Nasau v Fiji Broadcasting and Corporation Ltd [2006] FJHC 40; HBC0391d.2004s (7 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0391 OF 2004

Between:

MERE NASAU
Plaintiff

and

FIJI BROADCASTING CORPORATION LIMITED
Defendant

Mr. S. Matawalu for the Plaintiff
Mr. J. Apted with Mr. F. Haniff for the Defendant

Date of Decision: 7 February 2006

DECISION

By summons dated 29 March 2005 Fiji Broadcasting Corporation Limited (the “defendant”) has applied to Court for an order that the originating summons filed 6 September 2004 be ‘wholly struck out’ on the grounds that the ‘action is scandalous, frivolous, vexatious and an abuse of the process of the Court’ pursuant to Order 18 r.18 (1)(b) & (d) of the High Court Rules 1988.

The application is supported by the affidavit of Francis Herman, the Chief Executive of the defendant sworn 29 March 2005.

The Court has before it affidavits in Reply to the affidavit of Herman filed 4 July 2005, Affidavit of Herman in Reply to affidavit of the plaintiff (Ms. Mere Nasau) filed 13 April 2005 in support of the originating summons.

It was ordered that submissions be filed by the parties which the defendant did but the plaintiff did not. Because of leave taken by me since the conclusion of the hearing, it was not possible to give the decision herein earlier than now.

The plaintiff’s former solicitor (Mr. Kafoa Muaror) was replaced by Mr. S. Matawalu.

Background

It is necessary that I set out the background to this case before considering the application.

The plaintiff by originating summons seeks the following orders: a declaration that the proposed dismissal of the plaintiff by the defendant was null and void and of no effect, order for special damages by way of value of the balance term of the contract’, an ‘order for payment of the bonus payment based on the value of the balance term of the contract, general damages, aggravated damages, costs and such other relief the Court sees fit.

The background facts of the case are fully set out, inter alia, as follows (as contained in the written submission of the defendant):

“...the Plaintiff, Ms Mere Nasau (“Ms Nasau”), was appointed to be the Sales Administrator – Key Accounts Group by the Fiji Broadcasting Corporation Limited on 25 June 2001. Under her Contract, Ms Nasau was to be on probation for 3 months. It was an express term of the contract that confirmation to the position of the Sales Administrator – Key Accounts Group would be dependant on the General Manager Commercial in consultation with the Chief Executive Officer.

After her 3-month probation period ended, FBCL decided not to confirm Ms Nasau to the position of Sales Administrator – Key Accounts Group. Her employment with FBCL ceased on 28 September 2001. Ms. Nasau was so advised by FBCL through a letter dated 28 September 2001.

Ms. Nasau received her final pay on 28 September 2001. This is the date on which Ms. Nasau was advised by FBCL that it would not be confirming her to the position of Sales Administrator – Key accounts Group. Ms Nasau accepted her final pay without protest. Her final salary included her normal pay for 23 days, and her severance entitlement under clause 5.9.1 of the Collective Agreement between FBCL and the Telecommunication Employees Association (“TEA”). Pursuant to clause 5.9.1 of the Collective Agreement Ms Nasau received 3 months severance pay amounting to $4,250.00 and 4 weeks salary for each completed year of service, which for Ms Nasau amounted to $3,923.08. Her final pay amounted to $9,676.93. After the statutory deductions, FNPF and PAYE, Ms Nasau accepted $7,257.70 as her nett payout amount.

After this, certain developments took place when (as per said submission):

“... Ms Nasau invoked the grievance procedure under the Collective Agreement. It would appear that Ms. Nasau did not accept the fact that under her employment contract, FBCL was able to decline to confirm Ms Nasau to the position of Sales Administrator – Key Accounts Group despite accepting her final salary from FBCL. Ms Nasau was represented by her Union, the TEA. Ms Nasau was herself personally present with the TEA representative to resolve her grievance under the grievance procedure. The matter could not be resolved under the grievance procedure provided for in the Collective Agreement and Ms Nasau’s grievance was referred to the Permanent Secretary for Labour, Industrial Relations & Productivity for him to invoke the Trades Disputes Act Resolution machinery.

