High Court of Fiji

23. Plaintiff’s claim rests on failure to call a Staff Review Committee regarding petition made by thirteen academic staff of the School where Plaintiff was the head.
    
24. The Plaintiff’s claim against both Defendants made at paragraph 12 as follows -
    

“THAT the Defendants did not call for Staff Review Committee or any other enquiry committee to investigate the performance issue of the Plaintiff nor did they call the 13 petitioning staff to provide evidence of the Plaintiffs work ethics and his performance as Head of School or his behaviour with other teaching staff.”

25. What is important in determining jurisdiction of visitor is not whether employment was under contract or whether pleaded as tort, but whether dispute is internal domestic character. This can be determined from how the dispute had arisen and what methods are available internally. If the dispute is having ‘domesticity’ it should be referred to visitor.
    
26. The Plaintiff’s allegations against the Defendants as pleaded in paragraph 12 of statement claim are that they did not call a Staff Review or other committee to investigate the Plaintiffs performance, work ethics and behaviour with staff nor give him a fair hearing before removing him from his office as Head of School. Performance review, and then Staff Review and other committees are provided for under internal rules. It is apparent that the Plaintiffs allegation is that internal rules have not been followed before the exercise of an internal discretion regarding his performance.
    
27. Statement of claim further described his removal as head of the School and in paragraph 15 of the statement of claim states inter alias that ‘Staff Review Procedures and breached clause 7(vi) of the Letter of Engagement.’
    
28. Alleged loss of reputation sourced from the said breach of staff review procedure and internal communications, by First Defendant as Dean of Faculty exercising official acts.
    
29. Alleged loss of reputation was particularised in paragraph 18 of the statement of claim states
    1. “The Plaintiff’s administration qualities have led to the School of Economics

not working properly.

2. That under the Plaintiff’s leadership, there was no research conducted in the said school.

100. That under the Plaintiff’s leadership, the school is getting bad reputation.

4. That under the Plaintiff’s leadership, the school is not performing hence the University’s reputation is being spoiled.”
   

30. The allegation of reputational damage was a result of what was stated in paragraph 17 of statement of claim, which refers to internal review procedure and alleged unfairness. According to Plaintiff imputation was due to he being an academic and professor of Economics. These post he held and how he was removed as head of the school are domestic matters that involve internal rules.
    
31. In Thomas v University of Bradford [1987] 1 All ER 834 UK House of Lords considered what can be considered as ‘domesticity’ for inclusion of visitatorial jurisdiction and held, ,

‘This then leads me to consider what is meant by the reference in the cases to the 'domesticity' of the visitatorial jurisdiction. The word is clearly not used with the width of its everyday meaning. Nothing could be more domestic in its everyday sense than the arrangements in the kitchens or for the cleanf the premises, but no one suggests that the domestic staffstaff of a university fall within the visitatorial jurisdiction. I am satisfied that in referring to the domestic jurisdiction the judges are using a shortened form of reference to those matters which are governed by the internal laws of the foundation. This will include not only the interpretation and enforcement of the laws themselves but those internal powers and discretions that derive from the internal laws such as the discretion necessarily bestowed on those in authority in the exercise of their disciplinary functions over members of the foundation. It is only if 'domesticity' is understood in this sense that any principle emerges that can be of general application to determine whether or not a given matter falls within the visitatorial jurisdiction. What is not permissible is to regard 'domesticity' as an elastic term giving the courts freedom to choose which disputes it will entertain and which it will send to the visitor. This approach necessarily involves the concept of a concurrent jurisdiction andI have endeavoured to shto show, this is not the way in whir law has developed.

I would adopt the following passage from Dr Smith's late latest article 'Visitation of the Univers: A Gfrom the Past' (1t' (1986) 986) 136 NLJ at 568:

'Once it is recognised that the supervision of the statutes, ordinances, regulations etc of the foundation is the basis of the visitatorial jurisdiction, then it becomes a relatively simple matter to define the scope of the visitor's powers, for any matter concerning the application or the interpretation of those internal laws is within his jurisdiction, but questions concerning rights and duties derived otherwise than from such internal laws are beyond his authority. Thus a matter or dispute is “domestic” so as to be within the visitatorial jurisdiction if it involves questions relating to the internal laws of the foundation of which he is visitor or rights and duties derived from such internal laws. Conversely, an issue which turns on the enforcement of or adjudication on terms entered into between an individual and his employer, notwithstanding that they may also be in the relationship of member and corporation, and which involves no enforcement of or adjudication concerning the domestic laws of the foundation, is ultra vires the visitor's authority and is cognizable in a court of law or equity (see “The Exclusive Jurisdiction of the University Visitor” (1981) 97 LQR 610 at 644).'(emphasis added)

Lord Griffiths further held,

“In the present case, the entire dispute is centered 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 resolution will affect Miss Thomas's contract of employment.”

