shame em law burness submission

8/6/2019 Shame Em Law Burness Submission

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IN THE HIGH COURT OF FIJI

CIVIL JURISDICTION HUMAN RIGHTS COMMISSION DECREE 2009

AT SUVA HBC CIVIL ACTION NO 183 OF 2011

BETWEEN : DAVID FOWLER BURNESS

APPLICANT

AND : FIJI NATIONAL PROVIDENT FUND (THE BOARD)

FIRST RESPONDENT

AND : THE REPUBLIC OF FIJI

SECOND RESPONDENT

AND : THE ATTORNEY GENERAL OF FIJI

THIRD RESPONDENT

SUBMISSIONS IN RESPONSE TO FIJI NATIONAL PROVIDENT FUND BOARD AND ATTORNEY

GENERALS ORAL APPLICATION TO STRIKE OUT DAVID FOWLER BURNESS APPLICATION FOR

HUMAN RIGHTS REDRESS

May it Please Your Lordship

1.0 IntroductionOn July 4th 2011 Your Lordship ordered parties to make submissions on the Respondents strike

out application in response to the Applicants Notice of Motion and Affidavits for human rights

redress filed pursuant to section 38 (5) of the Human Rights Commission Decree No 11 of 2009.The authorities in the Applicants Bundle of Authorities appended to these submissions are

placed in the sequence of their discussion.

2.0 Equality of Arms2.1 The Application and Affidavit in support for human rights redress were filed on 27th June

2011 and served on the Respondents on 28th June and the ex-parte Motion and Affidavit

for an interim injunction, made inter-partes by the Court, were also filed and served.

2.2 The matter was first heard in open court on July 4th with solicitors for the Respondents,the Fiji National Provident Fund Board and the Attorney-General, both appearing. It was

not clear from their oral application to the Hon. Court to strike out the Applicants

application for human rights redress whether they were applying to the Court to strike outhis substantive motion or his application for an interim injunction.

2.3 The Applicant is somewhat disadvantaged by not knowing on what grounds the oral

applications to strike out were made since a number of issues in the substantive motion

were referred to by the Respondents without any supporting affidavits or reference to law.For example, the First Respondents oral submissions that the FNPF Act has the power

to do anything under the Act, a matter pertinent only to the Applicants substantive

application for redress, was not supported by reference to any specific provision in thelaw.

2.4 Similarly, the Solicitor Generals submission that the State Proceedings Act prohibits the

applicant from seeking relief in the High Court, presumably on the Application for aninterim injunction, is a matter related to the application for injunction rather than the

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substantive application. Both Respondents, by conflating the Applicants interim

application with his substantive application, somewhat confused the issues before the

Court. In view of the fact these were oral submissions and not reduced to writing revealsthe joint enterprise of the two Respondents to have a very significant application for

human rights redress struck out at the earliest of stages.

2.5 The Applicant, for the above reasons, is, therefore, making submissions as ordered by theHon. Court with one hand tied behind its back, as it were; nevertheless these submissions

will deal with the application to strike out as a principle of law rather than that confined

to any particular matter, whether substantive or preliminary/interlocutory, before the Hon.Court.

2.6 The Court, under the circumstances, is respectfully referred to the law on equality ofarms necessary for the purposes of due process in human rights cases, see for example,

in De Haes and Gijsels v Belgium ECHR Judgment of 24 February 1997, where theCourt said at para 53:

The Court reiterates that the principle of equality of arms- a component of the broaderconcept of a fair trial- requires that each party must be afforded a reasonable

opportunity to present his case under conditions that do not place him at a substantialdisadvantage vis--vis his opponent;

2.7 In the De Haes case the Court said the outright rejection of the documents of theapplicants (who were journalists with limited resources) breached Article 6.1 of the

European Convention of Human Rights which provides:

In the determination of his civil rights and obligationseveryone is entitled

to a fair hearingby animpartial tribunal.2.8 The right to a fair hearing, which has long been interpreted by courts with a human rights

jurisdiction as including the principle of equality of arms, finds its basis in the

Universal Declaration of Human Rights (UDHR) at Article 8:

Everyone has the right to an effective remedy by the competent national

tribunals for acts violating fundamental rights granted him by the

constitution or by law

And Article 10:

Everyone is entitled in full equality to a fair and public hearing by an

independent and impartial tribunal, in the determination of his rights and

obligations

2.9 As a member of the United Nations whose grundnorm is the Universal Declaration of

Human Rights, the State of Fiji is bound by these relevant UDHR Articles; in any event,

neither FNPF as a statutory Board nor the Attorney General can categorically say that Fijidoes not adhere to these principles because it will mean pronouncing that everyone in Fiji

does not have the right to an effective remedy by the competent national tribunals for acts

violating human rights and that everyone in Fiji is not entitled in full equality to a fairand public hearing by an independent and impartial tribunal, in the determination of his

rights and obligations. Such a statement will have dire consequences for the States

position in the United Nations.2.10 In support of their oral application to strike out, the Respondents referred to a number of

authorities, handed out from the bar table, one or two of them too voluminous to be

considered or distinguished immediately with any depth at the July 4th preliminary

hearing; however, they were all orally distinguished by the Applicants counsel also from

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the bar table inter alia on subject matter, jurisdiction, and principle of law, as either being

constitutional (governance) applications which have limited value, or judicial review

actions that were masked as human rights applications, or were decided against on thejurisdictional basis that there were other avenues or remedies that had not been followed.

In one example a probate case was referred to by one of the Respondents to emphasize

that there was a procedural defect in Mr Burness application; counsel for the Applicantdispelled that idea on the grounds that a human rights application is a specialist legal

category of law and the procedure for application was previously provided for by the

Constitutions of 1970, 1990 and 1997 which collectively no longer appear to exist. TheThakur Persad Jaroo v A-G [2002] UKPC 5 258 case was distinguished factually and on

the basis of alternative remedy being available, namely that the owner had claim

through some other good title to the property over which he had wrongly asserted a

constitutional claim, the distinction being made between the right to ownership and rightto possession and, in any event, it was a superior constitutional right that was being

claimed; the Court said that he was not deprived of his right claimed under the

constitution by handing his car back to the police. In our application the Applicant is not

claiming a proprietary right as in a vehicle. In any event this can be raised properly inlegal argument in the substantive hearing where the Court can determine not only the

kind of property right Mr Burness has but how it has been dealt with by human rightslaw. All that the Applicant needs to raise at this stage in response to the Respondents

application for strike out is that the Applicant has an arguable case.

2.11 The Respondents also brought in the ancient 1979 case of Harrikissoon v the AG [1979] 3

WLR 62.This authority pre-dates the European Court of Human Rights influence on theHouse of Lords and Privy Council and suffers from the same defect in that the applicant

in that case was avoiding the correct avenue for his claims. This cannot be compared with

Mr Burness case since there is no other avenue for his redress application. The Brij Ramv Michael Ban Deo ABU0049 1994 case provided by the Respondents is about probate

(i.e. how to commence an action in probate), not human rights applications which followspeciale procedures set down by law, as discussed below. The case of Mariko Anisimai vthe State HBM0035D of 2004S, also used by the Respondents, was an application which

the applicant could have pursued through other avenues, namely the Human Rights

Commission, which was constituted intra vires at the time (i.e. there were

Commissioners in place, unlike the situation at present) but the Applicant had by-passed

it. The case was only presented by the Respondents in a single sheet of paper so the

reasoning of the Judge, Justice Jitoko, and his discussion of the submissions made by the

Human Rights Commission as amicus curiae on the application procedure cannot beassessed from the face of the Decision but counsel for Mr Burness is aware of it. The

Legal Officer representing the Commission at the time was none other than Mr Usaia

Ratuvili, currently the Acting Chief Magistrate.2.12 The other two cases presented by the Respondents as evidence of the so-called wrong

procedure used by Mr Burness are Qarase and Ors v Ratu Josefa Iloilo and Ors Civil

Action No HBC 329 of 2008 and Ratu Josefa Iloilo and Ors v Qarase and Ors CivilAppeal No ABU0078 of 2008. In the High Court Jitoko J was asked to make certain

declarations on constitutional (governance) matters, not human rights. The Qarase cases

were never presented at any time as human rights applications. The Court of Appeal

(Byrne J) made certain orders but again these were regarding matters of governance, not

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human rights, at a time when legal applications by former Prime Minister Laisenia

Qarase had become highly politicized by the applicants and their counsel alike. The

application by Burness is not such a case since it is simply a human rights application notto have his pension reduced.

