Swarup v Airport Development Company Ltd [2012] FJHC 1320; HBC296.2005 (7 September 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 296/2005

BETWEEN:

VISHNU DEO SWARUP
father’s name Ram Swarup of Varadoli, Ba, Fiji, Businessman
Plaintiff

AND:

AIRPORT LAND DEVELOPMENT COMPANY LIMITED
a limited liability company having its registered office at Nadi, Fiji
Defendant

Appearances: Mr V.M.Mishra– Counsel for the Plaintiff
Mr D.S.Naidu – Counsel for the Defendant

JUDGMENT

1. The Plaintiff (a former Bank Manager) and the Defendant Company(a Land Developer) entered in to a written ‘EMPLOYMENT CONTRACT’ on 13th May 2005 whereby the Defendant ‘employed’ the Plaintiff effective from 1st February 2005 as the General Manager of the Defendant Company. The objective of the Defendant Company was to sub divide and sell a land approximately 500 meters from and opposite the Nadi International Airport which is the only international airport at that time in Fiji. The said ‘EMPLOYMENT CONTRACT’ was marked in evidence as P2. The Plaintiffs employment was terminated on 30th June 2005, and the Plaintiff has instituted this action seeking relief inter alia for wrongful termination of employment and for certain entitlements or commissions alleged to be due under the said Agreement and for damages for defamation and for breach of contract.
   
2. Parties agreed to the following facts and issues at the Pre Trial Conference; (verbatim)
   

AGREED FACTS

1. The Defendant is a limited liability company which carries on the business of land developers.

2. The Plaintiff was employed by the Defendant as its General Manager pursuant to the Employment Contract dated 13th May, 2005.

3. The Plaintiff’s employment under the said Employment Contract was to commence on the 1st day of February, 2005 and continue until (i) the completion of the subdivision at Legalega, Nadi, Fiji,

(ii) sale of all the Defendant’s lots at Legalega, Nadi, Fiji or (iii) as was mutually agreed between the Managing Director of the Defendant Company and the Plaintiff.

4. The Defendant was to pay the Plaintiff salary in the sum of $4, 167.00 (four thousand one hundred and sixty seven dollars) per month from February, 2005 pursuant to the Employment Contract.
   

5. The Defendant made arrangements and paid the Plaintiff the sum of $3,000.00 (three thousand dollars) for the month of February, 2005 being part of his salary of $4, 167.00 (four thousand one hundred and sixty seven dollars).

6. The Plaintiff’s employment was terminated on the 30th day of June, 2005 by the Defendant.

7. The Plaintiff has written a letter dated 28th November, 2006 to the Defendant asking for payment of monies due to be paid to the Plaintiff into the trust account of the Plaintiff’s Solicitors.

AGREED ISSUES

1. Whether the Plaintiff is entitled to the balance of his salary at the rate of $4, 167.00 (four thousand one hundred and sixty seven dollars) per month for the months of February, 2005 to June, 2005 amounting to the total sum of $17, 835.00 (seventeen thousand eight hundred and thirty five dollars).

2. Whether the Plaintiff was entitled to other payments consisting of the excess of the sale price of each lot sold over a specified fixed price for said lot after deduction of 50% of the Native Land Trust Board charge of 10% of the gross sales price.

3. Whether there was any excess of sales price over specified fixed price with respect of the said lots.

4. Whether the Native Land Trust Board Charges were to be shared equally between the Plaintiff and the Defendant.

5. Whether the Plaintiff is entitled to (i) the sum of $327, 750.00 or some other sum under the terms of the Employment Contract with respect to lots already sold by the Defendant, and (ii) the sum of $262, 200.00 or some other sum under the terms of the Employment Contract with respect lots not yet sold by the Defendant.

6. Whether the Plaintiff was an employee of the Defendant or whether the Plaintiff was an independent contractor.

7. Whether the Plaintiff’s employment was terminated by the Defendant pursuant to Clause 4.2 (a), (b) and (m) of the employment Contract or whether the Plaintiff’s employment was wrongfully terminated by the Defendant.

8. Whether there was a serious breach of the Employment Contract’s terms and conditions, and if so, whether there any such breach was by the Plaintiff or by the Defendant.

9. Whether the Plaintiff has acted fraudulently and/or dishonestly with respect to the Defendant, and if so, whether the same constitutes a breach of Employment Contract.

10. Whether the Defendant has defamed the Plaintiff and/or gravely and adversely affected the Plaintiff’s reputation, and if so, what is the quantum of damages.

11. Whether the Defendant has a Defence of justification and/or fair comment under the Defamation Act and/or absolute or qualified privilege.

12. Whether the Plaintiff is entitled to interest on any damages awarded.

13. Whether the Plaintiff fraudulently and/or dishonestly conspired with the land valuer to deflate the prices of the Defendant’s lots.

14. Whether the Plaintiff has breached his duty as an employee of the Defendant, and if so, whether the Defendant suffered damages thereby.

15. Whether the Defendant is entitled to damages from the Plaintiff and if so, the quantum thereof.

3. The Plaintiff led the evidence of 1 witness (the Plaintiff -PW1) and marked in evidence P1-P18. The Defendant led the evidence of 5 witnesses (DW1-DW5) and marked in evidence D1-D5.
   