32. Plaintiff also alleged the manner in which he was removed when he did not corporate and step down. When Plaintiff was informed to step down and failure to do so would need some action on the part of the Defendants. The proportionality of such action needs understanding of internal rules and procedures, and interpretation of them.
    
33. In terms of statement of claim alleged negligence was particularised in paragraph 29 of the statement of claim and they are as follow;
    
    1. Failed to follow University Policy and staff performance.
    2. Failed to call staff review committee and allow Plaintiff to put his side of views on his work with the University.
    100. Failed to ask Plaintiff to respond to allegation of protracted leadership as levelled by the first Defendant.
    4. Failed to act diligently, unbiased and fairly towards the Plaintiff, and
    5. Failed to observe that the School of Economics under the leadership of the Plaintiff was not affected in any way and students were given professional and competent teaching.
       
34. Though defamation and negligence are alleged, source was failure of internal rules.
    
35. Lord Griffiths also held Thomas v University of Bradford [1987] 1 All ER 834 at p 848.

“I have already pointed out that almost any dispute between a member and the university can be framed in either contract or tort, which relationships are apart from the visitatorial jurisdiction governed by the common law. To adopt this approach would entirely emasculate the visitatorial jurisdiction leaving it with virtually no content.”

36. So that nature of framing of claim is not the determinant factor to determine jurisdiction, of visitor. Lord Ackner in his concurring judgment in Thomas v University of Bradford [1987] 1 All ER 834 at 852-3 held,

“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.

As regards the visitor's jurisdiction to award 'damages' I see no practical problem. The visitor in the course of his supervisory jurisdiction must be entitled, in order to ensure that the domestic law is properly applied, to redress any grievance that has resulted from the misapplication of that domestic law. Such redress may involve ordering the payment of arrears of salary in the case in which the visitor decides that the employment has not been determined, or compensation where the complainant has accepted the wrongful repudiation of his contract of employment. It has not been submitted to your Lordships that where such an order is made, there would be any realistic risk of the university failing to comply with the order.”(emphasis is mine)

37. Visitor’s jurisdiction in Fiji is exclusive in terms of Court of Appeal decision Muma v University of the South Pacific [1991] 37 FLR 101. The paragraphs relating to negligence and defamation are based on alleged breaches of second Defendant’s policies and procedures or sourced from them. They are having domesticity hence within the jurisdiction of a visitor.
    
38. Lord Griffiths in Thomas (Supra) held,

“I prefer the view expressed by Burt CJ. I can see no reason why the visitor as judge of the laws of the foundation should not have the power to right a wrong done to a member or office holder in the foundation by the misapplication of those laws. The visitor would be a poor sort of judge if he did not possess such powers. ......

These considerations lead me to the conclusion that the visitatorial jurisdiction subject to which all our modern universities have been founded is not an ancient anachronism which should now be severely curtailed, if not discarded. If confined to its proper limits, namely the laws of the foundation and matters deriving therefrom, it provides a practical and expeditious means of resolving disputes which it is in the interests of the universities and their members to preserve.”(emphasis added)

39. In Fiji dispute resolution through specialized tribunals is not a strange phenomenon. There is need to resolve disputes without delay. Visitor can resolve disputes efficiently. Visitor of Defendant is urgently held by a judge of an appellate court in another country. Visitatorial jurisdiction is mutually exclusive with the jurisdiction of court in terms of Court of Appeal decision in Muma v University of the South Pacific held,

‘Accordingly, we are satisfied that the learned judge was right when he ruled that the appellant could not come to a Court to seek the declarations which he was seeking in his Statement of Claim. As a member of the University he could have taken to the Visitor his complaint about the matters raised in paragraphs 4 to 11 of his Statement of Claim; they were, therefore, not justiciable in a court.
CONCLUSION

40. In my judgment Plaintiff’s claims are justiciable by visitor and form exclusive jurisdiction. Since I held that claims are not justiciable by courts, I do not wish to deal with rest of appeal grounds. So, statement of claim is struck off. Master’s ruling handed down on 4.4.2018 is set aside. Cost of this appeal summarily assessed at $3,000.
    

FINAL ORDERS

1. Statement of claim struck off.
2. Master’s ruling regarding application to strike out is set aside.

100. Appeal is allowed.

4. Cost of this application is summarily assessed at $3,000.
   

Dated at Suva this 27^th day of November, 2019.

.....................................

Justice Deepthi Amaratunga

High Court, Suva

^[1] Affirmed UK Court of Appeal in [1979] 2 All ER 582
^[2] Cited by Lord Griffiths in [1987] 1 All ER 834 [1987] 1 All ER 834 at 844