2.13 None of the authorities relied upon by the Respondents during their oral application for

strike out is therefore pertinent to the application of Mr Burness pursuant to the HumanRights Commission Decree which, the State and FNPF should be reminded, is a Decree

of the executive authority of Fiji. It, in any case, differs in significant respects from its

worthy predecessor the Human Rights Commission Act 1998.

3.0 Strike out applications in general

3.1 The Applicant did not receive any certain or clear grounds on which the oral application

by the Respondents to strike out the action/interim application was based. This should

have been presented by way of a proper and formal summons to strike out as set out bythe relevant subsections in the Fiji High Court Rules 1988 if they were relying on them.

In counsels experience formality is usually the protocol followed in responses to human

rights applications in domestic and international courts. In many jurisdictions where

courts can be directly accessed for human rights claims, strike out applications are madevia a form supplied on the Tribunal or Courts website; for example the (Australian)

Victorian Civil and Administrative Tribunal provides an on-line form to assistRespondents to make an application for a strike out with spaces provided on the form for

setting out grounds on which such an application can be made.

3.2 Nevertheless, in this case of David Burness v FNPF Board and the Attorney General,

currently before Your Lordship, the Applicants counsel gleaned from the oralsubmissions made on July 4th that the Respondents were relying on Order 18 Rule 18 (1)

of the High Court Rules that Mr Burness application:

(a) discloses no reasonable cause of action; or

(b) is scandalous, frivolous or vexatious; or

(c) may prejudice, embarrass or delay the fair trial of the action; or

(d) is otherwise an abuse of the process of the court.3.3 The High Court Rules at Order 18 Rule 18 (2) also state that:

No evidence shall be admissible on an application under paragraph (1) (a).

It will have been noted by the Hon. Court that Rule 18 (2) was not strictly followed by

the Respondents in their oral application for strike out on July 4th.In these submissions counsel for the Applicant discusses each head of Order 18 Rule 18

(1) (a), (b), (c) and (d).

(a) action disclosing no reasonable cause of action.3,4 The first ground, Order 18 Rule 18 (1) (a) that there is no reasonable cause of action

was discussed in the English Court of Appeal sex discrimination case of Nagle v Feilden

and Others [1966] 2 QB 633 where a woman was refused a licence as a horse trainer,simply because she was a woman, under the Rules of the Jockey Club. The plaintiff

brought an action claiming a declaration that the practice of stewards in refusing a licence

to a woman trainer was void against public policy, also applying for an injunction

ordering the stewards to grant her a licence.

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3.5 The stewards applied to strike the claim out on the basis that it disclosed no cause ofaction. The lower court had struck the claim out on the grounds that the plaintiff could

not show there was a contractual relationship between the plaintiff and the stewards. Inthe appeal, Lord Denning said, at page 4 of the judgment, that Just as the courts will

intervene to protect (a persons) right to property, they will also intervene to protect (his)

right to work. And Salmon L.J at page 8 of the judgment noted....It is well-settled that astatement of claim should not be struck out and the plaintiff driven from the judgment

seat unless the case is unarguable. The Court refused to strike the claim out on the

grounds that any claim to seek relief from the court on sex discrimination ought not to bestruck out.

3.6 This was followed by the oft-quoted Court of Appeal case of Drummond-Jackson v

B.M.A. (1970) 1 WLR 688, 695. Lord Pearson said..Over a long period of years it has

been firmly established by many authorities that the power to strike out a statement of

claim as disclosing no reasonable cause of action is a summary power which should be

exercised only in plain and obvious cases, and at page 696.. reasonable cause ofaction means a cause of action with some chance of success, when (as required by

paragraph (2) of the rule) only the allegations in the pleadings are considered QuotingSalmon LJ at page 651 in Nagle v Feilden cited above, Lord Pearson said, (s)econdly,subparagraph (a) in paragraph (1) of the rule takes some colour from its context in

subparagraph (b) scandalous, frivolous or vexatious, subparagraph (c) prejudice,

embarrass or delay the fair trial of the action, and sub-paragraph (d) otherwise anabuse of the process of the court. Lord Pearson went on.the defect referred to in

subparagraph (a) is a radical defect ranking with those referred to in the other

subparagraphs. Thirdly, an application for the statement of claim to be struck out underthis rule is made at a very early stage of action when there is only the statement of claim

without any other pleadings..3.7 These English Court of Appeal cases were followed by the Court of Appeal of Kenya in

the right to property case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria

Muchina and Another [1980] e KLR where the second defendant applied for a claim to bestruck out as disclosing no cause of action and an abuse of the process of the court. The

Court cited with approval the Drummond-Jackson case noted above and said that a

cause of action is an act on the part of the defendant which gives the plaintiff his cause

of complaint(Madan J.A.). Quoting Chitty J in Republic of Peru v Peruvian Guano

Company 36 Ch.Div. 489 at pp 495-496, Madan J said a pleading will not be struckout unless it is demurrable and something worse than demurrable. Quoting Swinfen

Eady, L.J. in Moore v Lawson and Anor 31 T.L.R 418 at 419, Madan J further said of thepower to strike outIt is a very strong power indeed. It is a power which, if it not be

most carefully exercised, might conceivably lead a court to set aside an action in whichthere might really, after all, be a right, and in which the conduct of the defendant might

be very wrong, and that of the plaintiff might be explicable in a reasonable way. Unless it

is a very clear case indeed, I think the rule ought not to be acted upon .. Madan J goes on

to be quite explicit about how the rule should be exercisedNo suit ought to be

summarily dismissed unless it appears so hopeless that it plainly and obviously discloses

no reasonable cause of action, and is so weak as to be beyond redemption and incurableby amendment. If a suit shows a mere semblance of a cause of action, provided it can be

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injected with real life by amendment, it ought to be allowed to go forward for a court ofjustice ought not to act in darkness without the full facts of a case before it.

3.8 The D.T. Dobie & Co case was followed and expanded in 2003 by the High Court inKenya in J.A.O. v Homepark Caterers Ltd and 2 Others [2004] eKLR where the plaintiff

alleged infringement or violation of human rights in her termination of employment on

medical (HIV) grounds. After stating that rules of procedure would not form part of theRuling, the Court decided that it would first identify the cause of action. A.G Mago

Acting Judge said that he had found the cause of action in paragraph 18 of the

Plaintiffs AffidavitI swear this application (read affidavit) in support of my plea to

this Honourable Court for redress and relief from (read for) the violation of my human

rights.. The Judge said.. I find this paragraph, more than anything else, removes anydoubt as to what the Plaintiffs cause of action is, namely redress and relief for the

violation of my human rights (Courts emphasis). Mago AJ then went on to decidewhether this constituted a reasonable cause of action for the purposes of the Order(the

Kenyan Order is equivalent to the High Court Rules of Fijis strike out clauses), and

decided, according to English authorities cited at page 10 of the judgment, that a court

of law will be hesitant to strike out a pleading where the same raises an arguable,difficult or important point of law as seen in the English Cases .where there wereimportant and complicated matters to be tried.and serious questions of general

importance.

3.9 He then went on to decide against the strike out application on the grounds inter alia ofthe nature of this caseand the development of human rights jurisprudence together

with the ongoing attempts at the harmonization of the relevant conventions with domestic

law(therefore) I would be most hesitant to overlook the positive features of theOriginating Summons which give it the required degree of reasonableness, sufficient in

my view, to give the required life support or to breath life into the action however weak

the chances of a constitutional reference may prove to be if at all. He then quoted the

case of Farah v British Airways PLC The Times, Jan 26 2001 that..

It is not appropriate to strike out a claim in an area of developing jurisprudence

since, in such areas, decisions as to novel points of law should be based on actual

findings of fact.

