Third Defendant

R. Naidu for the Plaintiff

D. Singh for the Defendants

DECISION

This is an application by the Defendants to strike out the plaintiff’s Originating Summonthe ground that it is an aban abuse of the process of the Court.

The Originating Summons was issued on 30 June 200e principal relief sought by the Plaintiff is declaration tion that the First Defendant's decision communicated to the Plaintiff on or about 7 July 1995 not to re-engage him for a further period of 5 years as a prison officer was unconstitutional, unfair and unjust. The Plaintiff claims that the decision was in breach of the Prisons Act, the Prisons Service Regulations, Prisons Standing Orders and the Public Service Commission Regulations.

In paragraph 21 of his supporting affidavitPlaintiff reveals that in February 1996 he was given leave eave by the High Court to move for Judicial Review of the same matters now complained of. Unfortunately, his solicitors failed to enter the motion for hearing until long after the 14 day period required by RHC O 53 r 5 (4) had expired. The application to enter the motion out of time was not filed until August 1996 and was rejected by Pathik J on 26 September 1997. I understand that there has been no appeal against that decision.

Mr. Singh’s art in support of the application to strike out is straightforward. Relying on Ram Prasad asad v. The Attorney-General (FCA Reps 99/343) in which the Court of Appeal followed the English decision in O’Reilly v. Mackman [1983] UKHL 1; [1983] 2 AC 237; [1982] 3 All ER 1124 he suggested that the Plaintiff’s claim is in public and not in private law and that therefore it is an abuse of the procedure of the Court to commence proceedings by way of Originating Summons especially when the clear purpose of commencing proceedings in this way is to avoid both the consequences of the failed Judicial Review proceedings and the delay provisions contained in RHC O 53 r 4.

In answer, Mr. Naidu advised me that he was planning to seek to amend the Originating Summons by deleting the references to unfairness and injustice with the result that he would rely solely on the claim of want of constitutionality. But no amendment has actually been sought and in view of the fact that the original O 53 statement which was filed in October 1995 also advanced unconstitutional conduct by the Defendants I do not think amendment of the Originating Summons would alter the outcome of this application.

Mr. Naidu also suggested that the Plaintiff should not be prevented frving for relief merely beca because his solicitors had misconducted the previous proceedings. A similar argument was rejected by Pathik J (a copy of the full Decision is exhibited to the affidavit in support of this application) with whom I respectfully agree. I have also recently pointed out (Southern Transport Limited v. Tebara Transport Limited HBC 229/98S) that the relationship between solicitor and client being one of agency, want of care by the agent does not entitle the principal to avoid the actions taken or not taken on his behalf.

In my opinion the Defendants application is unanswerable. Accordingly thintiff’s Originating Summonummons will be struck out.

M.D. Scott

Judge

HBC0271D.00S