The parties did not reach an amicable settlement and as a consequence, the Permanent Secretary referred the dispute to the Arbitration Tribunal. The Arbitration Tribunal convened a preliminary hearing with both parties on 3 February 2002. On 3 February 2002 the Tribunal fixed the dispute for hearing on 3 June 2003.

In the meantime, both FBCL and TEA continued their attempts to settle the dispute reported by Ms Nasau. On 13 May 2003, FBCL offered to settle with TEA on terms contained in its letter of 13 May 2003. The terms of settlement were:

(i) terminal payment of a sum equal to Two (2) months salary;
(ii) salary to be deemed as that of the aggrieved when terminated;
(iii) normal taxation will be applied and deducted before payment;
(iv) no further claim in any form whatsoever will be brought against the company on this issue, on settlement of this terminal payment.

FBCL’s letter is contained at Annexure FH 3 in the affidavit of Mr. Herman filed herein on 29 March 2005.

This offer was accepted by the TEA.

On 15 May 2003, the TEA wrote to the Arbitration Tribunal informing the Tribunal that “TEA has reached an amicable settlement with FBCL”. The letter further said “The agreement was reached between FBCL and the Union through ongoing discussions. TEA had come to this conclusion after seriously reviewing this case”. The last line of the TEA letter says “...attached is a copy of the letter of offer from FBCL and TEA had accepted”.

This settlement was made into an Award of the Arbitration Tribunal No. 14 of 2003 (vide annexure ‘FH5’ to Herman’s affidavit).

The dispute that was referred to the Tribunal was: ‘settlement over the termination of Mere Nasau which the Union views was unfair. Therefore the Union seeks her immediate reinstatement without any loss of wages and benefit’.

The Tribunal’s award reads as follows: (as in the last paragraph of the Award):-

“But this Tribunal was pleasantly surprised to hear that, on 16/5/03, the Tribunal’s secretariat received a letter from the Association advising, that the dispute of the grievor was settled with the Company. Accordingly, I annex herewith a letter from the Association (marked ‘A’) and a correspondence dated 13/5/03 from the Corporation (marked ‘B’) as part of this Tribunal’s award.” (our emphasis)

In these circumstances leave was granted by the Tribunal for the Association to withdraw the trade dispute.

The further background facts are that subsequent to the Award the plaintiff sought further legal advice from the law firm ‘Law Solutions’. After correspondence passed between the solicitors, Law Solutions wrote to Munro Leys as follows:

“We advise that we have been instructed by our client to accept the Arbitration Tribunal Award and not to proceed as earlier instructed.

We understand that your client had agreed to pay our client as settlement two months salary plus benefits. We have been instructed to accept the settlement offered by FBCL.”

Thereafter Munro Leys had sent Law Solutions a Deed of Discharge for the plaintiff to sign which she refused to do.

The plaintiff decided to institute the present proceedings by way of originating summons.

Applicant’s/Defendant’s contention

Based on the facts as outlined hereabove it is the defendant’s contention that the plaintiff’s application is an abuse of the process of the Court principally because the plaintiff’s termination of her employment is ‘res judicata’. On settlement an Award was made by the Arbitration Tribunal.

Mr. Haniff for the applicant cited a number of authorities in support of his argument and I found them to be very helpful and relevant.

He submits that the plaintiff’s allegation that her case was ‘unprofessionally’ handled by her counsel and advisers has no merit.

He said that settlement had been completed by Law Solutions as stated in their letter of 13 January 2004 accepting the Award made by the Tribunal.

Counsel says that the plaintiff is bound by the settlement in terms of the first of the three ‘classes’ referred to in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 (infra).

He further submits that the fact that the plaintiff declined to sign the Deed of Release cannot detract from the fact that an agreement had already been reached to settle the issues between the parties.

