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Lolohea v Pacific Immigration Director's Conference (PIDC) [2010] FJHC 616; HBC13.2010 (19 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 13 OF 2010

BETWEEN:

VILIAME LOLOHEA
PLAINTIFF

AND:

PACIFIC IMMIGRATION DIRECTORS' CONFERENCE (PIDC)
FIRST DEFENDANT

AND:

AUSTRALIAN HIGH COMMISSION
DAVID STEWART
SUSAN PULLAR
SECOND DEFENDANTS

AND:

ATTORNEY-GENERAL
APPLICANT/INTERVENER

MR G O'Driscoll for the Plaintiff
Mr S Banuve for the First and Second Defendants
Ms S Levaci with Ms G Hughes for the Applicant

DECISION

I have before me two interlocutory applications. The first application was by way of summons filed by the First and Second Defendants seeking an order that the Writ be struck out. The second application was by way of Notice of Motion filed by the Attorney-General seeking an order that the Attorney-General be joined and also an order that the Writ be struck out.

Both applications were dealt with on the same day. Counsel agreed that it would be appropriate to determine the joinder application first.

The Notice of Motion was filed on 17 February 2010. The application was made pursuant to Order 15 Rule 6 (2) (b) and was supported by an affidavit sworn by Solo Mara on 16 February 2010. At an early stage in the hearing of the application Counsel for the parties indicated to the Court that the application was not opposed. I therefore ordered that the Attorney-General be joined as a Third Defendant in the proceedings.

The striking out application by the First and Second Defendant was by summons filed on 16 February 2010. The application sought the following orders:

"1. That the Plaintiff's Writ of Summons dated 10th January 2010 be struck out against the First Defendant and the Second Defendants as:

(a) the First Defendant is not a legal entity

(b) the Minister for Foreign Affairs of Australia has asserted foreign state immunity on behalf of the Australian High Commission as a representative of the Commonwealth of Australia, and has asserted diplomatic immunity on behalf of David Stewart and Susan Pullar, with diplomatic agents who have been accredited to the Australian High Commission

(c) that the Second Defendants are immune from suit pursuant to the Diplomatic Privileges and Immunities Act Cap 8."

The application was made under Order 18 Rule 18 (1) (a) which states:

"The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action ... on the ground that:

(a) it discloses no reasonable cause of action ...."

Order 18 Rule 18 (2) provides that no evidence shall be admissible in such an application. As a result there was no supporting affidavit material. However, the application was also made pursuant to the inherent jurisdiction of the Court and there is authority for the view that when made under this ground, the applicant may file supporting affidavit material (see the Supreme Court Practice 1991 Volume 1 paragraph 18/19/2).

The Attorney-General's application was in these terms:

"The Writ of Summons and the indorsed Statement of Claim be struck out on the basis that it:

(i) discloses no reasonable cause of action;

(ii) Application is frivolous and vexatious;

(iii) Otherwise is an abuse of process of the Court."

The application is made under Order 18 (Rule 18) (1) (a) and (d) and under the inherent jurisdiction of the Court. Ground (II) as worded appears to be inapplicable and makes no sense.

The affidavit sworn by Solo Mara (supra) also provides supporting material in respect of this application. A supplementary affidavit also sworn by Solo Mara on 25 February 2010 was filed by the Attorney-General.

The Plaintiff opposed the application and filed an answering affidavit sworn by Miliana Ofakitoga on 12 March 2010.

The Attorney-General filed a reply affidavit sworn by Solo Mara on 19 March 2010. The First and Second Defendants filed a reply affidavit sworn by Kim Lamb on 26 March 2010.

The Writ was filed on behalf of the Plaintiff on 19 January 2010. Filed with the Writ was the Plaintiff's Statement of Claim. The documents were served on the Defendants on 19 January 2010.

The claim by the Plaintiff is essentially a claim for constructive dismissal. At common law this must be regarded as a form of wrongful dismissal. The Plaintiff seeks relief in the form of declarations and damages for his constructive dismissal.

The striking out applications brought by the Defendants and the Attorney-General are concerned with the status of both the First and Second Defendants. It is submitted that the claim against the First Defendant cannot succeed because it is not a legal person. It is submitted that claim against the Second Defendants cannot succeed on account of diplomatic immunity.

In his Statement of Claim the Plaintiff pleads in paragraph 2 that:

"The first Defendant, the Pacific Immigration Directors Conference, its Chairman and Board (the PIDC) was established to promote the consultation and co-operation among immigration agencies within the Pacific region, including Australia."

However on the front of the Writ, the First Defendant is named as Pacific Immigration Directors Conference (PIDC)

"a Forum for Heads of Immigration Services of Countries and Territories in the Region supported by a Secretarial and co-located with the Pacific Islands Forum Secretariat at Ratu Sukuna Road, Suva Fiji Islands."

From the above, a number of matters are clear. First, the Plaintiff has not pleaded that the PIDC is a body corporate or has acquired the right to sue or be sued in that name. Secondly, although reference is made in paragraph 2 of the Statement of Claim to the Chairman and the Board, they are not named or identified as Defendants. The only party named in the title of the action as first Defendant is the PIDC.

