|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION No. 595 of 2007
BETWEEN:
FIJIAN TEACHERS ASSOCIATION
PUBLIC EMPLOYEES UNION
FIJI POST AND TELECOMMUNICATIONS ASSOCIATION
Plaintiffs
AND:
HIS EXCELLENCY THE PRESIDENT
OF THE REPUBLIC OF THE FIJI ISLANDS
RATU JOSEFA ILIOLOVATA ULUIVUDA
First Defendant
AND:
INTERIM MINISTER FOR LABOUR AND INDUSTRIAL
RELATIONS, TOURISM AND ENVIRONMENT
Second Defendant
AND:
INTERIM ATTORNEY-GENERAL AND MINISTER
OF JUSTICE OF THE REPUBLIC OF THE FIJI ISLANDS
Third Defendantn
Appearances:
Mr B. Banuvua for the Plaintiffs
Mr AK Narayan and Mr S. Sharma for Defendants
Date of Hearing: 12 February 2008
Date of Judgment: 18 February 2008
JUDGMENT
1. The Action
This proceeding was commenced by Originating Summons seeking:
1.2 Filed with the Originating Summons was the Affidavit of Attar Sing (F/n Jagessar Singh), General Secretary of the Fiji Posts and Telecommunications Employees Association (FPTEA) and General Secretary of the Fiji Islands Council of Trade Unions (FICTU) (1st FICTU Affidavit).
1.3 Amongst other matters the 1st FICTU Affidavit set out the history of the Employment Relations Promulgation 2007 (the Promulgation), which commenced as the Employment Relations Bill (the Bill) on 26 September 2005 when introduced into the Parliament and referred to the Parliamentary Sector Committee for Economic Services for scrutiny. Parliament was prorogued pending the May 2006 General Elections. At that date, no submissions had been presented by FICTU: 1st FICTU Affidavit para 5.
1.4 Following the General Election, on 22 June 2006 the Bill was reintroduced into Parliament and referred to the Parliamentary Sector Committee. On 14 August 2006 FICTU’s submissions were presented to the Committee ‘with the expectation that some of the issues raised ... would be included in the [Committees] findings and recommendations’: 1st FICTU Affidavit paras 6, 7
1.5 At the end of November 2006, the Bill passed the House of Representatives, going to the Senate. On 5 December 2006 ‘the President signed a legal order purporting to dissolve the House of Representatives, citing the doctrine of necessity’. On that day, ‘Commodore Bainimarama ... Commander of the Republic of Fiji Military Forces announced ... he had taken over Government’, and the Senate session was terminated on that day, with the Senate ‘not [having] had the opportunity to deliberate on the ... Bill’: 1st FICTU Affidavit paras 12, 13
1.6 Amongst the Plaintiffs’[1] concerns are:
2. Progress of Application
On 16 January 2008 the parties first appeared before the Court in the matter. Submissions were made by Counsel for the Plaintiffs on the urgency of its being heard because the Promulgation is scheduled to come into effect on 2 April 2008. For the Defendants,[2] Counsel said that the proceeding should be viewed within the wider context of challenges to the constitutionality of matters occurring governmentally in Fiji since 5 December 2006. These matters are already before the High Court in Laisenia Quarase, Ratu Naiqama Lalabalavu, Ro Teimumu Kepa, Ratu Suliana Matanitobua, Aid Sivia Qoro and Josefa Vosanibola; and Ratu Apenisa Kalokalo Loki and Peceli Kinivuwai v. Josaia Voreqe Bainimarama, The Republic of Fiji Military Forces, The State of the Republic of the Fiji Islands and the Attorney General of the Interim Regime HC Action No. 60 of 2007S (Quarase case).
2.1 Counsel for the Defendants further made reference to Order 28 of the High Court Rules, in particular that under Order 28, rule 2 in any cause or matter begun by originating summons a Defendant has 28 days after acknowledging service to adduce affidavit evidence where s/he wishes to do so. There was some time to run before the Defendants were obliged under the rules to serve and file material.
2.2 At this stage, the following considerations applied:
2.3 Also raised on that date was the possibility of the parties engaging in discussion which may result in a joint approach to the matter’s progression or its awaiting an outcome from the Qarase case, should that be the path both believed appropriate. I had also suggested the matter may be dealt with in a relatively short compass by considering the discrete question of the legality or otherwise of the Promulgation in its having passed through the lower house and was in the upper house, having just come out of committee, when the events of 5 December 2006 intervened. It was then it went to the President, not having first returned to the lower house.
2.4 Ultimately, and taking into account the foregoing, the importance of the proceeding persuaded me of the need to have before the Court, so as to properly advance the matter, material from the Defendants prepared with sufficient time to be useful to the Court.
2.5 To facilitate filing of the Defendants’ material bearing in mind the rules, yet simultaneously to maintain a relatively short timetable so as not to jeopardise the Plaintiffs’ position in the scheduled coming into effect of the Promulgation, the matter was set down for mention on 31 January 2008. This was on the basis the Court would consider favourably any application by the Plaintiffs for shortening of time under the rules as the matter progressed.