4. According to P1, a valuation report, which was objected to being marked in evidence on the 1st trial date but subsequently marked without objection, the situation of the land sought to be sold was described as “located within Legalega and occupies the eastern side of Queens Road that leads onto the Nadi International Airport from the Votualevu Roundabout” and subdivided in to 118 allotments consisting of 76 residential, 32 commercial, 7 hotel sites and 3 large commercial lots. Total extent of the land is 25.0335 hectares as per D5. Various values were given in respect of the lots under the column ‘ASSESSED PRICE’ therein. However the Plaintiff contended that the ‘fixed price’ referred to in the Employment Contract P2 was arrived at by the Managing Director Mr. Ratu Jona Rayasi adding a further amount over the ‘Assessed Price’ and that the said ‘fixed price’ of the individual lots are set out in the annexure marked ‘A’ to the Employment Contract P2 under the column ‘PRICE’ therein.
   
5. Though no issue was raised by the parties as to the jurisdiction of this Court, it may be stated that, that this action had been instituted in 2005 prior to the Employment Relations Promulgation 2007.
   
6. Of all the issues the most pivotal issue is issue 6; “Whether the Plaintiff was an employee of the Defendant or whether the Plaintiff was an independent contractor”. As such issue 6 shall first be dealt with as the parties admit that they entered in to and signed the ‘EMPLOYMENT CONTRACT’ marked P2 in evidence and it is for this Court to interpret whether P2 is an agreement to contract an employee or an independent contractor.
   

ISSUE 6; ‘Whether the Plaintiff was an employee of the Defendant or whether the Plaintiff was an independent contractor’.

7. Halsbury’s Laws of England volume 16 page 10, 2nd paragraph to note 4 observes; “ The person who is the employer for the purposes of vicarious liability in the law of tort is, however, not necessarily the same person as the employer for the purposes of employment law: see eg Denham v. Midland Employers’ Mutual Assurance Ltd (1955) 2ALL ER 561, CA (loan of employee); Morris v. Breaveglen Ltd (t/a Anzac Construction Co)(1993)1CR766, (1993)IRLR 350, CA; and Tort vol 45(2)(Reissue) para 814 et seq. Thus, although the terminology used may be the same, precedents in tort may need to be applied with care in the context of employment law.” (emphasis mine).
   
8. As such the effort of the Supreme Court of Fiji in Hassan v Transport Workers Union [2006] FJSC 11; CBV0006U.2005S (19 October 2006) is more relevant, and their Lordships in deciding whether the taxi drivers of a taxi service run by Hassan were independent contractors or employees laid the approach and tests to characterization of service contracts as follows;
   

Their Lordships said of the ‘Control Test’;

[55] The distinction between employees and independent contra has a long history in statute law and at common law. Master and Servant legislation of the 19th century was one s early progenitors. Common law doctrines relating to vicarious liability required considersideration of the relationship between a person who committed an act or omission and a second person who was said to be liable on account of the first person’s conduct. Over time a body of law developed in which the distinction was embedded. That distinction was originally based upon the degree of control exercised over the worker. An employee was "a person subject to the command of his master as to the manner in which he shall do his work" – Yewens v Noakes [1880] UKLawRpKQB 25; (1880) 6 QBD 530 at 532-533. The test was in a sense the product of a largely agricultural society. Its origins were explained in a passage from Glass, McHugh and Douglas, ‘The Liability of Employers’ in Damages for Personal Injury (2nd ed, 1979) at 72-73 which was quoted with approval by the High Court of Australia in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21,40:

‘It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by rnce to the test of conf control, an employer could be expected to know as much about the job as his employee. Moreover the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent conor ."

[56] A frequently cited statement of the test was that of McCardie J in Performing Right Society Limited v Mitchell and Booker (Palais De Danse) Limite 1924] 1 KB 762 at62 at 767-768:

"... "... the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant ... An independent contractor is on undertakes to producroduce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he it, ay use his own discretion in things not specified fied beforbeforehand.."

In Attorney-General for New South Wales v Perpetual Trustee Company (Ltd) [1952] HCA 2; (1952) 85 CLR 237, Kitto J set out three elements of the "master-servant" relationship in terms of a control test expressed in dated language (at 299):

1. Obedience to orders by the servant.

2. Obedience to orders in the doing of the work, including how it should be done.

3. The doing of the work for the benefit of the master.

[57] As the control test evolved it did not require specific directions as to the performance of duties. A right to control came to suffice especially where the worker was a person with special skills or knowledge. Trapeze artists in a circus were a case in point – Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 at 571. Workers contracted to perform services not subject to direct supervision but obliged to comply with detailed procedures upon pain of termination could be employees as the Privy Council held of Weight-Watchers lecturers in Narich Pty ltd v Commissioner of Payroll Tax (NSW [1983] 2 NSWLR 597; cf cosmetic consultants in Commissioner of Payroll Tax (Vic) v Mary Kay Cosmetics Pty Ltd [1982] VicRp 87; (1982) VR 871 and market research interviewers in The Roy Morgan Research Centre Ltd v The Commissioner of State Revenue (1997) 97 ATC 5070.”

