Burness v Fiji National Provident Fund [2011] FJHC 414; HBC 183 of 2011 (26 July 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 183 of 2011

BETWEEN:

DAVID FOWLER BURNESS
APPLICANT

AND:

FIJI NATIONAL PROVIDENT FUND
1ST RESPONDENT

AND:

THE REPUBLIC OF FIJI
2ND RESPONDENT

AND:

THE ATTORNEY GENERAL OF FIJI
3RD RESPONDENT

Counsel: Ms. S. Shameem for the Applicant.
Mr. D. Sharma for the 1st Respondent.
Mr. S. Sharma for the 2nd & 3rd Respondents.

Date of Judgment: 26th July, 2011

DECISION

INTRODUCTION

1. The applicant filed an ex-parte notice of motion seeking following relief.
   
   1. The respondents and its servants and agents howsoever be restrained from making a decision on the proposed Review of the FNPF Act or related pension/benefit matters which affects the Applicant's pension benefit until such time as the Court has heard the substantive motion.
      
   2. That the respondents pay to the applicant the costs of this application on a full indemnity basis.
      
   100. Any further orders and relief as this Court may deem fit.
        
2. However, it was ordered to call inter-partes. In addition to the above motion, the applicant filed another Notice of Motion seeking following relief:
   
   1. Declaration that Applicant's pension benefit not to be reduced.
      
   2. The proposed review is a breach of the contract.
      
   100. Court to appoint an independent person or body such as a Judicial Commission of Inquiry appointed through an open selection process.
        
   4. Terms of reference of Independent Commission be drafted in consultation with the beneficiaries of the Fund.
      
   5. Intended review of the FNPF Act be shelved until such time as the Commission gives its findings.
      
   6. Declaration that FNPF review intending to reduce the current pension benefit of the Applicant would constitute a breach of his human rights.
      
3. On 11.07.2011, when the matter was called, the respondents raised some preliminary objections on several grounds. The most decisive objection taken up by the respondents is the section 15 of the Crown Proceedings Act, which reads as follows:
   

15. (1) in any civil proceedings by or against the State the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the cause may require:

Provided that-

1. Where in proceedings against the State any such relief is sought as might in proceedings between subjects be granted by way of injunction or make an order for specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and
   

the court shall not in any civil proceedings grant any injunction or make any order against an officer of the state if the effect of granting the injunction or making the order would be to give any relief against the state which could not have been obtained in proceedings against the state which could have been obtained in proceedings against the State.

4. Therefore, the respondents submit that the court cannot grant an injunction or make any order for specific performance against the state but in lieu thereof may, make an order declaratory of the right of the parties.
   
5. In International General Electric Company of New York Ltd v. Commissioners of Customs and Exercise (1962) 1 Ch 784, Court considered the section 21 of the Crown Proceedings Act which is similar to section 15 of the state Proceedings Act in Fiji and it was held as follows:
   

That an order declaring the rights of parties must in its nature be a final order and (subject to appeal) be res judicata between the parties; and that in proceedings against the crown it was not possible to obtain an order which correspond to an interim injunction or an interim declaration which did not determine the rights of the parties but which was only intended to preserve the status quo.

6. Further in R-v- Inland Revenue Commissioner, Ex.PRossminster Ltd & another (1980) AC 9520 at 1027 Lord Scarman succinctly stated the approach to be adopted by the judiciary in an application of this nature;
   

"The second point on which I desire to comment is as to the possibility of an 'interim declaration'. Under existing law only a final and conclusive declaration may be granted by a Court. This means that, where the Crown is defendant or respondent relief analogous to an interim injunction is not available. Many commentators including the Law Commission recommend that interim relief should be available against the Crown and that and 'interim declaration' would be the appropriate way of providing it. I gravely doubt the wisdom of interim relief against the Crown. The State's decision must be respected unless and until they are shown to be wrong. Judges neither govern nor administer the State: they adjudicate when required to do so. The value of judicial review, which is high, should not be allowed to obscure the fundamental limits of the judicial functions. And, if interim relief against the Crown be acceptable the interlocutory declaration is not the way to provide it. For myself, I find absurd the posture of a court declaring one day in interlocutory proceedings that an applicant has certain rights and upon a later day that he has not. Something less risible must be devised".

7. When an order of declaratory nature is granted, it finalizes the rights, obligations and duties of the parties in dispute. Therefore, in my view, a declaratory order should not be granted until and unless the parties are heard fully.
   
8. I am also mindful that declaratory order cannot be granted only to preserve the status quo. In my view the mere assertion that the applicant's human rights or fundamental rights have been or are likely to be violated, is not itself sufficient to entitle the applicant to seek an injunctive relief. The applicant is required to substantiate his grounds for an injunctive relief. Upon perusal of the affidavit and its annexes, I am unable to satisfy myself of any probable basis on which the human rights of the Applicant could be violated by any reforms that could be introduced to the FNPF.
   