2.6 On 31 January 2008 the Defendants advised the Court that the Qarase case was listed for hearing 4 March 2008. The Plaintiffs repeated concern at the imminent coming into effect of the Promulgation. The Defendants advised that their material supporting an application for a stay of the present proceedings pending the Qarase case outcome would be served and filed the following day.
2.7 Taking into account all the above, the following orders were made:
3. Application for Strike Out and Stay
The Defendants’ Summons of 1 February 2008, made ‘pursuant to Order 28 and the inherent Jurisdiction of the Court’ sought the following orders:
3.1 High Court Civil Action No. HBC 60 of 2007S is, as earlier noted, the Qarase case. HBC 398 of 2007S is Republic of the Fiji Islands and Attorney-General v. Laisenia Qarase, presently of Mavana Village, Vanuabalavu, Lau, former Prime Minister and Josefa Vosanibola, former Minister for Home Affairs (HCCA No. 398 of 2007S)(Republic and A-G v. Qarase and Vosanibola).
3.2 In support of the Summons, the Defendants relied upon an Affidavit of the Solicitor General (SG’s Affidavit). The Plaintiffs relied upon their original material, including the Affidavit of the General Secretary of the Fiji Posts and Telecommunications Employees Association (General Secretary)(FPTEA) which supported the Plaintiffs’ Originating Summons, and an Affidavit by the General Secretary in response to the SG’s Affidavit (2nd FICTU Affidavit).
3.3 The matter having been raised, so advising the parties I obtained a copy of all the rulings[4] made in the Qarase case as it was upon the basis of the existence and progress of that matter which the Defendants relied in their application and it seemed prudent to me to be aware of those rulings.
3.4 The SG’s Affidavit refers to matters raised in the Qarase case and Republic and A-G v. Qarase and Vosanibola which are the same as or overlap with the matters raised in the present proceeding. The SG’s Affidavit says, amongst other matters:
3.5 The SG’s Affidavit also observes that for costs to be ‘expended in duplicitous proceedings on the same or similar issues’ is ‘not in the public interest’: para 12
4. Law, Facts and Contentions re Strike Out
The general rule is that a claim or cause should be struck out only in ‘the clearest case’ or ‘the plainest and most obvious case’. As Megarry VC said in Gleeson v. J. Wippell & Co Ltd [1977] 1 WLR 510, cited in Thomas and Murti [2005] FJHC 644 and Riches v. Director of Public Prosecutions [1973] 2 All ER 935:
First, there is a well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, [Carl] Zeiss [Stiftung v. Rayner & Keeler Ltd and Ors] No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary: at 518
4.1 The present proceeding is sought to be struck out by the Defendants not under Order 18, rule 18 of the High Court Rules, but by reference to Order 5, Rule 4(2) and in reliance upon inherent jurisdiction.
4.2 Order 5, Rule 4(2) provides:
Proceedings –
(a) in which the sole or principal question at issue is, or is likely to be, one of construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or
(b) in which there is unlikely to be a substantial dispute as of fact,
are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 [summary judgment] or Order 86 [summary judgment as to specific performance, etc] or for any other reason considers the proceedings to be more appropriate to be begun by writ.
4.3 The Defendants say Order 5 Rule 4(2) (b) is relevant as ‘the use of an originating summons is inappropriate on the grounds that there is likely to be a substantial dispute of facts’: Defendants’ Written Submissions, 12 February 2008, p. 3
4.4 Insofar as this aspect is in issue, it appears to me that the Plaintiffs were entitled to choose the Originating Motion process on the basis of the sole or principal question at issue being or likely to be that of (in one sense) ‘construction of an Act’ or at any rate ‘some other question of law’. This is an alternative to (b) – it is not a question of the Plaintiffs’ having to fulfill both requirements of (a) and (b). Further, it may have been considered by the Plaintiffs that there was ‘unlikely to be a substantial dispute as of fact’ for there must be a Parliamentary record showing the history and progress of the Promulgation, and it is to the history of the Promulgation through the Parliament that the Plaintiffs look in their contentions as to its validity. Further, in the second aspect of the history and progress of the Promulgation, insofar as its being made a Promulgation by the President’s hand, it may be their view that the facts of 5 December 2006 would not be disputed, but rather their legal implications, meaning or effect.
4.5 Whatever the case, in accordance with the High Court Rules the Plaintiffs were entitled to commence by way of Originating Summons and not thereby be obliged to have their action struck out. I turn then to inherent jurisdiction.