Assessment

3.10 In light of the interpretation of Order 18 Rule 18 (a), pursuant to the decisions discussed

above in the celebrated rights-based English authorities and followed by the Kenyan

cases, particularly the High Court case on violation of human rights on medical grounds,

the human rights redress application of David Burness is a case disclosing a reasonablecause of action. First, David Burness is seeking redress for unfair discrimination on the

ground of age; secondly, he is pursuing a human rights claim, notably, the rights protected

by the Universal Declaration of Human Rights; thirdly, he claims likely breach ofcontract because beneficiaries already on pensions entered into a contract with the FNPF

at the point of entry into the Fund and at retirement; and fourthly, he is seeking a

declaration that a Commission of Inquiry be appointed to investigate where his fundswent so that he is now faced with a depleting pension in his twilight years. These are all

claims disclosing a reasonable cause of action and should not be struck out by the Court

according to the human rights precedents already established by courts in other

jurisdictions.

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(b) Action scandalous, frivolous or vexatious

(i) scandalous

3.11 Order 18 Rule 18 (b) allows the Court to strike out action that is scandalous, frivolous or

vexatious. While these three grounds for striking out are usually dealt with together by

the Court and applicants, these submissions will discuss cases on each of the heads sinceinteresting case law has developed in human rights jurisdictions which illustrate how they

have been interpreted by the courts.

3.12 With respect to the ground ofscandalous, the word being also defined as absurd, therecent case of Brown v Executors of the estate of HM Queen Elizabeth the Queen Mother

& Ors [2008] EWCA 56 was decided by the Lord Chief Justice of England and Wales. In

this case the appellant, Robert Andrew Brown, (represented by the well-known lawyer

Mr Geoffrey Robertson QC who, incidently, was also lead counsel in the 2001 Fiji Courtof Appeal case of the Republic of Fiji v Chandrika Prasad ABU 0078/2000S), believed he

was the illegitimate son of the late HRH Princess Margaret, Countess of Snowdon. As the

Court said, this belief is without any foundation and is irrational, but held in good

faith. It led the appellant to want to inspect the wills of both Princess Margaret and thelate HM the Queen Mother. The Court said the law, represented by section 124 of the

Supreme Court Act 1981, provided that wills that have been proved shall, subject to the

control of the High Court and to probate rules, be open to inspection. However, the

wills that the appellant wished to inspect were not open to inspection because in 2002 the

President of the Family Division, on the application of the executors of the estate, made

an order in respect of each will that it should not be opened without the consent of the

President of the Family Division for the time being, these orders having the effect of

sealing the wills. The appellant Mr Brown had applied for an order for the unsealing of

the wills and the executors of the estate of Princess Margaret and the Queen Mothersought an order to strike out his application. The President of the Family Division

acceded to the executors application and struck out the appellants claim. Mr Brown

appealed. He invoked among other domestic statutes, Article 8 and Article 10 of theEuropean Convention of Human Rights.

3.13 The Court (Lord Chief Justice) said the President of the Family Division was not correct

in striking out the appellants application seeking to inspect the royal wills. It agreed thatArticles 8 and 10 of the European Convention of Human Rights may be engaged and said

that even though the application was motivated by a belief that was both irrational and

scandalousthe Court decided the appellant was entitled to have a substantive hearing of

his claim to inspect the wills and the appeal was allowed.3.14 Any application to strike out an action on the basis that it is scandalous can fail even if

the application, according to the Hon Chief Justice of England and Wales, is irrational,

totally unfounded in fact, and absurd because recourse to a statute which states thatwills shall be open to inspection means that the application cannot be scandalous even if

it involves an application to inspect a royal will. This decision also shows how far the

English courts have progressed to examine a claim questioning the prerogative power ofeven the Queen of England to have the royal wills sealed, a practice of the monarchy

since time immemorial.

Assessment

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3.15 The application of David Burness for human rights redress cannot be defined as

scandalous in any sense of the word, as well as of its synonyms absurd, irrational or

totally unfounded in fact. In any event, even in the absolutely absurd application andclaim of Mr Brown above that he was the illegitimate son of HRH Princess Margaret, the

Court still did not allow the claim to be struck out without a substantive hearing of his

claim to inspect the wills of Princess Margaret and the Queen Mother. This ground for thestrike out application of the Respondents in Mr Burness claim for redress cannot

succeed.

(ii) frivolous

3.16 The word frivolous in striking out applications is often used interchangeably with the

word vexatious but a subtle distinction between them has been developed in human

rights cases. This distinction is appropriate in human rights redress applications since

applications from the state or other public entity to strike out on all the grounds at once isusually the first line of defence, yet distinctions between them are important for the

development of case law on point.

3.17 The legal connotation of the term frivolous was considered in the case of The Applicant

v The College of Psychologists of British Columbia Decision No 2009-HPA-0052 (a), theHealth Professional Review Board. J. Thomas English, Q.C. Chair discussed the human

rights claim raised by the Applicant in her application to be registered by the College ofPsychologists. The registration process set out examinations and other registration and

qualification requirements which the applicant believed she already possessed. She asked

the Review Board to review the process. The College applied for summary dismissal on

grounds that her application for review was frivolous and vexatious. In response theapplicant raised issues of human rights pursuant to the Human Rights Code of British

Columbia, Freedom of Information and Protection of Privacy Act.

3.18 In making its decision the Review Board quoted from the case of Borsato v Basra [2000]BCJ No 84 (S.C.) which reflected an effort to give each term (frivolous and vexatious)

independent content, as follows:A pleading is frivolous if it is without substance, is groundless, fanciful, trifles

with the court, or wastes time.

3.19 The Board further gave the Concise Oxford Dictionary definition of frivolous that had

been used in the case of Freedom of Information and Protection of Privacy Act: REInsurance Corporation of British Columbia [2002] B.C. I.P.C.D. No 57 (ICBC):

The dictionary defines frivolous as lacking seriousness; given to trifling,silly..In addition I note the following definitions from Blacks Law Dictionary

(6th ed):

Frivolous: Of little weight or importance. A pleading is frivolous

when it is clearly insufficient on its face, and does not controvert thematerial points of the opposite pleading, and is presumably interposed for

mere purposes of delay or to embarrass the opponent. A claim or defence

is frivolous if a proponent can present no rational argument based uponthe evidence or law in support of that claim or defense..

3.20 The Board went on to say:

The term frivolous focuses on the substance of the claim. An application willbe frivolous where it is, in all the circumstances, readily recognized as being

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groundless, fanciful, lacking in substance and seriousness, or as wasting theReview Boards time.

3.21 The Board went on to dismiss the application from the College as not being able to meetthe threshold test required for striking out on the ground that the application was

frivolous.

3.22 This case also discusses other grounds of vexatious and no reasonable prospect ofsuccess but rejected the application for summary dismissal on all grounds, using the

Human Rights Code as the guidelines for the threshold test of strike out on the ground

whether the application was bound to fail or lacked merit..

Assessment

3.23 Clearly David Burness application for human rights redress is not automatically

frivolous in that it could be seen as being groundless, lacking in substance and

seriousness or wasting the Courts time. Indeed, neither is it of little weight or

importance, and it cannot possibly be seen as controverting the material pointsof the

opponents (in this case the FNPF and Attorney-Generals) pleadingsince there are no

pleadings on the record.

3.24 Therefore this application, made properly under the Human Rights Commission DecreeNo 11, cannot possibly be seen to be frivolous and thus to be struck out.

(iii) Vexatious

3.25 The Review Boards reasoning in the College of Psychologists authority above is also

relevant for the definition of the word vexatious as a ground for striking out. Briefly the

Review Board said:A pleading is vexatious if it is without bona fides, is hopelessly oppressive, orcauses the other party anxiety, trouble or expense.

3.26 The Board goes on to consider Blacks Law Dictionary once again for the definition ofvexatious:

Vexatious: Without reasonable or probable cause or excuse.

3.27 The Review Board, quoting the ICBC case again, said ..Thus where the exercise of a statutory right of review of is involved, it would

obviously be inappropriate to brand an application as being vexatious merelybecause it has the effectof being bothersome or vexing to the statutory decision-

maker under review: ICBC, paras 21-22)

3.28 The Canadian case of Canada Post Corporation v Aditya Narayan Varma Docket: T-498-

99 decided June 9 2000 (unreported), established the principles of vexatious

proceedings, stating at page 5 of the decision that:An order will not readily be granted by this court that would restrict in any way

the free access of any person to the courts to assert his or her civil rights andremedies. The access must be exercised responsibly and with due regard to the

applicable laws and rules of procedure and the integrity of the administration of

justice, included the protection accorded to others against being indiscriminatelymade the subject of vexatious proceedings.

