Matea v Koroi [2004] FJHC 25; HBC0209R.2002S (8 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0209R.2002S

BETWEEN:

LEPANI MATEA and JOSUA SEVUTIA
both school teachers suing on their own
behalf and on behalf of all the other
members of Fijian Teachers Association
except the First Defendants.
PLAINTIFFS

AND:

TEVITA KOROI as the President
MAIKA NAMUDU as the General Secretary
JOSATEKI MALANI as the Treasurer for
Fijian Teachers Association of 68 Knolly
Street, Suva.
1ST DEFENDANTS

AND:

MINISTRY OF EDUCATION
2ND DEFENDANT

Counsel for the Plaintiff: P. Madanavosa: G.P. Lala & Assoc
Counsel for the 1st Defendants: T. Malifa: FA & CO.
Counsel for the 2nd Defendant: M. Raikadroka: A-G’s Chambers

Date of Ruling: 8 October, 2004
Time of Ruling: 9.30 a.m.

RULING

This is the application by the 1st Defendants to strike out the Plaintiffs’ action under Order 18 of the High Court Rules. In particular, the application is made pursuant to O.18 r.18 (1) (a) (c) and (d) of the Rules, namely that it

“(i) discloses no cause of action;

(ii) is scandalous, frivolous and vexatious; and
(iii) is an abuse of the process of the Court.”

The Plaintiff’s action is by Originating Summons seeking from the Court the following reliefs:

“(a) A declaration that the compulsory deduction of $5.00 per member a fortnight for the Housing Assistance Scheme is null and void.

(b) For an Order that Fijian Teachers Association and Ministry of Education repay to the Plaintiffs under the Housing Scheme since 1997 together with interest at the rate of 13.5% from 1997 till date of judgment.”

BACKGROUND

The First Defendants are President, General Secretary and Treasurer respectively of the Fijian Teachers Association (FTA) a body corporate registered under the Trade Union Act (Cap. 96). FTA membership, according to its Constitution, is open to:

“all workers who are Fijian teachers and teachers of Fijian descent, Rotumans or of Rotuman descent, Banaban or of Banaban descent and others, approved by the Annual General Meeting recognised, licensed or registered who are employed in Government or private schools or other education institutions and who are residents in the Republic.”

The Plaintiffs are members of the FTA and are levied under Clause (9) of the Association’s Constitution, a membership fee of $8.67 each per month. The amount is, with arrangement with the Ministry of Education, the Second Defendant, deducted at source.

In 1997, at the FTA’s Annual General Meeting, a resolution was passed which established the FTA Housing Scheme. According to the Defendants, the resolution was unanimously adopted by the meeting. Also agreed to at the said meeting, was a compulsory deduction of $5.00 per member each month (now $6.00), which deduction, again at source, had been in place since.

The establishment of a housing scheme by the FTA is in accordance with Part II (“Objects”) of its Constitution and specifically Clause (4) (l) stating that one of the objects of the Union shall be:

“(l) To provide for the establishment of a Housing Scheme for the benefit of its members subject to the availability of funds.”

There is no question therefore of the legality and status of the FTA Housing Scheme. What however, the Plaintiffs’ contend is that its membership had been forced upon them, and that the compulsory $6.00 monthly deduction on each of them is illegal and contrary to the provisions of the Association’s Constitution. In any case, the Plaintiffs argued, the Fund established under the scheme was null and void because, inter alia,

“(a) As required by the Constitution, Branch Chairman and Secretary [sic: had] given no authority in writing nor signed by them for delegates to vote.

(b) That prior to the establishment of “the scheme fund” members were not informed of the “scheme fund.”

(c) That the issue of “the scheme fund” was not on any branch resolutions for the Annual General Meeting of 1996 that was passed on the official branch meetings.”

The FTA Constitution

Part III of the Constitution deals with membership. Oddly, there is no definition of the membership per se of the Association. Clause (5) of Part III merely states that “all FTA members shall be members of FTA Welfare Society paying the required welfare levy above his or her FTA membership fee and housing levy.” As to how such membership is acquired, this is not defined, although the class and generie of persons contemplated can be gleaned from Part II (Objects) of the Constitution and in particular Clause (4) (a) thereof.

Clauses (6), (7) and (8) of Part III defines and limits special membership, membership of persons between the ages 16 and 21, and honorary members.