Plaintiff’s affidavit in reply

The plaintiff states the history of her employment with the defendant. She entered into a 3 year contract dated 6 July 2001. One of the Terms of Employment was that she “will be subjected to a 3-month probationary period where her performance will be reviewed. Appointment to the position will depend on the recommendation of the General Manager Commercial in consultation with the Chief Executive Officer”. (Clause 10).

On 1 October 2001 she was terminated from employment in terms of the said Clause 10.

The plaintiff complains that she was ‘never given reason for the termination either orally or in writing: except the first warning’.

Further, that she was ‘not given any opportunity to explain or make representation against the termination’ of the contract.

Consequently, she says that she had ‘suffered financial loss including opportunities for similar employment in a media Sales and Marketing sector’.

The plaintiff admits that she did approach her Union to represent her interests but she complains that just prior to the hearing of the dispute before the Arbitration Tribunal, the Union and the defendant reached a ‘settlement’without the Union consulting her.

She wrote to the Union rejecting the ‘settlement’ and on ‘legal advice’ the present proceedings were brought.

Consideration of the application

This application is made under Or.18 r.18 (1)(b) & (d) of The High Court Rules 1988.

I have for my consideration helpful written submission from Mr. Haniff but none from the plaintiff’s counsel despite the Court order to file one. I have considered the affidavits and submission filed in this matter.

It is in the light of the factual background to the case which I have comprehensively stated that the determination of the issue herein rests.

The issue for Court’s determination is whether the institution of the present proceedings by way of originating summons is an abuse of the process of the Court and whether for that reason the action should be struck out as prayed.

In dealing with this issue, I bear in mind the following passage on ‘striking out’ from Halsbury’s 4^th Ed. Vol. 37 para 435.

“The power to strike out, stay or dismiss under the inherent jurisdiction is discretionary. It is a jurisdiction, which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible.”

In this regard a matter to be considered is whether the cause of action as stated by the plaintiff is so clearly untenable that there is no chance of it succeeding.

Bearing in mind the circumstances which led to this action as already stated hereabove, and taking into account the defendant’s very forceful submission in support of its application, I am of the clear view, and I agree with Mr. Haniff, that this is a case of res judicata.

Without repeating what has already been stated it is abundantly clear that on the plaintiff’s authority her Union took up her case with the Arbitration Tribunal and subsequently the settlement reached between the parties formed the basis of the Arbitration Award in this case. Later, not satisfied with the award while casting doubts on the integrity of the Union, she consulted her lawyers The Law Solutions which advised her to accept the Award but she refused to do so and did not sign the Draft Deed of Discharge prepared by the defendant.

It is obvious that there has been a proper legal handling of the dispute resulting in proper adjudication culminating in an Award of the Arbitration Tribunal.

It was up to the plaintiff as soon as the ‘dispute’ arose to decide on the course of action to be taken. She decided to go before the Tribunal.

It is obvious that when the decision did not turn out to the plaintiff’s satisfaction, she decides to ignore all that went on before and start a fresh action as if nothing happened before.

Having agreed to go to Arbitration she has to abide by the Award made by consent. She cannot say that she was denied natural justice. She was heard and her case was put before the Tribunal through the Union which represented her interests. Even her lawyers the Law Solutions advised her to accept the Award.

As I said before and I agree with Mr. Haniff that the doctrine of res judicata applies here although the Award/decision is that of the Arbitration Tribunal based on the settlement reached between the parties and incorporated in the award.

The following passage from Hals. 4^th Ed. Vol 16 para 1503 which deals with res judicata (estoppel of record) fits the case and states how this doctrine arises and I consider it apt:

“Estoppel of record or quasi of record, also known as estoppel per rem judicatam, arises (1) where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction, concurrent or exclusive, in the matter, and the same issue comes directly in question in subsequent proceedings between the same parties (this is sometimes known as cause of action estoppel); (2) where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidentally in question in subsequent proceedings between the same parties (this is sometimes known as issue estoppel); (3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a tribunal having jurisdiction to determine that status, and the same issue comes directly in question in subsequent civil or criminal proceedings between any parties whatever.

