Chetty v Fiji Public Service Association [2004] FJHC 359; HBC0400.2003 (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0400 OF 2003

BETWEEN:

KRISHNA SAMI CHETTY
father’s name Krishna Sami Chetty, of 86 Wellington Drive, Namaka, Nadi, Trade Unionist
Plaintiff

AND:

FIJI PUBLIC SERVICE ASSOCIATION
a trade union registered under Section 6 of the Trade Unions Act, Cap. 96, whose registered office is at 298 Waimanu Road, Suva.
Defendant

Counsel: Mr. Koya – for the Plaintiff
Mr. Nagin – for the Defendant

Date of Hearing: Upon the papers
Date of Judgment: 6th May, 2004

JUDGMENT

Introduction

The defendant’s Annual General Meeting of its 4,000 members was to be held on the 26^th of September, 2003.

The day before the meeting the plaintiff filed an ex-parte application for an injunction restraining the AGM and election.

The application was considered on a “pickwick” basis and the injunction granted.

Thereafter the defendant filed an inter-parte application seeking dissolution of the injunction or alternatively modification of it on terms. This was refused.

That hearing was held on the 6th and 7th of October, 2003. The High Court delivered its judgment on the 24th of October, 2003. An appeal against that decision was made on the 14th of November, 2003. The matter is presently pending in the Fiji Court of Appeal. It is likely to be reached in the next session. That appeal contends that the entire process of granting the injunction was erroneous.

In recognition of any hardship the defendant Union may suffer by postponing its AGM my brother Justice Connors time-tabled an early hearing of the substantive proceedings for the beginning of the 2004 law term. However, as the defendant filed an appeal. The practical effect was to nullify the timetable. The substantive matter has not been heard.

The case came before me by way of a further application by the defendant to vary the injunction order granted on the 25th of September, 2003. Submissions and authorities were filed by 23rd April. It was agreed that this matter could proceed on the papers with a decision on notice.

The application seeks that the annual general meeting of the defendant be allowed to continue with its full agenda except for:

1. the announcement of results of the election of General Secretary; and

2. the motion to amend clause 5 of the defendant’s constitution.

The defendant applicant brings its case to the Court upon the basis that all it is seeking is a narrowing of an unnecessarily wide injunction. It can point to no change in circumstances or public interest policy considerations since the earlier decisions.

Jurisdiction and Judicial Comity

The defendant has appealed the original and subsequent injunction decisions to the Court of Appeal. In accordance with Order 59 Rule 10(9) an appellant can apply incidentally to its appeal for a variation, discharge or enforcement of an injunction.

When reviewing the instant application with counsel at a pre-trial conference I expressed grave reservation about the practice of filing multiple applications to vary an injunction in the High Court when the instant proceedings where the subject of an appeal to the Fiji Court of Appeal.

In my view it is preferable particularly where there are no changes in circumstances or public policy principles to be considered for such applications to be considered by the Appeal Court, not the Court of first instance.

In this regard I accept the plaintiff respondent’s argument that if I were to vary the injunction at this time there is a risk that I would usurp the authority of the Fiji Court of Appeal. In my view that would be an abuse of this Court’s process.

There is another reason why I remain uncomfortable with the application. I drew counsel’s attention to a decision of the Federal Court of Australia Hicks v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 757. The factual background in the Hicks case is relatively straightforward. A young New Zealander who had legitimately lived in Australia for several years turned to a life of crime. This lead to the Ministry of Immigration cancelling his visa and seeking his deportation. Challenges were made to the Minister’s decision.

The facts may have been simple but the applicable law was not. The prime legal issue was the interpretation and construction of a section in the Migration Act. During the pendency of the Hicks appeal a decision was issued by a single Judge of concurrent decision (Ryan J in Ball). In other words a judge of the same status as those set to consider the Hicks appeal. In a long 84 paragraph judgment the Court in 4 paragraphs addressed the need for judicial comity. I respectfully adopt those 4 paragraphs. To give this adoption of principle proper context I must fully quote the relevant passages. They read as follows:

It was also submitted by counsel for the Minister that it is not necessary for this Court as a matter of judicial comity to follow an earlier decision of a single judge. It was submitted that there are factors in the present case which militate against following Ryan J. It was said that the decision was wrong as to the construction of s501(7)(d) and that it is recent and there is no question of the law being settled by the earlier decision.
I am not bound by any doctrine of precedent to apply the construction adopted by Ryan J in Ball. The position in this Court is the same as that expressed by Lord Goddard CJ (Atkinson and Lewis JJ agreeing) in Police Authority for Huddersfield v Watson [1947] 1 KB 842 at 848:
‘... I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction.’
This view has not always produced consistency in judicial decision-making at first instance. In Froom v Butcher [1975] EWCA Civ 6; [1976] 1 QB 286 at 289 Lord Denning MR, sitting in the Court of Appeal, observed ‘a remarkable conflict of opinion’ in the lower courts on the question of seatbelts:
‘Half of the judges think that if a person does not wear a seatbelt he is guilty of contributory negligence and his damages ought to be reduced. The other half think that it is not contributory negligence and they ought not to be reduced.’
Generally speaking the same position applies in the State Supreme Courts, although as a recent text on judicial precedent observes:
‘Some judges are quite robust in preferring their own views against those of their fellow single judges.’
MacAdam and Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths, (1998) at 8.50.
In Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (cited by the learned authors), Blackburn CJ said:
‘As a judge of this Court I should follow a decision of another judge of the court unless there is a clear reason for not following it.’.
It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong – Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 33 (Goldberg J), citing Towney v Minister for Lands and Water Conservation for New South Wales [1997] FCA 656; (1997) 147 ALR 402 at 412 and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 at 121. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 where Burchett J said:
‘The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4th ed, vol 26, para 580. The word “usually” indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle....’
The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention.

(CF. Hicks supra paras 73-76.)

Reddy Construction Company Limited v Pacific Gas Company Limited 26 FLR 121 (Mr. Justice Dyke) a decision of our Fiji High Court while not directly sighting comity nonetheless in principle equally applies. The learned justice refused an application to amend an injunction as he considered himself bound by the previous ruling of a brother justice and held that successive applications should not be made unless circumstances had altered.

The defendant applicant argues that I should re-look at this matter as my brother Justice Connors has now shifted to Lautoka and is unavailable to re-consider his original decision. This Court has a wide jurisdiction and large discretion to vary orders made on interlocutory applications. However, as a matter of practice it would be extremely unsound for any judge in the absence of changed circumstances or exceptional policy consideration to vary or discharge an injunction.

As such I believe the decision of Tebara Transport Limited & Others v Transport Control Board judicial review No. HBJ0010 of 1994 is easily distinguishable. That case involved matters of public interest and the delivery of bus services where the presiding judge fell ill and a dissolution of injunction was urgently required to meet public demand.

In the instant case there is no such wide policy consideration demand for urgency or change in circumstances that might even begin to motivate me to shrug off the mantle of comity in preference for party convenience. This is especially so where that party by its own actions and tactical trial decisions has thrown away an opportunity for an early hearing on the substantive issues. If it had not chosen to appeal the defendant would have had its substantive decision by now.

Further the defendant has appealed. In my view it would be usurping the role of the Court of Appeal for me to grant the application as made. I refuse to do so.

The application is refused. I order costs against the defendant of $1,000.00. These are to be paid within 14 days of judgment.

Gerard Winter
JUDGE

At Suva
6th May, 2004