| Fiji Islands - Vakaloloma v The Attorney-General of Fiji - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION
ACTION NO. HBC 0293 OF 1996
BETWEEN:
WAISALE VAKALOLOMA
Plaintiff
AND:
THE ATTORNEY-GENERAL OF FIJI
Defendant
A. Gates for the Plaintiff
N. Nand and S. Kumar for the Defendant
Date of Hearing: 4th October 1996
Dates of Submissions: 12th August, 2nd September 1997
Date of Ruling: 26th November 1997
RULING
On the 24th of June 1996 the Plaintiff who describes himself as retired Deputy Commissioner of Police issued the Writ herein claiming
loss of earnings from the 12th of May 1995 to 27th of April 2001, loss of pension and benefits for that period and damages for shame
and stress. The Writ was served on the 1st of July 1996 and on the 19th of July the Defendant then named as the Police Service Commission
issued a Summons to strike out the Writ on the ground that it discloses no reasonable cause of action; is scandalous, frivolous,
vexatious and an abuse of the Court process. The Summons was supported by an affidavit by Charles Walker the Chairman of the Police
Service Commission.
The Plaintiff, under leave given by the Deputy Registrar of the Court on 21st August 1996, swore an Affidavit in Reply to that of
Mr. Walker.
On the 3rd of October 1996 the Attorney-General applied for and was given leave to substitute his name as Defendant for that of the
Police Service Commission. The Summons came on for hearing before me on 4th October 1996 when the Defendant handed up written submissions
in support of his application. I then made orders giving leave to the Plaintiff to substitute the Attorney-General of Fiji as Defendant
and I directed the Plaintiff to deliver an Amended Statement of Claim by the 4th of November 1996, the reason being, and conceded
by Mr. Gates, that the original Statement of Claim pleaded evidence and not facts.
An Amended Statement of Claim was delivered on 4th of November 1996 but pending my ruling on the Defendant's application no statement
of defence has yet been delivered.
On the 2nd of June 1997 I gave the Plaintiff leave to file written submissions in reply to those of the Defendant but these were not
delivered until the 12th of August 1997, the submissions in reply by the Defendant then being filed on the 2nd of September.
The Amended Statement of Claim alleges that at all material times the Plaintiff was a gazetted officer in the Fiji Police Force finally
reaching the rank of Deputy Commissioner of Police.
On the 21st of June 1991 the Defendant through the Secretary of the Police Service Commission interdicted the Plaintiff from performing
his functions as Deputy Commissioner of Police forthwith pending the hearing of criminal charges.
After the interdiction the following events allegedly took place:
(a) On 31st January 1992 the Plaintiff was charged with two other Police Officers with two sets of Charges before the Magistrate's
Court. The first concerned Larceny of a Video Deck (2 Charges) and the Second, a Single Charge of Abuse of Office.
(b) On 25th September 1992 the Plaintiff was acquitted of the first set of Charges.
(c) On 27th October 1993 the Director of Public Prosecutions filed a Nolle Prosequi in respect of the Second Charge. There then remained
no criminal charges outstanding against the Plaintiff.
(d) The Plaintiff had been suspended from duty on 21st June 1991. The Defendant did not reinstate the Plaintiff following his acquittal,
or following the Director's decision to enter a Nolle Prosequi.
At the time of the interdiction the Plaintiff states he was paid an annual salary of $35,000.00.
He alleges that he received a letter of the Police Service Commission dated 4th November 1993 in which he was informed that the Commission
had decided to institute disciplinary proceedings against him in accordance with the Police Service Commission Regulations. He was
informed that the disciplinary charges would contain details of the allegations.
He then alleges that on 8th March 1994 his then solicitor, Mr. John Semisi wrote a letter to the Commission seeking an explanation
for the delay and expressing the view that the Plaintiff was persecuted.
The Plaintiff states that he never received any explanation for the delay and that no disciplinary charges were ever brought against
him although the Commission suggested in a letter to the Plaintiff's solicitor that fresh matters might form the subject of disciplinary
charges. The Plaintiff claims these never eventuated.
The Plaintiff applied for voluntary retirement by letter dated 19th October 1994, which application was accepted by the Police Service
Commission on 4th November 1994.
The Plaintiff claims that his last day of paid service was 11th May 1995. He says that on retirement he was paid:
(a) The balance half pay held back since his interdiction on 1st June 1991.
(b) A reduced pension of $16,310.94 p.a. with effect from 6th May 1995 and a gratuity or lump sum of $67,962.25.
The Plaintiff claims that he would have continued in his position of Deputy Commissioner of Police until his retirement at 55 years
on 27.4.2001. He alleges that under the terms of his contract between himself and the Government of Fiji it was expressly stated
that dismissal and dismissal procedures for Gazetted Officers were to be governed by the Police Act Cap. 85 Part V on Discipline, and by the Police Service Commission Regulations, particularly by Regulation 26.
The Plaintiff claims that the following terms were implied into the contract:
(i) That the Defendant would only proceed to dismiss the Plaintiff in accordance with the Statutory Provisions for dismissal.
