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In re Taniela Pita Mawi [1996] FJHC 103; Hbj0032d.1995s (22 February 1996)

IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

NO. 0032 OF 1995

IN THE MATTER of an Application for LEAVE to apply for Judicial Review by TANIELA PITA MAWI (the Applicant) under Order 53 of the Rules of the High Court and under Inherent Jurisdiction of the High Court

AND

IN THE MATTER of the decision of the Chairman of the Board and/or of the Board of REWA RICE LIMITED, a Fiji Government owned Company, duly incorporated under the Companies Act 1983, dated 30th November, 1995 to terminate the employment of TANIELA PITA MAWI as the Chief Executive of Rewa Rice Limited

AND

IN THE MATTER of an application for a DECLARATION and
CERTIORARI and/or MANDAMUS

V. Nathan for the Applicant
S. Inoke for the Respondent

Date of Hearing: 5th February 1996
Date of Interlocutory Judgment: 22nd February 1996

INTERLOCUTORY JUDGMENT

The Applicant who was formerly the Chief Executive of Rewa Rice Limited applies for leave to obtain Judicial Review of the decision of the Chairman of the Board of Rewa Rice Limited, GEORGE TAVANAVANUA and or the Board of the Company dated 30th November 1995 to terminate the employment of the Applicant as its Chief Executive.

The matter came before me originally by ex-parte motion on the 12th of January 1996 when I gave the Respondent or Respondents fourteen days in which to file an Affidavit in Reply to that of the Applicant sworn on the 19th of December 1995. I also ordered that the Respondent/s be restrained until further order from appointing another Chief Executive of Rewa Rice Limited. It is not in dispute that a copy of my order was not served on the Respondent/s until late in the afternoon of the 26th of January, the order not having been entered until 25th January 1996.

Meanwhile on the 25th of January the Respondent Company had appointed a new Chief Executive in its Board meeting of 25th January 1996. The Respondent Company through its Chairman GEORGE TAVANAVANUA now applies to have the injunction of 12th January dissolved and opposes the Applicant's application for leave to seek Judicial Review of the decision to dismiss him.

The following facts which are taken from the affidavit of the Applicant of the 19th of December 1995 and that of GEORGE TAVANAVANUA of 26th January 1996 are not in dispute at this stage:

(1) That GEORGE TAVANAVANUA was at all relevant times an appointed member of the Board of Rewa Rice Limited.

(2) That Rewa Rice Limited is a duly incorporated limited liability company having its registered office at 69 Kings Road, Nausori.

(3) That the Board of the Company is constituted by Directors duly appointed by the Government of Fiji through the Minister of Agriculture, Fisheries and Forests or other Ministers for the time being responsible for the agricultural affairs of the Government of Fiji.

(4) The Company is incorporated under the Companies Act and has a Memorandum and Articles of Association as required by that Act.

(5) All issued shares of the Company are owned by the Government of Fiji or held on the Government's behalf.

(6) At the present time the Board of Directors comprises six persons the Chairman of whom is GEORGE TAVANAVANUA.

(7) The Board manages the Company's affairs and claims as such it has the right to dismiss any employee.

Prior to his appointment as the Chief Executive of the Company in September 1991 the Applicant was Manager Finance of the Fiji Development Bank and states that he therefore held a very lucrative job.

In August 1991 he was approached by the Rewa Rice Board to become the Chief Executive of Rewa Rice Limited and accepted the position in consideration of being offered a satisfactory remuneration package. The Applicant claims that he had been given to understand by the Company that his appointment was a permanent one and that this induced him to resign his position with the Fiji Development Bank.

The Respondent denies this allegation.

I do not propose to go into any detail in the recitation of the various claims and counter-claims which have now been made in the affidavits of the Applicant and of GEORGE TAVANAVANUA as to the quality of the Applicant's work as Chief Executive and as to the growing dissatisfaction of the Company through its Board with the Applicant's performance of his duties. Suffice it to say that by the 28th of November 1995 the Company was most unhappy with the quality of the Applicant's work as its Chief Executive and decided to dismiss him. On 14th December 1995 the full Board of the Company met and reaffirmed its decision of 28th November to dismiss the Applicant as from 30th November 1995.

The Respondent Company opposes the Applicant being given leave to judicially review the decision to dismiss him on the ground that if the Applicant has any rights at all against the Company these lie in the realm of private law and not public law.

Reliance is placed on the Memorandum and Articles of Association of the Company which are exhibited to the affidavit of the Applicant and on a number of cases to which I shall refer shortly. The Memorandum of Association of the Company clearly states on its first page that it was formed under the Companies Ordinance 1945 on the 10th of February 1960 when the Memorandum and Articles of Association were subscribed and witnessed by two subscribers, Arthur Curzon Isaacs and Harry Geoffrey Nicholls. One C.O. Handley of Cremorne, N.S.W. witnessed both signatures.

It is not in issue that the Company was formed to trade in the rice industry in Fiji and did not at any time take over or perform any activity that was performed by the Government, its Departments or Statutory Bodies. Also, apart from the Companies Act, there is no other legislation, decree or ministerial direction governing the operation or management of the Company. In addition all the issued shares of the Company are owned by the Government of Fiji or held on the Government's behalf.