4.6 On inherent jurisdiction, Halsbury’s Laws of England says:
... the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.[5]
4.7 As to the head of inherent jurisdiction which may be applicable in the present case, ‘to ensure convenience and fairness in legal proceedings’[6] and its expanded scope as per Lacey’s exposition of inherent jurisdiction,[7] appears to be invoked:
(1) Ensuring convenience and fairness in legal proceedings –
4.8 The Defendants make a comparison in the present case with the instance of claims relating to trustees alleged to be in default and to have breached their trust:
Under [the] rule it was, I think open to the plaintiffs to institute these proceedings either by originating summons or by writ; by the terms of the rule the matter is left to the discretion of the plaintiffs, but I desire to say that in my view, clearly, proceedings by beneficiaries against trustees of a contentious nature, charging the trustees with breach of trust or performance of their duties, whether the matters with which the trustees are charged are matters of commission or omission, ought normally to be commenced by way of writ and not by originating summons; for in such proceedings it is most desirable that trustees should now before trial precisely what is being alleged against them. The appropriate form of proceedings therefore, in my view, are proceedings by writ in which what is alleged by the parties are clearly defined in the pleadings, in which the parties can, if they wish, seek further and better particulars of the matters alleged by their opponents, and in which there is full discovery for where allegations of this kind are made against trustees, it is right that they should have available to them the full machinery which exists in the case of proceedings instituted by writ and conducted on pleadings, to discovery precisely what the charges are that are leveled against them: Sir Lindsay Parkinson & Co Ltd’s Trusts Deed (1965) 1 All ER 609, at 610 per Buckley, J.
4.9 The Defendants say that because there are ‘complex issues calling for determination’ there is a need for pleadings rather than Affidavit. As noted, the Defendants rely amongst other matters on what has occurred in the Qarase case. As noted there, due to complexities, including a plethora of Affidavits and answering Affidavits, ultimately it was converted into an action by way of pleadings.
4.10 It seems to me that this is not a case where the proceeding should be struck out as having been commenced through the ‘wrong’ process. As the Defendants themselves acknowledge, there are serious matters here before the Court.
4.11 As to the process, the Plaintiffs had before them a situation that called for expedition and proceeded through the Originating Motion process. This was (as noted) what occurred in the Qarase case and it also occurred earlier in Prasad v. Republic of Fiji [2000] FJHC 121 (15 November 2000).
4.12 In Prasad, as in the Qarase case and the present action, the case related to the status of the Constitution and an interim administration consequent upon political action having been engaged in by various individuals. The Applicant in Prasad claimed he had been affected adversely as a result. The Applicant originally appeared in person, then had the assistance of the Fiji Human Rights Commission and, later, Counsel. The Court there proceeded upon the basis that what was required to advance the proceedings was ‘affidavit material to provide evidence of the acceptance or non-acceptance of the military takeover and of the consequent government’. Time was allowed for this, which the Applicant did, however the Respondents did not, instead filing a summons to strike out the claim. The Court considered it was ‘a constitutional case requiring expeditious treatment in the national interest’: at 2
4.13 In Prasad the High Court adopted the approach taken in Mokotso and Ors v. HM King Moshoeshoe II and Ors [1989] LRD (Const.) 24 where ‘an enabling rather than a technical approach was taken’ in a constitutional case. The Court cited Cullinan CJ where he said:
In this respect I consider that but a technicality precludes the court from conducting the necessary inquiry and that in all the circumstances of this case it is in the interests of justice that this court should be seen to be a court of justice rather than [of] procedure. On that basis therefore I proceed to consider the matter: at 148
4.14 Certainly it requires consideration that the Qarase case has been ‘converted’, however, the ruling that brought about that change was for conversion, not striking out and requiring the parties to begin all over again with a Writ. Such an approach would at least defeat the Plaintiffs’ concern as to the scheduled date of the Promulgation’s coming into effect, and a delay for that reason would not be justified.
4.15 I further observe that as this Court said in Hemant Kumar v. Suresh Kuma and Ors Civil Action No. 33 of 2003, applying Attorney-General v. Shiu Prasad Haika [1972] 18 FLR 210, at 215:
... it is definitely established that jurisdiction to strike out under Order 18 Rule 18 should be very sparingly exercised and only in exceptional cases. It should not be exercised where legal questions of importance and difficulties are raised: per Pathik, J
4.16 The Defendants have, of course, made it clear that they do not rely nor call upon Order 18 Rule 18, however, I consider that strike out under inherent jurisdiction should be equally guided by this principle.
4.17 Where there are serious matters in issue, the role of the Court is to facilitate access to the Courts and to the law, bearing in mind that parties should not bear an onerous burden particularly one that can be alleviated by another process. I can see no reason why, should it be determined that pleadings will better facilitate the hearing of the present action, pleadings should not be ordered at an appropriate stage in the proceeding.
4.18 The strike out application is refused.
5. Application for Stay – Parties’ Positions
Amongst other matters, I observe that section 119 of the Constitution provides:
Each of the High Court, the Court of Appeal and the Supreme Court has the jurisdiction, including the inherent jurisdiction, conferred on it (or, in the case of the Court of Appeal, conferred on the Fiji Court of Appeal) immediately before the Commencement of this Constitution and any further jurisdiction conferred on it by this Constitution or by any written law.
5.1 Under inherent jurisdiction the Court has power to grant a temporary or permanent stay of proceedings. This, it seems to me, falls under the head of inherent jurisdiction to ‘prevent abuse of process’, [8] including:
5.2 In regard to the question of stay in these proceedings, I refer again to and repeat in abbreviated form the passage from Halsbury’s Laws of England as earlier noted:
... inherent jurisdiction of the court is a virile and viable doctrine, ... defined as being the reserve or fund of powers, a residual source of powers, ... the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.[10]
5.3 The Defendants refer to Order 4 Rule 2 which provides the Court with the power to stay:
Where two or more causes or matters are pending, then if it appears to the court –
(a) that some common question of law or facts arises in both or all of them; or
(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or a series of transactions; or
(c) that for some other reason it is desirable to make an order under this rule,
the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them. (Counsel’s emphasise)
5.4 On this, the Defendants confirm they are not applying for consolidation but submit that the Rule should be used to grant a stay. In this, they rely upon some of the principles relevant to consolidation. I refer to this aspect later.
