Razak v Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC208.1998L (23 February 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC208 OF 1998L

MOHAMMED SAHIM RAZAK

V

FIJI SUGAR CORPORATION LTD

Gates J

Dr M.S. Sahu Khan for the Plaintiff
Mr Anu Patel for the Defendant

27 January, 10 February 2000
23 February 2005

RULING

Summons to strike out; Order 18 r.18; inherent jurisdiction of High Court; no reasonable cause of action; frivolous and vexatious; abuse of process; affidavits not admissible under Order 18 r.18(1)(a); Order 18 r.18(2); for pleading impugned to continue, need for some chance of success; to be struck out only in plain and obvious cases; abuse of process to bring second action for same cause of action; relitigating, though not strictly res judicata can be abuse; court of competent jurisdiction; were parties the same?; identity of issues; conspiracy and breach of employment contract; importance of right to present case in full; limited powers to award compensation s.105(1)(d) Sugar Industry Act Cap 206.

[1] The question for decision is whether the award of the Sugar Industry Tribunal in an industrial dispute has exhausted the remedies open to the plaintiff. Is the plaintiff estopped from pursuing another claim and from obtaining additional remedies in the High Court if the matter is covered by the doctrine of res judicata?

[2] The plaintiff was a permanent way and building engineer employed by the defendant company. He alleges a conspiracy between certain employees of the company and the defendant over insurance claims resulting in his dismissal. He was dismissed by the defendant by letter of 22 June 1994.

[3] The Sugar Milling Staff Officers’ Association [the SMSOA] took the dismissal as an industrial dispute to the Sugar Industry Tribunal [the Tribunal]. On 6 May 1997 the Tribunal, in its award, ruled that the plaintiff had been wrongfully dismissed. It awarded the plaintiff his salary from the date of his purported dismissal to the date of the award. The award was amplified by the Tribunal in a “Further Decision” of 17 October 1987 detailing the salary and fringe benefits that were to be met by the defendant. In his further decision the Tribunal was testily critical of the defendant for its “unduly technical and excessively pedantic approach” to the meaning and result of the main award.

[4] In a statement of claim issued with the writ of 1 July 1998 the plaintiff claimed other losses not referred to or granted in the award. These included termination or retirement travel and transport costs, packing costs, the extra employer’s contribution to FNPF, wages till his retirement at age 55, life assurance, leave and legal fees. He sought special and general damages, including exemplary and punitive damages, interest, and indemnity costs.

[5] The defendant in its defence stated that there had been no appeal pursuant to section 123 of the Sugar Industry Act [the Act]. It claimed that the same issues had been determined by the Tribunal and that the plaintiff was precluded from bringing these proceedings in the High Court. Lastly it said the plaintiff’s claim was frivolous and vexatious and an abuse of process and as a result it should be struck out.

[6] This defence was followed by the defendant’s filing of a summons to strike out on the grounds that:

1. “it (the statement of claim) discloses no reasonable cause of action;
   
2. it is frivolous and vexatious;
   

100. it is otherwise an abuse of the process of the Court;”
     

[7] The affidavit of Mr Sweetman for the defendant exhibited copies of the two parts of the award. In its final paragraphs the affidavit raised the arguments which I have already indicated.

[8] To establish that the pleadings disclose no reasonable cause of action, regard cannot be had to any affidavit material [Order 18 r.18(2)]. It is the allegations in the pleadings alone that are to be examined: Republic of Peru v Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch.D 489 at p.498.

[9] A reasonable cause of action means a cause of action with “some chance of success” per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 at p.1101f. The power to strike out is a summary power “which should be exercised only in plain and obvious cases”, where the cause of action was “plainly unsustainable”; Drummond-Jackson at p.1101b; A-G of the Duchy of Lancaster v London and NW Railway Company [1892] UKLawRpCh 134; [1892] 3 Ch. 274 at p.277.

[10] In this application, the affidavit is tendered in order to exhibit the Tribunal’s award and to show how it affects the parties and the issues. The affidavit is admissible in the application under Order 18 r.18(1)(b) and (d) to show frivolity and vexatiousness or that the claim is otherwise an abuse of the process of the court.

[11] It would be an abuse of process for the plaintiff to bring a second action for the same cause of action after disobedience of peremptory orders had resulted in the dismissal of the first action: Janov v Morris [ 1981] 3 All ER 780. It is said the process is misused thereby. Re-litigating a question, even though the matter is not strictly res judicata has been held to be an abuse of process: Stephenson v Garnett [1898] UKLawRpKQB 22; [1898] 1 QB 677 CA. In that case the suitor was the same person and he sought to re-open a matter already decided against him.

[12] A stay was granted by the High Court of Australia in Burton v President &c., of the Shire of Bairnsdale [1908] HCA 57; [1908] 7 CLR 76, in preference to an order for summary judgment. The plaintiff was to seek his remedy by first following the contract and to go to an arbitration before the engineer. But his action was not held to be frivolous or vexatious (p.91).

[13] It may be the res judicata argument, or an argument akin to it, will succeed at trial. In the Burton case O’Connor J said (at p.92):

“Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.”