3.29 In this case, the court decided that, in order to maintain respect for the judicial

proceedings and to protect others from frivolous and pointless litigation, the applicant

would be considered as a vexatious litigant. The Applicant clearly was abusing the

process of the Court by being vexatious in his frequent and repeated litigation.

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3.30 On the other hand, in another Canadian case, Noel Ayangma v the Attorney General of

Prince Edward Island, (P.E.I.) 2004 PESCAD 11, a strong Supreme Court bench, with the

Chief Justice of the Province of Prince Edward Island presiding, ruled that even thoughthe applicant tried to have his case re-litigatedwhich was a cause for concern, the

court could not exercise the extraordinary remedy, which was used only where the

existing court remedies had repeatedly failed to control the litigant, to strike out theapplication.

3.31 In the United Kingdom, the High Court case of Her Majestys Attorney General v Paul

Evan John Barker 2000 WL 191122, presided over by the Lord Chief Justice of Englandand Wales (Lord Bingham of Cornhill), on an application from the Attorney General that,

the person against whom the order is sought has habitually and persistently and withoutany reasonable ground instituted vexatious proceedings or made vexatious applications

whether in the High Court or any inferior court and whether against the same person or

different persons should be declared a vexatious litigant in terms of section 42 (1) (a) and

(b) of the Supreme Court Act 1981. The Lord Chief Justice said at paragraph 19 of the

judgment:

Vexatious is a familiar term in legal parlance. The hallmark of a vexatiousproceeding is in my judgment that it has little or no basis in law (or at least nodiscernible basis); that whatever the intention of the proceeding may be, its effect

is to subject the defendant to inconvenience, harassment and expense out of all

proportion to any gain likely to accrue to the claimant; and that it involves anabuse of process of the court, meaning by that a use of the court process for a

purpose or in a way which is significantly different from the ordinary and proper

use of the court process. Those conditions are in my view met in this case. Manyof the proceedings show no justiciable complaint and, as has been pointed out,

several writs have been issued against individual officers in the same department

when one writ would have served them all

3.32 The Lord Chief Justice therefore accepted the Attorney Generals application to have Mr

Barker declared a vexatious litigant pursuant to section 42 (1) (a) and (b) of the UKSupreme Court Act 1981.

Assessment

3.33 It can hardly be said, in light of the rules established in two jurisdictions, Canada and theUnited Kingdom, that David Burness application for human rights redress can in any

way be seen to be vexatious. He is not a repetitive litigant, he is not, by his application,

attempting to harass anyone- he wants merely to have his rights declared by the court; he

is not improperly using the court proceedings because the High Court is the Court oforiginal jurisdiction in human rights applications; and, as an ordinary pensioner, the only

expense incurred in making his application is his own, not that of the State.

3.34 Thus his application may not easily be struck out on this ground of Order 18 Rule 18because to do so would restrict Mr Burness free access to the courts for the declaration

of his rights and remedies as a pensioner.

(c) Action may prejudice, embarrass or delay the fair trial of the action3.35 The Canadian case of Jerry Rose Jnr v The University of British Columbia and Ors 2008

BCSC 1661 (CanLII) set out the rule for striking out an action prejudicing, embarrassing

or delaying the fair trial of the action. The applicant, Mr Rose, alleged the defendants had

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invaded his brain with some sort of waves, affecting his ability to think and interfering

with his right to privacy.

3.36 The Supreme Court (Mr Justice Wilson) went through a number of leading authorities,stating that the courts will be reluctant to deprive a party of the right to pursue his claim

in the courts unless it is plain and obviousthat the Plaintiffs Statement of Claim

discloses no reasonable cause of action. Quoting from paragraph 33 of Wilson J in Huntv Carey Canada Inc 1990 CanLII 90 (S.C.C), Mr Justice A.F. Wilson said:

Neither the length and complexity of the issues, the novelty of the cause ofaction, nor the potential for the defendant to present a strong defence should

prevent the plaintiff from proceeding with his or her case.

3.37 Referring to the important English case of Dyson v Attorney General [1911] 1 K.B. 410

(CA), Justice Wilson said, it is singularly inappropriate to use the rules summary

procedure to prevent a party from proceeding to trial on the grounds that the action

raises difficult questions.

3.38 Quoting Allan J in McMutt v A.G Canada et al 2004 BCSC 1113 (CanLII) at paras 40-42,

and Kuhn v Anerican Credit Indemnity Co [1992] B.C.J. No 953 (S.C.) (QL), Justice

Wilson said, however:A pleading is embarrassing if it does not state the real issue in an intelligibleform. It is also embarrassing if it is prolix, includes irrelevant facts, argument or

evidence. It is prejudicial if it is constructed in a manner calculated to confuse the

defendants and make it difficult, if not impossible, to answer.

3.39 Justice Wilson said that in Kuhn, the statement of claim, which was 456 numbered

paragraphs in length, consisted of irrelevant facts, argument or evidence. It was almostimpossible for the defendants to reply to the documents and the facts, even if proven,

would not make out the cause of action that the plaintiff sought to advance.

3.40 After surveying the authorities, Wilson J concluded that the statement of claim that thePlaintiff, Mr Rose, had been subjected to Invasive Brain Computer Interface Technology

Research Experiments, Field Studies and Surgery conducted by the University of BritishColumbia, The Royal Canadian Mounted Police (Uniform Civilian Contract and sub-

contract employees), Microsoft Corporation and Microsoft Certified Professionals,

Google, Telus, Wal-Mart, Cyber Logic, Great Canadian Gaming, The Provincial Sheriffsdepartment, The Province of British Columbia and Physicians licenced by the College of

Physicians and Surgeons of British Columbia, without his verbal or written consent and

without his prior knowledge, was to be struck out on the grounds that it was plain andobvious that the claims raised in the Statement of Claim had no prospect of success, that

they disclosed no reasonable claim against any of the defendants, and were frivolous andvexatious and may prejudice or embarrass the fair trial of the proceeding.

Assessment

3.41 The application for human rights redress in the matter of David Burness v FNPF and theAttorney General cannot by any means be seen as similar to the case of Rose v University

of British Columbia and Others discussed above. It is plain and obvious that Mr Burness

is a genuine applicant whose application can be replied to by the Respondents (the factthat they chose not to do so in writing is not prejudicial to a fair trial, though it is

prejudicial to the Applicants interests in being able to address the grounds of the

Respondents reasons for strike out), and his application contains only relevant facts and

relief sought.

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3.42 Therefore the third limb of Order 18 Rule 18 also fails as a ground to strike out the

application.

(d) Action an abuse of the process of the court3.43 On 20th June 2007 the Acting Chief Justice of Fiji, Justice A.H.C.T. Gates gave a Ruling

in the case of The Proceedings Commissioner v Fiji Law Society Civil Action

HBC02.07S. The clients of the Applicant the Proceedings Commissioner, who were allmilitary legal officers, sought declarations from the court that the actions of the

Defendant, the Fiji Law Society, in suspending the Practising Certificates of Lt Colonel

Aziz Mohammed, Major Ana Rokomokoti, Major Kitone Tuinaosara, Major Amani Bale;Major Davina Ligaiula and Lt Col Etueni Caucau, on December 6 th 2006, while not

suspending legal practitioners involved in the 2000 takeover of Parliament, unfairly

discriminated against the RFMF legal services personnel contrary to sections 38 (1) and

(2) of the 1997 Constitution. As will be seen from the top page of the Acting ChiefJustices Ruling the Proceedings Commissioner of the Human Rights Commission was

represented by Dr. S. Shameem and Mr U. Ratuvili of the Human Rights Commission.

The Fiji Law Society was represented by Dr M.J. Kidd, Mr D. Sharma and Mr I. Fa.

