Naitei v Public Service Commission [2001] FJLawRp 65; [2001] 1 FLR 242 (8 August 2001)

JOELI NAITEI v PUBLIC SERVICE COMMISSION
& ATTORNEY-GENERAL

High Court Civil Jurisdiction
3, 9, 15 May, 7 August 2001 HBC 256/00

Unlawful dismissal – whether the action should have commenced by judicial review instead of Originating Summons – Plaintiff was in employ of Defendants who perform public duties - Public Service Commission (Constitution) Regulations 1990; High Court Rules O.53

The Plaintiff sought by Originating Summons to be reinstated to the position as Technical Assistant (Vehicle Examiner) at the Land Transport Authority, and to commensurate remuneration. The Defendants opposed the Summons, seeking to strike out the summons, on the basis that the action should have begun by judicial review. The court found there was no contract between the parties; that the Defendants performed public duties, but looked to the kind of body challenged and the functions they exercised. The Court followed authorities in determining that this was an abuse of process.

Held - The Plaintiff, in seeking to enforce a public right on the performance of the Defendant’s public duty should have brought proceedings by way of judicial review. The Court has no power to convert a writ, wrongly brought, into a claim for judicial review. Declaration that the Plaintiff is not entitled to continue with Originating Summons or relief sought otherwise than by judicial review is still available.

Originating Summons struck out.

Cases referred to in Decision

ref British Steel plc. v Customs and Excise Commissioners (1997) 2 All ER366

foll Cocks v Thanet District Council (1983) 2 AC 286

cons Davy v Spelthorne BC [1983] UKHL 3; (1984) AC 262

appr Doyle & Ors v Northumbria Probation Committee (1991) 1 WLR 1340

foll Eroni Waqaitanoa v Commissioner of Prisons & Ors [2000] HBC 271/00 Decision 7 September 2000

foll Fiji Public Service Association v Civil Aviation Authority of Fiji & Ors [1998] HBJ 15/98 Decision 30 November 1998

foll Fiji Teachers Union v Permanent Secretary for Education & Anor [1998] HBC 21/97 Decision 21 July 1998

foll Jimione Buwawa v Permanent Secretary for Education & Ors [1997] HBJ 19/97 Decision 22 July 1997

appr Moroccan Workers Association v Attorney General (1995) 1 LRC 451 (SC) vide Commonwealth Law Bulletin July 1995 747

appr O’Reilly v Mackman [1983] UKHL 1; (1983) 2 AC 237

appl Ram Prasad v Attorney General [1997] HBC 311/92 Decision 12 September 1997, upheld by ABU 58/97S [1999] Judgment 27 August 1999.

cons Roy v Kensington & Chelsea FPC [1991] UKHL 8; (1992) 2 WLR 239

foll Shakuntala Nair v Secretary, Public Service Commission & Anor [2001] HBC 359/00 Decision 28 May 2001

Sevuloni Valenitabua for the Plaintiff
Pratibha Raj for the Defendants

7 August, 2001 DECISION

Pathik, J.
On 15 June 2000 the Plaintiff filed an Originating Summons seeking various declarations and orders arising out of his alleged unlawful dismissal by the First Defendant (D1). He also seeks an Order that the First Defendant ‘reinstates the Plaintiff to the Plaintiff’s former position as Technical Assistant (Vehicle Examiner) at the Road Transport Department-cum-Land Transport Authority and to pay the Plaintiff commensurate renumeration’.

The Defendants are opposing the Summons. On 15 February 2001 they filed a Summons to Strike Out supported by an affidavit. The Plaintiff has filed a Reply in opposition to the said affidavit.

The issue for the Court’s determination is whether the action should rightly have been brought by way of judicial review, rather than by an action begun by Originating Summons.

This was raised as a preliminary point by the learned counsel for the Defendants.

Determination of the issue

I have before me helpful written submissions from both counsel and I have given them due consideration.

The Plaintiff was by letter titled ‘Letter of Probationary Appointment’ dated 6.12.95 appointed on probation to be a Technical Assistant (Vehicle Examiner) in the then Road Transport Department with effect from 6.12.95 on certain terms and conditions which included in clause ‘9': “This appointment is subject to production of a satisfactory medical report and police clearance”. Before his said appointment he was in 1993 convicted of traffic offences when he was fined and disqualified from driving for 12 months. The Plaintiff said that he disclosed his conviction to the interviewing panel and yet later he was terminated from employment which he said is unlawful. The Defendants denied that his conviction was disclosed as alleged.

