Sugar Milling Staff Officers Association v Fiji Sugar Corporation Ltd [2005] FJHC 671; HBM0036.2002L (18 March 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBM0036 OF 2002L

BETWEEN:

SUGAR MILLING STAFF OFFICERS ASSOCIATION
Appellant

AND:

THE FIJI SUGAR CORPORATION LIMITED
Respondent

Counsel for the Appellant: Dr. Sahu Khan with Ms. S. Sahu Khan
Counsel for the Defendant: Mr. F. Hanif

Date of Hearing: 2 March 2005
Date of Judgment: 18 March 2005

JUDGMENT

The respondent by summons filed on the 21^st January 2004 seeks an order that the notice of appeal filed on the 9^th October 2002 be struck out on the ground that it was filed out of time.

Background

The Sugar Industry Tribunal gave a decision dated 28 June 2002. That decision bears a notation “registered at Lautoka this 1^st day of July 2002. T. Brown, Industrial Commissioner”.

Under cover of letter dated 1 July 2002, the Industrial Commissioner forwarded a copy of the Tribunal’s Decision to the Managing Director, Fiji Sugar Corporation.

The decision related to a dispute between the Fiji Sugar Corporation and the Sugar Milling Staff Officers Association, which referred to the Tribunal for determination under section 104 of the Sugar Industry Act. The appellant commenced judicial review proceedings (009 of 2002) with respect to the decision of the Tribunal and on the 10^th October 2002 discontinued those proceedings.

By letter dated 27 September 2002, the Registrar of the Tribunal forwarded a copy of the sealed decision of the Tribunal to Counsel for the Appellant and advised that the award had been published by sending a copy to each of the parties to the dispute. The attached copy of the Tribunal’s decision bears the “common seal” of the Sugar Industry Tribunal together with an endorsement that it was affixed on the 26^th September 2002 by T. Brown, Registrar of the Tribunal.

The appellant submits that the Decision of the Tribunal does not become an “award” until the seal is affixed and further that the decision must be gazetted to be published. The appellant further submits that the appeal was lodged within the prescribed time of the affixing of the seal to the Decision of the Tribunal.

The Legislation

Section 123 of the Sugar Industry Act (Cap. 206) enables an appeal to the High Court by any person bound by an award of the Tribunal. Subsection (3) of that section says:

“An appeal under subsection (1) shall be made within twenty-one days of the award appealed against.”

Section 115 of the same Act says:

“(1) The Registrar shall register an award and shall cause the same to be published as soon as may be after it is made in such manner as the Tribunal shall determine.

(2) Copies of the award shall be made available by the Registrar to any organization or person entitled to appeal against the award under section 123.”

Section 19 of the Act provides for the Tribunal to have a seal, which seal shall be judicially noticed and prescribes that the Registrar shall affix the seal to all awards.

“Award” is defined in section 2(1) of the Act as including an award, order, finding or other decision of the Tribunal other than the Master Award and any order amending it.

Section 2(1) of the Interpretation Act (Cap. 7) defines subsidiary legislation as meaning:

“Any legislative provision (including an appointment of any person or a transfer of any powers or duties) made in exercise of any power in that behalf conferred by any written law by way of by-law, notice, order, proclamation, regulation, rule, rule of court or other instrument.”

Counsel for the Appellant submits that the Decision of the Tribunal is subsidiary legislation. The Decision of the Tribunal is the resolution of the dispute pursuant to Part XI of the Act and is akin to a judgment of a Court of Tribunal and is not a “legislative provision”.

It follows therefore that the decision is not required to be published in the gazette and may be published in accordance with section 115 of the Act.

The Issues

It would appear that the ultimate issue for determination is whether the seal of the Tribunal is to be affixed to the Decision of the Tribunal before that decision can become an award and therefore before time runs pursuant to section 123(3) and before it can be registered and published as required by section 115.

The Argument

It was submitted by Counsel for the Appellant that time does not run for the filing of the appeal from a decision of the High Court until the order is perfected (Rule 16 – Court of Appeal Rules) and that lends support for the Tribunal Order to be sealed before time begins to run. The Magistrate Court Rules do not contain such a provision and provide for an appeal within 7 days after the day on which the decision was given.

Counsel for the Respondent submits that the situation depends upon the Rules of the particular Court or Tribunal that there is no general principle applicable to all Courts and Tribunals.

It would appear that the purpose of such provisions is merely to make time run from the time that the parties are aware of the Decision of the Court or Tribunal. The Decision of the Tribunal was forwarded to the parties on the 1^st July 2002 after it was registered with the Tribunal but without the seal being affixed.

The appellant does not submit that it did not receive the Decision on or about the 1^st July 2002.

The submission is that the Decision does not become an award until the seal is affixed and that there is therefore nothing to appeal against until the seal has been affixed.

This submission does not sit with section 115, which merely requires registration and publication (in such manner as the Tribunal shall determine).

Whilst section 19 requires the seal of the Tribunal to be affixed to all awards, it does not say that until the seal is affixed the award does not exist or is not an award.

Section 2(1) of the Act defines award as including any decision of the Tribunal.

Conclusion

The decision of the Tribunal of the 28^th June 2002 is an award for the purposes of section 123(3) upon compliance with section 115 of the Act. The Registrar’s endorsement being signed by a person describing himself as “Industrial Commissioner”. The same person “T. Brown” is described on correspondence as “Registrar of the Tribunal”. The significant issue is the registration of the award.

I find therefore that the time prescribed by section 123(3) runs from the date of making the award and not the date the seal was affixed.

Orders

1. Notice of Appeal is struck out.

2. Appellant is to pay the Respondent’s costs.

John Connors
JUDGE

At Lautoka
18 March 2005