3.44 The Fiji Law Societys summons to strike out the claim was based on the grounds inOrder 18 Rule 18 of the High Court Rules that the action disclosed no reasonable cause

of action, is frivolous or vexatious, or is otherwise an abuse of the process of thecourt; these grounds in the Law Societys summons closely resemble those of the

summons issued orally on July 4 th by the Respondents in the present case of David

Burness v FNPF and the Attorney General where the grounds are conflated in one

sweeping, generalized one size fits all application.3.45 At page 12 of the Proceedings Commissioner v Fiji Law Society Ruling, the Acting Chief

Justice said:

The case for the Commissioner may yet fail. A court could find either that the

matter is moot or that the issue here was in reality about incorrect procedure

rather than about discrimination. But the plaintiffs case remains arguable. Thebringing of the action by the Proceedings Commissioner on a human rights

matter is not lightly to be classified as scandalous, frivolous, and vexatious, nor

do I find that the proceedings are an abuse of the process of the court: Dyson v A-G [1911] 1 KB 410.

3.46 His Lordship further said at page 13 of his Ruling:

It is to be borne in mind also that the High Court is obliged to act according toequity, good conscience, and the substantial merits of the case, without regard to

technicalities [section 41 (a) HRC Act]. There is also a relaxation of the normal

rules of evidence in these proceedings.

It is to be noted that section 41 (a) of the HRC Act that the Acting Chief Justice referred

to above happily survived the amendments of 2009 and now appears as section 43 of theHRC Decree No 11 of 2011. The perspective applied in the Ruling above is therefore still

pertinent to Mr Burnesss application for redress pursuant to the HRC Decree.

3.47 The Acting Chief Justice declined the Fiji Law Society summons to strike out.3.48 In the UK, in the recent decision, McKeown v Atteraces Ltd [2011] EWHC 179 (QB) (a

libel action), the defendant issued an application notice to strike out after filing a

Statement of Defence and a Reply. The strike out abuse of process point was that the

claimant ( a jockey) was seeking to re-litigate points already determined on their merits

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against him in circumstances where he was bound by that determination, namely in three

tribunals, and that therefore going to the High Court was a collateral matter and an abuse

of process of the court. The High Court decided that since the earlier determinations werenot based on the merits of the claim it was not an abuse of the process of the court.

3.49 Also in the High Court of the UK, in an even later decision delivered more recently on

June 8 2011 in BA and Others v The Home Office [2011] EWHC 1446 (QB), a wrongfulimprisonment case, the court dealt with an application from a family from Cameroon who

were detained in a Detention Centre prior to being deported. The claim was a private

action for damages for unlawful detention since by the time the application came to courtthe family were out of detention. The first applicant (the mother) had been persecuted and

raped by men who were still members of the Cameroon Government. Her action was

initiated through private law. The Home Office, as defendant, said that the claimant

should have brought the matter up as a judicial review application, and to circumvent itwas therefore an abuse of the process of the court.

3.50 The claimant on the other hand said that there was no principle that demonstrates that the

claimants must take their action for unlawful imprisonment through the judicial review

mechanisms only and that any such restriction to the court would amount to anunjustifiable and disproportionate restriction on the access to the court by theclaimants.

3.51 At paragraph 57 of the judgment, the Court said that:

the implementation of the Human Rights Act in 1999 has gradually led to afurther evolution of the modern judicial review procedure. It is now frequently the

case that an issue of public law, particularly one involving the question of the

validity of a decision or policy of a public authority, may be raised to support ordefend a private law claim in a private action, particularly when that issue

involves consideration of a claimants right that is protected by the European

Convention on Human Rights.

3.52 The Court refused the application of the Home Office to strike out the claimants action

on the basis that they (inter alia) did not use the procedure of judicial review. The Courtsaid that for such people in detention who had no funds and no capacity to employ a

lawyer to mount long judicial review proceedings, the most convenient procedure for

them may be to employ private action for damages for unlawful confinement.3.53 Just to bring an action for declaration of rights cannot be construed as an abuse of the

process of the court as long as procedures are available to any claimants.

(e) General: Application procedure in Fiji for a human rights redress application

3.54 Much was made at the July 4th hearing by the Respondents, the Fiji National ProvidentFund Board, and the Attorney Generals solicitors, about the procedure for application to

the Court that had been utilized by the Applicant, Mr Burness. The Court was informed

that the Applicant should have used procedures available in the High Court Rules 1988,and that the State Proceedings Act prohibited injunctions being granted against the State.

These submissions were made with some force by the Respondents.

3.55 Both will now be discussed in our submissions at some length due to the critical issuesthey raise for the Applicant with respect to access to the Court to have his rights declared

and remedies provided.

(i) Constitutional and statutory procedures for human rights redress

applications in Fiji

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3.56 The High Court Rules of Fiji were published in 1988, a year after the 1970 Constitution

of Fiji was abrogated in 1987, and the Court structure re-organized. The 1970

Constitution had contained a Protection of Fundamental Rights and Freedoms of theIndividual chapter (Chapter II), with access to the Supreme Court (the same tier as the

current High Court) provided to the claimant through the Section 17 Enforcement

mechanism established by Constitution. However, without the Constitution rights couldno longer be protected even by ordinary law because there was no such statute as the

Human Rights Commission Decree or similar legislation in place at the time. The High

Court Rules of 1988 therefore did not make any specific provision for applications forconstitutional redress, or human rights redress to the courts. During this period, the

people of Fiji faced a vacuum or hiatus in statutory human rights protection and,

consequently, the state violated rights with impunity without anyone having any redress

in the courts except perhaps in a limited sense through the common law of tort. It will beseen from the Fiji Human Rights Case Law Since 1970 Compendium of the Fiji Human

Rights Commission (FHRC 2005 pp7-8) that no human rights applications were made to

the court between 1987 (in fact 1984) and 1993 (three years after a new Constitution was

promulgated), certainly not under the High Court Rules because the High Court Rules donot provide the procedural path for human rights applications, as human rightsapplications.

3.57 In 1990 a new Constitution was promulgated which once more provided protection for

Rights and Freedoms by way of Chapter II. Section 19 of the 1990 Constitution gave the

High Court (formerly Supreme Court) the original jurisdiction to hear human rights

redress applications. Such applications could be made directly to the Court though noRules were established by the Chief Justice pursuant to Section 19 Enforcement in this

regard.

In relation to both Constitutions, therefore, that is the 1970 Constitution and the 1990Constitution, the Chief Justice was to have devised Rules with respect to the application

format for redress applications and the practice and procedure to be employed by the

Supreme and High Courts for the purposes of enabling any person to exercise his or herrights pursuant to these chapters. To reiterate, no such redress Rules were made in

relation to the 1970 and 1990 Constitutions for direct access to the Courts.

3.58 Both these Constitutional chapters are appended to the Submissions in the Bundle ofAuthorities as are the relevant pages of the FHRC Compendium.

3.59 The 1997 Constitution carried a similar enforcement provision at section 41. Section 41

(10) gave the Chief Justice power to make redress rules for the purpose of enforcement of

Bill of Rights.3.60 Such Redress Rules were indeed made by the (former) Chief Justice of Fiji, Sir Timoci

Tuivaqa. Called the High Court (Constitutional Redress) Rules 1998, section 3 of the

Rules states:(1) An application to the High Court for redress under section 41 (10) of the

Constitution may be made by motion supported by affidavit-

(i) claiming a declaration(ii) praying for an injunction(iii) claiming or praying for such other order as may be appropriate

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3.61 However, it is to be noted that these are called Constitutional Redress Rules. In the

absence of a Constitution, which in 1970, 1990 and 1997 contained a justiciable Bill of

Rights, how is an applicant to go to the High Court to seek redress for a human rightsviolation? Surely, since we still have a Human Rights Commission statute, albeit by

Decree, it must have been contemplated by His Excellency the President of Fiji that

human rights procedures for the courts shall still remain in place? This is a question onlythe Court can answer with reference to the intention of the President of Fiji at the time.