5.5 Substantially the submissions put forward by the Defendants in support of a stay are those upon which they rely for strike out. In reply, the Plaintiffs’ effectively rely upon the matters put by the Defendants to substantiate their own position, which is to stay the coming into effect of the Promulgation.
5.6 Thus, amongst other matters, the 2nd FICTU Affidavit refers to paragraph 10 of the SG’s Affidavit which says:
... if the legality issue is resolved in favour of Mr Qarase [in the Qarase case and Republic and A-G v. Qarase and Vosanibola] it will of necessity determine this action in favour of the Plaintiffs. In the event that the issue of legality determines in favour of the State it may also determine the secondary issues which then would resolve the present action and others which are pending in the High Court.
5.7 In reply, the 2nd FICTU Affidavit posits:
... I admit paragraph 10 of the [SG’s Affidavit] insofar as it describes the general effect of the ruling that will be delivered in the [Qarase case and Republic and A-G v. Qarase and Vosanibola], but otherwise do not admit the contents therein, and add that I am advised and do verily understand that to properly reflect the specific concern of FICTU as disposed in paragraph 4 herein, which it has properly brought before this Court for resolution, the full implementation of the Employment Relations Promulgation 2007 (Promulgation No. 36 of 2007) scheduled for 2 April 2008 ought to be deferred, until the delivery of the [Qarase case and Republic and A-G v. Qarase and Vosanibola] ruling as it will determine the legality or otherwise of the Promulgation, also: para 6
5.8 As to costs, court administration, and duplication of proceedings, the Defendants say:
... it is not in the public interest that costs be expended in [duplicated] proceedings on the same or similar issues. The State has expended a considerable sum of money and resources in moving the said actions. Further costs are likely to be incurred for the trial and submissions. It is obviously also in the judicial administrative interest that the said actions proceed first as a test case, which will undoubtedly address a number of legal and constitutional issues ... presently before the Courts, including this proceeding: SG’s Affidavit, para 12
5.9 In reply, the Plaintiffs’ view is:
... I specifically do not admit paragraph 12 of the [SG’s Affidavit] and add that this is a constitutional case of fundamental importance to FICTU and its members and to the people of Fiji in relation to the power to make laws that govern them which is properly the issue of public interest ... before this Court, and which overrides any concerns raised by the State herein: 2nd FICTU Affidavit, para 8
5.10 In regard to the totality of the matter, the Defendants sum up:
... in view of the circumstances and to avoid the difficulties and delays experienced in the said actions, I pray for the orders in terms of the Summons filed herein: SG’s Affidavit, para 13
5.11 The Plaintiffs say:
... I do not admit paragraph 13 of the [SG’s Affidavit] and humbly pray that the orders sought in the Defendants Summons be dismissed in their entirety.
Alternatively, the Plaintiffs pray that Order iii in the Defendants Summons be amended to reflect that the full implementation of the Employment Relations Promulgation 2007 (Promulgation No. 36 of 2007) be also stayed pending the determination of High Court Civil Action Numbers HBC 60 of 2007S and HBC 398 of 2007S [the Qarase case and Republic and A-G v. Qarase and Vosanibola]: 2nd FICTU Affidavit paras 9, 10
5.12 For clarity, the Order referred to as sought in the Defendants’ Summons (set out earlier) provides:
iii. Further and/or in the alternative that the present action be stayed pending the hearing and determination of the High Court Civil Action Numbers HBC 60 of 2007S and HBC 398 of 2007S.
5.13 As noted, the Defendants referred the Court to principles relating to consolidation under Order 4, Rule 2 of the High Court Rules as providing guidance on the grant of a stay. Here, they refer to Horwood v. British Statesman Publishing Co Ltd (1929) where Sanky LJ said:
Actions may be consolidated where the plaintiffs are the same and the defendants are the same, or where the plaintiffs of defendants are different: at 59
5.14 Saying that the issues in the Qarase case and ‘to a great extent [the] Plaintiffs’ action will have to relate back to the events from 5th December 2006 and the legality of the current government. They will both cover to a great extent identical matters’, the Defendants rely also upon the ‘White Book’:
The whole of a transaction or series of transactions need not be implicated in the relief sought by each plaintiff ‘where the investigation would to a great extent be identical’ (see per Fletcher Moulton LJ, in Markt & Co v. Knight Steamship [1910] UKLawRpKQB 126; [1910] 2 KB 1021; and see Stroud v. Lawson [1898] 2 QB 54) The ‘relief’ in respect of which parties may be joined must be relief arising out of the same set of circumstances (see per Swinfen Eady MR, in Re Beck) or circumstances involving a common question of law or fact (see Thomas v. Moore); see also Green v. Berliner [1936] 2 KB 477 (claim by common informer). The rule should be construed in a liberal sense (see per Swinfen Eady MR, in Re Beck (1918) 87 LJ Ch 335; Payne v. British Time Recorder Co [1921] 2 KB 1.
