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Permanent Secretary for Labour and Industrial Relations v Ba Town Council [2006] FJCA 9; ABU0088.2004S (10 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0088 of 2004S
(High Court Judicial Review No. HBJ0007 of 2002L)

BETWEEN:

PERMANENT SECRETARY FOR LABOUR AND INDUSTRIAL RELATIONS
First Appellant

THE DISPUTES COMMITTEE
Second Appellant

AND:

BA TOWN COUNCIL
First Respondent

MUNICIPAL EMPLOYEES UNION
Second Respondent

Coram: Ward, President
Tompkins, JA
Wood, JA

Hearing: Tuesday, 7 March 2006, Suva

Counsel: S. Sharma and C. Tuberi for the Appellant
V. Maharaj for the Respondents

Date of Judgment: Friday, 10 March 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] These proceedings came before Byrne J in the High Court at Lautoka initially on 60 June 2003 then on divers days until the final day for hearing on 30 September 2004. The proceedings concerned an industrial dispute between the Union, the interested party, and the respondent Council. The parties having failed to resolve the differences the general secretary of the Union wrote to the first appellant advising that no useful purpose would be served by any further talks with the Council and referring the matter to the first appellant for appropriate action.

[2] The first appellant, purporting to act under s 4 of the Trade Disputes Act as amended by the Trade Disputes Act (Amendment) Decree 1992 ('the Decree'), accepted the report of a trade dispute and then referred the matter to a Disputes Committee, the second appellant. The Disputes Committee made a determination dated 15 March 2003 that was not acceptable to the Council, which then commenced these proceedings, seeking an order of certiorari removing the decision of the Disputes Committee to the High Court and an order that the decision be quashed.

[3] The Judge held, for reasons set out his judgment to which we need not refer, that the decision of the Disputes Committee was a nullity. He also held that the Decree which set up the Disputes Committee procedure was a nullity because the Decree had not been submitted to Parliament as a Bill and passed through the normal parliamentary procedure. For both these reasons he granted the application for an order by way of certiorari and quashed the decision of the Disputes Committee of 15 March 2002.

[4] The Decree was made by the President, Ratu Penaia Ganilau, came into force on 1 May 1992 and was published in the Fiji Republic Gazette of 20 May 1992.

The appeal

[5] In the notice of appeal, the appellants set out three grounds of appeal, namely that the Judge erred in holding that the Decree was unconstitutional, that the Disputes Committee went beyond its powers and that the decision of the Disputes Committee was arbitrary or irrational.

[6] At the hearing in this Court the appellants abandoned the second and third grounds. However, they sought the decision of this Court on that part of the judgment that declared the Decree to be a nullity, to avoid the possibility that the judgment could be used in the future to attempt to challenge the validity of this or other decrees. As a consequence the only issued to be determined on the appeal is whether the Judge was correct in holding that the Decree was unconstitutional.

Conclusion

[7] On that the issue the Judge was clearly wrong. There are two decisions of this Court that have held that decrees similar to this decree were valid by virtue of certain interpretations set out in s 194, the interpretation section of the Constitution.

[8] The first in time was The Attorney General of Fiji and anor v Silimaibau and anor [2004] FJCA 17; CA Appeal No ABU0050.2003, 19 March 2004. It concerned the validity of the Sugar Industry (Amendment) Decree 1992 made by the President on 6 February 1992. In its judgment this Court said:

'Clause 195 (2) (e) of the 1997 Constitution.

[12] This clause provides:

'(2) Despite the repeal of the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990:

(e) all written laws in force in the State (other than the laws referred to in subsection (1)) continue in force as if enacted or made under or pursuant to this Constitution and all other law in the State continues in operation;'

[13] The Decree is not one of the laws referred to in subs (1)

[14] The appellant submitted that, when regard is had to the relevant definitions in s 194, the decree continued in force by virtue of (e). The respondents submitted that it did not because in its submission it was not within the words 'written laws' in (e)

[15] Section 194, the interpretation section, contains the following interpretations:

Written law means an Act or subordinate legislation.

Act means an Act of the Parliament or a Decree.

[16] Counsel for the respondents submitted that the Decree was neither an act nor subordinate legislation. He submitted that subordinate legislation can only mean legislation made pursuant to powers contained in an act, and the Decree was not made pursuant to such power.

[17] This submission overlooks the definition of Act as not only an act but also a decree. It follows that the Decree was, for the purposes of the provisions in the Constitution an act, as such it was within the words 'written laws' as defined and therefore was within (e) of s 195 (2). The conclusion is therefore inescapable that, on the authority of an express provision in the Constitution, the Decree continued in force as if enacted under the Constitution.'

[9] This decision was prior to the decision of the Judge in the case under appeal. He made no reference to it, we assume because he was not referred to it.

[10] The second case is Fiji Island Revenue & Customs Authority v New Zealand Pacific Training Centre Ltd [2005] FJCA 48; CA Appeal No ABU0085.2004, 15 July 2005. It concerned the validity of the VAT Decree which came into force on 1 June 1992. In its judgment, this Court referred to Silimaibau holding that that decision was correct. Adopting the same reasoning, the Court concluded that the VAT Decree was valid.

[11] For the same reasons as those in the Silimaibau and Fiji Island Revenue Authority judgments, we are satisfied that the Decree the subject of these proceedings was valid and remains in force. It is appropriate for the Court to intervene to correct the error although, in the light of the abandonment of the remaining grounds, the order quashing the decision of the Disputes Committee will stand.

Result

[12] The appeal is dismissed. The order that the decision of the Disputes Committee be quashed is confirmed. The finding that the Decree is a nullity is set aside.

[13] The respondents accepted that the decision of the Judge declaring the Decree a nullity could not be supported. In these circumstances we make no order for costs.

Ward P
Tompkins JA
Wood JA

Solicitors:

Office of the Attorney-General, Suva for the Appellants
Messrs. A.K. Narayan and Company, Ba for the Respondents