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Prasad v University of the South Pacific [1999] FJHC 174; HBC0567D.1997S (3 December 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 567 OF 1997

BETWEEN:

MAHENDRA PRASAD
Plaintiff

AND:

UNIVERSITY OF THE SOUTH PACIFIC
1st Defendant

ROBIN SOUTH
2nd Defendant

Counsel: Mr J. Maharaj for Plaintiff
Mr S. Samuels for Defendants

Hearing: 25th November 1999
Decision: 3rd December 1999

DECISION

The trial in this case was set down for hearing for 25th and 26th November 1999. The writ of summons, claiming breaches of a contract of employment between the Plaintiff and the First Defendant, and defamation of the character of the Plaintiff by the First and the Second Defendant was filed on 31st December 1997.

On 25th November when Plaintiff’s counsel had opened his case, and was about to call his first witness, Mr S. Samuels for the Defendant raised an objection that the issues in the writ of summons were not justiciable because the Plaintiff had an alternative remedy under the University of the South Pacific Charter which had not been exhausted.

It is, of course, a matter of some concern that the Defendants have raised a justiciability issue at the eleventh hour. However, now that it has been raised, it is clearly an issue that must be considered before any evidence is led.

In essence, the Defendants say that the University of the South Pacific has a procedure for the appointment of visitors for the settlement of internal disputes, and that that procedure must be followed first before any decisions of the University can be judicially reviewed. In support of this submission, counsel referred to the State v. University of the South Pacific ex parte David Fowler Burness Judicial Review No. HBJ 007 of 1996, Dr Patrick Muma v. The University of the South Pacific, Dr Wadan Narsey and Mrs Asinate Matangi Kididromo Civil Appeal No. 52 of 1991 and Fereti Seru Dewa v. University of the South Pacific Judicial Review No. 0007 of 1994.

In response, Mr J. Maharaj for the Plaintiff submitted that the procedure adopted in this case was an appropriate one for what is essentially a contractual/employment matter between the Plaintiff and the Defendants. He submitted that the visitor process was not available for the Plaintiff who was a cleaner/handyman who did not fall within the definition of “member” in Schedule 2 of the University of the South Pacific Act Cap 266. He therefore submitted that the procedures were correct, that a writ of summons was appropriate and that the issues were justiciable.

Under section 4(a) of the University of the South Pacific Act the University has power:

“(a) to institute Professorships, Readerships and Lectureships and other offices of any kind and whether academic or not as the University may consider appropriate to appoint persons to and to remove them from such offices and to prescribe their conditions of service.”

Section 27 of the Act provides for the appointment of a Visitor of the University “on representation from the Council.”

In the absence of a specific appointment of visitor, it is clear since the Fiji Court of Appeal decision in Dr Patrick Muma v. The University of the South Pacific (supra) that the position of Visitor which formerly vested in the Queen of Great Britain and its colonies, now vests in the President of Fiji.

In his decision in Fereti Seru Dewa v. The University of the South Pacific Judicial Review No. 0007 of 1994 Pathik J said that the visitor’s decision in relation to the internal regulations and procedures of the University was amenable to judicial review. He referred to Lord Archer’s speech in Thomas v. University of Bradford (1987) 1 All ER 834 at 852 when he said:

“The source of the obligation on which Miss Thomas relies for her claim is the domestic laws of the university, its statutes and its ordinances. It is her case that the university has failed either in the proper interpretation of its statutes or in their proper application. Miss Thomas is not relying on a contractual obligation other than an obligation by the university to comply with its own domestic laws. Accordingly, in my judgment, her claim falls within the exclusive jurisdiction of the visitor, subject always to judicial review.”

The question for the purpose of this decision is whether firstly the Plaintiff was and is entitled to the visitor procedure as a cleaner/handyman, secondly whether the matters in issue in the writ of summons and defence are matters within “the exclusive jurisdiction of the visitor” and thirdly whether the issues are therefore justiciable in the High Court.

It is not in dispute that:

1. The Plaintiff began his employment with the First Defendant on the 15th of March 1982 as a cleaner/handyman at a salary of $1.53 an hour;
   
2. From 18th September 1995 to 31st December 1995 the Plaintiff was appointed to act as an Assistant Engineer;
   
3. The First Defendant on 19th September 1995 decided to pay 50% of the Plaintiff’s time at rates comparable to his current rate backdated to 1st January 1993;
   
4. The Plaintiff was paid $5848.00 for doing extra duties;
   
5. A vessel belonging to the First Defendant broke down at Toberua Island with engine failure;
   
6. The Plaintiff was investigated by Police in relation to the breakdown of the vessel;
   

The Plaintiff claims that he was entitled to extra pay for the extra duties he did, and that a defamatory claim was made by the Second Defendant to the police that the Plaintiff was suspected of the sabotage of the vessel.