5.15 They refer also to the principle that a stay may apply to part of proceedings only, so that the part or parts remaining continue. Additionally, they acknowledge that a stay ‘may be lifted on proper grounds being shown, Cooper v. Williams [1963] 2 QB 567: Defendants’ Written Submissions, pp. 7-8
5.16 The Defendants do not seek a stay ‘generally or for an unreasonably long time’. Rather they look to the Court’s inherent jurisdiction to adjourn proceedings for a stated time.[11] They also look to such a stay as relating to the whole of the Plaintiffs’ action, for ‘it is not possible to isolate the issues and reliefs sought for a proper determination of the matter’: Defendants’ Written Submissions, pp. 7-8
5.17 The Defendants’ position is that the Qarase case ‘is a test case’ so that the Plaintiffs’ action should be stayed pending its outcome:
The [Qarase case] is set for hearing on 4th March 2008. It is anticipated that the hearing would be concluded within a matter of weeks of hearing. No violence will be done to the above principles if this action is stayed until the determination of the two consolidated actions set for hearing on 4th March 2008. The parties can be given liberty to restore the matter to the list after the decision in those matters: Defendants’ Written Submissions, p. 9
5.18 As to this, however, the Plaintiffs respond:
... I am advised and do verily understand that even if the hearing of Civil Action No HBC 60 of 2007 (the [Qarase case]) were to commence on 4 March and to subsist for 2 weeks, as deposed, there is no guarantee that a ruling will be delivered prior to the 2nd of April 2008 on which date the Employment Relations Promulgation 2007 (Promulgation No. 36 of 2007) will fully come into force for which an injunctive order has been sought specifically by FICTU and its members, against [the Promulgation’s coming into force] ...: 2nd FICTU Affidavit, para 4
6. Grant of Stay – The Law
Observing that inherent jurisdiction enables the Court to stay the whole or any part of the proceedings, the ‘White Book’ goes on to point out that the ‘Circumstances in which a stay may be appropriate are many and various ...’[12] In the present proceedings, in considering this question, I have taken into account principles which may generally be given regard in considering grant of a stay.
6.1 Both parties are in agreement that there is an arguable case here or a serious issue to be tried. There is no dispute about that. Insofar as whether a temporary stay (which is what is sought, rather than a permanent stay) it seems to me relevant to consider whether such a stay, if taken to negatively affect the parties against which it is sought, can be remedied (if granted) by an award of damages should the Plaintiffs succeed in their action when ultimately heard. I have considered also the balance of convenience. Each of these is, it seems to me, properly to be addressed in consideration of the present application.
6.2 This is not a case where any damages are sought. The Originating Summons seeks various declarations as to the Promulgation going to its validity or (un)lawfulness, an injunction restraining the implementation of the Promulgation, and orders for withdrawal of the Promulgation and its being (re)made ‘strictly in compliance with Chapter 6, Part 1 of the Constitution’. There is a further category of ‘Such further or other relief as this Court shall deem just’ (along with costs). However, the proceeding does not lend itself to damages at least in the way it is presented by the parties at this stage.
6.3 The question then becomes one of the balance of convenience.
6.4 The submissions of the parties already outlined go to this question. Amongst other matters there is the issue of duplication of proceedings or part thereof, or at least an agitation of substantive issues which are already being agitated elsewhere in the context of the Qarase case and Republic and A-G v. Qarase and Vosanibola. There is the question of cost and administrative duplication, as illustrated in one respect by the annexure to the SG’s Affidavit being a ‘List of Affidavits Filed in HBC 60 of 2007 & 398 of 2007 [the Qarase case and Republic and A-G v. Qarase and Vosanibola]’: Annexure ‘CTP 6’ The Defendants say that there will be ‘no irreparable damage’ to the Plaintiffs in granting a stay, for the Promulgation ‘would have gone through anyway’ had the events of 5 December 2006 not occurred. The Defendants also drew attention to particular provisions of the Promulgation wherein, say the Defendants, particular benefits are provided to workers through its provisions, including (as listed by the Defendants as examples), sections 24, 31, 32, 33, 43, Part 7 – holidays, and section 75 – discrimination and sexual harassment, Part 10 – child labour, Part 11 – maternity leave (which was said to carry possible negative outcomes for employers along with the benefits to employees), Part 12 – redundancy payments, Part 14 – ‘regularisation of trade unions and recognition’. It was also said that the Promulgation conforms to International Labor Organisation (ILO) standards and requirements. All this, it was said, means that the coming into effect of the Promulgation will not impact poorly upon the Plaintiffs’ constituency or members.