The status of the First Defendant is similar to that described by the High Court of Australia in Cameron v. Hogan [1934] HCA 24; (1934) 51 C.L.R 358 at page 370:

"... (voluntary Associations) are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character; or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis...."

There is no material in the pleadings to indicate that PIDC is a legal person. It has no existence apart from its members. This point is re-enforced by the pleading in paragraph 7 of the Statement of Claim which states that the PIDC Board required the Plaintiff to enter into a written employment agreement with the Australian High Commission.

The Plaintiff could possibly have proceeded by way of representative proceedings under Order 15 Rule 14. Under that Rule where numerous persons have the same interest in proceedings such as the present, the proceedings may be commenced and continued against any one or more of them as representing all of them. In this case, however, the Plaintiff has not named as a Defendant any member or members of PIDC as representative of all the members of PIDC.

Under Order 6 Rule 3 it is a requirement that where a defendant is sued in a representative capacity, the writ must be indorsed with a statement of the capacity in which he is sued. The representative capacity of the defendant or defendants ought also to be stated in the title of the writ and of the statement of claim. The same information should also be stated in the body of the Statement of Claim and in the relief claimed.

The purpose of this Rule was clearly stated at paragraph 15/12/11 of the 1991 Edition of the Supreme Court Practice Volume 1 as:

"Where a plaintiff desires in a suitable case to sue any combination of persons under a title purporting to be the name of a society, or club, or association (not being a registered society or a partnership firm) it is the practice to allow him to sue two or more members thereof by their names with the added statement that they are "sued on their own behalf and on behalf of all other members of the (PIDC)".

In this case neither the writ nor the statement of claim comply with the Rules in so far as the First Defendant is concerned. The First Defendant is not pleaded as a body corporate and is therefore not a legal person capable of suing or being sued. The Chairman and the Board are not named and nor is there any pleading to indicate that the Plaintiff is proceeding against them as representative of all the members of PIDC.

The second ground of the application concerns the issue of diplomatic immunity. There are two aspects to this ground. In relation to the First Defendant, the application may be viewed as being concerned with privileges and immunities which are extended to an international organization. In relation to the Second Defendants the application may be viewed as being concerned with immunity when a sovereign state or its representatives are sued in a domestic court of another state.

This case is about a dispute under a contract of employment made on 20 November 2007 between the Australian High Commission and the Plaintiff. The First Defendant selected the Plaintiff for the appointment and the two individuals named with the Australian High Commission as Second Defendants were both employed at the Australian High Commission in its Department of Immigration and Citizenship. The position to which the Plaintiff was appointed was known as "Head of Secretariat to the Pacific Immigration Directors' Conference. The dispute arose as a result of what the Plaintiff claimed was meant to be a performance interview on 3 October 2008.

It is claimed by the Plaintiff that both the style and the substance of the interview constituted an employment grievance. The Plaintiff took special leave and then returned to work. His contract was subsequently extended for short periods. As a result of what he considered to be the inappropriate handling of his grievance by the Australian High Commission, the Plaintiff formally resigned on 17 September 2009 and hence his claim for wrongful dismissal in the form of constructive dismissal.

In relation to the First Defendant's position, it is not necessary for me to consider whether there was any treaty or agreement as the potential source of immunity. I accept the uncontradicted material in paragraph 2 of the affidavit of Kim Lamb sworn on 26 March 2010. That paragraph states:

"That the First Defendant is not a legal entity but a conference for the heads of immigration agencies in the region and is co-funded by the Government of Australia ... and its Head of Secretariat is employed as a locally engaged staff through the Australian High Commission and whose performance is supervised by the (Department of Immigration and Citizenship) Regional Directors South Pacific in consultation with the PIDC Chair and Board members".

In relation to the claim for wrongful dismissal, in so far as it is made against the First Defendant, I have concluded that the First Defendant was improperly named and/or joined in the Writ and the Statement of Claim is set aside against it.

In relation to the first named Second Defendant, the position is clearly stated in "The Law of State Immunity" by Hazel Fox QC at page 13:

"Once satisfied that the defendant is a foreign state, the forum court will dismiss the proceedings, unless satisfied that the foreign state has waived its immunity or that the proceedings fall within an exception to State immunity". (Oxford University Press, 2002).

The principle behind this practice was stated in paragraph 1548 of Volume 18 of Halsbury's Laws of England (4th Edition) as:

"An independent sovereign state may not be sued in the ... courts against its will and without its consent. This immunity from the jurisdiction is derived from the rules of international law, which in this respect have become part of the law .... It is accorded on the grounds that the exercise of jurisdiction would be incompatible with the dignity and independence of any superior authority enjoyed by every sovereign state. The principle involved is not founded upon any technical rules of law, but upon broad considerations of public policy, international law and comity."

In the absence of applicable domestic legislation dealing with this type of immunity, it is to the common law that the Court must turn for guidance on the application of this accepted doctrine of international law.