The power to impose fees and levies on the members is contained in Clause (10). It states:

“(10) The Annual or an Extraordinary General Meeting of the Union shall have powers to alter all fees, subscriptions and contributions and to impose additional fees, subscriptions and contributions for the purpose of providing further benefits for members.”

The business of the Annual General Meeting or an Extraordinary General Meeting is conducted and voted upon by delegates from Branches who through the agency of proxy, cast votes on behalf of all their voting members; such authority having been given in writing to the Secretary General before the Meeting.

The Agenda of the Annual General Meeting is required under Clause (23) to be published in two (2) newspapers, not less than 14 days before the meeting. Clause (25) is also relevant in the Court’s consideration of the Plaintiffs’ application, which stipulates that:

“(25) Where any change in the rule of the Union is contemplated such change be specifically stated in the Agenda of the Annual General Meeting or the Extra-Ordinary General Meeting.”

Court’s Consideration

In the initial filing of submissions, there appeared to be some confusion on the part of defence Counsel on the cause of action brought by the Plaintiffs. Much emphasis was placed by Counsel on the issue of private versus public law on the premise that the Plaintiffs were seeking judicial remedies in public law through judicial review. It was only after being pointed out that Plaintiffs were seeking certain declarations through Originating Summons, were the submissions and arguments re-focussed on the relevant issues and principles applicable in striking out applications.

The first issue raised by the Defendants is one of locus standi. There is however no doubt that the Plaintiffs, being fully fledged financial and voting members of the FTA have the locus to bring this action. They cannot however claim a representative action on behalf of other members in the annexure although the decision at the end may also have a bearing on them.

The more important issue is in fact whether the Plaintiffs have a reasonable Cause of action. The principles are well settled and fully canvassed by the Plaintiffs in their Counsel’s submission before this Court. The Supreme Court Practice (White Book) 1985 Ed. summarised them as follows:

“A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British Medical Association {1970} 1 WLR; {1970} 1 All ET 1094 C.A.). But the practice is clear. So long as the Statement of Claim or the particulars (Davey v. Bentinck [1892] UKLawRpKQB 216; [1893] 1 QB 185) disclose some cause of action or raise some question fit to be decided by a Judge or jury, the mere fact that the case is weak and not likely to succeed is not ground for striking out (Moore v. Lawson (1915) 31 TLR 418 CA; Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 87 CA).”

In this instance the Plaintiffs case rests on the proposition that the AGM did not have the authority to impose a compulsory levy of $6.00 per month on each members of the association, to support the FTA Housing Scheme. It could only do so if the following pre-requisites had first been complied with. First, that the matter appear specifically on the published agenda of the AGM as required under Clause (23) of the Constitution. Secondly, that the Plaintiffs in turn empower their delegates as to how to vote on such item in the agenda so published, as required under Clause (50) (a) of the Constitution. The Plaintiffs claim that both Clauses (23) and (50) (a) were not complied with.

It is to be presumed that, in the scheme of things as contemplated under the FTA Constitution, the purpose of publishing the agenda of the AGM not less than 14 days before the meeting, is not only to inform the membership of the nature of business that will be transacted, but also for the Branch members to meet and discuss the items on the agenda that maybe of some interest to them. Whether the proxy that each delegate from the Branch at the AGM, is authorised to cast include specific directions from the Branch members on each of the items on the agenda is not clear from one’s reading of the Constitution. What however is clear is that Clause (50) (a) quoted above, merely grants general authority to delegates to cast a proxy vote so long as authority in writing for them to do so from the Branch Chairman and Secretary are given to the Secretary-General of the FTA before the AGM. The authority, it should be noted, is not by the individual members of a Branch, but by its officials.

At the end, it is clear to this Court, that insofar as the extent of authority given to Branch delegates to the AGM from membership of the Branch, the exercise of the proxy vote is in respect and on behalf of all its voting members. The Branch delegates do not carry individual proxies for each of the members. This is because more often than not, it is the Collective position of a Branch that its delegate brings onto the floor of the AGM.

There is also the requirement of Clause (25) of the Constitution. It stipulates as follows:

“(25) Where any change in the rules of the Union is contemplated such change maybe specifically stated in the Agenda of the Annual General Meeting or the Extra-Ordinary General Meeting.”

The question is whether the imposition of the $6.00 levy amounts to a change in the rules under Clause (25), that would have required the matter to be specifically stated in the published agenda.

