Fiji Bus Operators Association v Fijian Competition and Consumer Council [2020] FJHC 710; HBM65.2020 (31 August 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Miscellaneous Action No. HBM 65 of 2020

IN THE MATTER of an application for Constitutional Redress

AND

IN THE MATTER of section 44(1) of the Constitution of Fiji

BETWEEN

FIJI BUS OPERATORS ASSOCIATION an unincorporated association

having its office at 116 Tavakabu Road, Lautoka.

PLAINTIFF

AND

FIJIAN COMPETITION AND CONSUMER COUNCIL a body corporate constituted

pursuant to the Fijian Competition and Consumer Commission Act 2010

and having its Head Office at 42 Gorrie Street, Suva.

DEFENDANT

AND

ATTORNEY GENERAL ON BEHALF OF THE STATE

INTERVENOR

Counsel : Mr. S. Parshotam with Mr. V. Singh for the Plaintiff

Mr. J. Moti Q.C. with Choy C. for the 1^st Defendant.

Ms. S. Chand, Mr. D. Solivalu and Ms. Solimailagi for the

Intervenor.

Date of hearing : 04^th August 2020

Date of Ruling : 31^st August 2020

RULING

(On the Summons to Strike Out)

[1] The plaintiff filed Originating Motion seeking the following reliefs:

1. This Honourable Court do issues declarations as follows:
   • (a) that the defendant FIJIAN COMPETITION AND CONSUMER COMMISSION has acted unlawfully and in breach of the requirements of procedural fairness, reasonableness and natural justice contrary to the requirements of section 16(1)(a) and (b) of the Constitution of Fiji, in issuing its determination dated 31^st January 2020 entitled “Final Authorisation for Fares and Charges for Public Service Vehicles in Fiji”(the “Final Authorisation Decision”) and in its conduct and procedural steps preceding the issue of Final Authorisation Decision, and is required to cancel the final Authorisation Decision and to reconsider the same in accordance with lawful and procedurally sound principles;
   • (b) that section 38A(1) of the Fiji Competition and Consumer council Act is unconstitutional and is accordingly not binding on the plaintiff, as its operation and effect are contrary to the requirements of section 16(1)(a) and (b) of the Constitution of Fiji.
2. Damages be awarded to the plaintiff arising from the unlawful and procedurally unfair actions of the defendant in a sum to be assessed.

[2] The grounds for the application as averred in the Notice of Motion are as follows:

