National Union of Hospitatlity, Catering and Tourism Industrties Employees [2005] FJHC 51; HBC0461.2004 (9 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0461 OF 2004

BETWEEN:

NATIONAL UNION OF HOSPITALITY, CATERING AND
TOURISM INDUSTRIES EMPLOYEES
PLAINTIFF

AND:

THE REGISTRAR OF TRADE UNIONS
1ST DEFENDANT

YANUCA HOTEL EMPLOYEES UNION
2ND DEFENDANT

ATTORNEY-GENERAL OF FIJI
3RD DEFENDANT

Dr Sahu Khan with Ms Sahu Khan for the Plaintiff
Ms T. Vuibau for the 1st Defendant
Mr. R.P. Singh for the 2nd Defendant
Ms N. Karan for the 3rd Defendant

JUDGMENT

The plaintiff trade union has come by way of originating summons seeking six declaration as follows:

1. For a declaration that the 1st defendant ought to have refused the registration of the 2nd defendant as a Trade Union under the Trade Unions Act (“The Act”).
   
2. For a declaration that the 2nd defendant was not entitled to be registered as a Trade Union under the Act.
   
3. For a declaration that the 1st defendant without jurisdiction and/or improperly registered the 2nd defendant as a Trade Union under the Trade Unions Act.
   
4. For an Order that the registration of the 2nd defendant as a Trade Union under the Trade Unions Act (“Act”) is invalid null and void.
   
5. For an Order that the 1st defendant do cancel the registration of the 2nd defendant as a Trade Union.
   
6. For an Order the 1st defendant had no jurisdiction and/or was not entitled to make the Compulsory Recognition Order dated 26th May 2004 against the Fiji Mocambo Limited and/or to make it retrospective in force from 30th day of June 2003.
   

FACTS:

The plaintiff is a registered union under the Trade Union Act and has been so registered for some time though it has gone through name change. Its membership is open to persons resident in Fiji employed in the hotel and catering industry in one form or another. It has branches in Suva, including a branch at Fijian Resort on Yanuca Island, since 1999. It appears every branch had its own office bearers. It is also clear from affidavits that the relationship between the Yanuca branch and the plaintiff have been far from cordial. There was disciplining of the President of Yanuca Branch and also expulsion of committee members. This was followed by mass resignation by members of plaintiff union of Yanuca Branch following the April 2002 Annual General Meeting.

The employees at Yanuca then formed Yanuca Hotel Employees Union which was registered by the Registrar of Trade Unions on 22nd May 2003. Notification of Registration appeared in the Gazette on 28/06/2003. It has its own constitution with membership open to anyone employed at the Fijian Resort Yanuca Island – Clause 6 of its Constitution.

Some six months later on 12th January 2004 the plaintiff union wrote to the 1st defendant saying that the registration of the 2nd defendant was in violation of the judgment of Justice Byrne in HBC 158 of 1997 at Lautoka dated 4th October 2002 and for non-compliance with Trade Unions Act without specifying which section were infringed and why.

On 26th May 2004 the 1st defendant issued a compulsory recognition order ordering the Fijian Resort to recognise the union. Further correspondence ensued between the plaintiff and the 1st respondent ultimately resulting in this action.

The plaintiff’s principal complaint is that the provisions of Section 13(1)(e) of the Trade Unions Act were not complied with. It says that the 1st defendant did not notify the plaintiff of the 2nd defendant’s application and seek its view whether it had any objection. The plaintiff says it represents the same interests as the 2nd defendant. Section 13(1)(e) reads:

“The Registrar may refuse to registrar any trade union if he is satisfied that –

(e) any other trade union already registered is adequately representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration:

Provided that the Registrar shall, by notice in the Gazette or otherwise, notify any registered trade union which appears to him to represent the same interests as the applicants of the receipt of such application, and shall invite the registered trade union concerned to submit in writing within a period of twenty-one days any objections which any such trade union may wish to make against registration.”

A number of affidavits were filed by the parties in response to plaintiff’s affidavit in support of originating summons. These do not substantially add much to what was said in the affidavit in support of originating summons. They do show that the officials of Yanuca branch and the parent body the plaintiff accused each other of irregularities. It is also clear from the affidavits that the 1st respondent did not notify the plaintiffs of 2nd defendant’s application for registration as a union nor sought its views.

SUBMISSIONS:

The plaintiff’s submission is that the 2nd defendant ought to be de-registered because of non-compliance with section 13. It submits that such registration was the result of mistake and the 1st defendant has powers under Section 14(3) of the Trade Unions Act to cancel registration. It says that the employees at Yanuca branch had not resigned from plaintiff union by giving a weeks notice in writing to the Branch Secretary.

The 1st respondent submits that the Trade Union (Amendment) Decree 1991 had repealed Section 13(1)(e) and therefore this section no longer applied and secondly, the subject matter of the action is public law because the plaintiff is trying to enforce proper performance of a public duty by the 1st defendant and the action should have been commenced by way of judicial review and not originating summons. The 1st defendant’s appointment is under statute. The 2nd defendant added that the plaintiff could have sought extension of time to file Judicial Review. The plaintiff countered this argument by submitting that the applicant’s private rights were affected by registration of a second union and that it was raising the validity of the registration as a collateral matter to support its private rights.