There is no definition of what constitutes a “rule” in the Constitution of the Association, but it is reasonable to assume from one’s reading of the Constitution, that any mention of the term “rule” in the Constitution is a reference to its Clauses or provisions. Insofar as the imposition of levies, Clause (9) of the Constitution dealing with monthly subscription of members, is the only provision in the document that imposes, apart from fines under Clause (38), monetary contribution on the members. Whether there is any intention to include the levy to the Housing Scheme as an amendment to the provisions of the Constitution or not, is not relevant for the moment, but what nevertheless is obvious, is that the levy for the Housing Scheme, did not necessarily have to be specified on the agenda since it did not amount to a change in the rules as required under Clause (25).

Finally, the authority of the Annual General Meeting to impose additional fees, subscriptions and contributions is not denied by the parties. Clause (10) of the Constitution empowers the AGM to do so.

The gist of the Defendants’ arguments in support of their motion to strike out is firmly based on the private law rights of the Plaintiffs to pursue an alternative cause of action before seeking public law relief in the form of a declaration of their rights. The law in this area is succinctly summarised in the House of Lords decision of Gouriet v. Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 per Lord Wilberforce (at p.483):

“[In] my opinion, there is no support in authority for the proposition that declaratory relief can be granted unless the Plaintiff, in proper proceedings, in which there is a dispute between the Plaintiff and the Defendant concerning their legal respective rights or liabilities either asserts a legal right which is denied or threatened or claims immunity from some claim of the Defendant against him or claim that the Defendant is infringing or threatens to infringe some public right so as to inflict special damage on the Plaintiff.”

Lord Diplock in the same case, added, (at p. 500):

“[The] jurisdiction of a civil court to grant remedies in private law is confined to the grant of remedies to litigants whose right in private law have been infringed or are threatened with infringement. To extend that jurisdiction to the grant of remedies for unlawful conduct which does not infringe any right of the Plaintiff in private law, is to move out of the field of private into public law with which analogies maybe deceptive and where different principles apply."

Later at p. 501, Lord Diplock concluded that:

“Relief in the form of a declaration of right is generally superfluous for a Plaintiff who has a subsistence cause of action. It is when the infringement of the Plaintiff’s rights in the future is threatened or when, unaccompanied by threats, there is a dispute between parties as to what their respective rights will be if something happens in the future, that the jurisdiction to make declarations or right can be most usefully invoked.”

In this instance, the Defendants submit that the Plaintiffs have failed to show any breach or threat of future breach of their legal rights so as to enable the Court in the exercise of its discretion, to intervene. Rather, the matters and issues they complain of and the subject of their present action, are private law matters which are within the powers of the AGM of the Association to deal with.

The evidence before this Court tends to support the Defendants’ contentions. The subject matter of the complaint and of this action is the Housing Scheme levy imposed by the Annual General Meeting of the FTA. The Constitution of the Association is the primary instrument that guides and decides the actions including the rights of its members. Where dissatisfaction and/or dispute arise, members may avail themselves the procedures and mechanisms within the Constitution to show their displeasure and if necessary carry out changes to the administration of their Association. The same is true in the case of changes to the rules and provisions of the Constitution. From the evidence produced there has clearly not been any serious efforts to challenge and more importantly, to change the decision of the AGM of 1997 to set up the Housing Scheme and the consequent funding through a levy. Frequently according to the minutes of past Meetings, motions tabled on the matter are withdrawn without reasons given, until they appear again the following year. It would have been quite different if say, the Management of the FTA had refused to allow the tabling of Motions seeking the change to the 1997 AGM decision.

In the end the Plaintiffs have failed to satisfy this Court that they have exhausted all available alternative remedies that the rules of their organisation provide them to bring about the changes they and their supporters wish to see. It is important, that before this Court exercises its discretion in allowing this or any similar action where declaratory reliefs are sought for alleged breach of rights in what essentially is a private law matter, that the remedies that are available within the organisation, in this instance, the FTA, have been exhausted and in the end the Plaintiffs remain dissatisfied. Only then will the Court be in a position to consider the exercise of its discretion.

Order is made for the Plaintiffs’ Originating Summons to be Struck Out.

Costs of $400.00 to the Defendants.

F. Jitoko
JUDGE

At Suva
8 October, 2004