(a) The Plaintiff is an unincorporated association of bus operators in Fiji and has standing to bring these proceedings on behalf of its members;
(b) The Defendant (the “Defendant “or the “FCCC”) is a body corporate and has the powers and authority granted to it pursuant to the provisions of the Fijian Competition and Consumer Commission Act 2010 (the “FCCC Act”);
(c) On 9^th October 2017 an independent Bus Fare Review Committee was established to review the structure of bus fares in Fiji and which operated under the Chairmanship of the Executive Director of the Defendant;
(d) The Bus Fare Review Committee undertook public consultations on the bus fares but had no statutory authority to do so as these responsibilities reposed in the Land Transport Authority under the Land Transport Act 1998;
(e) No report arising from these public consultations was ever made available to the Plaintiff or its members for comment or submissions;
(f) The Land Transport (Amendment) Act 2019 purportedly transferred statutory authority from the Land Transport Authority to the Defendant to fix fares for public service vehicle in Fiji;
(g) The Land Transport (Amendment) Act 2019 was not brought into force by Gazette Notice, as required by s 1(2) of that Act, until 1^st February 2020, so that all actions taken by the Defendant up to and including 31^st January 2020 to set bus fares, including the making of the Final Authorisation Decision, were unlawful;
(h) The Defendant issued a document entitled “Bus Fare Regulatory Framework” on 9^th January 2020 (the “Framework Document”) which purportedly set out the approach to ne applied by the Defendant to regulating bus fares in Fiji, (even through the Defendant had no statutory authority to regulate bus fares at the time the Framework Document was issued), but did not set out in any detail the proposed actual fare structures;
(i) The Framework Document referred at page 5 to 8 to a “Bus Cost Index Model”, involving index costs and weighting said to have been derived from a survey of the bus transport industry, but despite various requests being made of it by the solicitors for the Plaintiff, the Defendant declined to provide details of the formula used in making the relevant calculations;
(j) The Plaintiff and its members were accordingly denied the opportunity, (in breached of the requirements of section 16(1)(a) and (b) of the Constitution relating to lawfulness of actions, natural justice, reasonableness and procedural fairness and in breach of the consultation obligations assumed by the Defendant and the requirement to give reasons for its decisions), to analyse or comment on the contents of the Framework Document, and in particular on the formula to be used to substantiate he fare structure and ere not asked to provide input into the data used in the Bus Cost Index Model;
(k) The Defendant issued the Final Authorisation Decision dated 31^st January 2020, purportedly pursuant to section 41 of the FCCC Act, which was again not authorized by statutory authority as at the date on which it was issued;
(l) The Final Authorisation Decision departed in various material ways from the approach taken in the Framework Document and in pervious consultations carried out in 2017 -2018, including by setting out a detailed fare structure which had not previously been proposed or heralded to the Plaintiff and its members and by adopting a new and unheralded approach to areas such as tourist fares.
(m) As was the case with the Framework Document, the Plaintiff and its members were accordingly denied the opportunity, (in breach of the requirements of section 16(1)(a) and (b) of the Constitution relating to lawfulness o actions, natural justice, reasonableness and procedural fairness and in breach of the consultation obligations assumed by the Defendant and the requirement to give reasons for its decisions), to analyse or comment on the contents and pricing structure contained in the Final Authorisation Decision;
(n) The Defendant purported to bring the Final Authorisation Decision into force by an Order entitled the Fijian Competition and Consumer Commission (Control of Fare and Charges for Public Services Vehicles) Order 2020. But this Order did not in fact take effect until 1^st February 2020, the day after the Final Authorisation Decision dated 31^st January 2020 had been issued;
(o) In any event the Defendant had no statutory authority to issue the Final Authorisation Decision as at 31^st January 2020, as the Land Transport (Amendment) Act 2019 had not then been brought into force by Gazette Notice, which did not occur until 1^st February 2020;
(p) The unlawful and procedurally unfair conduct on the part of the Defendant up to and including the issue of the Final Authorisation Decision, as set out above, has caused loss and damage to the Plaintiff and its members, which ought to be redressed by an award of damages against the Defendant;
(q) Section 38(1) of the FCCC Act, which purports to oust the jurisdiction of the court to challenge any decision of the Minister or the Commission in making a Price Control Order, is not applicable in the present circumstances for various legal and Constitutional reasons to be argued in full upon the hearing of this Motion for Constitutional Redress, including without limitation the provisions of section 2(2) of the Constitution;
(r) The Plaintiff is, for procedural reasons in terms of the High Court Rules, bringing a separate and concurrent application for leave to apply for judicial review against the Defendant, and if such leave is granted the Plaintiff will seek to have those judicial review proceedings heard in conjunction with the present proceedings;

[3] The defendants filed summons to have the matter struck out and in the said summons the defendants sought the following reliefs:

(1) For an order that the plaintiff’s Originating Motion dated 31^st March 2020 and affidavit in support of Nisar Ali Shah sworn on 30-th march 2020, both filed on 31^st March 2020, be struck out on the ground that this Honourable Court does not have jurisdiction to hear the plaintiff’s application pursuant to –

1. sections 173(4) and 173(5) of the Constitution of the Republic of Fiji;
2. the Administration of Justice decree 2009, as saved under section 173(5) of the Constitution of the Republic of Fiji; and
3. section 2(1) and 2(4) of the Constitution of the Republic of Fiji;

[4] In the summons the defendants have also stated that the Notice of motion of the plaintiff does not disclose a reasonable cause of action, it is frivolous and vexatious and it is an abuse of the process of the court.

[5] Order 18 rule 18 of the High Court Rules 1988 provides:

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) it discloses no nable causecause of action or defence, as the case may be; or

(b) it is scandalousvolous or v or vexatious; o

(c) it may prejudice, emba or d or delay the fair trial of the action; or

(d) it is otherwisebuse of thceprocess of the court;

[6] The law relatielating to striking out has been discussed at length in the following decisions>

In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506 it was heas held that the power given to strike out any pleading or any Part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea.