6.5 For the Plaintiffs it is said that the Constitutional issue has to be determined and the Promulgation’s status must be determined. Counsel for the Plaintiffs posed: ‘Do the issues in the Qarase case [and Republic and A-G v. Qarase and Vosanibola] touch on the matters in this proceeding?’ It is ‘speculative’ said Counsel for the Plaintiffs, ‘whether the Qarase case [and Republic and A-G v. Qarase and Vosanibola] will finally resolve or assist in the determination of the issues here’. Other issues that may impact upon the position for the Plaintiffs is that if the Promulgation comes into force, does this mean that workers and unions are obliged to conform to the provisions of a law which they see or may see as unlawful? Would this give rise to the possibilities of civil disobedience or at least the need for employees to exercise their conscience about whether or not they will abide by the law, a position in which employees ought not to be? What of the position of the Plaintiffs as union organisations: should they as unions be obliged to address the question of conscience as to whether or not to conform to laws which they consider, or may consider to be unlawful?
6.6 A Canadian case – perhaps, surprisingly, relating ultimately to a motor vehicle accident – is most helpful on the issue in point. The Supreme Court of Nova Scotia in Renick v. Steeves, 2007 NSSC 359 (SH 274038, 16 October 2007, Halifax Registry) dealt with an issue which procedurally was much akin to the present matter.
6.7 The Attorney General in that case applied for an order directing constitutional issues be ‘case managed’ and that determination of the constitutional issues arising in it be temporarily stayed ‘pending developments in a test case’: para [1]
6.8 Although it may be lengthy, it assists to set out the background in this case for it illustrates clearly the reason for the Court’s determination and, as noted, there are similarities providing assistance in the present proceeding.
6.9 In November 2003, the Plaintiffs (the Renicks) were involved in a motor vehicle accident. They claimed injuries, commencing action against the Defendants (Mr Steeves and Atlantic Rentals Ltd (Atlantic Rentals)). Mr Steeves and Atlantic Rentals denied liability, pleading ‘minor injury’ provisions of the Insurance Act, RSNS 1989, c. 321 (a ‘cap’ on tortuous recovery). In May 2007 the Renicks filed and served upon the Attorney General ‘notice of a constitutional question pursuant to section 10 of the Constitutional Questions Act, RSNS 1989, c. 89. Therein, the Renicks indicated their intention to challenge the Constitutional validity of the tort recovery ‘cap’ provisions of the Insurance Act on which Mr Steeves and Atlantic Rentals relied. The Court observed:
There are currently approximately 25 cases in which the Attorney General has been served with notices challenging the constitutionality of the ‘cap’ provisions. One such case, Hartling v. Nova Scotia (Attorney General), SH 236705 (the Hartling case) is being treated as a ‘test case’ an order providing for case management of that file has been issued, and the first meeting among the Judge and Counsel is scheduled approximately a week after hearing of this application. Counsel in many, if not all, of the other pending cases challenging the constitutionality of the Insurance Act have consented to having their actions stayed, and have agreed to participate in case management of the Hartling test case: para [3]
6.10 The Renicks supported the Attorney General’s motion to have the constitutional issue in their case ‘case managed’ together with the other actions, by the Judge managing the Hartling case. They agreed also to having determination of that issue stayed pending developments in the test case. However, the Defendants:
... resist the motion, claiming that the Attorney General lacks standing, that he has not established sufficient prejudice to warrant interfering with the Defendants’ right to have the matter promptly adjudicated, and that he has not provided justification under the Court’s inherent jurisdiction or its powers pursuant to the Judicature Act, RSNS 1989, c. 240 to force the Defendants into case management: para [4]
6.11 The issue of standing does not arise here. However, effectively the issue of ‘case management’ is directly in point, albeit there is no issue of ‘managing’ the present proceeding (as in ‘case management’ referred to in Renick v. Steeves) directly with the other matters in issue – namely, the Qarase case and Republic and A-G v. Qarase and Vosanibola.
6.12 The Constitutional issues in Renick v. Steeves included ‘the issue of ultra vires Regulations outside the scope of the Insurance Act’. Recognising the right of the Defendants to seek to ‘opt out’ – or any other party who might make a future application - case management was ordered because ‘at this time resolution of the serious differences among the parties about how this case should go forward requires judicial input’. It was determined, therefore, that the Judge directing the conduct of all the other cases addressing the constitutional issues should also manage Renick v. Steeves:
The case management Judge will determine in due course whether he addresses this case as part of a group as contemplated by the Attorney General, or the Defendants may be able to convince him that the file warrants stand-alone management. Once case management in the Hartling case commences, the Judge will be better able to consider the extent to which the constitutional issues raised in this case overlap with those in Hartling, and address whether further steps in this case should be advanced in conjunction with Hartling, independently from that case, or held in abeyance pending resolution of the constitutional issues in Hartling: para [5].
6.13 As noted, ‘case management’ is not suggested in the present matter in the way it is conducted under the rules applied in Renick v. Steeves. However, what is effectively being suggested by the Defendants in the present proceeding is that the Plaintiffs’ case be ‘case managed’ by the grant of a stay pending the outcome of the Qarase case and Republic and A-G v. Qarase and Vosanibola, in light of the constitutional matters therein arising which they say are ‘on all fours’ or at least so closely aligned as to require the stay.
