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Labour Officer v CKP Fishing Company Ltd [2009] FJMC 34; Workmen's Compensation 05.2001 (17 November 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION
SUVA

Workmen’s Compensation Case No. 5 of 2001

BETWEEN:

THE LABOUR OFFICER for and on behalf of JOSAIA CAMA
APPLICANT

AND:

CKP FISHING COMPANY LIMITED
RESPONDENT

Counsel for the Applicant: Attorney General’s Chambers, Suva
Counsel for the Respondent MC Lawyers

Date of Hearing: 08 September 2009
Date of Judgment: 17 November 2009

RULING

[1] This is an application to reinstate a Workmen’s Compensation Application that had been struck out on 5 April 2007.

[2] The Judge’s Notes for that date show that counsel for the Applicant did not appear. The notes simply state "action struck out for want of prosecution".

[3] This occurred approximately six months after the Respondent succeeded in setting aside Default Judgment on 9 November 2006. The Applicant’s counsel had not appeared for the hearing of that application, but had been served with a Notice of Adjourned Hearing prior to 7th April, 2007.

[4] The record of this workmen’s compensation action shows that it was struck out on 6 December, 2001, it was reinstated, there was a hearing and formal proof of the Applicant’s claim on 19 January 2006 resulting in judgment in the amount of $24,000.00 in favour of the Applicant on 27 January, 2006, that Default Judgment was set aside on 9 November 2006 and on the next call of the matter the action was struck out when the Applicant’s counsel failed to appear.

[5] There is no doubt that the Applicant’s counsel has failed to appear before the Court several different times.

[6] The Labour Officer has caused such delays in this action that the injured employee Mr Cama went and hired a private solicitor and filed a separate common law action, 205D of 2003S, in the High Court of Fiji. That action was refused as being out of time. The decision of the High Court of Fiji with respect to that common law action has no bearing on this Workmen’s Compensation Application, and it was noted in the High Court’s ruling that there was no reason why the plaintiff should not pursue his claim under the Workmen’s Compensation Act.

[7] I reject the Respondent’s allegation in the Affidavit in Reply sworn by Kim Sung Soo on 18th November, 2008 that the Applicant’s claim could not have proceeded on 5th April 2007 as it was an abuse of process when the High Court had refused to grant leave for extension of time. That refusal only related to the common law claim in High Court. On 5th April 2007 the Applicant’s claim in the Magistrates Court was on foot, default judgment had been set aside and the matter was to be called to set a fresh hearing date.

[8] The default judgment that was set aside had noted that the Respondent had appeared before the Court four times initially and then never appeared thereafter. Clearly the Respondent’s solicitors had also been at fault in that respect.

[9] The real party in interest is the injured employee Josaia Cama not the Labour Officer.

[10] Contrary to the Respondent’s submissions, there is no issue of the Limitation Act with respect to the application for reinstatement. The original action was filed in 2001, well within the six years allowed by the Workmen’s Compensation Act, and it is that claim that the Applicant seeks to reinstate. Reinstatement relates back.

[11] Order XXX rule 6 of the Magistrates Court Rules allows the Court to reinstate any matter struck out to the cause list on such terms as to the Court seems fit.

[12] The fault for the non-appearance on 7th April, 2007 lies with the Labour Officer, not the injured employee. It is Mr Cama who will suffer if his application is not reinstated.

[13] There had previously been a formal proof of this matter resulting in judgment for Mr Cama so his claim does have significant prospects of success if reinstated.

[14] There does not appear to be any particular prejudice to the Respondent in reinstating this action. The Respondent had succeeded in setting aside default judgment in November, 2006. It did so knowing that the next step by the Court would be to set the substantive matter for fresh hearing. The Respondent must necessarily have been prepared to take a fresh hearing date on 5 April, 2007 and defend this case. Application for reinstatement was filed on 30 April 2008. The Respondent has not deposed as to any prejudice that has accrued to the Respondent between 5 April 2007 and 30 April 2008.

Jurisdiction of the Magistrates Court

[15] The Respondent has raised with this Court that jurisdiction over Workmen’s Compensation Act claims has since been allocated to the Employment Relations Tribunal by the Employment Relations Promulgation 2007 and related Regulations, thereby depriving this Court of jurisdiction over the application for reinstatement. The Respondent further submits that the Applicant cannot bring his Workmen’s Compensation Application in the Tribunal, as he does not come within the regulations.

[16] The Respondent has muddied the waters by referring to various sections and regulations of the Employment Relations Promulgation in its submissions that are irrelevant to this application.

[17] The Respondent has referred to s169 and s 170 of the Employment Relations Promulgation, which relate only to employment disputes reported to the Permanent Secretary, not to Workmen’s Compensation applications.

[18] The Respondent has cited regulation 60 (1) of the Employment Relations (Administration) Regulations.

[19] Regulation 60(1) only applies to proceedings commenced in the Arbitration Tribunal.

[20] This proceeding is not an employment dispute reported to the Permanent Secretary. It did not commence in the Arbitration Tribunal. It commenced in the Magistrate’s Court, and it was brought under the Workmen’s Compensation Act.

[21] Regulation 60 simply does not apply. The definition of completion date in Regulation 56 does not apply because it only refers to trade disputes covered by regulations 59(1) and 60(1). Workmen’s compensation claims are not covered by those regulations, and they are not trade disputes nor proceedings in the Arbitration Tribunal.

[22] Regulation 58(2) says that trade disputes not already referred to the Arbitration Tribunal and other outstanding cases are to be transferred to Mediation Services or Employment Relations Tribunal.

[23] ‘Other outstanding cases’ is defined in Regulation 56 to include workmen’s compensation cases.

[24] Section 211(1)(p) of the Employment Relations Promulgation gives the Employment Relations Tribunal jurisdiction to hear and determine any matter under the Workmen’s Compensation Act.

[25] Since s 211 (1)(p) of the Employment Relations Promulgation gives jurisdiction over Workmen’s Compensation Act matters to the Employment Relations Tribunal, those cases should be transferred to the Tribunal and not to Mediation Services.

[26] There is no reference in regulations 59 and 60 to "other outstanding cases" and they are quite clearly limited by their own terms to trade disputes referred to the Arbitration Tribunal for resolution prior to the commencement date.

[27] It is this Court’s humble opinion that Regulation 58(2) clearly provides for transfer of existing Workmen’s Compensation claims in the Magistrates Court to the Employment Relations Tribunal, and that Regulations 59 and 60 have no application whatsoever to Workmen’s Compensation claims.

In Conclusion

[28] It is for this Court to exercise its discretion in determining whether this action should be reinstated to the cause list under Order XXX rule 6 of the Magistrates Court Rules, and on what terms.

[29] This Court considers that reinstatement best serves the interests of justice. The Respondent succeeded in setting aside default judgment, now the matter should go for trial. It is not in the interests of justice to deny the injured employee his remedy simply because the legal officer for the Ministry of Labour had neglected to attend before the Court, and the Respondent has not been prejudiced by the delay between the striking out on 7th April 2007 and the filing of the application for reinstatement on 30th April 2008.

[30] The Respondent was not ordered to pay costs to the Applicant upon the setting aside of the default judgment, despite the Applicant having called several witnesses, including doctors, to formally prove its claim. Therefore the Court declines to make any award of costs in favour of the Respondent with respect to this application for reinstatement.

[31] The Applicant’s application for reinstatement is granted and this action is reinstated to the cause list with no order as to costs.

DATED this 17th day of November, 2009.

Mary L Muir
RESIDENT MAGISTRATE
SUVA