Their Lordships said of the ‘Organization Test’ as follows;

[58] What seemed to some an alternative approach to characterisation was the so-called "organisation test". In 1947 Lord Wright said:

"... it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words by asking whether the party was carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior."

Montreal v Montreal Locomotive Works [1947] 1 DLR 161 PC at 169.

Denning LJ, in 1953, spoke of an employee as one who is "part and parcel of the organisation" – Bank Voor Handel An Scheepvaart NV v Slatford [1953] 1 QB 248 at 295. Windeyer J in Marshall v Whittaker Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 at 217 said that the distinction lies in "the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own".

Their Lordships said of the Multifactor approach;

[59] Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 enunciated, for Australia, a multi-factor approach which treated control and the organisational arrangements between the parties as relevant but not exhaustive considerations. Mason J (Brennan and Deane JJ agreeing) observed that the element of organisation could be treated as a factor to be weighed with control in deciding whether the relationship was one of employment or of independent contract. Nevertheless priority seems to have been given to control. His Honour said (at 27):

"For my part I am unable to accept that the organization test could result in an affirmative finding that the contract is one of service when the control test either on its own or with other indicia yields the conclusion that it is a contract for services. Of the two concepts, legal authority to control is the more relevant and the more cogent in determining the nature of the relationship."

His Honour interpreted Lord Wright's observations as consistent with that approach. He did not accept Denning LJ's view of the organisation test as an independent basis of characterisation which could replace "... the traditional approach of balancing all the incidents of the relationship between the parties" (at 28). Mason J acknowledged the criticism of the control test that it was more suited to the conditions of earlier times than to the conditions of modern post-industrial society. He pointed to the development which shifted its focus from the actual exercise of control to the right to exercise control and added (at 29):

"Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered."

[60] Brodribb Sawmilling involved timber workers. Particular factors mentioned by Mason J relevant to characterisation of their contractual relationship were:

1. the workers provided their own equipment;

2. they set their own hours of work;

3. their remuneration was by way of payments determined by the volume of timber delivered to the sawmill;

4. the company and the workers regarded the relationship as one of independent contra/b> ratherather than employee.

[61] Wilson and Dawson JJ also favoured a multi-factor approach. They viewed the formulations by Windeyer J and Denning LJ as posing the ultimate qun in different ways rather ther than offering a definition which could provide an answer. Their Honours saw the question as "... one of degree for which there is no exclusive measure" (at 36). They thought it appropriate to apply the control test in the first instance because it remained the surest guide to whether a person was contracting independently or serving as an employee. Any attempt to list relevant matters however incomplete could mislead because they could be no more than a guide to the existence of the relationship of master and servant (at 37):

"The ultimate question will always be whether a person is acting as a servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.

The judgments were in accord on a "totality of relationship" approach.

[62] The difficult distinctions involved in the multi-factor approach are illustrated by the difference in outcomes between the decisions of the Court of Appeal of New South Wales in Vabu Pty Ltd v Commissioner of Taxation (1996) 86 IR 150 and of the High Court in Hollis v Vabu Pty Ltd. The company provided courier services and the question in the New South Wales Court of Appeal case was whether it was an employer for the purposes of superannuation legislation. The company's couriers were paid for the number of successful deliveries undertaken. They owned the cars, motor bikes and bicycles which they used and had to meet the cost of maintaining, repairing and insuring them. They had to provide themselves with street directories and telephone books. They had to wear a company uniform and to comply with the company conduct standards. Their working hours were fixed. There was no discretion to refuse work allocated by the company. However, because of the payment arrangements and the responsibility of the couriers to supply their own equipment they were held to be indent contractors .

[63] The The High Court case involving Vabu arose out of an accident in which a person was injured by the negligence of one of its bicycle couriers while making a delivery. The High Court he1, that the company was vics vicariously liable for the act of its courier. In relation to the bicycle couriers it differed from the New South Wales Court of Appeal in the earlier superannuation case.

[64] The majority judgment discussed the "control" test and observed that in Brodribb the Court had been "adjusting the notion of 'control' to circumstances of contemporary life" (at 40). The Court quoted with approval the observations of Mason J and in particular the passage in which he identified "the totality of the relationship between the parties" which must be considered for the purpose of its characterisation. After reviewing the various elements of the working relationship between Vabu and its couriers, the majority said (at 45):

"...Vabu's business involved the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu's business. It was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time; rather, ... they were Vabu and effectively performed all of Vabu's operations in the outside world. It would be unrealistic to describe the couriers other than as employees."

[65] The decision of the High Court of Australia differed from that of the New Zealand Court of Appeal on similar facts in TNT Worldwide Express (NZ) Ltd v Cunningham [1993] NZCA 84; [1993] 3 NZLR 681. That too concerned owner-driver couriers employed under standard contracts which declared that the relationship between the drivers and the company was that of independent contractors;. It contained terms which, as the Court of Appeal in New Zealand found, suggested that "each party was genuinely trading off benefits under one relationship for perceived advas under the other" (at 695). Although the company controlled the livery of the vehicle, the courier controlled his own chosen area or territory. He was responsible for employing relief drivers and would profit from sound management and performance of his task.

