Fijian Teachers Association v Permanent Secretary for Education [2001] FJHC 253; HBC394.2000 (22 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 394 OF 2000

BETWEEN:

THE FIJIAN TEACHERS ASSOCIATION
1st Plaintiff

AND:

JONE LOKEGA, School Teacher of Lot 21,
Kalabu Stage 2, Nasinu
2nd Plaintiff

AND:

THE PERMANENT SECRETARY FOR
EDUCATION
1st Defendant

AND:

THE SECRETARY FOR THE PUBLIC SERVICE
COMMISSION
2nd Defendant

Miss R.S. Singh for the Plaintiffs
L. Daunivalu for the Defendants

Dates of Hearing: 13th November 2000, 15th January 2001
Date of Judgment: 22nd November 2001

JUDGMENT

Lawyers are sometimes credited with having inventive and fertile minds so that it is possible when the occasion requires it for a learned member of the profession to advance an ostensibly plausible argument on what are really, when examined, most implausible foundations.

I must congratulate counsel for the Plaintiffs in this case for demonstrating that she has a very inventive mind because she has endeavoured to argue for her clients what I am satisfied is the unarguable - namely that the Plaintiffs should be allowed to proceed with this action. My reasons for saying that will, I hope, become clear during the course of this Judgment which is on a Motion by the Defendants to strike out the Plaintiffs’ Writ of Summons of 12th September 2000 on the grounds that it is frivolous and vexatious and is otherwise an abuse of the process of the Court.

The application is made under Order 18 Rule 18 (1) (b) and (d) of the High Court Rules 1988.

The facts of this case are short and simple, just I have no doubt is the law applicable to them. I begin with some references to the Statement of Claim annexed to the Writ. This alleges that the First Plaintiff is a registered Trade Union of which the Second Plaintiff is a member and it is suing on behalf of and in conjunction with the Second Plaintiff.

The Second Plaintiff is a School Teacher who has been so employed since 1973.

The First Defendant is a civil servant empowered to administer and supervise the operation of the Ministry of Education.

The Second Defendant is the civil servant empowered to supervise the overall operations of the civil service in Fiji and is the overall employer of the Second Plaintiff.

On the 1st of January 1996 the Second Plaintiff lodged an application with the First Defendant for leave without pay, pursuant to General Order 708 of the Public Service Commission Regulations.

It is alleged that this application should have resulted in the First Defendant either:

1. approving the request and stopping the Second Plaintiff’s salary; or
   
2. rejecting the application and informing the Second Plaintiff of this.
   

In the event the Second Plaintiff’s salary was not stopped and the First Defendant kept on paying the Plaintiff’s salary until he returned to Fiji in June 1996.

When he returned here the Second Plaintiff found all these moneys in his bank account and utilised them, allegedly not knowing that the money constituted his salary which had been wrongly paid to him.

Thereafter the Defendants allegedly unilaterally started deductions from the Second Plaintiff’s salary from September 1996. The Plaintiffs claim that these deductions arose through the negligence of the First Defendant and vicariously the Second Defendant.

The Defendants found that the Second Plaintiff had been overpaid $8,408.05 from January to June 1996 and allegedly gave no explanation to the Second Plaintiff as to how that amount had been assessed.

I mention here that the Second Plaintiff alleges that the correct overpayment would have been $2,417.76. It is then alleged that the Defendants compelled the Second Plaintiff to have $100.00 deducted from his salary every fortnight to repay moneys which they negligently paid to the Second Plaintiff.

As a result of the alleged negligence of the Defendants the Second Plaintiff claims he suffered loss and damage comprising the following:

1. Loss of two life insurance policies worth $11,500.00 with Colonial Mutual Life Insurance which the Second Plaintiff had to surrender because he could not meet repayments on a reduced salary.
   
2. The Second Plaintiff also had to repay $3,800.00 to cover the arrears of his house payment.
   

It is then claimed that the Plaintiffs applied for Judicial Review of the First Defendant’s decision in Judicial Review Action No. HBJ45 of 1999 and the Judge refused to grant leave to apply for such review although he found that the First and Second Defendants had been negligent in not processing the Second Plaintiff’s application. As I was the Judge in question I have some first-hand knowledge of the proceedings for Judicial Review although I have no knowledge of the next allegation made by the Second Plaintiff that he incurred $1,828.15 in solicitor’s fees in those proceedings.

Finally the Plaintiffs allege that the Second Plaintiff has suffered and will continue to suffer the following damages:

(a) Excessive deduction of salary	$5,990.29
(b) Loss of life insurance policies	$11,500.00
(c) Solicitor’s fees	$1,828.75
(d) House payments	$3,800.00

Earlier I complimented counsel for the Plaintiffs on her very inventive mind but now I must also congratulate her on having extremely strong vision not possessed by mere mortals like me, a Puisne Judge, or presumably, the Defendants. This is because it would seem counsel has the faculty of being able to read into a document something which to the ordinary reader is simply not there. I refer to the Plaintiffs’ claim in their submission that in my Ruling in the Judicial Review proceedings I had found the Defendants negligent in not processing the Second Plaintiff’s application for leave without pay.