The University of the South Pacific Act gives the University specific powers to contract with any of its employees. Whilst the word “member” in Schedule 2 does not include all staff of the University, the Visitor procedures referred to in Article 27 of the Charter do not appear to be restricted to academic and administrative staff alone.

Article 27 is not specific on the breadth of the visitor’s role. It is therefore necessary to look at the visitorial jurisdiction and common law. As Scott J said in David Fowler Burness (opp.cit.)

“...... the visitorial jurisdiction is an ancient one. Although once thought to be an “unwelcome survivor from the past” it is now seen within its proper limits to be wholly beneficial.”

The question of who was caught within the visitorial jurisdiction was considered in R v.Dunsheath ex p Meredith (1950) 2 All ER 741 at 743. Lord Goddard CJ said:

“Any question that arises of a domestic nature is essentially one for a domestic forum, and this is supported by all the authorities which deal with visitorial powers and duties, and although the question has generally arisen with regard to election to fellowship, I see no difference in principle between the question whether a particular person ought to be elected to a fellowship or whether a particular person is a fit and proper person to be appointed or retained as a teacher at a university or school.”

In Thomas v. Bradford University (supra) Lord Griffiths said (at page 843) that:

“The explanation for the visitor’s jurisdiction extending .... to those who are not corporators lies in the basis of his jurisdiction, namely as the judge of the internal or domestic laws of the foundation. It is because those laws provide for the conditions governing admission to and removal from membership of the foundation and sometimes of offices short of membership that jurisdiction in such matters lies with the visitor.” (my underlining)

I find that the scope of the visitorial procedures are not limited to academic and administrative staff, and that the Plaintiff clearly would be able to resort to the visitorial procedures.

The second issue is whether the “dispute” in the writ of summons falls within that jurisdiction. Counsel for the Plaintiff says that matters in dispute are contractual and defamatory and are therefore appropriate for a writ of summons procedure. The same argument was advanced in Re Wislang’s Application (11984) NI 63 referred to in Thomas (supra) as follows:

“But what the authorities show, as I read them, is that matters may well be in breach of a contract of employment, yet within visitorial jurisdiction, if those matters are of an internal domestic character or touch upon the interpretation or execution of private rules and regulations of the university .... If the matters in dispute under his contract of employment related to purely common law or statutory rights and not to private or special rights of the university, then of course visitorial jurisdiction could not determine them and Dr Wislang’s remedies would be in the ordinary courts or the appropriate statutory tribunals.”

In Thomas (supra) Lord Griffiths said at p.847 -

“In the present case, the entire dispute is centred on the statute, ordinances and regulations of the university. Were they correctly applied and were they fairly administered? Such a dispute in my view falls within the jurisdiction of the visitor and not the courts of law, notwithstanding that its resolutions will affect Miss Thomas’s contract of employment.”

Turning therefore to the issues in this case, I find that the substance of the first complaint is not merely contractual. The reference to University procedure is at Paragraph 8 of the writ of summons (request for higher duty allowance in accordance with the policy in respect of other University employees) and the reference at Paragraph 10 in relation to the alleged intervention of the University Staff Union. The grievance is that the Plaintiff was treated in a discriminatory way as compared with other employees.

The second cause of action is defamation. The allegation is that the Second Defendant made a false report implicating the Plaintiff to the police about the damage caused to the vessel “Aphareus”.

The reference to the internal policies and regulations of the University is therefore minimal in respect of the second cause of action. I certainly cannot say that the cause of action is “a wrong done in the administration of the internal law of the foundation” (per Simon Browne J in Thomas v. University of Bradford (supra) at p.344).

As such I find that the claim of defamation of character against the First and Second Defendants is one which may be determined by the courts.

The effect of my first finding that the claim for entitlement to higher wages is a matter for the visitor, is that the courts cannot hear the dispute at this stage. This is clear from the Court of Appeal decision in Muma (supra).

I therefore order that Paragraphs 1 to 15 of the Statement of Claim be struck out on the ground of lack of justiciability. The trial will proceed on the issue of defamation alone.

On the issue of costs, I find it unacceptable that the Defendants raised the issue at such a late stage. I therefore order the Defendants to pay the Plaintiff’s costs of the application to be taxed if not agreed.

Nazhat Shameem
JUDGE

At Suva
29th November 1999