Of a declaration in the contract their Lordships stated;

[66] A declaration in a contract that a party is an " independent contractor;;" does not determine the character of the relationship. In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, Mna J pointed out that the cthe characterisation of the relationship as independent contractor;; or otherwise is a matter of law. It is dependent upon the rights and duties imposed by the contract. If a contract established a relationship of empland employee it would be irrelevant that the parties declareclared it to be something else. MacKenna J did not deny some utility for such declarations, because they might help resolve cases of doubt. His judgment was approved by the majority of the Court of Appeal in Ferguson v John Dawson and Partners (Contractors) Ltd [1976] EWCA Civ 7; [1976] 1 WLR 1213. Browne LJ (at 1270) was prepared to assume that a declaration as to the nature of a relationship by the parties is "a relevant but certainly not a conclusive factor". (See also Massey v Crown Life Insurance Company [1977] EWCA Civ 12; [1978] 1 WLR 676).

As of the position then, their Lordships stated;

[67] The present position under the common law of England, Australia and New Zealand requires the Court to consider the whole relationship. The primary consideration must be the degree of control, direction or constraint exercised or entitled to be exercised by the person receiving the services over the person providing them.

(Emphasis by larger font and underlining mine)

9. Though the parties have declared on the face of the written contract (P2) that it is an 'EMPLOYMENT CONTRACT' with the Plaintiff described as the Employee and the Defendant as the Employer and thereafter through their Solicitors at the Pre Trial Conference agreed as set out in the Agreed fact number 2 that; 'The Plaintiff was employed by the Defendant as its General Manager pursuant to the Employment Contract dated 13th May, 2005', still as set out above by their Lordships in the Hassan case that; "the characterisation of the relationship as independent cctor ; or otherwise is a matter of law", it is yet again left for the Court to determine whether the relationship was that of independent contractor as suggested by the Defendant or that of an employee as suggested b Plaintiff as the issue nume number 6 is raised after the agreed fact number 2 in the PTC.
   
10. However the Court may be inclined to afford more weight to an agreed fact in a PTC than a mere declaration in a contract in determining the true character of the relationship. Nevertheless though the law appears to recognize either one of the two characters in a relationship, it is not outside of parties to have severable and different characterization in one contract provided there is no conflict in interest and duties.
    
11. In the particular written contract P2 admitted to have been entered between parties, as in such contracts, the first thread of the degree of control is ascertainable in the clause dealing with termination which is clause 4.
    
12. In clause 4.1 of P2 the Defendant is required to give 3 months notice in writing or 3months salary in lieu of such notice. The Plaintiff in the event of resignation (clause 5) is required to give one months notice in writing. Therefore the Plaintiff is more dependent on the Defendant for support than the Defendants dependence on the Plaintiffs services, which, for the moment is initially suggestive of an employer employee relationship.
    
13. However as set out in clause 4 and 5 of P2 therein, in either event; 'all dues payable or to become payable for the work done during the period of his employment' till the date of either resignation or termination on being arrived at are to be paid to the Plaintiff. Therefore APART FROM SALLARY there are other dues contemplated in the agreement payable for work done by the Plaintiff which needs to be 'arrived at' in the event of termination or resignation. Therefore the relationship suggest that the Plaintiff may do work for which he would be entitled to after the amount is arrived at. Therefore the Plaintiff has more freedom and opportunity to benefit than an employee in the strict sense. Therefore the Court must look further in to the Agreement and in to the relationship as a whole before determining the legal character of the relationship as follows.
    
14. The 'Job Description' as set out in Schedule 1 of P2 from item 1 to 13 may be descriptive of some of the general functions of a General Manager though not all, with items 14 to 20 being of special functions which may disclose the true relationship. Items 14 to 20 pre supposes that the Plaintiff was looked upon as a person who would be an experienced real estate agent or who has such experience that would enable him to advice the Defendant to 'advance into a major land developing company/property owners' as expected by item 19 therein.
    
15. Item 20 therein (P2 Schedule 1) states; "Continue to provide management services after completion of the sub-division as mutually agreed between the Managing Director of the Company and the Employee". Therefore it is apparent that the service of the Plaintiff was sought initially till the completion of the sub-division and thereafter to be mutually agreed between parties.
    
16. The 2nd Schedule to P2 sets out the term of the agreement to be from 1st day of February 2005 (retrospectively) until the completion of the subdivision and sale of all company lots at Legalega, Nadi and as mutually agreed by the Managing Director (Mr. Jona Rayasi) of the Defendant and the Plaintiff. Therefore it is NOT as a General Manager for every purpose and for all time that the Defendants have contracted the Plaintiff, but for a particular purpose being till the completion of the subdivision of the Land at Legelega and till the sale of those sub-divided lots. This aspect of the agreement is more compatible with the relationship of an independent contractor. This aspect is further ratified by the proviso that the term of the agreement is to be reconsidered after the completion of the sub- division and the sale of the lots, by mutual agreement between the Defendants Managing Director Mr. Jona Rayasi and the Plaintiff, as it appears in both item 20 of Schedule 1 and in Schedule 2 to P2. Schedule 3 to P2 sets out the remuneration and in doing so reveals even further the nature of the relationship.
    