The fact is that I made no such finding as would be obvious to anybody reading my Ruling given on the 20th of June 2000. Therefore on reflection my assessment of counsel’s vision is wrong.

To return to the world of reality and not make-believe, no counsel should make any submission or statement which does not accord with the facts of a case. To do so is to attempt to mislead the Court and simply will not be tolerated.

I have read the Second Plaintiff’s application for leave to apply for Judicial Review which was issued from this Court on the 25th of November 1999. The decision of the First Respondent was dated the 14th of May 1998 and so far as relevant the Motion now before the Court alleges that on or about the 1st of January 1996 the First Respondent did not allow the Applicant leave under General Order No. 708 and did not inform him of his decision. It also alleges that in May 1996 the Respondents (in the present case the Defendants) commenced deductions of $100.00 from his salary every pay day.

The relief sought by the Plaintiff in his application for Judicial Review was as follows:

1. An Order for Mandamus directing the 1st and 2nd Respondents to reimburse to the Applicant all deductions of $100.00 made very fortnight from the Applicant’s salary for the period of May to September 1996.
   
2. A Declaration that the decision of the 1st Respondent not to grant him leave without pay is unlawful as the decision was made in breach of General Order 718 and the rules of natural justice and as such is null and void and of no effect.
   

100. An Order for damages and costs.
     

Of the four grounds upon which the Plaintiff sought Judicial Review, ground (c) is the most relevant here. That reads:

“That in deducting the said monies the Respondents erred and acted in an unlawful, arbitrary and unreasonable manner.”

THE LAW

Order 18 Rule 18 (1) so far as relevant reads thus:

“(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that -

1. it discloses no reasonable cause of action or defence, as the case may be; or
   
2. it is scandalous, frivolous or vexatious; or
   

100. it is otherwise an abuse of the process of the court.”
     

In Christie v. Christie (1873) Ch. D. 449 Lord Selborne, L.C. said at p.503:

“..... it is no less important to keep scandal off the record.”

In Ashmore v. British Coal Corporation (1990) 2 ALL E.R. 981 at p.984 Stuart-Smith L.J. said:

“The expression ‘frivolous or vexatious’ in r 12(2)(e) of the 1985 rules includes applications which are an abuse of process : see E.T. Marler Ltd v. Robinson (1974) ICR 72 at 76 per Sir Hugh Griffiths.”

He then quoted the remark of Lord Diplock in Hunter v. Chief Constable of West Midlands and Another [1981] UKHL 13; (1981) 3 ALL E.R. 727 at 729::

“My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”

Later in his speech in Hunter v. Chief Constable of West Midlands and Another at p.733 Lord Diplock approved the remark of A.L. Smith L.J. in Stephenson v. Garnett
[1898] UKLawRpKQB 22; (1898) 1 Q.B. 677 at 680-68:

“.... the Court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous , yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent court.”

Obviously claims or defences which are shams and not honest or bona fide abuse the process of the Court but as Stuart Smith L.J. pointed out in Ashmore v. British Coal Corporation at p.987 it is dangerous to try to define fully the circumstances which can be regarded as an abuse of process, though these would undoubtedly include a sham or dishonest attempt to relitigate a matter. Each case must depend on its own facts.

Reading the application for Judicial Review and the Statement of Claim in the present action I consider the application for Judicial Review and this case raise substantially the same issues and seek similar relief, namely damages. In my view the Plaintiffs are attempting to engage in legal sleight of hand in that in this case they have simply changed the form of the proceedings involving the same questions that were resolved in the Judicial Review.

Somervell, L.J. said in Greenhalgh v. Mallard (1947) ALL E.R. 255 at 257 that where a Plaintiff chose to rely on and put his case in one of two ways he could not thereafter bring the same transactions before the court and say that he is relying on a new cause of action.

Implicit in my finding in the earlier proceedings that the First Defendant did not act unfairly to the Plaintiff was also a finding that the First Defendant acted reasonably towards the Plaintiff. In the law of Tort the criterion for negligence is whether the person against whom a claim is made acted as a reasonable man (forget this gender-additive “or woman” nonsense) would have in the circumstances.

If the answer to that question is “yes” then normally the claim must fail.

By imputing negligence to the Defendants when in fact no such pronouncement was made by the Court, and to further claim damages based on that alleged pronouncement, is not only highly mischievous of the Plaintiffs but in my judgment it is also scandalous and vexatious. To summarise my conclusions I hold that the Plaintiffs are estopped from bringing this action which is based on the same issues determined by this Court in Judicial Review No. HBJ45/99. I therefore grant the orders sought in the Defendants’ Motion. No order for costs is sought although in my view one would have been justified on the facts of this case. I therefore order that the Plaintiffs’ Writ of Summons of 12th of September 2000 be struck out on the grounds that it is frivolous and vexatious and is otherwise an abuse of the process of the Court.

JOHN E. BYRNE
JUDGE