Certainly the Applicant believes that human rights law is the fine illustration of the socialcontract between Citizen and State and is justiciable. Under the circumstances, theApplicant in these proceedings has found a statutory way to claim justiciability of his

rights- he is permitted to seek redress directly from the High Court through the section 38

(5) procedure of the Human Rights Commission Decree No 11. I will discuss that

particular provision with respect to the purported ouster clause contained in it below.3.62 But first, a discussion on the procedure for applying for redress under the Constitutional

Redress Rules had they been still in place. In the now well-known case of Chandrika

Prasad v the Republic of Fiji and Anor (Action No HBC0217.00L), the High Court of Fiji

at Lautoka, Justice A.H.C.T Gates, was faced with the dilemma of considering anapplication for constitutional redress when the Constitution of Fiji had been (purportedly,

as it was ruled later) abrogated, initially by the George Speight Government and then,somewhat unnecessarily, as the Court of Appeal said in 2001, by the Commander of the

Republic of Fiji Military Forces, Commodore Bainimarama. In view of the fact that the

1997 Constitution of Fiji contained a strong Bill of Rights, including procedures for

bringing an action in human rights, as well as its influence and primacy over all otherlaws in Fiji (see Chapter IV of the Constitution, especially section 21), the tenacity of

such a Constitution must not be under-estimated; as the President of the Court of Appeal,

His Lordship, Justice Casey, said, reading the judgment of a strong 3-member bench:The doctrine of necessity enables those in de facto control, such

as themilitary, to respond to and deal with a sudden and stark crisis in

circumstances which had not been provided for in the written

Constitution or where the emergency powers machinery in thatConstitution was inadequate for the occasion. The extra-

constitutional action authorised by that doctrine is essentially of a

temporary character and it ceases to apply once the crisis haspassed. Gates J held that the Commander had acted to preserve

law and order to save the State from further destruction, to ensure

the safe release of the hostages in Parliament and to restore

normality, because the whole nation was on the brink of totalchaos. He concluded therefore that the Commander had no

genuine desire to remove the 1997 Constitution and there was thus

no need to pass any Decrees purporting to abrogate the 1997Constitution. This Court has had the benefit of a considerable

body of evidence which was not before Gates J and it has also had

the benefit of much fuller legal argument, particularly from theInterim Civilian Government.

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On the basis of the further materials before this Court (includingthe Commander's affidavits) we have no hesitation in holding that

Gates J was in error when he found that the Commander had

"no .... genuine desire to remove the 1997 Constitution". We are

satisfied in the light of the further material placed before us that

the Commander, for the reasons he conveyed to the President atthe time, did have a genuine desire to do just that. The doctrine of

necessity would have authorised him to have taken all necessarysteps, whether authorised by the text of the 1997 Constitution or

not, to have restored law and order, to have secured the release of

the hostages, and then, when the emergency had abated, to havereverted to the Constitution. Had the Commander chosen this path,

his actions could have been validated by the doctrine of necessity.

Instead, he chose a different path, that of constitutional

abrogation. The doctrine of necessity does not authorisepermanent changes to a written constitution, let alone its complete

abrogation.3.63 As the Court of Appeal said that at the time of the High Court hearing, Justice Gates did

not have the benefit of evidence the Court of Appeal later had. However, Justice Gates at page 16 of his High Court judgment, did not allow the so-called abrogation of the

Constitution to stop him from reviewing whether, in fact, it had indeed been abrogated.

And in view of procedural difficulties of using a constitutional redress applicationprocedure when there was no Constitution on its face, he usefully expanded how a person

was to apply to the Court for Constitutional Redress without a Constitution. In a

remarkably pointed reference to the Attorney Generals attempts to thwart the applicationby procedural technicalities, Mr Justice Gates said (only underlined emphasis added):

Procedure for bringing a Constitutional Case

Section 41 of the Constitution provides for enforcement where a personconsiders that any of the provisions of the Bill of Rights Chapter hasbeen or is likely to be contravened in relation to him or her Thesection refers to the right to make application to the High Court andthat it is without prejudice to any other action with respect to the matter

that the person concerned may have [Section 41(2)]. The High Courthas original jurisdiction to hear and determine applications referred to

it, and is empowered to make such orders and give such directions as itconsiders appropriate [Section 41(3)].

No set procedure for applying is provided in the Constitution. Pursuant to powers granted to him by Section 41(10) of the

Constitution, the Chief Justice has made rules namely the HighCourt (Constitutional Redress) Rules 1998. These provide for

application for redress to be made by motion and affidavit[Rule 3

(1)]giving at least 3 clear days prior notice to the parties affected

by it, unless the High Court gives leave to the contrary. The notice

of motion should state concisely the nature of the claim and therelief or remedy required[Rule 4(3)]. The practice and procedure

to be exercised is to be in accordance with the normal practice and

procedure of the High Court and its Rules with any variations

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the circumstances require.I have already stated, as indicated bythe cases, I consider that practice and procedure take second place

to considerations of gravity, justice, public interest and the

upholding of the rule of law in constitutional cases. Included in the

concept of justice here will be that of ease of access for the

litigant.It is somewhat disappointing therefore to observe the Attorneys

officers attempting to deny the Applicant jurisdiction to bring thisimportant case, and to deny him that access to the courts. When

the trend of the cases has been all in favour of permitting access,

and since this applicant was obviously no frivolous busybody,there was no proper basis for attempting to stifle his litigation. As

officers of the court those directing the litigation should have

realised these were not objections to be taken at this time in Fijiscrisis. In the current tragic scale of things, technical objections of

this kind could only weigh as buzzing gnats in comparison with

events on the grander stage, off from which they must surely beignominiously swatted.

3.64 It is not at all necessary for the Applicant, David Burness, in these current proceedings to

make any additional remarks about technical objections of the kind brought by the

Attorney Generals Office at the time to deny Prasad jurisdiction to bring this

important case and to deny him that access to the courts and that technical

objections of this kind could only weigh as buzzing gnats in comparison with events onthe grander stage, off from which they must surely be ignominiously swatted, since there

can be no improvement made to Mr Justice Gates elegant erudition on this point.3.65 Clearly the Lautoka High Court referred to the Redress Rules to allow the Applicant at

that time, Chandrika Prasad to knock on the Courts door for redress, even without the

Constitution being in place, to have his Constitution declared as still living on humanrights grounds, despite two attempts, within as many months, to abrogate it.

3.66 The High Court elaborated on the procedure for an application under section 41 (10) of

the Constitution, which is the enforcement section for Bill of Rights Chapter but notnecessarily for the entire Constitution - by way of Notice of Motion- The Notice of

Motion should state concisely the nature of the claim and the relief or remedy required.

3.67 Of course the Constitution of 1997 has again been abrogated (it is said) and there are

many Decrees in place now to emphasize this time and again so clearly the ConstitutionalRedress application process is not available to an applicant. Nevertheless the Notice ofMotion procedure set out in the Chandrika Prasad case for an application to the High

Court for human rights redress pursuant to section 38 (5) of the Human Rights

Commission Decree is the appropriate and convenient procedure. It is not an abuse of theCourt process for the Applicant, David Burness, to make his application in this way since

all other procedural avenues for human rights redress, previously provided byConstitution, are closed to him.

3.68 This simple redress application procedure is not unusual in jurisdictions where access to

the courts is emphasized as a fundamental human right. The New Zealand Human Rights

Review Tribunal has a website where applicants can download and fill a form, called aStatement of Claim form. The form is easy to fill and guidelines are available to the

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public to assist claimants with filling the form with the requisite information. This form is

then submitted directly to the Human Rights Review Tribunal. Although New Zealand

has a Human Rights Commission, it is not necessary to apply to the Commission insteadof seeking redress directly from the Tribunal. Given this procedure available in New

Zealand, Fijis immediate neighbor, it is incomprehensible that the Solicitor General

would say, as he did at the July 4th

hearing from the bar table, that the Applicant MrBurness access to the Court should be struck out for want of following the correct

procedure. Had the Solicitor General provided the ordinary citizen of Fiji with any

procedure for human rights redress at all, as is available to citizens of New Zealand, theApplicant would certainly have followed it.

3.69 Similarly, the Human Rights Tribunal of Ontario, Canada has a website with forms for

New Applications. Again the guidelines advise how a claim is to be filled and submitted.

3.70 These other jurisdictions make it very convenient for people complaining of human rightsviolations to approach the adjudicative mechanisms set up to consider complaints. The

Fiji High Court (Constitutional Redress) Rules were set up for exactly that purpose but

since 2009 we seem to have regressed in this regard, to the detriment of the people of

Fijis right to access the courts. It is an example of the State interfering with theindependence of the judiciary and its ability to exercise its inherent and statutory

jurisdiction to adjudicate on claims of violation of rights and freedoms protected by theHuman Rights Commission Decree, and more importantly, those protected by the

Universal Declaration of Human Rights which the State of Fiji is bound, by virtue of

section 3 of the HRC Decree, to protect.