17. Schedule 3 to P2 states as follows;
    

"The annual remuneration package for the employee shall be $50,000.00 (FIFTY THOUSAND DOLLARS) inclusive of basic tax and PAYE plus all sums for the lots sold in excess of the fixed price after deduction of 10% NLTB charges to be shared equally between the Company and the Employee, fixed price schedule attached as per annexure marked 'A'. The Employee's share shall be paid by the Company's Solicitors as and when full sale proceeds are paid by the purchasers. However any additional charges in respect of advertisement, internet, traveling etc to be borne by the employee".

18. The Plaintiff in his evidence and in his amended pleadings attempted to make out that the parties agreed to share the 10% NLTB charges, however in the Plaintiffs own document P12 which according to Plaintiff had been signed by both Directors of the Defendant, sets out the proposal to which the Defendant agreed to. The said proposal agreed to and set out in P12 (to be included in to the agreement to be entered in to being P2) states as follows;
    

"IF THE LOTS SOLD IN EXCESS OF THE FIXED PRICE AS PER THE SCHEDULE, THE AMMOUNT ABOVE THE FIXED PRICE AFTER DEDUCTION OF 10 PERCENT BEING NLTB CHARGES, TO BE SHARED EQUALLY BETWEEN YOU AND THE COMPANY. HOWEVER THE ADDITIONAL CHARGES IN RESPECT OF ADVERTISEMENT, INTERNET, TRAVELLING, ETC TO BE BORN BY YOU."

19. On a plain, normal and natural reading of the agreed proposal in P12 above, it is clear that 10% NLTB charges are not to be shared but it is the sale price in excess over the fixed price that is meant to be shared between the parties.
    
20. The quintessential difference between the agreed proposal in P12 as set out above and the terms of remuneration in Schedule 3 of P2 is the absence of the comma(,) after the words '10% NLTB charges', in Schedule 3, which comma is essentially present in the wording of the agreed proposal in P12. Immediately after the alleged termination the Plaintiff wrote the letter marked P5 dated 30th June 2005, to which the Plaintiff attached a computation based on the sharing of the difference between the fixed price and the sale price. Therefore the terms in Schedule 3 to P2, is essentially the proposal agreed to in P12, ratified by the subsequent computation by the Plaintiff enclosed with P5. Such a sharing of an excess, is not compatible with the constraints of an employer employee relationship. The Plaintiff is left to expend at his own expense the additional charges in respect of 'advertisement, internet, traveling etc' in seeking to achieve a sale price above the fixed price, exhibiting a much relaxed degree of control and direction by the Defendant over the Plaintiff, which is more characteristic of the Plaintiff as an independent contractor.
    
21. The Plaintiff in his evidence stated that he was entitled to the entire excess over the fixed price after deduction of NLTB charges, which would be a belief too ambitious for a person seeking to be characterized as an employee to hold. It is therefore evident that the Plaintiff too expected a higher degree of freedom and direction in the relationship than that of an employee. The degree of freedom seen is such that in his quest for the higher sale price the Plaintiff could well stifle the sale of the lots as well. Such a degree of freedom is not compatible with the characterization of an employee assured with a monthly salary. With such a degree of freedom comes the risk and profit associated with the character of an independent contractor.
    
22. The only business of the Defendant is the development of land (the sub division and sale of land) and in to this business the Defendant permits the Plaintiff to be virtually a partner to share the profit, thereby greatly diminishing the degree of control, direction or constraint the Defendant ought to have over the Plaintiff if the Plaintiff is an employee as laid down by their Lordships of the Supreme Court of Fiji in the Hassan case above.
    
23. Other indicators that pointed towards a relationship or character of an independent contractor were;
    
    1. the Plaintiff had worked since February 2005 till 30th June 2005 for five months without receiving a salary. (with only one payment in a sum of $3000/- admittedly received in February 2005.)
       
    2. the EMPLOYMENT CONTRACT P2 was entered in to after 3 months of working, to be retrospectively effective.
       
    100. the letter written by Plaintiff, P5, immediately after termination mentions of agreeing to termination subject to payment of "(monthly) payment of dues" instead of arrears in salary.
         
    4. there was no evidence of the Plaintiff having performed any of the job description duties set out from item 1 to 13 in Schedule 1 of P2 to indicate having functioned as a General Manager (employee).
       
    5. there was no evidence that the Plaintiff was succeeded by another General Manager, to suggest that such a substantive position existed in the Defendant company or that there was a need for such a position.
       
    6. the Plaintiff had rented a separate office paid for by him, indicating that he was functioning outside of the 'organization', thereby in applying the 'Organization Test' (see above Hassan case) the Plaintiff appears to be an independent contractor.
       
    7. though P2 at clause 9 provides for arbitration and reference to be dealt with as per the Trade Disputes Act (i.e. Cap 97), the Parties have not resorted to such remedies, indicating the relationship to be otherwise than employer- employee.
       