(ii) The Defendant would do nothing to render it impossible for the Plaintiff to carry out his Police duties under the contract.
(iii) The Defendant would not suspend the Plaintiff at all, or excessively, without due cause for so doing.
(iv) The Defendant would maintain trust and confidence with the Plaintiff.
The Plaintiff then alleges that the Defendant acted in repudiatory breach of the express and implied terms of his contract in that
the Defendant:
(a) failed to dismiss the Plaintiff in accordance with Regulation 26 of the Police Service Commission Regulations and the Statutory
Provisions.
(b) by not proceeding with reasonable expedition to deal with the plaintiff in accordance with the implied terms of the contract pursuant
to the Police Act and Police Service Commission Regulations, the Defendant committed a repudiatory breach of the said contract. Such misconduct on
the part of the Defendant as Employer entitled the Plaintiff as Employee to accept the repudiation of the contract and to resign.
(c) in the alternative, the Defendant is deemed to have dismissed the Plaintiff constructively, such dismissal being unlawful and
wrongful.
(d) the Defendant's action, in addition, amounted to extremely unreasonable managerial conduct, which in turn amounted to wrongful
dismissal.
(e) further, by acting in this way, the Defendant breached the duty of trust and confidence between the Plaintiff and Defendant.
As a result of these alleged breaches the Plaintiff claims to have suffered loss and damage comprising:
(a) Loss of earnings from 6.5.95
to 27.4.2001 ($35,000.00 x 6 years). $210,000.00
(b) Loss of attributable pay increases
for the above period.
(c) Loss of Pension for the above period.
(d) Loss of the use and enjoyment of
Government Quarters.
(e) General damages:
Loss of opportunity for promotion.
The affidavit of Charles Walker sworn in support of the Defendant's Summons on 18th of July 1996 alleges that the Plaintiff voluntarily
retired from the Police Force and on the 9th of November 1994 wrote a letter to the Public Service Commission to this effect and
stating that he wished to be paid gratuity and a reduced pension on his retirement. On the 4th of November 1994 in a letter exhibited
to Mr. Walker's affidavit the Public Service Commission wrote to the Commissioner of Police stating that at a meeting of the Police
Service Commission held that date the Police Service Commission had accepted and approved the Plaintiff's voluntary retirement from
the Police Force.
On the 17th of November 1994 in a copy letter also exhibited to Mr. Walker's affidavit the Secretary for the Public Service wrote
to the Plaintiff stating that his application to retire from the service was approved under the Pensions Act of 1983 and Regulation
28(b) of the Public Service Commission (Constitution) Regulations 1990 and stated that his retirement would take effect from 6th
May 1995. The letter concluded with an expression of appreciation by the Commissioner of Police and the Plaintiff's many colleagues
in the service for the Plaintiff's 30 years of service in the Force.
Earlier in time after his acquittal in the Magistrate's Court of all charges of larceny and the filing on the 27th of October 1993
by the Director of Public Prosecutions of a Nolle Prosequi of a charge of Abuse of Office the Plaintiff was informed by the Police
Service Commission that he was likely to face disciplinary charges not related to the criminal charges. These related to alleged
other wrongful activities committed by the Plaintiff in 1991.
Mr. Walker then deposes that the Plaintiff had a meeting with the Commissioner of Police who explained to him the consequence of disciplinary
charges after which the Plaintiff opted to voluntarily retire.
Mr. Walker then states that the Defendant did not thereafter institute disciplinary action against the Plaintiff, and the Plaintiff
received the following:
(i) gratuity of $67,962.25 together with a
(ii) reduced pension of $16,310.94 per annum on his retirement from service with effect from 6th May 1995.
Mr. Walker then states that to the best of his knowledge and belief no pressure was exerted on the Plaintiff for him to retire from
the Police Force and furthermore that if any pressure was brought to bear on him his solicitor should have taken immediate action
to deal with the mater.
I take this latter statement to be a plea of confession and avoidance.
The Plaintiff swore an Affidavit in Reply to Mr. Walker's affidavit in which he generally denies most of the allegations made against
him by Mr. Waler. It is unnecessary to refer to these here.
The Court's power to strike out an action has always been exercised very sparingly and Lindley M.R. in Hubbuck v. Wilkinson (1889) 1 Q.B. 86 at p.91 said that it is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 18
of the Rules of the High Court. In Nagle v. Feilden (1966) 2 Q.B. 633 at p.651 Salmon L.J. began his judgment by saying:
"It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless
the case is unarguable."
There are now numerous other authorities on the question many of which have been cited to me and which are familiar I think to most
practitioners in this jurisdiction. I do not propose to refer to them, being content to rely on the two cases I have just mentioned.
The question I have to answer is whether I should take this very draconian step on the material at present before the Court.
