Tale v Public Service Commission [2002] FJHC 38; Hbc0327d.1999s (8 March 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 327/99S

Between:

APOROSA TALE
Plaintiff

and

THE PUBLIC SERVICE COMMISSION
1st Defendant

and

THE ATTORNEY GENERAL
2nd Defendant

Ms. U. Fa for the Plaintiff
Y. Singh for the Defendant

DECISION

The Plaintiff was formerly employed by the first Defendant as a driver. The conditions of his employment were those set out in the Conditions and Rules of Employment for Government Unestablished Workers 1986 (The JIC Agreement).

On 6 February 1997 the Plaintiff’s employment was terminated under the provisions of clause 37 (b) of the JIC Agreement.

On 13 July 1999 the Plaintiff commenced proceedings against the Defendants by way of writ. He claimed that he had been wrongfully dismissed. He sought a declaration to that effect, special damages amounting to $77,120.00 and general damages to be assessed. He did not seek reinstatement.

On 20 August 1999 a Defence was filed by the two Defendants. That was followed by a reply, summons for directions, discovery and pre-trial conference. On 3 May 2001 the Plaintiff took out a summons to enter the action for trial. On the return date of that summons Mr. Singh, who just have taken over the file on behalf of the Defendants, advised that he wished to file an application to have the action struck out on the ground that it was an abuse of the process of the court. Ms. Chan who then appeared for the Plaintiff did not object to the Order 34 hearing being adjourned in order to allow the Defendants to file this application.

Mr. Singh’s submissions were quite straightforward. He pointed out that the Plaintiff had been an unestablished government employee. He had no individual contract of employment with the government but the terms and conditions of employment were those set out in the JIC Agreement. The Agreement contained a disciplinary procedure (Section X) which the Plaintiff alleged had not been followed with the result that his dismissal was wrongful. Mr. Singh suggested that the Plaintiff’s complaint was clearly in public law and therefore, relying on O’Reilly v. Mackman [1983] UKHL 1; [1983] 2 AC 237, followed in Fiji inter alia in Ram Prasad v. Attorney-General (FCA Reps 99/343) should have been brought by way of an application for judicial review. Since such an application would have to have been brought within 3 months of the matters complained of the present action was a blatant attempt to evade the restrictions imposed by Order 53 r 4.

While Mr. Singh’s submissions undoubtedly represent the general position there are a few occasions on which the general rule does not apply.

As may be gathered from the wording of O 53 r 4 the main purpose of requiring judicial review proceedings to be brought as soon as possible is to avoid prejudice to the rights of a person and to avoid detriment to good administration. As pointed out however by the House of Lords in Roy v. Kensington and Chelsea FPC [1991] UKHL 8; [1992] 1 AC 624 the rule in O’Reilly v. Mackman is subject to exceptions one of which is where the Plaintiff merely seeks to assert a particular private law right arising in a public law context.

In this case the Plaintiff is not seeking reinstatement. If successful the quantum of damages which he stands to recover will have to be considered in the light of the wording of clauses 37 (b) and 44 (a) of the JIC Agreement. Nobody’s rights will be prejudiced. There will be no detriment to good administration. In these circumstances I am of the view that the restrictions imposed by Order 53 rule 4 have no application and that it would be wrong to shut the Plaintiff out at this stage. In the words of Lord Lowry in Roy, at page 655:

“It seems to me that unless the procedure adopted by the moving party is ill suited to dispose of the question at issue there is much to be said in favour of the proposition that a court having jurisdiction ought to let the case be heard rather than entertain a debate concerning the form of proceedings”.

The application fails and is dismissed.

M.D. Scott
Judge

8 March 2002