I find that it is not necessary for me to determine whether the principle is absolute in its application or whether it has a restricted or limited application. Even if the limited application line of authorities is accepted, I am satisfied that the present case still falls within the doctrine of sovereign immunity. In reaching this conclusion I am assisted by the comments of Brown-Wilkinson J in Sengupta v. Republic of India [1983] I.C.R 221 where at page 227 it was noted:

"There may be cases, particularly in relation to contracts of employment, where the performance of the contract is itself part of the performance by the State of an essentially public or sovereign act. In my view it is necessary in each case to look at what is to be done under the contract in order to decide whether the entry into, and the performance of, that contract is a private act of the State or involves a necessary participation by the other contracting party in a public act of the State."

It is quite apparent that the contract entered into between the Plaintiff and the Australian High Commission involved the participation by the Plaintiff in a public act of the State. The appointment of the Plaintiff to act as head of the Secretariat to the Pacific Immigration Directors' Conference which had been established to promote consultation and co-operation among immigration agencies in the Pacific region (including Australia) is to involve the participation of the Plaintiff in a public act of the State. It is clearly outside of the usual type of private contract of employment between employer and employee. It is, on the other hand, closely related to the exercise of a sovereign function, the issue of immigration within the region that includes Australia.

The principle of sovereign immunity is a sufficient bar to the claim against the Australian High Commission which is named as a Second Defendant. I am satisfied that a reference to the Australian High Commission is, in international law, equivalent to a reference to "the Commonwealth of Australia", "Australia" or the "Australian Government". I am also satisfied that as at the commencement of these proceedings when the jurisdiction of this Court was invoked the High Commission had not waived its sovereign immunity.

There are two other persons named as Second Defendants and their position is determined by the different issue of diplomatic immunity.

The question of diplomatic immunity is dealt with in the Diplomatic Privileges and Immunities Act Cap 8 (the Act) which incorporates into the laws of Fiji the provisions of Articles 1, 22 and 24 inclusive, and 27 to 40 inclusive of the Vienna Convention on Diplomatic Relations (the Convention) (see section 3(1)).

Article 31 of the Convention provides (with three exceptions that are not relevant in this case) that:

"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction

and

2. A diplomatic agent is not obliged to give evidence as a witness."

In Article 1 the term "diplomatic agent" is defined as:

"the head of the mission or a member of the diplomatic staff of the mission."

Having read the affidavit of Kim Lam sworn on 26 March 2010 I am satisfied that the two persons named as Second Defendants were members of the diplomatic staff of the Australian High Commission and were therefore diplomatic agents for the purposes of Article 31.

Article 32 of the Convention is the "waiver" article. So far as is relevant it provides:

"1. The immunity from jurisdiction of diplomatic agents ... may be waived by the sending State

2. Waiver must always be expressed

3. ....

4. Waiver of immunity from jurisdiction in respect of civil proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary."

In addition, section 3 (6) (d) of the Act states:

"the reference in Article 32 to waiver by the sending State shall be construed as including a waiver by the head of the mission of the sending state or by a person for the time being performing the function of the head of mission."

As a result, in the absence of an express waiver, the two named Second Defendants are entitled to claim and are immune from the civil jurisdiction of this court. I do not consider that any actions on the part of either of them during the course of their dealings with the Plaintiff constitute an express waiver.

So as to put the issue beyond doubt, the affidavit sworn by Kim Lamb on 26 March 2010 exhibited Note No. 39 of 2010 dated 25 March 2010 which stated in the second paragraph that:

"The Australian High Commission has the honour to advise that the Minister of Foreign Affairs of Australia has decided to assert sovereign immunity and diplomatic immunity on behalf of David Stewart and Susan Pullar in Civil Action No. 13 of 2010 in the matter of Lolohea –v- the Australian High Commission, David Stewart and Susan Pullar (second defendants)... ."

In keeping with the accepted view, the issue of waiver has been clearly put to rest when the Court was "about or was being asked to exercise jurisdiction" (see Mighell v. Sultan of Johore [1893] UKLawRpKQB 198; (1894) 1 QB 149).

I have no hesitation in concluding that, in the absence of an express waiver given to the Court by the Australian High Commission, as a sovereign State, the two named second defendants are immune from the civil jurisdiction of this Court. As a result they are improperly named and/or joined in these proceedings which must be and are hereby set aside against them.

As a result the applications are granted. I make the following orders:

1. The Attorney-General is given leave to be joined as a party to the Action pursuant to Order 15 Rule 6 (2) (b).
   
2. The First Defendant and the Second Defendants have been improperly named and/or joined as parties to the Action and accordingly the Statement of Claim against each of them is struck out.
   
3. The Plaintiff is to pay the costs of these applications which I fix summarily in the sum of $600.00, half of which is to be paid to the Second Defendants and half of which is to be paid to the Office of the Attorney-General.
   

W D Calanchini
JUDGE

19 July 2010
At Suva