[14] To raise the doctrine of res judicata the defendant must be able to show that the same parties have been before a court of competent jurisdiction and had a decision on the same issues, or at least had had an opportunity of raising related issues.

[15] In Molesworth v Molesworth [1947] 2 All ER 842 at p.844, Lord Merriman P referred to “the extremely difficult topic of res judicata”. I have come to the conclusion that I have insufficient evidence before me to say that this is a plain and obvious case for striking out the claim and for denying the plaintiff his right to pursue his case fully: Lea v Thursby (1904) 90 LT 265.

Court of Competent Jurisdiction

[16] An arbitration court such as an industrial tribunal or a Sugar Industry Tribunal would appear to qualify as a court of competent jurisdiction. The Tribunal has been set up by statute. Its decisions are judicial decisions pronounced by a judicial tribunal. The Tribunal is appointed by the Chairman of the Judicial Services Commission after consultation with the Commission. To be appointed, the person must be qualified to be appointed a Judge of the High Court or be a person with extensive experience in economics or industrial relations. Statutory tribunals such as the Tribunal here are judicial tribunals for the purpose of the doctrine: See Spencer Bower and Turner, Res Judicata 2nd edit. (1969) para 24. There was a reasoned judgment, if not on the award remedies, at least on the main issue of the lawfulness of the dismissal.

[17] In FSC v Sugar Milling Staff Officers’ Association (unreported) FCA Civil App. No. 74 of 1986, 19 September 1986, the Court found that the Tribunal not only had power to order re-instatement (p.9) but also that the legislature had vested in the Tribunal an amplitude of power. It would be safe to conclude that though there is no magic in the words “court of competent jurisdiction”the Tribunal qualifies as such a court.

[18] Dr Sahu Khan argues that the Tribunal’s decision was not a judicial decision. He says it was an administrative decision, or at most that it is to be categorised as quasi-judicial.

[19] The Act specifically states that the seal of the Tribunal shall be judicially noticed by all courts, judges and persons acting judicially [s.19]. In R v Garrett [1907] UKLawRpKQB 29; [1907] 1 KB 881 Collins MR said:

“Court of competent jurisdiction” seems to me to be only a compendious expression covering every possible Court which by enactment is made competent to entertain a claim for the recovery of paving expenses.”

[20] The Act here grants jurisdiction in matters relating to industrial disputes to the Tribunal. In that sense it is a court of competent jurisdiction. Though the phrase may not apply to every inferior court it would appear to cover this Tribunal within the limits of its relevant jurisdiction: Washer v Elliott [1876] UKLawRpCP 2; (1876) 1 CPD 169.

[21] Though I may accept that the Tribunal was a court of competent jurisdiction there are other matters that lead me to the conclusion that this is not an appropriate case in which to deny the plaintiff a full presentation of his case. First the parties are not the same. The previous litigation was between SMSOA and the company, not between the plaintiff and the company.

[22] For the operation of the doctrine of res judicata there must be also an identity of subject matter between the proceedings. The identity may arise from a cause of action or from issue estoppel: Green v Hampshire CC [1979] 1 CR 861 at p.864.

[23] The plaintiff’s claim alleges conspiracy and breach of the employment contract between the company and the plaintiff. SMSOA took the company to the Tribunal to resolve a trade dispute. The plaintiff brings an allegation of conspiracy and breach of contract. Dr Sahu Khan says the tribunal does not have power to award compensation or damages. Power to award compensation is granted to the Tribunal in section 105(1) (d) of the Act, but this is limited to cases where there has been contravention of an award or a term of a collective agreement. The plaintiff had no right to appeal on fact or amount of compensation [section 123(1)].

[24] The plaintiff has not had all of his claim dealt with by the Tribunal, which would appear to lack the jurisdiction to deal with conspiracy or contract matters, and to be without power to award damages of the kind claimed in the plaintiff’s statement of claim. It could not be said that this is “the same cause of complaint in substance and in fact” see Mills-Owen CJ in Chinsami v Punamma [1967] 13 Fiji LR 82 at p.85C; cf too Conquer v Boot [1928] 2 KB 336.

[25] By these proceedings the plaintiff does not seek to set aside any finding of the Tribunal: Whippy v Kong (unreported) Court of Appeal, Fiji Civil App. No. ABU0038.01S, 15 November 2002 at p.10; nor to dislodge the main finding of the Tribunal: Green v Hampshire CC (supra at p.866). In Stephenson v Garnett [1898] 1 KB 677 the plaintiff sought to dislodge the finding of fraud in the previous litigation.

[26] It is possible the trial judge could reach a different conclusion based on additional material of the earlier proceedings. At this stage I am inclined to the view that the cause of action and relief sought in the first action are different from that in the second action; Vivrass Development Ltd. v FNPF Board (unreported Court of Appeal, Fiji Civil App. No. ABU0044.03S, 19 March 2004.

[27] Accordingly the summons is dismissed with costs in the cause.

A.H.C.T. GATES
JUDGE

Solicitors for the Plaintiff: Messrs Sahu Khan & Sahu Khan, Ba
Solicitors for the Defendant: Messrs S.B. Patel & Company, Lautoka