From the Memorandum and Articles it would seem that the Government of Fiji acquired ownership of the Company in August 1973. This appears from a new Article 87 which was substituted for the previous Article on the 8th of August 1973.

In opening his submissions counsel for the Applicant stated that because Rewa Rice Limited has a very wide Memorandum of Association in that the objects of the Company which are set out in Clause 3 cover many areas of commercial activity which have no relationship to the sale of rice it must be a public company. I agree that the objects are very wide but this is not unusual in Memoranda of Association of most incorporated companies. However it seems to me with respect that counsel has here missed the point of the Respondent's argument and of the real issue before this Court, namely whether or not the Applicant has any public law rights following his dismissal. It is clear that even though the Government holds all the shares in the Company it is not as yet at least a public authority but even if it were, as Sir John Donaldson M.R. said in Reg. v. East Berkshire Health Authority, Ex parte Walsh [1984] EWCA Civ 6; (1985) 1 Q.B. 152 at 164:

"Employment by a public authority does not per se inject any element of public law."

It is now well established that the remedy of Judicial Review does not extend to the relationship of employer and employee.

Many of the relevant cases were referred to by Woolf J. (as then he was) in Reg. v. British Broadcasting Corporation Ex parte Lavelle (1983) 1 WLR 23 a case on which Mr. Inoke for the Respondent places great reliance. At page 31 His Lordship quoted from the speech of Lord Reid in Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40 where Lord Reid said at page 65:

"So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not fall within this class because a chief constable is not the servant of the watch committee or indeed of anyone else."

The Applicant may have a right to claim damages for wrongful dismissal but in my judgment that is the only remedy available to him.

In England the position at common law has been changed by the Employment Protection Consultation Act 1978 which gives protection against unfair dismissal but, be it noted, not the right to claim judicial review for unfair dismissal from employment.

The remaining question is whether the injunction which I granted against the Respondent should now be dissolved. In my judgment it should.

In Alan John Finegan v. Technical Education Centre Pty Limited in my unreported judgment of 5th December 1991 I referred to this question at page 16 and cited with approval the judgment of Plowman J. in Bentley-Stevens v. Jones and Others (1974) Ch. D. 653 in which the Court refused an application for an interlocutory injunction on the grounds that the Court would not grant such an injunction in respect of irregularities which could be cured by proper processes which I consider is the case here.

The fact is that the Respondent no longer wants the Applicant as an employee. The policy of the law has for at least a century been not to grant specific performance of contracts of employment for reasons mainly of practicality.

In Bainbridge v. Smith [1889] UKLawRpCh 85; (1889) 41 Ch. D. 462 the Court held that even though a proposed Managing Director of a company had the qualifications required by the Company's Articles, it would not force the company to engage the Plaintiff when it was clear that the company did not want him despite his qualifications.

Since dictating a draft of this judgment counsel for the Applicant has sent me copies of two local decisions which he considers might assist me namely the Court of Appeal decision of Re: Satish Chandra, FLR 16 and R. v. Public Service Appeal Board - Ex parte Abdul Hanif, 1986 32 FLR 172. I have read these decisions but found them of no assistance to me in as much as the facts are different from those in the instant case and both deal either with an industrial dispute under the Trade Disputes Act (Satish Chandra) or, as in Abdul Hanif's case, a decision of the Public Service Board. Neither judgment in my view says anything which affects the rule of the common law to which I have referred namely that the law does not allow Judicial Review of cases for dismissal from employment where damages are the appropriate remedy.

For these reasons I consider the application for leave for Judicial Review must be refused and I dissolve the injunction which I granted against the Respondent on 12th January. I make no order for costs.

JOHN E. BYRNE
J U D G E

List of legislation and authorities referred to in judgment:

Companies Act Cap. 247.
Reg. v. East Berkshire Health Authority, Ex parte Walsh [1984] EWCA Civ 6; (1985) 1 Q.B. 152.
Bainbridge v. Smith [1889] UKLawRpCh 85; (1889) 41 Ch. D. 462.
Reg. v. British Broadcasting Corporation Ex parte Lavelle (1983) 1 WLR 23.
Re: Satish Chandra 1986 FLR 16.
Bentley-Stevens v. Jones and Others (1974) Ch. D. 653.
Alan John Finegan v. Technical Education Centre Pty Limited Action No. 472 of 1991 unreported judgment of Byrne J. of 5th December 1991.
R. v. Public Service Appeal Board Ex parte Abdul Hanif, 1986 32 FLR 172.

The following additional cases were referred to in argument:

Francis v. Kuala Lumpur Councillors (1962) 1 WLR 1411.
R. v. Panel on Take-overs and Mergers, Ex parte Datafin Plc [1986] EWCA Civ 8; (1987) 1 ALL E.R. 564.
Rolimpex Case (1978) 1 ALL E.R. 81, 2 ALL E.R. 1043.
Judicial Review No. 16 of 1993, Pratap Singh v. Fiji Posts & Telecommunications Limited unreported judgment of Scott J. dated 6th October 1993.
R. v. Transport Control Board Ex parte Pacific Transport Limited, Judicial Review No. 7/89 unreported judgment of Byrne J. dated 19/12/89.

HBJ0032D.95S