Biumaiwai v Fiji Islands Revenue and Customs Authority [2002] FJHC 11; Hbc0028d.2001s (15 July 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 0028 OF 2001S

Between:

JIMIONE BIUMAIWAI
Plaintiff

and

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
Defendant

N. Vere for the Plaintiff
Ms. B. Malimali for the Defendant

DECISION

In May 1999 a general election was held. Polling officials were needed and as usual the Supervisor of Elections looked to the civil service to provide some of the required personnel.

On 24 March 1999 the Director General of the Fiji Islands Customs Service wrote to the Divisional Planning Officer Eastern. He recommended the Plaintiff “to work during the election period from 8/5/99 to 15/5/99”.

On 14 May the Director General wrote to the Plaintiff:

“In view of your continuous absence from duty since 3/5/09 you are hereby deemed to have resigned from the service forthwith.”

On 15 October 1999 a trade dispute was accepted by the Permanent Secretary for Labour and Industrial Relations arising out of the termination of the Plaintiff’s employment. On 1 March 2000 the Disputes Committee decided that the Plaintiff’s termination had been wrongful and unfair. It awarded the Plaintiff reinstatement together with arrears and benefits due to him. The Defendant did not appeal against this award.

On 23 January 2001 an Originating Summons was filed by the Plaintiff. He sought a declaration that the decision of the Disputes Committee was “valid in law” and “a determination of the Court that the Plaintiff is entitled to claim damages from the Defendant as a result of his unlawful dismissal”.

In his 30 paragraph supporting affidavit the Plaintiff rehearsed the circumstances of his termination and reinstatement. He then went on to allege that as a result of his dismissal a farming project in which he was involved collapsed, that bankruptcy proceedings were commenced against him, that he had been “made a laughing stock” and that he and his family had suffered “tremendous emotional harm”.

On 12 February 2000 the Defendant filed its affidavit in opposition. While accepting that the Disputes Committee had found in favour of the Plaintiff and that he had been reinstated with lost pay and benefits the Defendant’s personnel officer denied that the Plaintiff had been unlawfully dismissed or terminated. He also generally denied the other losses which the Plaintiff stated he had suffered or incurred.

On 1 March 2000 the Plaintiff filed an application under RHC O18 r 18 to strike out the Statement of Defence on the ground that no reasonable defence was disclosed and that it was scandalous frivolous or vexatious.

On 25 May when the matter came before me I pointed out that the Originating Summons procedure employed by the Plaintiff was clearly inappropriate given the several issues of fact raised in his affidavit. I gave the Plaintiff leave to file a Statement of Claim and ordered that the matter proceed as if commenced by writ. The Statement of Claim was filed on 13 June.

On 9 July 2001 the Defendant filed its own summons under the provisions of RHC O18 r 18.

On 8 November the matter again came before me. Mr. Vere confirmed that the main purpose of the Plaintiff’s claim was to recover damages arising from the loss of the farming operation and compensation for mental suffering. He acknowledged that the Statement of Claim as filed was deficient and sought leave to amend. Leave was granted.

On 8 November 2001 an amended Statement of Claim running to 54 paragraphs was filed. The Plaintiff sought damages for breach of contract, negligence and breach of statutory duty.

On 8 March 2000 the Plaintiff filed a summons under RHC O14 seeking summary judgment with damages to be assessed.

On 12 April the Defendant indicated that it wished to proceed with the Strike Out application in respect of the amended Statement of Claim. I adjourned the two summonses to 10 July for hearing.

On 10 July Ms. B. Malimali appeared on behalf of the Defendant. She filed a careful and learned written submission. The main thrust of her argument was that the Plaintiff had no arguable basis for his claim that the Defendant had in any way breached its statutory duties, that in any event such a claim does not give rise to an action for damages and that furthermore the damages claimed were hopelessly remote.

Mr. Vere did not answer Ms. Malimali’s submissions in any detail. He contented himself with stating that the Defendant could not deny that the Plaintiff had been wrongly terminated and that the damages which he was seeking flowed naturally from the Defendant’ wrongful actions.

I do not think that I am alone in having experience that there is a tendency in Fiji to resort rather too frequently to Order 18 r 18. As is clear from the commentaries in the White Book to Orders 14 and 18 it is only in the clearest circumstances that parties will not be allowed to prosecute their case. Where there are arguable issues of fact summary judgment will not be given and pleadings will not be struck out.

In the present action I find that arguable points of law have been raised by the Defendant. I also find that potentially complicated issues of causation have been raised by the Plaintiff. This is not a suitable case for summary judgment or striking out. Both applications fail and are dismissed.

M.D. Scott
Judge

15 July 2002