9. Further, the documents filed by the Applicant before this Court are even wanting of material that explains how the human rights of the Applicant could be violated. I am also of the view that the Applicant has even failed to present adequate material explaining how his human rights will be violated for this Court to be convinced by any likelihood of reducing his FNPF pension.
   
10. In addition to the above, I also consider briefly the merits of the affidavits filed by the Applicant.
    
11. In this matter the Applicant has tendered two affidavits in support of the application for injunction as well as for the substantive case.
    
12. The first affidavit sworn on 27th of June, 2011 does not contain any grounds under which the Applicant seeks an injunction. In order to get an injunctive relief it is incumbent on the Applicant to satisfy the Court that irreparable and irremediable damage would be caused if the injunctive relief is not granted. In his first affidavit the Applicant simply states that if the proposed review of the FNPF Act takes place to the detriment of his pension benefit, his substantive action to obtain relief from the Court would be futile.
    
13. However, the Applicant has failed to state what the proposed review or the amendment to the FNPF and how it is detrimental to his pension.
    
14. The annexure two attached to the affidavit merely states that the Board has the power under the FNPF Act to make decisions for the interest of the Fund and its members, and the reforms will proceed as planned, which in my view is hardly sufficient to infer that proposed reforms would be prejudicial to the pension benefits of the Applicant or would violate the applicant's human rights.
    
15. The Applicant filed his second affidavit on 1st of July, 2011. In that affidavit also the Applicant has failed to substantiate his claim for the injunction. It could be observed that the Applicant mainly relied on a statement made by the CEO of FNPF. It is further alleged that by the proposed reforms to the FNPF the applicant's pension would be reduced by 64%.
    
16. However, it is not stated the source from which the Applicant got this information. To succeed in an injunctive application the party who seeks court's intervention must show that he has an arguable issue. In other words, it must be shown that there is a serious question to be tried. That does not mean that one can succeed on a mere speculative assertion.
    
17. In the present case it must be noted that the Applicant mainly relies on a mere speculation rather than credible and reliable information. Hence, his injunction application in any event would fail.
    
18. The principles to be followed in considering the granting of injunctions are set out in the leading case of American Cyanamid Co. v. Ethicon Ltd (1975) 1 ALL ER 509
    
19. The 3 matters to which the court must address itself in respect of the present application are, per American Cyanamid;
    
    1. Is there a serious question to be tried
       
    2. Is the damage an adequate remedy
       
    3. If not, where does the balance of convenience lie
       
20. The House of Lords decided that in all cases, the court must determine the matter on a balance of convenience.
    
21. In that case Lord Diplock stated the object of the interlocutory injunction as follows:
    

"..The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies.

22. As I stated earlier the Applicant in the present action has manifestly failed to establish that there is a serious question to be tried. Therefore, the Applicant has failed to satisfy the first requirement stated in American Cyanamid's case.
    
23. Hence, it is not necessary to advance any further to consider other two requirements under the above stated judgment. On the above premise I conclude that the Applicant has failed to substantiate his claim for injunction and therefore I strike out the Applicant's application for an injunction.
    
24. Now I shall turn to the objections raised by the Respondents in respect of the substantive application. The Respondents have raised several objections as follows;
    
    1. The application was an abuse of process because the substantive action on which the interim orders are being sought was commenced by way of an ordinary Motion.
       
    2. That the proceedings do not meet the threshold criteria of an individual action as permissible under section 38(5) and 40(6) of the Human Rights Commission Decree 2009.
       
    3. The application does not meet the criteria for the grant of interim relief under section 42(1) and (2) of the Human Rights Commission Decree 2009.
       
    4. There was no compliance with Order 67 rule 3 of the High Court Rules 1988.
       
    5. There is no legal entity by the name of Fiji National Provident Fund, so the proceeding against this non-existent body is unsustainable.
       
    6. That the affidavit of David Burnes did not comply with Order 41 rule (9) (2) of the High Court Rules.
       
    7. The applicant seeks to rely on one affidavit for the substantive and the interim motion.
       
25. The above technical and procedural errors are to be considered.
    
26. It is apparent that the Applicant has not observed the correct procedure laid down in High Court Rules whilst filing his applications for injunction and the substantive action. However, I am not inclined to decide the fate of this action purely on technical and procedural grounds. Upon consideration of the nature of the applications, and the submissions made by the counsel for the Applicant and the Respondents, I am of the opinion that this action attaches a significant national importance.
    
27. Especially in light of the restrictions contained in the Human Rights Decree and in the Administration of Justice Decree 2009, the Court has to satisfy that the Applicant's claim in fact is a claim for redress in Human Rights violation.
    
28. As can be seen from the Human Rights Decree a complaint shall first be made to the Human Rights Commission. The said Commission has been established by the Human Rights Decree which empowers the Human Rights Commission to deal with the applications relating to violation of human rights.
    
29. Under section 38(5) of the said Decree any person can apply to the High Court for redress for the contravention of his or her human rights. However, this right is subjected to the proviso which reads as; Provided however that no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or as may be made by the President, shall be brought before the High Court.
    