In Drummond-Jackson v British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All ER 1094 it was held;

Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases.

In the case of Walters v Sunday Pictorial Newspapers Limited [1961] 2 All ER 761 it was held:

It is well established that the drastic remedy of striking out a pleading or, part of a pleading, cannot be resorted to unless it is quite clear that the pleading objected to, discloses no arguable case. Indeed, it has been conceded before us that the Rule is applicable only in plain and obvious cases.

In Narawa v Native Land Trust Board [2003] FJHC 302; HBC0232d.1995s (11 July 2003) the court made the flowing observations:

In the context of this case I find the following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1971] 1 W.L.R. 510 at 518 apt:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial”.

[7] From the decision cited above it is clear that the power to strikeout a claim is a discretion conferred upon the court and the court must exercise such discretionary power with great caution and only in an exceptional case.

[8] The learned counsel from the office of the Attorney General submits that in view of the provisions in section 173(4) and (5) of the Constitution this court has no jurisdiction to accept, hear and determine the plaintiff’s motion.

[9] Section 173(4) and (5) provides:

(4) Notwithstanding anything contained in this Constitution, no court or tribunal (including any court or tribunal established or continued in existence by the Constitution) shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceeding of any nature whatsoever which seeks or purports to challenge or question—

(a) the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;

(b) the constitutionality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;

(c) any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, for being inconsistent with any provision of this Constitution, including any provision of Chapter 2 of this Constitution; or

(d) any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken, under any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, except as may be provided in or authorised by any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution.

(5) Notwithstanding anything contained in this Constitution, despite the repeal of the Administration of Justice Decree 2009, subsections (3), (4), (5), (6) and (7) of section 5 of the Administration of Justice Decree 2009 shall continue to apply to any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution. (Emphasis added).

[10] Sections 5(3) to 5(7) of the Administration of Justice Decree (as it then was) provides:

5(3) Notwithstanding anything contained in this Decree or any other law, no Court shall have the jurisdiction to accept, hear and determine any challenges whatsoever (including any application for judicial review) by any person to 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.

5(4) Notwithstanding anything contained in this Decree or any other law, no Court shall have the jurisdiction to accept, hear and determine, or in any other way entertain, any challenges whatsoever (including any application for judicial review) by any person to the validity or legality of any Decrees made by the President from 10 April 2009 and any Decrees as may be may by the President.

5(5) Any proceeding of any form whatsoever, as well as any application of any form whatsoever in a proceeding, seeking to challenge the validity or legality of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 ( Decree No. 1) or any other Decrees made by the President from 10 April 2009 or a may be made by the President, shall wholly terminate immediately upon the commencement of this Decree, and a Certificate to that effect shall be issued by the Chief Registrar to all parties to the proceeding.

5(6) Where any proceeding of any form whatsoever, as well as any application of any form whatsoever in a proceeding, seeking to challenge the validity or legality of the Fiji Constitution Amendment ACT 1997 Revocation Decree 2009 (Decree No. 1) or any other Decrees made by the President from 10 April 2009 or as may be made by the President, is brought or made before a judicial officer or a Tribunal, then the judicial officer or the Tribunal, without hearing or in any way determining the proceeding or the application as the case may be, shall immediately transfer the proceeding or the application to the Chief Registrar, for termination of the proceeding or the application and issuance of Certificate under subsection (5).

5(7) In this section, “judicial officer” includes Judge, Master of the High Court, Chief Magistrate and Resident Magistrate.”

[11] In this application for constitutional redress the plaintiff seeks to challenge the validity of section 38A(1) of the Fiji Competition and Consumer Commission Act which provides:

No Court, Tribunal, commission or any other adjudicating body shall have the jurisdiction, to accept, hear, determine or in any other way entertain, any challenges whatsoever, (including any application for judicial review) by any person or body, or to award any compensation or grant any other remedy to any person or body, in relation to the validity or legality or propriety or any action or decision of the Minister or the Commerce Commission in making a Price Control order under either section 39, 40, 44, 45 and Part 5A of the Decree or any action or decision resulting from making such an order.

