Fiji Public Service Association v Civil Aviation Authority of Fiji [2005] FJHC 324; HBC0140A.1997L (21 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0140A OF 1997L

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
1st Plaintiff

AND:

NAREINDRA PAL SINGH KUSH
2nd Plaintiff

AND:

CIVIL AVIATION AUTHORITY OF FIJI
Defendant

Mr. F. Koya for the plaintiffs
Mr. J. Rabuku for the Defendant

Date of Hearing: 16 October 2005
Date of Ruling: 21 October 2005

RULING

This matter comes before the Court by way of Summons filed on the behalf of the defendant seeking that the order granted by Mr. Justice Sadal on the 19^th September 1997 be set aside upon the grounds as set out in the affidavit of Rajesh Kumar on the 27^th May 2005.

The affidavit of Rajesh Kumar referred to in the Summons in fact sets forth no grounds with respect to the order that is sought.

The affidavit sets forth grounds in support of a further order sought in the Summons which was granted by consent on the 16^th September 2005.

The proceedings were commenced by the plaintiff by way of Originating Summons filed on the 23^rd May 1997. The Summons sought a declaration that the defendant was in breach of a collective agreement, an inquiry as to loss of salary and other amenities suffered by the plaintiff and an injunction to restrain the defendant from placing the 2^nd plaintiff on leave without pay.

By ex-parte Notice of Motion dated the 23^rd May 1997, the plaintiff sought interlocutory relief which included relief by way of an injunction to restrain the defendant placing the 2^nd plaintiff on leave without pay and/or stopping him, the 2^nd plaintiff from carrying out his normal duties as a salaried employee.

On the 19^th September 1997, Mr. Justice Sadal delivered a ruling with respect to the interlocutory relief sought in the Notice of Motion. His Lordship said at page 3 of his ruling:

“However, as to the application concerning his pay it is only fair and just that he should have his pay pending the determination of this dispute.

Accordingly it is ordered that Kush should have his pay from 17^th May 1997 (day from which his pay was stopped) until this matter is resolved. It is in the interest of all parties that this dispute is resolved as soon as possible.”

It is submitted on behalf of the plaintiffs that the defendant in fact complied with the orders of the Court and made payment of the 2^nd plaintiff’s pay from the 17^th May 1997 into 1998.

The defendant did nothing to challenge the ruling of the 19^th September 1997 and in fact took no action whatsoever with respect to the matter until the filing of the Summons now before the Court. That Summons being filed on the 27^th May 2005.

The 2^nd plaintiff filed a notice of change of solicitors on the 6^th October 2004 and a notice to proceed on the 1^st November 2004 together with a Notice of Motion seeking various orders and payment of monies. The orders were made on the 26^th November 2004 consequent upon that Notice of Motion and those orders were set aside by consent, as I have said earlier, on the 16^th September 2005.

In support of its application, it is submitted on behalf of the defendant that the order contained in the ruling on the 19^th September 1997 is no good as it makes no sense. It is meaningless and therefore ineffective. That it is an order in perpetuity because it has no completion done. In support of these contentions, the defendant refers the Court to Abalian and Another v Innous [1936] 2 All E.R. 834. That case was concerned with an interlocutory order dismissing an action and held that such an order must be absolutely precise in its terms and that “the date of the alleged loss” must be a date which is to be found in the pleadings.

We are here not dealing with interlocutory orders dismissing an action. The interlocutory order has in its terms a commencement date and it has a completion date, that is, the date on which “the matter is resolved”.

By implication one can readily construe the completion date not only being the date upon which the matter is resolved by some Tribunal, Court or agreement but also the date upon which the 2^nd plaintiff’s employment terminates by retirement or otherwise as all of those dates are dates upon which the entitlements cease.

It is submitted on behalf of the defendant that such an implication is in fact “second guessing” terms of the ruling, with this I do not agree. It appears to me the defendant has had a lot of opportunity since 1997 to take some action to appeal or challenge the ruling of the Court but failed to do so. It has only done so after the orders were made against it consequent upon that ruling.

When one considers the lack of evidence, the inordinate delay on behalf of the defendant and what in my view is indeed a clear order of His Lordship, I see no alternate but to decline the relief sough by the defendant.

The Motion with respect to paragraph (b) is dismissed.

Defendant is to pay the plaintiffs’ costs of that part of the Motion assessed in the sum of Seven Hundred and Fifty Dollars ($750.00).

JOHN CONNORS
JUDGE

At Lautoka
21 October 2005