PUBLIC LAW OR PRIVATE RIGHTS:

The issue is whether judicial review is the sole or the exclusive means of putting public law issues before the High Court. Before going further I note that Order 53 Rule 9(5) provides that where declaration, an injunction or damages are sought, and the court is of the view that judicial review was not the proper procedure, the court instead of dismissing the application can order the proceedings to continue as if begun by writ. There is no provision for the converse of above to treat an action begun by originating summons or writ to be treated as if begun by judicial review if court finds this originating summons or writ was not the proper procedure.

The House of Lords considered the exclusive use of judicial review proceedings in O’Reilly v. Mackman – [1983] UKHL 1; 1983 2 AC 237. There are some prisoners sought that certain disciplinary decisions taken by a Board of Visitors and cancelling remissions were ultra vires and nullity because the Board acted in breach of natural justice. Some of the actions were brought by writ and others by originating summons. The claim for declarations were struck out under Order 18 because as Lord Diplock put it at page 285 that it would “as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities”. Dr Sahu Khan emphasised the words “as a general rule” and that Lord Diplock did not say that one could never bring a public law issue to court by an originating summons. I agree that Lord Diplock himself saw there could be exception.

Lord Diplock stressed that Order 53 provided the court an opportunity at the outset of the proceedings to exercise its discretion to filter out groundless claims rather than wait till the end of the proceedings as happens in originating summons. This was an important protection for good administration by public bodies and also for those affected by such decisions so those affected are not left in a limbo till the end of the case.

On the same day as O’Reilly the House of Lords delivered the judgment in Cocks v. Thanet District Council – (1983) 2 AC 286 which extended the O’Reilly principles. It decided that where private law rights were affected and which depended on prior public law decision, they must also ordinarily be brought by judicial review. It ruled that the respondent was not entitled to continue proceedings otherwise than by way of judicial review.

O’Reilly has been considered by Court of Appeal in Ram Prasad v. Attorney-General of Fiji – ABU 58 of 1997 which decided that judicial review was the proper procedure in cases where an applicant sought to enforce a public right for the performance or proper performance by a respondent of a public duty.

I have also looked at Joeli Naitei v. The Public Service Commission and The Attorney-General of Fiji – Civil Action 256 of 2000 where Justice Pathik has very helpfully looked at the major cases since O’Reilly and where he too stopped the plaintiff from continuing with the action by way of originating summons.

Dr Sahu Khan in this case however is not questioning that judicial review is the proper procedure for enforcing public law matter but submits public law matters are only a collateral issue as the plaintiff’s main contention is that its private rights are affected by recognition of 1st defendant union.

TRADE UNIONS ACT:

This entails that I should look at the provisions of Trade Unions Act. This Act provides for registration and regulation of trade unions. The Act requires all trade unions to be registered within a month of their formation. Registration of a Union is done under Section 8. The Act also provides for the appointment of a Registrar of Trade Unions with certain powers and duties. The Registrar of Trade Unions therefore derives his post, powers and duties from a statute. His powers to cancel a registration are contained in Section 14. The plaintiff’s complaint is that the Registrar of Trade Unions failed to properly perform his statutory duties and as a result the plaintiff has suffered. These are public law issues – improper performance of statutory duties. The majority of cases relied on by the plaintiff in its submissions are also cases on judicial review. The plaintiff too is therefore relying on principles of public law in aid of its arguments. The issues raised are public law issues. The source of powers and duties of the Registrar are derived from a statute. I therefore conclude that the plaintiff should have proceeded by way of judicial review and not originating summons. Whether the court would extend time to file judicial review proceedings so late is not for me to comment on at this stage.

Ms Vuibau submitted that Section 13(1)(e) of the Trade Unions Act no longer applied in view of the Trade Union (Amendment) Decree 1991. It was an issue not raised in the affidavits in reply and naturally the plaintiff was caught by surprise. Section 3 of the Trade Union (Amendment) Decree 1991 had repealed Section 13(1)(e) of the Trade Unions Act. However, Section 195 of our Constitution repealed Trade Unions Act (Amendment) Decree 1991. The issue is does this revive Section 13(1)(e) of the Trade Union Act.

Section 15 of the Interpretation Act Cap 7 provides that:

“Where any written law repealing in whole or in part any former written law is itself repealed, such last repeal shall not revive the law or provisions before repealed unless words are added reviving such written law or provisions.”

The provisions of Section 195(2)(e) revived the repealed laws. It reads:

“all written laws in force in the State (other than the laws referred to in subsection (1)) continue in force as if enacted or made under or pursuant to this Constitution and all other law in the State continues in operation.”

The effect of this to that Section 13(1)(e) of the Trade Unions Act has been restored.

CONCLUSION:

I am of the view that matters raised in the application are public law matters. The applicant should have proceeded by way of judicial review and not originating summons. The application is therefore dismissed with costs summarily fixed in the sum of $550.00 each to be paid to the 1st and 2nd defendants. The 3rd defendant was a nominal defendant only and no costs are awarded to the 3rd defendant.

[ Jiten Singh ]
JUDGE

At Suva
9th March 2005