    8. The "Employee's share" is to be paid by the "Company's Solicitors as and when full sale proceeds are paid by the purchasers", as set out in Schedule 3 to P2, indicating that the Plaintiff was outside of the 'Organization' of the Company and the Company has no constrain or control in respect of such payments.
       
24. Therefore it is an independent contractor that the Plaintiff was, in relation to the Defendant in law. The Plaintiff may well be seen as a Real Estate Agent in his primary function, and as such subject to regulation, if not for the fact that the Real Estate Agents Act of 2006 (and the Real Estate Agents Amendment Decree 2011) which sought to license and regulate the Real Estate Agents was enacted after the institution of this action in 2005. In that respect it is pertinent to quote the observations of their Lordships in the Hassan case as follows;
    

"[89] It was contended that Regulation 17(1) of the Road Transport (Public Service Vehicles) Regulations has the effect that a person who is the holder of a taxi permit cannot engage another person as a bailee to operate the taxi. A permit holder can only appoint an employee to drive a vehicle for him. Whether that is right or not is not necessary to decide here. If it is right, then Mr Hassan might be in breach of the law. So too may other taxi operators in Fiji. The limitations, if any, imposed by the Regulations do not determine the character of the legal relationship between him and his drivers. The Permanent Secretary erred in his reliance upon advice from the Land Transport Authority in that regard.

[90] The respondents also pointed to the Wages Regulation (Road Transport) Order 2002 as "the relevant legislative provision governing terms and conditions of taxi drivers" as "light PSV drivers". The Order, it was said, applies to all workers in the road transport industry and covers their terms and conditions. These include minimum rates of remuneration, hours of work, public holidays, annual holidays, overtime work, subsistence allowances, meal allowances and sick leave. The Order, it was said:

"... does not cover or recognise relationships of bailment,,,"

The issue in this case is not whether Mr Hassan has breached his obligations, if any, under the Order. If he has, appropriate action could be taken against him. The issue in this case is and always has been, whether his arrangements with his drivers makes them his employees. The material properly before the Court supports a different characterisation.

[91] The respondents have also referred to public policy considerations about the need to ensure that taxi drivers receive entitlements of the kind contained in the Order. It is not for this Court to determine such matters. The Court is not equipped to make judgments about the costs and benefits in the taxi industry of such entitlements and effectively to impose them by extending the concept of "employee" beyond its common law limits."

25. Therefore issue 6 is answered to the effect that the Plaintiff was an independent contractor in law.
    

ISSUE 1; Whether the Plaintiff is entitled to the balance of his salary, at the rate of $4, 167.00 (four thousand one hundred and sixty seven dollars) per month for the months of February, 2005 to June, 2005 amounting to the total sum of $17, 835.00 (seventeen thousand eight hundred and thirty five dollars).

26. Whether the monthly payment is identified as a salary or otherwise, in P2 it is an annual remuneration of $50,000/- that is referred to, and the monthly installment equates approximately to $4, 167.00. In the Agreed fact number 4 of the PTC too, the parties have agreed that a salary of $4, 167.00 was payable from February 2005. The written contract P2 provides for the mutual termination of the relationship (as if an independent contractor) and by P5 the Plaintiff has sought the "(monthly) payment of dues" at $4, 167.00 per month and the Defendant or its Solicitors have not denied that assertion by return correspondence.
    
27. Therefore issue 1 is answered in the affirmative to the effect that; after giving credit to the admitted payment of $3000/- by the Defendant to the Plaintiff there is a balance payment of 'salary' or monthly payments due to Plaintiff from Defendant in a sum of $17835/- up to 30th of June 2005.
    

ISSUE 2; Whether the Plaintiff was entitled to other payments consisting of the excess of the sale price of each lot sold over a specified fixed price for said lot after deduction of 50% of the Native Land Trust Board charge of 10% of the gross sales price.

28. As found above the wording in Schedule 3 to P2 ought to carry a comma after the words '10% NLTB charges'. The missing comma may be a typographical error that may well have cost the parties their relationship. Given the proposal as agreed to in P12 it is that term which ought to be the term in Schedule 3 to P2. It is the excess between the fixed price and the sale price, after deduction of the 10% NLTB charge in respect of a lot that, the parties agreed to share equally (i.e. 50%). It is the difference that the parties agreed to share primarily and as set out, in view of what is clearly stated in P12 as above. The Plaintiff did not bring in capital of his own to the relationship. He was not an experienced real estate agent with a clientele, either . Therefore there is no perceivable reason why the Defendant would let the Plaintiff have the full difference to himself after bearing only half of the NLTB charge. Parties are free to strike a bargain as they wish, however the terms of such bargains must appear clear on a plain and normal reading, otherwise the Court cannot interpret, to result in a bargain that will not stand to reason.
    
29. As such issue 2 is answered partly in the negative to the effect that Plaintiff is entitled to other payments but not entitled to the full excess payments as sought in the issue.
    

ISSUE 3: 3. Whether there was any excess of sales price over specified fixed price with respect of the said lots.