[12] Section 16 of the Constitution provides:

Subject to the provisions of this Constitution and such other limitations as may be prescribed by law—

(a) every person has the right to executive or administrative action that is lawful, rational, proportionate, procedurally fair, and reasonably prompt;
(b) every person who has been adversely affected by any executive or administrative action has the right to be given written reasons for the action; and
(c) any executive or administrative action may be reviewed by a court, or if appropriate, another independent and impartial tribunal, in accordance with law.

[13] The submission of the plaintiff’s counsel is that the exemption in section 173(4)(d) is not applicable to the present proceedings. This submission is based on the argument that these exemptions are applicable only to decisions made between 5^th December 2006 and 6^th October 2014 (the day the Parliament sat for the first time under the present Constitution). Arguments of the defendants is that these exemptions are applicable to orders made pursuant to decrees and promulgations enacted within that period and not only to the orders and decisions made during that period under those promulgations.

[14] In this regard parties relied on two decision of the Court of Appeal. One Hundred Sands Ltd v Attorney General of Fiji [2017] FJCA 19; ABU27 & ABU31.2015 (23 February 2017) is a case relating to the cancellation of the Casino Gaming Licence. The Court of Appeal held:

Learned Counsel for the Appellant submitted that the Gaming Decree had no provision for review of any decision or action taken under the provisions of the Decree and therefore the coverage given by s.174(3)(d) does not apply to decisions taken under the Gaming Decree after 6 October 2014. He cited the Casino (Operators) Decree of 2012 and stated that there was provision under that Decree to oust the jurisdiction of the Courts and therefore in the absence of such provisions in the Gaming Decree that it should be possible to canvas the decisions made in terms of the Decree. If that argument is to be accepted it is difficult to comprehend how S.174(3)(d) would apply as it would give rise to a situation where decisions prior to 6 October 2014 cannot be challenged but those after 6 October 2014 could be the subject of challenge, which as shown above is not what s.173(4)(d) intended....

...If the relevant Decree has no mechanism provided therein to canvass any decisions made under it, such decisions are exempt from challenge in terms of section 173(4)(d) and are exempt. Since there is no such mechanism provided under the Gaming Decree, decisions made under it whether before or after 6 October 2014 would come within the exemption provided for in section 173(4)(d).

Learned Solicitor General relied on the decisions of the High Court in even Pradeep Singh and Fand Fiji Labour Party v. Electoral Commission and Others (Civil n No.HBC 245 of 2014 2014) and &#1b> (Civil Actio 92 of 2014) wh4) where the High Court held that section 173 excluded from the jurisdictionhe Courts any decision unde under any laws made between 5 December 2006 until 6 October 2014. Since these cases dealt with decisions made before 6 October 2014 they do not come strictly within the position in the present case where the decision in question was after the 6 October 2014. However, they affirm the position that the exemption to s.173(4)(d) would be where such mechanisms of challenge are provided in such Promulgation or Decree itself.

In view of this position the decision of the learned High Court Judge in holding that the High Court had jurisdiction to hear and determine the application of the Appellant is erroneous and has to be set aside. Section 173 provides for the exclusion of jurisdiction in the widest possible terms when it states that “Notwithstanding anything contained in this Constitution no court or tribunal (including any court or tribunal established or continued in existence by the Constitution) shall have the jurisdiction to accept, hear, determine, or in any way entertain or to grant any order, relief or remedy in any proceeding of any nature whatsoever”. This section therefore clearly excludes the jurisdiction of the High Court in accepting, hearing and determining the application of the Appellant seeking leave for judicial review.

[15] The plaintiff relied on the decision in Suva City Council v Saumatua [2019] FJCA 33; ABU73.2017 (8 March 2019). In that case the plaintiff came before the court seeking damages for wrongful termination of her contract of employment. The appellant Suva City Council raised the objection that the court did not have jurisdiction to hear and determine the matter in view of the provisions in section 173(4)(d) of the Constitution.