(ii) The development of common law in relation to access to the courts for human

rights redress.

3.71 In many other jurisdictions, common law has developed to interpret statutes in favour of

easier human rights redress mechanisms being provided as a convenient aspect of the

overall protection of human rights by the State. Two specific jurisdictions in our AsiaPacific region come to mind immediately in this regard- that of Sri Lanka and India- as

well as one outside the region, South Africa.

3.72 The Constitution of the Democratic Socialist Republic of Sri Lanka, by virtue of section118, provides the Supreme Court with jurisdiction for the protection of fundamental

rights. Section 126 of the Constitution expresses this exclusive power as follows:

Fundamental rights jurisdiction and its exercise.

126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and

determine any question relating to the infringement or imminent infringement by

executive or administrative action of any fundamental right or language right

declared and recognized by Chapter III or Chapter IV.

(2) Where any person alleges that any such fundamental right or language right

relating to such person has been infringed or is about to be infringed by executiveor administrative action, he may himself or by an attorney-at-law on his behalf,

within one month thereof, in accordance with such rules of court as may be in

force, apply to the Supreme Court by way of petition in writing addressed to suchCourt praying for relief or redress in respect of such infringement. Such

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application may be proceeded with only with leave to proceed first had and

obtained from the Supreme Court, which leave may be granted or refused, as the

case may be, by not less than two Judges.

(3) Where in the course of hearing in the Court of Appeal into an application for

orders in the nature of a writ of habeas corpus, certiorari, prohibition,

procedendo, mandamus orquo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the

provisions of Chapter III or Chapter IV by a party to such application, such Court

shall forthwith refer such matter for determination by the Supreme Court.

(4) The Supreme Court shall have power to grant such relief or make such

directions as it may deem just and equitable in the circumstance in respect of any

petition or reference referred to in paragraphs (2) and (3) of this Article or referthe matter back to the Court of Appeal if in its opinion there is no infringement of

a fundament right or language right.

(5) The Supreme Court shall hear and finally dispose of any petition or reference

under this Article within two months of the filing of such petition or the makingof such reference.

3.73 The procedure for applying to the Supreme Court of Sri Lanka is by way of a petition in

writing. Sri Lanka also has a Human Rights Commission but a petition may be sent to

the Supreme Court whether or not the affected person has also asked the Commission to

investigate his or her complaint.3.74 The Supreme Court of Sri Lanka has been robust in its application of the law in defence

of peoples rights through the petitionary mechanism.

3.75 Perhaps the most far-reaching and important decision on the principle of Stateresponsibility it gave was in the case of Velmurugu v the Attorney General and Anor S.C.

Application 74/81 October 19, 20, 21 and 30 1981 where the Court (per Wanasundera J)

said at page 25:I am inclined to the view that the State should be held strictly liable for any acts

of its high State officials.The liability in respect of subordinate officers shouldapply to all acts done under the colour of office, i.e. within the scope of their

authority, express or implied, and should also extend to such other acts that may

be ultra vires and even in disregard of a prohibition or special directions,provided that they are done in the furtherance of their authority or done at least

with the intention of benefitting the State.3.76 While this was a case about cruel, inhumane and degrading treatment, the principle of

state responsibility which the Supreme Court of Sri Lanka called to account for all human

rights violations is relevant to the Burness application. A nation state may not have a

human rights law in place without providing people with access to the courts for redressfor a breach or likely breach of those rights. In fact, section 3 of the Human Rights

Commission Decree states categorically that the Decree binds the State.3.77 In 1985, the case of Jayasinghe v Jayakody and Ors SC Petition Appeal No 4/84 SC, an

election petition case, was a decision against formulism when a prescribed form, in

relation to which the State Defendant was raising an objection, was not available. The

Defendant had raised the objection in court that the affidavit filed by the petitioner wasinadequate. The Court held the Section 80 of the Ceylon (Parliamentary Elections) Order-

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in-Council provided that The petition shall also be accompanied by an affidavit in theprescribed form in support of the allegation of such corrupt or illegal practices and the

date and place of the commission of such practice but that admittedly no form has been

prescribed for the affidavit to conform to. Thus the Court ruled that an election petition

should not be dismissed on the ground of defective affidavit where no form has been

prescribed by law (page 21 of the Judgment).3.78 Both these Sri Lankan Supreme Court decisions can be used in the Burness application to

submit that (a) the principle of state responsibility is one of direct and strict liability and

extends to other acts that may be ultra vires (this point will be discussed further below inrelation to the Board of the Fiji National Provident Fund), and those done with the

intention of benefitting the State; and (b) that in a rights violation case the state cannot

complain about someone using the wrong procedure for bringing a human rights action to

the court when it has already removed the redress procedure previously available to thecitizen for redress without replacing it with another one; as Justice Wanasundera aptly put

it in the election petition case :

Although the legislature undertook to prescribe the required form, it has omitted

to do so. In the result the petitioner has been left guessing as to what form heshould follow. In this situation the drastic step of dismissing the petition for thislapse, if lapse it be, seems excessive. I would consider this lapse as an

irregularity that does not affect the validity of the petition before the court.

3.79 The South African Constitutional Court has a similar jurisdiction to receive direct

applications for redress and also by referrals from the lower courts. In all cases in the

early days of the operation of the new Constitution it exercised its jurisdiction liberally infavour of redress of rights (see Chaskalson Js remarks at page 2 in Brink v Kitshoff Case

No CCT 15/95).

3.80 The Supreme Court of India in its Practice and Procedure Handbook of Information has asection on letter petitions for human rights applications. The Court, which is

empowered pursuant to Article 139 of the Constitution of India to accept writ petitions

from members of the public directly; in the well-known case of S.P Gupta v President ofIndia and Ors AIR 1982 SC 149 (this is not reproduced in full because of the length of the

judgment) at paragraph 17 of the judgment, Bhagwati J. said as follows (all emphases

added):17. It may therefore now be taken as well established that where a legal wrong or

a legal injury is caused to a person or to a determinate class of persons by reasonof violation of any constitutional or legal right or any burden is imposed in

contravention of any constitutional or legal provision or without authority of law

or any such legal wrong or legal injury or illegal burden is threatened and such

person or determinate class of persons is by reason of poverty, helplessness ordisability or socially or economically disadvantaged position, unable to approach

the Court for relief, any member of the public can maintain an application for an

appropriate direction, order or writ in the High Court under Article 226 and incase of breach of any fundamental right of such person or determinate class of

persons, in this Court under Article 32 seeking judicial redress for the legal

wrong or injury caused to such person or determinate class of persons. Where theweaker sections of the community are concerned, such as under-trial prisoners

languishing in jails without a trial inmates of the Protective Home in Agra or

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Harijan workers engaged in road construction in the Ajmer District, who areliving in poverty and destitution, who are barely eking out a miserable existence

with their sweat and toil, who are helpless victims of an exploitative society and

who do not have easy access to justice, this Court will not insist on a regular

writ petition to be filed by the public spirited individual espousing their cause

and seeking relief for them. This Court will readily respond even to a letteraddressed by such individual acting pro bono publico.It is true that there arerules made by this Court prescribing the procedure for moving this Court for

relief under Article 32 and they require various formalities to be gone through

by a person seeking to approach this Court. But it must not be forgotten that

procedure is but a handmaiden of justice and the cause of justice can never be

allowed to be thwarted by any procedural technicalities. The Court would

therefore unhesitatingly and without the slightest qualms of conscience cast

aside the technical rules of procedure in the exercise of its dispensing power

and treat the letter of the public minded individual as a writ petition and act

upon it. Today a vast revolution is taking place in the judicial process; the theatre

of the law is fast changing and the problems of the poor are coming to theforefront. The Court has to innovate new methods and devise new strategies for

the purpose of providing access to justice to large masses of people who are

denied their basic human rights and to whom freedom and liberty have no

meaning. The only way in which this can be done is by entertaining writ

petitions and even letters from public spirited individuals seeking judicial

redress for the benefit of persons who have suffered a legal wrong or a legal

injury or whose constitutional or legal right has been violated but who by

reason of their poverty or socially or economically disadvantaged position are

unable to approach the Court for relief. It is in this spirit that the Court has

been entertaining letters for Judicial redress and treating them as writ petitions

and we hope and trust that the High Courts of the country will also adopt this

pro-active, goal-oriented approach.