6.14 In Renick v. Steeves, the Attorney General requested an order that the constitutional issues in that case be temporarily stayed, subject to any further case management order, pending resolution of the Hartling case. On this issue, the Court said:
Notwithstanding any agreements which may have been reached among the parties in other cases, and I do not want to interfere with those, I believe there is an inconsistency between ordering that there be a stay of all proceedings with respect to the constitutional issues, and also directing parties to participate in case management of those issues. So I am not going to grant the order in the terms requested: para 12
6.15 The Court went on to express agreement with the principle advanced by the Attorney General and the Renicks that a test case should go forward ‘in the context of the constitutional issues ... developing in [Renick v. Steeves], the Hartling case, and others ... made subject to case management’:
I am satisfied, based on what is before me, given the number of claims and the complexity of the constitution issue which will arise and be repeated in each case, that it is appropriate to advance the test case. Based on what is known to me at this time, it would not be in the interest of the administration of justice to move each case forward separately. They involve different parties and different facts, but all arise from a common fact situation to the extent at least that they involve motor vehicle accidents. At issue in each case will be the constitutionality of a single piece of litigation: para 13
6.16 However, notwithstanding the Court’s power to grant a stay or similar order directing how the matter should proceed, the Court went on:
The immediate issue is whether this case should be scheduled for trial – the Defendant is anxious to do so, while the Plaintiffs and Attorney General do not want it to proceed in advance of the test case. During the next few weeks, the case management Judge will likely be addressing issues involving scheduling and the extent to which the Attorney General will participate. I am satisfied that this case should not proceed to trial at this time, but the case management Judge who will be apprised of all circumstances may have a different view, and I am not going to pre-empt his role.
In order to allow Hartling case management to begin and the Judge to assess the degree of commonality with this case, I direct that no steps be taken during the 90 days following this hearing to set constitutional issues in this case for trial. Adjudication of the constitutional issues will be in abeyance until the case management procedure develops: paras 15, 16.
6.17 The rationale for the 90 day period was that in the Court’s view it was ‘not unfair to the Defendants’ in light of all the facts of the case: the accident in issue ‘happened several years ago, and litigation was proceeding slowly even before notice was given concerning the constitutional issue’. The Court pointed out:
I am not granting the more complete stay of the constitutional issue requested by the Attorney General, nor am I limiting activity concerning issues other than constitutional. In prescribing case management, and directing that no steps be taken during a 90-day period to set the constitutional issues for trial, it is my intention to defer the request for a more comprehensive stay pending developments in case management, and not to finally dismiss the Attorney General’s stay application so that it would be res judicata.
The order I will issue will not preclude any party from applying to the case management Judge or some other Judge to seek an extension of the 90-day time period, or to request a broader or more comprehensive stay of proceedings: paras [17], [18]
6.18 There are, of course, significant differences between the situation in Renick v. Steeves and the present case, most particularly the two key issues, namely that:
6.19 The guidance I take from Renick v. Steeves is, however, both practical and comprehending of the need to ensure so far as possible that the concerns of both Defendants and Plaintiffs are properly met in a way that is fairest and consistent with the Plaintiffs’ right to a hearing as soon as possible, consistent as far as possible with their concerns, and that it is properly and fairly comprehending of matters raised by the Defendants.
6.20 Therefore, at the present time I will not grant the stay sought by the Defendants. I will, however, set a timetable that allows for a period during which the position as to the Qarase case and Republic and A-G v. Qarase and Vosanibola becomes clearer, particularly vis-à-vis its timetable, the projected ending of the hearing, and the period that may be anticipated before judgment. This timetable will be set also bearing in mind the Plaintiffs’ concerns about time.
6.21 In not granting the stay, however, I will preserve the right of the Defendants to renew their application in the future protected against an argument that in so doing they are seeking to re-agitate a matter already aired before this Court. That is, just as in Renick v. Steeves, the argument of res judicata should not apply. Any such application would, however, be dictated by the outcome of ‘case management’ applicable here: namely, the way in which the Qarase case and Republic and A-G v. Qarase and Vosanibola prove to proceed or advance. The history as set out in the Defendants’ material does indicate a somewhat lengthy history in that the matter was set down for hearing as I believe in October 2007 however procedural matters and issues as raised by one or other of the parties has led to the matter’s going through various steps until its setting down for 4 March 2008. Although it is intended, as I understand it, for the matter to proceed on that date and would assist in the present case, it is not possible to determine (at least) the date judgment might be expected.
6.22 Insofar as the process is concerned, I am persuaded that the would be an advantage to the parties as well as to the Court in providing pleadings. In saying this, I do not suggest that all the steps necessary in a case generally begun with pleadings will be necessary. However, a Statement of Claim, Defence and Reply (if the latter is required) would assist the proceedings and cut down on the difficulties encountered in the Qarase case and, it is understood as may have also ultimately been so in Prasad.
6.23 Bearing in mind the time factor, however, along with the notice given all through these proceedings as to the readiness of the Court to abridge time if that proved necessary and in all the circumstances fair, a relatively short timetable needs to be set and adhered to. This is essential because of the time factor and because I have not granted the Plaintiffs the stay they seek in response to the application made by the Defendants and dealt with herein.