The issue for determination is very similar to the one that arose in Ram Prasad s/o Ram Rattan v The Attorney-General of Fiji (Civil Action No. 311 of 1992 - judgment 12 September 1997 - Pathik J). This decision was upheld by the Court of Appeal (Civil Appeal No. 58 of 1997S).

The First Defendant in this case performed a public duty. The Plaintiff was governed, inter alia, by the Public Service Commission (Constitution) Regulations 1990 (the “Regulations”). On the facts of this case the Plaintiff should have proceeded by way of judicial review of the Defendant’s (D1) decision. The Plaintiff is seeking to enforce a public right on the performance by the Defendant of a public duty. Hence the decision is susceptible to judicial review. It is different if there is a contract between the aggrieved person and the public body; and in this regard it is worth noting the following passage from the book The Applicant’s Guide to Judicial Review by Lee Bridges and Others at p.5:

“However, if there is a contract between the aggrieved person and the public body then it is likely that any actions or decisions the body makes in relation to that person will be governed by private law rather than public law. The individual will not therefore be able to challenge them by judicial review: his or her remedy will be to sue for damages (and/or a declaration or injunction) in an ordinary civil court or tribunal”.

In this case there is no contract between the Plaintiff and the Defendant and hence no question of private law arises. The “question will depend to an extent on the kind of body to be challenged and more so on the functions they are exercising in the particular case” (Bridges, ibid at p6).

The following extract from the judgment in O’Reilly v Mackman [1983] UKHL 1; (1983) 2 AC 237 is pertinent:

“That since all the remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule it would be contrary to public policy and an abuse of the process of the court for a Plaintiff complaining of a public authority’s infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in each case the only claim made by the Plaintiff was for a declaration that the board of visitors’ adjudication against the Plaintiff was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals”.
Under Order 53 where the Plaintiff wrongfully brings his claim by way of judicial review, the court has power to order that that claim be continued as though it had been commenced by writ. But where the claim is wrongly commenced by writ or originating summons as in this case, the Court has no power to convert it into a claim for judicial review. As stated by Henry J in Doyle and Others v Northumbria Probation Committee (1991) 1 WLR 1340 at 1344:

“And if the Plaintiffs were now to bring a free-standing application for judicial review, their delay has been such that I would find it difficult to envisage the court granting leave to them to apply for such judicial review. Therefore it seems to me that if the Defendant committee succeeds in the application that it is making, that will be end of the Plaintiffs’ claim.”

I have considered the legal arguments put forward by the learned counsel for the Plaintiff. He has raised a number of points. The main hurdle that the Plaintiff has to get over is whether originating summons is the correct mode of proceeding with his grievance. As I have said, for the above reasons, the Plaintiff has adopted the wrong mode, in other words he should have proceeded by way of judicial review. There is an abundance of authority on the subject and I have dealt with it at length in Ram Prasad (supra); it is also dealt with at some length on appeal to Court of Appeal in the same case (Ram Prasad f/n Ram Rattan v The Attorney-General of Fiji. Civil Appeal No. ABU0058 of 1997S - Judgment 27.8.99).

Having decided that this was not the correct mode, it is not necessary for me to consider all the other points raised by both counsel. Therefore, I conclude with the following passage from the judgment in Moroccan Workers Association v Attorney-General (1995) 1 Law Reports of the Commonwealth 451 (SC) vide Commonwealth Law Bulletin July 1995 p747 - 749:

“Matters of public law and administration ordinarily fell within the purview of s.31 of the Supreme Court Act 1981 and RSC Ord 53. The remedies therein provided that judicial review ought to be the normal recourse in all cases where allegations were made that rights under public law were being infringed, eg where a private person was challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty. The institution of proceedings by originating notice of motion for purely declaratory relief without any explanation of the delay that occurred before their institution in February 1993 and which were brought for the purpose of challenging matters of public law and administration was an inappropriate procedure and an abuse of the process of the court.”