30. This issue is not sufficiently specific, as subsequent evidence revealed, and will have to be answered generally. The relevant lots are the one's that the Plaintiff alleges he 'sold' before he agreed to mutually terminate the contract P2 on 30th June 2005. A list of such lots is annexed to P5. In the list attached to P5 most but not all of the lots appear to have been sold above the fixed price. In the copy (tendered to Court) of the said attachment to P5 the last entries in the last 3 pages are not visibly photocopied. Apart from such unclear entries and except the lots said to have been 'sold' to one GRIDHARA RANIGA who was a defence witness (DW4) the other lots appear to have been 'sold' (agreed to be sold) at a price in excess of the fixed price set out in that list. This list was not challenged by the Defendant or its Solicitor Mss. Babu Singh & Associates to whom P5 was addressed to. The Defendant too has attached a list to D1 which however does not refer to a 'fixed price'. Therefore it is not ascertainable whether the balance lots sold after termination was sold above or below the 'fixed price' (which could have been altered by the Defendant as well) of those lots.
    
31. Therefore issue 3 is generally answered in the affirmative in respect of the lots 'sold' before termination.
    

ISSUE 4: Whether the Native Land Trust Board Charges were to be shared equally between the Plaintiff and the Defendant.

32. As set out herein before the excess between the Fixed Price and the Sale Price was agreed to be shared, after deduction of the 10% NLTB charge. The amount to be shared is arrived at after deducting the 10%NLTB charge. To that extent and in that context this issue needs to be answered in the negative.
    
33. Therefore issue 4 is answered in the negative.
    

ISSUE 5: Whether the Plaintiff is entitled to (i) the sum of $327, 750.00 or some other sum under the terms of the Employment Contract with respect to lots already sold by the Defendant, and (ii) the sum of $262, 200.00 or some other sum under the terms of the Employment Contract with respect lots not yet sold by the Defendant.

34. As found above what the Plaintiff is entitled to, is not to the entire excess over the Fixed Price, but to share that excess after deduction of the 10% NLTB charges.
    
35. The attachment to P5 had not been challenged since 30th June 2005, either by the Defendant or it's Solicitor and even at the trial the said attachment survived, subject to the Plaintiff admitting that he was not entitled to monies on certain lots including the two lots he is said to have agreed to purchase out of which he has purchased only one. At paragraph 64 of the written submissions of the Plaintiff, the Plaintiff after deducting the sum of $17,525/- (in respect of 5 lots)which he admits he is not entitled to, seeks the balance of $131,698/=. There is no other acceptable account submitted by the Defendant in respect of such payments due to Plaintiff. Even the attachment to D1 does not mention the Fixed Price, the excess or the amount if any payable to Plaintiff. The Defendant did not submit an amount to be the component of NLTB charges paid in respect of the lots 'sold' by the Plaintiff to challenge the account in the attachment to P5, though the total of NLTB charges paid were submitted. Therefore the amount due to the Plaintiff as accepted by the Plaintiff at paragraph 64 of his written submissions is $131,698/=.
    
36. When the Plaintiff wrote P5 he clearly states that he agreed to termination, subject to the payments set out therein. In P18 too he states he mutually agreed for termination subject to payment of his dues. In P5 or P18 the Plaintiff did not seek a further sum for prospective sales he could have affected. Even as far as the Plaintiff was concerned as per P5, the Agreement mutually terminated on the 30th June 2005, subject to the payments set out in P5 and in no other.
    
37. Therefore issue 5(i) is answered in that the Plaintiff is entitled to only a sum of $131,698/= from the Defendant, and issue 5(ii) is answered in the negative in that no such sum is due to Plaintiff from the Defendant.
    

(ISSUE 6 considered first. See before issue 1)

ISSUE 7; Whether the Plaintiff's employment was terminated by the Defendant pursuant to Clause 4.2 (a), (b) and (m) of the employment Contract or whether the Plaintiff's employment was wrongfully terminated by the Defendant.

38. The Plaintiff marked as P16 the affidavit of Mr. Jona Rayasi filed by the Defendant in opposition to the Plaintiffs application for summary judgment. In this affidavit certain allegations are made against the Plaintiff to justify an alleged termination therein said to be under clause 4.2 of the Employment Contract. Apart from such allegations made in the proceedings after the institution of this action, the position of the Plaintiff in P5 (and P18) itself is that he agreed to the termination. The contents of P5 WAS NOT DENIED BY ANY CORRESPONDENCE BY THE Defendant. Though Mr. Jona Rayasi is now said to be deceased the evidence of the surviving Director his wife who was a Director at the relevant time was not led in support of the allegations in the affidavit of Mr. Jona Rayasi. The Defendant failed to prove the allegations set out to justify termination under clause 4.2. There was no termination under clause 4.2 under the Employment Contract and there was no wrongful termination either. The character of the Plaintiff in law was held herein above to be that of an independent contractor, making 'wrongful termination' only of academic relevance. The evidence and the correspondence prior to the institution of this action suggest that the termination was mutual subject to payment of dues.
    
39. Therefore issue 7 is answered in that there was no termination under clause 4.2 (a), (b) or (m) of the Employment Contract and that there was no wrongful termination either, the termination being mutually agreed upon on terms.
    