The court held:

Article 173(4)(d) of the Constitution is unequivocal in using the word “decision” as opposed to words such as ‘directive’ or ‘adherence’ or any such other word. Hence, it is crystal clear that the line Minister had merely informed the Special Administrator to adhere to the decision of the Permanent Secretary in the Prime Minister’s office and such directive of the Minister does not amount to a ‘decision’ by the Line Minister.

On the strength of the above, I cannot agree with the Appellant and I hold that the above ‘DECISION’ is that of the Pent Secretacretary to the Prime Minister and not a decision of the Minister of the line Ministry. Therefore such a decision does not amount to a decision made uthe promulgation of 2008. As the learned High Court Judge hdge has correctly pointed out, the jurisdiction of the High Court in relation to the matter at hand is therefore not ousted by the provisions of Article173(4)(d) of the Constitution.

[16] The learned counsel for the plaintiff submitted that the judgment in One Hundred Sands Limited cannot be relied on by the defendant since it is a judicial review matter. If the court accepts this argument it cannot rely on any of the above decisions. The matter before this court is neither a judicial review nor a writ matter. What this court will look at in these decisions is the interpretation of section 173(4)(d) of the Constitution. Since there are two contradictory decisions of the Court of Appeal on the interpretation of section 173(4)(d) of the Constitution this court will have to consider which of these decisions the court should follow.

[17] The question here is whether the time period that is from 5^th December 2006 to the first sitting on the Parliament under the present Constitution is applicable to any decisions made during that period or any order or decision made pursuant to a Promulgation, Decree or Declaration made during that period.

[18] On a careful reading of section 173(4)(d) it is clear that the intention of the legislature in enacting section 173(4)(d) of the Constitution was not to limit the application of sections 5(3) to 5(7) of the Administration of Justice Decree 2009 only to the orders or decisions made during the period commencing from 5^th December 2006 until the sittings of the Parliament under the present Constitution (6^th October 2014) but to limit the application of the sections 5(3) to 5(7) of the said Decree to the orders or decisions made under Promulgation, Decree or Declaration, and any subordinate laws enacted during that period (5^th December 2006 to 6^th October 2014).

[19] Therefore, this court is of the view that correct interpretation of section 173(4)(d) of the Constitution is found in the decision of the Court of Appeal in One Hundred Sands Ltd v Attorney General of Fiji (Supra). Accordingly, I hold that this court has no jurisdiction to determine this matter.

[20] The next issue raised on behalf of the Attorney general is that the since the plaintiff had an adequate alternative remedy available, constitutional redress was not the proper remedy for the plaintiff.

[21] Section 44(1) of the Constitution provides:

If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person), then that person (or the other person) may apply to the High Court for redress.

[22] Section 44(4) of the Constitution provides that the High Court may exercise its discretion not to grant relief in relation to an application or referral made under this section if it considers that an adequate alternative remedy is available to the person concerned.

[23] It appears from the above provisions there is a discretion conferred upon the court nit grant relief under section 44(1) of the Constitution if the applicant has an adequate alternative remedy available to him.

[24] The above section as I always say must be read with section 44(2) of the Constitution which provides:

The right to make application to the High Court under subsection (1) is without prejudice to any other action with respect to the matter that the person concerned may have.

[25] It is therefore clear that, availability of an adequate alternative remedy is not an absolute prohibition to make an application for constitutional redress. However, in this matter the plaintiff has already filed an application for judicial review (HBJ 03 of 2020) which is to be mentioned on 31^st August 2020 along with this matter. Since the plaintiff has already exercised the alternative remedy available to it, the application for constitutional redress is liable to be struck out in the exercise of the discretionary power of the court conferred on the court by section 44(4) of the Constitution.

[26] The order sought to be challenged by the plaintiff in this application for constitutional redress is dated 31^st January 2020. The learned counsel submitted that the amendment to the Land Transport Act was brought on 01^st February 2020. The question then arises whether the defendant had power to set bus fares. This is an administrative act on the part of the defendant. Whether the decision of the defendant was made outside their powers is a matter that has to be decided in the application for judicial review.

[27] For the reasons aforementioned the court makes the following orders.

ORDERS

1. The Originating Motion of the plaintiff seeking constitutional redress is struck out.
2. I make no order for costs.
   

Lyone Seneviratne

JUDGE

31^st August 2020