In this case judicial review was the procedure under Order 53 of the High Court Rules. The ratio of O’Reilly as found in Lord Diplock’s speech at p.285 was extended to Cocks v Thanet District Council (1983) 2 AC 286. There the action was commenced by writ and “it was stopped in that course, in that it was struck out as an abuse of the process of the Court in the House of Lords”.

In the outcome in the light of the many authorities on the issue before me and in view of the decision that I have reached as to the form the proceedings should take in matters of the nature before the Court I will allow the procedural objection raised by the Defendants and in doing so I am not unmindful of what Lord Lowry said in Roy v Kensington and Chelsea FPC [1991] UKHL 8; (1992) 2 WLR 239, namely:

“It seems to me that unless the procedure adopted by the moving party is ill-suited to disposition of the question at issue there is much to be said in favour of the proposition that a court having a jurisdiction ought to let a case be heard rather than entertain a debate concerning the form of proceedings”.

Similar sentiment was expressed by Lord Wilberforce in Davy v Spelthorne BC [1983] UKHL 3; 1984 AC 262 at 278 where he said:

“We have not yet reached a point at which a mere characterisation of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary courts: to permit this would be to create a dual system of law with the rigidity and procedural hardship for Plaintiffs which it was the purpose of the recent reforms to remove”.

Before departing from this subject of distinction between private law and public law, it is accepted that, Ram Prasad a decision of the Court of Appeal is authority for the decision in this case. A number of other cases in the High Court have been struck out for the reasons stated in Ram Prasad. Some of the cases are: Jimione Buwawa v The Permanet Secretary for Education and Others Suva High Court Judicial Review No. 19 of 1997, 22 July 1997, Pathik J - dismissing an originating summons; Fiji Public Service Association v Civil Aviation Authority of Fiji & Others, Lautoka High Court Judicial Review No. 15 of 1998 - 30 November 1998 - Madraiwiwi J; Eroni Waqaitanoa v The Commissioner of Prisons & Others, Suva High Court Civil Action No. 271 of 2000 - 7.9.2000 - Scott J; Shakuntala Nair v The Secretary, Public Service Commission & Another, Suva High Court Civil Action No. 359 of 2000 - 28.5.2001 - Scott J. For completeness I would mention that Byrne J was inclined towards a different view from his brother Judges in the Fiji Teachers Union v The Permanent Secretary for Education & Another (Suva High Court Civil Action No. 21 of 1997, 21.7.98) after referring to an extract from Administrative Law by Wade and Forsyth and relying on Doyle (supra) and British Steel plc. v Customs and Excise Commissioners (1997) 2 All ER366. However, His Lordship’s decision predates Ram Prasad.

A useful review of cases on the issue has been very well discussed in the June 2001 issue of The Legal Lali under the caption “The Public Law - Private Law Divide in Fiji Courts: A Review of Recent Authorities” by J.J. Udit and S. Sharma of the Attorney-General’s Chambers. I agree with the authors’ suggestion that before the litigants and their advisors fall into the trap of choosing between private and public law remedy, ‘it is therefore important for legal practitioners to take note of recent authorities in this area of law, so that a Plaintiff’s grievance (regardless of its merits) does not fail because the wrong form of initiating proceedings has been chosen by the legal practitioner’.

For these reasons I declare that the Plaintiff is not entitled to continue with his Originating Summons or seek the relief sought by him otherwise than by application for judicial review if he is still able to do so under Order 53 of the High Court Rules. It is for his counsel to decide what course the Plaintiff should take to pursue his grievance. However, I will leave the subject on this point with the following observation by the Appeal Court in Ram Prasad at p.11 for counsel’s consideration:

“As the Judge pointed out, the Appellant can apply under Order 53 of the High Court Rules for leave to bring an application for judicial review. In the normal course, such a long delay from 15 January 1992, when the Appellant was dismissed, would be fatal to any application for leave. However, in the end the dominating consideration would be the interests of justice. Provided that it can be established that this delay was not due to the Appellant personally, it may well be that in these somewhat exceptional circumstances the granting of leave may be appropriate. But we emphasize that on that issue we are expressing no concluded view. If an application for leave is brought, it will be for the Judge before whom it comes to decide whether the Appellant should be allowed to proceed at this very late stage”.
In the outcome the Defendants’ application to strike out the summons is allowed with costs in the sum of $150.00.

Application granted.

Marie Chan