ISSUE 8; Whether there was a serious breach of the Employment Contract's terms and conditions, and if so, whether there any such breach was by the Plaintiff or by the Defendant.

40. The terms and conditions of the 'Employment Contract' P2 is in breach by the Defendant, in not paying the Plaintiff the monthly installment of the annual remuneration due up to 30th June 2005 for 5 months before the termination, and the payments agreed to in the Schedule 3 therein after the mutual termination of the contract. The Defendant has not addressed any letter to the Plaintiff denying the mutual termination subject to the terms of payment therein, except till after the institution of this action and prompted by an application for summary judgment, by P16 ten months thereafter. The allegations in paragraph 11(c) to 11(f) of P16 were not proved. Therefore there is no breach on the part of the Plaintiff proved.
    
41. Therefore issue 8 is answered in that there was a breach of contract on the part of the Defendant only, in not paying the Plaintiff the monthly installment of the annual remuneration before termination, and in not paying the other payments in Schedule 3 to P2 after termination.
    

ISSUE 9; Whether the Plaintiff has acted fraudulently and/or dishonestly with respect to the Defendant, and if so, whether the same constitutes a breach of Employment Contract.

42. There was no evidence led that the Plaintiff had acted fraudulently or dishonestly with respect to the Defendant except the bare allegation in P16.
    
43. Therefore issue 9 is answered in the negative.
    

ISSUE 10; Whether the Defendant has defamed the Plaintiff and/or gravely and adversely affected the Plaintiff's reputation, and if so, what is the quantum of damages.

44. The contents of P16 are allegation made in the proceedings of this case, and as such attracts privilege. Apart from that, there was no defamatory content proved or proved to have been published led in evidence. In fact the Plaintiff's Counsel moved to abandon this claim in his written submissions as well.
    
45. As such issue 10 is answered in the negative.
    

ISSUE 11; Whether the Defendant has a Defence of justification and/or fair comment under the Defamation Act and/or absolute or qualified privilege.

46. In view of the answer to issue 10 this issue 11 does not arise.
    

ISSUE 12; Whether the Plaintiff is entitled to interest on any damages awarded.

47. The Plaintiff is not awarded damages, but the Plaintiff is held entitled to certain payments on which the Plaintiff may be entitled to interest. On the payment of the monthly installments of $17835/- due up to 30th June 2005, which the Defendant has defaulted unreasonably, the Plaintiff is entitled to 10% per annum interest from 1st July 2005 till date of judgment only.
    
48. The rate of 10% per annum is awarded exercising the discretion of Court in terms of section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act cap.27, and taking in to consideration Fa v. Rabi Island Council of Leaders (2002) FJHC 250; HBC CO520j.1993s (16 July 2002) where Pathik J had awarded 12.5% interest on unpaid Solicitors costs and post judgment interest at 4% per annum, which judgment was cited and followed by Master Tuilevuka in Narayan v. Public Employees Union;High Court (Lautoka) Civil Action NO.161 of 2006 in his judgment of 1st September 2011, and Milton Ross Dube & Others V. Kristamma Goundar & Ors Lautoka High Court Civil Action No.HBC 61 of 2005 where this Court awarded 10% interest in its judgment of 9th April 2010.
    
49. Therefore issue 12 is answered in that the Plaintiff is entitled to interest at 10% per annum only on the monthly payments total of $17835/-he is held to be entitled to, from 1st July 2005 till date of judgment.
    

ISSUE 13; Whether the Plaintiff fraudulently and/or dishonestly conspired with the land valuer to deflate the prices of the Defendant's lots.

50. There was no evidence of such fraudulent or dishonest conduct or of any such conspiracy.
    
51. As such issue 13 is answered in the negative.
    

ISSUE 14; Whether the Plaintiff has breached his duty as an employee of the Defendant, and if so, whether the Defendant suffered damages thereby.

52. The Plaintiff is held herein to have been an independent contractor and in any event there was no breach on the part of the Plaintiff proved by the Defendant. Therefore there is no right to damages under this issue.
    
53. Therefore issue 14 is answered in the negative.
    

ISSUE 15; Whether the Defendant is entitled to damages from the Plaintiff and if so, the quantum thereof.

54. In view of the answer to the above issues there is no damages proved against the Plaintiff.
    
55. As such issue 15 is answered in the negative.
    
56. In view of the answer to issue number 1 the Plaintiff is entitled to the sum of $17,835/= together with interest thereon from 1/7/2005 till date of judgment making a sub total of $30,651/42.(for 7 years 2months and 7 days interest at 10% per annum from 1 July 2005 up to 7 September 2012 = $12,816/42 making a sub total of $30,651/42.)
    
57. In view of the answer to issue 5(i) the Plaintiff is entitled to the sum of $131,698/=.
    
58. Therefore there is judgment for the Plaintiff against the Defendant in the total sum of $162,349/42.
    
59. For 4 days of trial, 6 witnesses and15 issues to be tried, with senior counsel appearing for both parties and for filing extensive written submissions, costs summarily assessed at $7000/= awarded to the Plaintiff.
    

.............................................
Hon. Justice Yohan Fernando
JUDGE.

High Court of Fiji
At Lautoka
7th September 2012.