30. The respondents argued that the applicant's claim is in breach of section 38 (5) and 42 (6) of the Human Right Decree 2009 and therefore ought to be dismissed.
    
31. However, the applicant submits that in light of UN Siracusa Principles the proviso to section 38 must be interpreted strictly in favour of the rights at issue. It s further submitted that Principle 1A 3, 7 and 8 permit court to entertain the applicant's claim.
    
32. Principle 1A 3, 7 and 8 read as follows:
    

3. All limitation clauses shall be interpreted strictly in favour of the rights at issue.

7. No limitation shall be applied in an arbitrary manner.

8. Every limitation imposed shall be subject to the possibility of challenge to and remedy against its abusive application.

33. Having relied on the above principles the applicant submits that the right at issue in section 38(5) is the right to access the courts.
    
34. But even if the court were to apply the above principles the applicant must satisfy the court that there is a clear issue on human rights and the limitation clause contained in section 38 (5) is going to be applied in an arbitrary manner.
    
35. In the present action in the absence of any reliable and credible information as to the proposed review to the FNPF Act, court is unable to decide the exact nature of the applicant's claim.
    
36. In support of the applicant's claim, a number of decided cases from various jurisdictions have been cited but it must be emphasized that when the claim before the court warrants a consideration of a legislative issue which involves the law making body of a certain state the court should exercise its jurisdiction very carefully and sparingly. In exercising its jurisdiction the court shall consider the importance of upholding the law of the state, the need for stability in society, the powers vested on certain authorities to make laws and in particular, the public interest.
    
37. All what can be observed at this stage is that the applicant's claim lacks sufficient material even though it has been presented as a matter of national importance. Therefore, I am of the view that this is not the most appropriate stage to consider the applicability of UN Siracusa Principles as stressed by the applicant.
    
38. Further, given that the matter is of significant national importance, I am of the view that this action should not be struck out without granting the applicant an opportunity to rectify his procedural and technical errors.
    
39. In any event it is not clear from his own documentation whether the Applicant intends to challenge the legality or validity of any Decree. Further, it is not clear what provision or section of the proposed review would violate the applicant's human rights.
    
40. Furthermore, there is no clear evidence before this court that what the proposed review would be. It is the applicant who interpreted that the proposed review to the FNPF Act would violate his human rights. More importantly the Applicant has not substantiated that the proposed review would encompass the human rights.
    
41. Therefore, it is my considered view that the issue of jurisdiction in respect of the substantive matter of the Applicant cannot be determined at this stage.
    
42. Although the Applicant has submitted that there is no Human Rights Commission that is functioning in Fiji at present, he has failed to support this contention in his affidavit. The Respondents also have failed to refute the non-existence of the Human rights Commission in Fiji.
    
43. It is in this context that I traverse to consider the issue of jurisdiction in respect of the Applicant's substantive claim.
    
44. The Respondents laid great stress on the procedure adopted by the Applicant whilst filing this application. It was argued that the correct procedure should have been the 'judicial review'. However, it must be noted that under the Administration of Decree 2009, even the judicial review application is not permitted if it challenges the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 [Decree no. 1] and such other Decrees made or as may be made by the President.
    
45. Whether it is human rights application or otherwise, it is explicit that the Applicant by his substantive action is purporting to prevent an amendment being made to the FNPF Act. Since section 3 and 4 of the Administration of Justice Act 2009 expressly preclude Court from entertaining or hearing any application including judicial review challenging the validity of a Decree made by the President, it is incumbent on the applicant to justify the grounds upon which he instituted this action.
    
46. Therefore, if the Applicant intends to challenge the validity or legality of a Decree he cannot do it even by way of judicial review.
    
47. The determination of issues, broadly described as political, relying on the exercise of non-judicial power, or adopting an executive or legislative character are normally non-justiciable issues and will fall outside the jurisdiction of the courts. Therefore, the Applicant must show that he is pursuing purely a human right application, which further warrants additional material from the Applicant as well as from the Respondents to determine the correct nature of this application.
    
48. The exact nature of the proposed reforms, its effect on the Applicant's pension benefit, to what extent that the general public are allowed to submit their views on the proposed review, and the procedure which is followed by the FNPF Board are of paramount importance to this action, but the applicant has failed to tender sufficient evidence with regard to the abovementioned facts.
    
49. Furthermore, given that the matter is of national importance, I am of the view that the Applicant should be granted an opportunity to rectify his procedural and technical errors in the pleadings. The pleadings could any event be amended, without prejudice to the respondents.
    
50. Moreover, this application contains characteristics of legislative issues to a certain extent.
    
51. Therefore, to decide the issue of jurisdiction in the substantive matter this Court requires further materials from both parties. Therefore, I do not decide the issue of jurisdiction at this juncture. The Applicant is granted 21 days to rectify procedural errors and file proper pleadings together with the necessary and relevant documentary evidence. The Respondents are granted further 14 days to file their response.
    
52. Cost will be in the cause.
    

Pradeep Hettiarachchi
JUDGE

26.7.11