Where the earlier decision is that of a court of record the resulting estoppel is said to be “of record”; where it is that of any other tribunal, where constituted by agreement of the parties or otherwise, the estoppel is said to be “quasi of record”. The fact that the earlier decision or determination was made by an inferior court does not prevent estoppel of record or quasi of record arising” (underlining mine).

The Award decision of the Arbitration Tribunal in this case would come under this doctrine. As stated in Hals (ibid) para 1565:

“The doctrine of estopped by record has been extended by analogy to the decisions of all tribunals which have jurisdiction, whether by the law of England, or by the consent of parties, or by the law of the country to whose tribunals the parties have or may be presumed from their conduct to have, submitted themselves. The estoppel which arises from the decisions of such tribunals has been conveniently named “estoppel quasi of record.” (underlining mine for emphasis).

On res judicata the rule in Henderson v Henderson (1843) 2 Hare 100, [184] All E.R. Rep. 378 [Tab 1] is pertinent:

“.....where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not ( except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” (emphasis mine)

This claim is obviously unsustainable to enable me to strike out the action [A.G. of Duchy of Lancaster v L & N W Ry. Co. [1892] 3 C 274. C.A.].

There is substance in Mr. Haniff’s argument to persuade me to decide in favour of the defendant bearing in mind the facts of this case and the law on the subject.

It has been said in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 3) ([1970] 3 Ch. 506) that:

“The power to strike out any pleading or any part of pleading under this rule is not mandatory, but permissive, and so confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea”.

In this case the parties through their counsel came to an agreement or settlement. In such a situation the agreement is binding on the parties. In this regard the following extract from the judgment in High Court of Australia case of Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 [Tab 3], consisting of Dixon CJ, McTiernan and Kitto JJ at 360-361 is apt:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In case of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document: and in the second case a contract binding the parties to join in bringing the formal contract in existence and then to carry it into execution.”

In conclusion, the situation that prevailed here has been well summed up by Lord Gordon in Rossiter v Miller [1877] UKLawRpCh 168; (1878) 3 AC 1124 at 1154 thus and I adopt it here:

“I think that the correspondence founded on, constituted a completed contract for the purchase and sale of the lots in question, at the price stipulated, and on the conditions specified in the conditions and stipulations printed on the plan. No doubt these conditions provided for a subsequent and formal deed being executed by the parties; but that deed was only for the purpose of more formally setting forth the conditions upon which the parties had agreed. If there was anything introduced into the proposed deed, which the purchaser considered beyond the terms and conditions on which he purchased the property, he would have been entitled to object, and, if necessary, the proper terms of the deed could have been adjusted at the sight of a Court of Law. But in my view the contract between the parties was concluded by correspondence and the conditions which were referred to and embodied in it.”

On the facts I find that this is an abuse of the process case and in considering the application on this aspect the following passage from Halsbury’s Laws of England 4^th Ed. Vol 37 para 434 on ‘abuse of process’ is pertinent and I have borne it in mind:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of the process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”

The Arbitration Tribunal carried out its function. As has been said by the Court of Appeal this Court is not entitled to substitute its view on the merits for that of the Disputes Committee (here the Tribunal). The Tribunal is the ‘body contemplated by Parliament as that required to determine the matter placed before it’. (The Permanent Secretary for Labour and Industrial Relations and The Disputes Committee v Air Pacific Limited and Fiji Aviation Workers’ Association Civil Appeal No. ABU0023 of 2002S – 16.5.03).

For these reasons the originating summons is dismissed as being frivolous, vexatious and an abuse of the process of the Court with costs against the plaintiff in the sum of $400.00 to be paid within 21 days.

D. Pathik
Judge

At Suva
7 February 2006