The Defendant alleges that the Plaintiff is estopped from taking any common law action against the Defendant because he has voluntarily
retired and accepted a gratuity and reduced pension. Lord Denning M.R. in Amalgamated Investment of Property Co. Ltd. (in Liquidation) v. Texas Commerce International Bank Ltd. (1981) 3 ALL E.R. at page 584 said:
"If parties to a contract by their course of dealing, put a particular interpretation on the terms of it, on the faith of which
each of them to the knowledge of the other acts and conducts their mutual affairs, they are bound by that interpretation just as
if they have had written it down as being a variation of contract."
He goes on further on the same page at paragraph G:
".......whether due to misrepresentation or mistake (it makes no difference), on which they have conducted the dealing between
them, neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the
case demands."
Against that Mr. Gates for the Plaintiff submits that the Plaintiff did not voluntarily retire at all; rather he was constructively
dismissed from the Police Force. Quoting from Selwyn on the Law of Employment (1993) p.290 the author says:
"Thus, if the employer tries to impose a unilateral change in employment terms, such as a change in the job, a lowering in earnings
(Hill Ltd v. Mooney), a significant change in the location of employment (Courtaulds Northern Spinning Ltd v. Sibson), a demotion,
then provided there is no contractual right to do so, such conduct will entitle an employee to resign."
Mr. Gates submits that if a Plaintiff has been treated oppressively and robbed of choice he can not be said to have accepted freely
what was clearly overbearing conduct on the part of his employer, in this case the State. He further says that the conduct of the
Commission was reprehensive in that it failed to act with reasonable speed or to consider appropriate action against the Plaintiff.
He claims that as a responsible employer the Commission should not have "allowed the Plaintiff to fester on a 3½ years of half-pay
or no-pay interdiction". In effect he says the Plaintiff was squeezed out of his employment without criminal or disciplinary
process. I confess to serious reservations about the strength of the Plaintiff's claim at this stage but I intend to remain open
to persuasion at least for the time being, bearing in mind Lord Justice Salmon's remark in Nagle v. Feilden and his later remark at p.654 (F).
"One of the principal functions of our courts is, whenever possible, to protect the individual from injustice and oppression.
It is important, perhaps today more than ever, that we should not abdicate that function."
I have no doubt that that remark is as true today as it was in 1966. In my judgment it would be unfair to the Plaintiff to shut him
out from the judgment seat at this stage. It seems to me that the case raises what could be difficult questions of law for example
on the question of repudiation of the contract. In this regard I note the statement of Devlin J. in Universal Cargo Carriers Corporation v. Citati (1957) 2 Q.B. 401 at p.426 on renunciation of contracts:
"The test of whether an intention is evinced by conduct is whether the party renunciating has acted in such a way as to lead
a reasonable person to the conclusion that he does not intend to fulfil his part of the contract."
I expect to hear much argument on this question at the trial. I therefore order that the Defendant's Summons of 19th July 1996 is
dismissed. Costs will be in the cause.
JOHN E. BYRNE
JUDGE
The following legislation and authorities referred to in ruling:
Police Act Cap. 85.
Police Service Commission Regulations.
Rules of High Court Order 18 Rule 18.
Amalgamated Investment of Property Co. Ltd. (in Liquidation) v. Texas Commerce International Bank Ltd. (1981) 3 ALL E.R. at 584.
Hubbuck v. Wilkinson (1889) 1 Q.B. 86.
Nagle v. Feilden (1966) 2 Q.B. 633.
Universal Cargo Carriers Corporation v. Citati (1957) 2 Q.B. 401.
Selwyn on the Law of Employment (1993).
The following additional cases were mentioned in argument:
Dreyfus v. Peruvian Guano Company [1889] UKLawRpCh 36; (1889) 41 Ch.D. 151.
Drummond-Jackson v. British Medical Association (1970) 1 ALL E.R. 1094.
Dyson v. Attorney-General [1910] UKLawRpKQB 203; (1911) 1 K.B. 410.
Attorney-General v. Shiu Prasad Halka 18 FLR 210.
Bavadra v. Attorney-General Supreme Court C/A No. 487/87.
C/A No. 644 of 1993 Ratu Mosese Tuisawau and Another v. Attorney-General of Fiji - unreported judgment of Chief Justice.
Attorney-General of Lancaster v. London and North Western Railway [1892] UKLawRpCh 134; (1892) 3 Ch. 274.
Castro v. Murray [1854] EngR 673; (1875) 10 Ex. 213.
Kemsley v. Foot & Others (1952) A.C. 345.
Howard v. Pickford Tool Co. Ltd. (1951) 1 K.B. 417.
Goodson v. Grierson [1908] UKLawRpKQB 32; (1908) 1 K.B. 761.
Lawrence v. Lord Norreys [1890] UKLawRpAC 14; (1890) 15 App. Cas. 210.
Labour Law by Anderman 2nd Edition 1993.
Post Office v. Strange (1981) IRLR 515, EAT.
Robertson v. Minister of Pensions (1949) 1 K.B. 227.
Westen v. Fairbridge (Executors) and Others (1923) 1 K.B. 667.
Hbc0293d.96s
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