7. Additional Matter
Under inherent jurisdiction, the categories of ‘stay’ refer to ‘proceedings’.[13] The authorities on ‘stay’ and ‘injunctions’ vis-à-vis decisions made by Ministers and public authorities have utilised (or denied the right to utilise) ‘stay’ by application of the principles applying to ‘stay’ vis-à-vis proceedings. I say ‘have utilised’ or ‘denied the right to utilise’ because there is a difference of opinion elsewhere on the power of courts to stay executive decisions. In R. v. Secretary of State for Education and Science; Ex parte Avon County Council [1991] 1 All ER 282 it was considered that a stay in such circumstances could be granted, whilst in Minister of Foreign Affairs Trade and Industry v. Vehicles and Supplies Limited [1991] 4 All ER 65 it was held that there was no scope for staying an executive decision already taken.
7.1 Just as there is a difference of opinion in other jurisdictions and reflected in academic texts on the question whether a court has power to stay an executive decision already made, there is such a difference of authority in this Court: see for example State v. Public Service Appeals Board; Ex parte Karan [2002] FJHC 138 (23 July 2002), itself relying upon an opinion of the Privy Council, per Lord Oliver of Aylmerton, in Minister for Foreign Affairs, Trade and Industry v. Vehicle and Supplies Ltd (1991) 1 WLR 550, at 556; and The State v. Public Service Commission; Ex parte Epeli Lagiloa (1994) 40 FLR 237.
7.2 This difference has arisen in other cases in this Court, and I have discussed the matter in Savita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji HBJ No. 02 of 2008 (11 February 2008).
7.3 In these cases, there was no question about the constitutional status of the decision as is raised in the present matter. The focus was simply upon the Court’s power, as noted, to stay an executive decision. The Plaintiffs in the present matter may consider that this judicial dispute has no relevance to their claim, which is based in the constitutionality or otherwise of the Promulgation and the Defendants’ role in this.
7.4 However, because this is a matter of importance with regard to the Court’s power and the staying of executive decisions, should the Plaintiffs ultimately consider it has a relevance to the present claim then I would be prepared to entertain argument on the matter within the timetable set for pleadings.
8. Conclusion
Taking all the above matters into account, including the Affidavits filed and Written Submissions along with the oral submissions made before the Court, I consider that the stage has not been reached where a temporary stay, pending finalisation of the Qarase case and Republic and A-G v. Qarase and Vosanibola, should be granted. Nor is it my view that the present proceeding should be struck out by reason of its commencing by Originating Summons. However, I do consider it is appropriate for pleadings to be provided in this case to assist the Court and, ultimately in my view, the parties.
8.1 It is important, in light of the scheduled coming into effect of the Promulgation on 2 April 2008 that a tight timetable be maintained to stay abreast of the progress of the Qarase case and Republic and A-G v. Qarase and Vosanibola. This is intended to ensure that as far as possible the concerns of the Plaintiffs will be kept in firm view by the Court so as to endeavour to provide an accommodation of the concerns and issues raised on both sides.
8.2 At the same time, this determination is not to be taken as preventing the Defendants making further application for a stay at some time in future, albeit bearing in mind the timetable set by this Court and the way that matters proceed.
Orders
Jocelynne A. Scutt
Judge
Suva
18 February 2008
[1] Throughout this judgment for ease of facilitation the Plaintiffs in the substantive action are referred to as ‘the Plaintiffs’,
albeit they are Respondents to the Defendants’ application herein for strike out and stay.
[2] Throughout this judgment similarly the Defendants in the substantive action are referred to as ‘the Defendants’, albeit
they are the Applicants in the application for strike out and stay herein.
[3] The file came before me for the first time on 3 January 2008, when I directed that the action should issue and be set down for a
short hearing to set a timetable for the matter to proceed. The first available date was 16 January 2008.
[4] Some such were annexured to the SG’s Affidavit.
[5] Halsbury’s Laws of England, 4th edn, Butterworths, London, England; also Isaac H. Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23, 51.
[6] Keith Mason, ‘The Inherent Jurisdiction of the Court’ (1983) 57 Queensland Law Journal 449.
[7] Wendy Lacey, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees Under Chapter III of the Constitution’ (2003) Federal Law Review, http://www.auslitt.edu.au/au/journals/FedLRev/2003/2.html, pp. 1-32 (accessed 31 January 2008).
[8] Mason, ‘The Inherent Jurisdiction’ (1983).
[9] Here I have not set out all the bases upon which a stay might be granted in a particular case, only those which may be or may be
argued to be relevant in the present matter. On further bases for stay and generally on inherent jurisdiction, see Lacey, ‘Inherent
Jurisdiction, Judicial Power’ (2003). Note – this article relates to the Australian Constitution however is nonetheless
relevant on the general question of inherent jurisdiction.
[10] Halsbury’s Laws, 4th edn; also Jacob, ‘The Inherent Jurisdiction’ (1970).
[11] Citing Robertson v. Cilia [1956] 1 WLR 1502; also Birmingham etc Building Society v. Caunt [1962] Ch 883; Hinckley etc v. Society of Freeman (1941) Ch 32.
[12] Civil Procedure, Vol. 1, ‘The White Book Service’, 2005, Thomson Regulatory/Sweet & Maxwell, p. 75.
[13] See Lacey, ‘Inherent Jurisdiction, Judicial Power’ (2003).
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2008/142.html