3.81 Justice Bhagwatis encouragement to courts to act as courts of justice was echoed in the

case of Chandrika Prasad in the Lautoka High Court where Justice Gates at the beginning

of his judgment, at page 2 said:At the hearing objection had been taken to such (appearance of Mr Anu Patel

and Dr George Williams) since no Notice of Appointment of solicitors had beenfiled and served pursuant to theHigh Court Rules Order 67 rule 3. In view of the

complexity of the constitutional arguments to be presented to the court, the

objection had no merit. The case demanded the assistance of able counsel. There

could be no valid basis therefore for refusing representation to the Applicant, on aminor technical ground, the soundness of which objection was questionable

3.82 Justice Gates then commented on the Attorney-Generals affidavits filed finally on 19th

September when the application had been made on 4th July 2000. The Attorney Generals

office had earlier elected not to file any affidavits, presumably because they expected thematter to be struck out at first appearance. When eventually filed, these affidavits were

apparently inadequate in several aspects on which Gates J did not elaborate. He went on

to say, however:

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As I have said the Respondents elected not to file any affidavits.Subsequently when seeking to appeal the interlocutory orders after

the hearing they filed the affidavit of Anare Tuilevuka sworn on

19th

September 2000. Leaving aside the irregularities of that affidavit,

there were two affidavits exhibited to it, which had been filed in a separate but similar constitutional case. These no doubt were

exhibited to show the evidence that the Respondents would haveadduced in this case. They were the affidavit of Commodore Josaia

Voreqe Bainimarama the Commander of the Fiji Military Forces

and for a time the Head of the Interim Military Government. Thiswas sworn on 14 September 2000, and filed on 15 September 2000

[in effect 1 months late for these proceedings]. The other was of

Alipate Qetaki, Attorney-General and Minister for Justice in boththe Interim Military Government and the interim civilian

government thereafter. This too was sworn on 14 September 2000

and filed on 15 September 2000.The papers filed were much more remiss in the case ofUganda v.

Commissioner of Prisons Ex parte Matovu [1966] EA 514. In

that case 2 affidavits were filed with defective intitulment,impermissible prayers, without a Respondent named for the

subsequent execution of habeas corpus orders, and without a

Notice of Motion or motion paper setting out grounds entitling orrelief sought, this last error was said by the court to be so

fundamental a defect as to be almost incurable. The second

affidavit had been filed by the Applicants counsel which was

wrong on so many counts that the court said it should have been

struck out.

Sir Udo Udoma CJ commented at 519:

Indeed but for the fact that the application

concerns the liberty of a citizen, the court would

have been justified in holding that there was no

application properly before it.

And the court came to the following opinion as to what to do in the

circumstances at 521:

On reflection, however, bearing in mind the facts

that the application as presented in the firstinstance was not objected to by counsel who had

appeared for the state; that the liberty of a citizen

of Uganda was involved; and that considerable

importance was attached to the questions of law

under reference since they involved the

interpretation of the Constitution of Uganda; we

decided, in the interests of justice, to jettison

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formalism to the winds and overlook the several

deficiencies in the application and thereupon

proceeded to the determination of the issues

referred to us.

In dealing with defective applications, breaches of procedure and

insufficiency of material in important constitutional cases thecourts have taken an enabling rather than a technical approach. In

Mokotso and Others v. HM King Moshoeshoe II and Others

[1989] LRC (Const.) 24Cullinan CJ, happily also formerly of the

Lautoka High Court, at 148 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

procedure. On that basis therefore I proceed to

consider the matter.

In the concluding paragraphs of his judgment which ran to 169

pages in all, his Lordship at 168-169 said:

These proceedings have been troubled from the start by

defective pleadings. Much against my better judgment, I

acceded to requests by both parties to over-look such

defects. I have consequently been at pains to construe the

pleadings liberally. I have done so in the interests of

justice; for the want of such construction, the pleadings

could in any event have been amended, entirely without

prejudice to the respondents.I have dealt at length with some aspects which, to the legalmind, might appear beyond argument. The first applicant,

however, would not seek legal assistance, and I consideredmyself in fairness obligated therefore to deal with allsubmissions made. Further, due to the constitutional aspect ofthe issues raised and the troubled history involved, I thought it

best, in the national interest to fully ventilate all grievances,imagined or otherwise.

I favour the approach adopted by both of these Chief Justices. I

overlook defects in the papers, which are largely minor, in the

greater interests of the justice of the matter.

I also propose to consider the two affidavits of the Respondents,

though the Applicants counsel will be deprived thereby of an

opportunity to address the court on them, since they were not madeavailable at the right time to the Applicants counsel or to the court

for the hearing. In the wider national interest and in that of justice

it is better that I consider them and I have done so.

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(original emphasis)

3.83 In the Burness case before Your Lordship, it is not clear, apart from the Respondents

verbal claim that some non-existent procedure for making human rights redress

applications should have been followed, what other defects might be in the Notice ofMotion and Affidavits. The application was originally made in person. In the case of

Chandrika Prasad lawyers were instructed who appeared pro bono and is similar to theBurness case. Objection was made by the Solicitor General to the report by Ernst andYoung annexed to the affidavit of David Burness, but as was said in the Chandrika Prasad

judgment at page 3: However, a good deal of material consisting of press stories,comments, advertisements and letters was exhibited, supportive of the Applicants case.

3.84 Indeed the Court of Appeal case of the Republic of Fiji v Chandrika Prasad was

determined by similar secondary material filed by the Applicant with objection from the

Respondent that this was hearsay evidence taken into consideration by the Court. In theend the State provided its own hearsay documentary evidence in its affidavits. In any

event, such documents are at present attached to the Applicants affidavit, and are filed

to illustrate that an arguable case can be made out. In due course, the material can be

tested by oral evidence if the Respondents so wish or by an application for disclosure ofreports to the Commission of Inquiry should the applicant be successful in having this

prayer granted.

3.85 Much was made by the solicitor for the FNPF Board about the missing word Board nextto the words, Fiji National Provident Fund as Respondent in the intitulment. Such slight

typographical defects can be cured by an amendment with leave of the court and an

application has been made. In the Ugandan Matovu case cited by Justice Gates above,Chief Justice Sir Udoma had noted that the name of the Respondent was altogether

missing for the subsequent execution of habeas corpus orders, yet he still accepted the

application for constitutional redress. Clearly the short time period (5 days) between the

end of public meetings carried out by the FNPF management team, the publication of the

Fiji Times advertisement annexed to the Affidavit of David Burness filed on June 27 th,and the looming July 1 deadline given to the public for the review intended to reduce

pensions by 64%, would make an urgent application for redress somewhat imperfect in anumber of respects. The case of Commission on Human Rights State of Connecticut, ex-

rel: Barbara G. DeRosa Complainant v Dr Frederic Rosen, DDS Respondent: July 22

1999 is an example of one such (discrimination) case where the complaint was amendedto cite the correct employer as Respondent by the Presiding Human Rights Referee.

Apparently the person who discriminated against the Applicant was the individual Dr

Rosen but the company was the correct respondent to be cited. The referee examined theissue of amendment at length and said.. Such a misnomer does not prevent the exercise

of subject matter jurisdiction if the defendant was actually served and knew he or she

was the intended defendant. Her decision was based on the fact that it was a misnomerrather than a complete change of party. To determine whether something was a misnomer,three factors were reviewed: (1) whether the correct defendant had notice of the action;

(2) whether the correct defendant knew or should have known it was correct defendant;

and (3) whether the correct defendant was misled to its prejudice.3.86 In the case of Burness v FNPF (Board) and A-G, the correct defendant had notice of the

action, its solicitor appeared in court with a strike out application on a number of other

grounds besides a misnomer on the title page of the application; it ought to have known

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it was the correct defendant (there is no other FNPF); and it could not have been misled

to its prejudice.

3.87 Indeed, this last question of prejudice raises an issue of concern for the Applicant asbeneficiary of the FNPF. The Fiji National Provident Fund Act at section 3 sets out the

composition of the FNPF Board, the corporate entity established by section 4, as solicitor

for FNPF pointed out.Part 2Constitution, Powers and Functions of the Board

3.(1) There is hereby established a board to be called The Fiji National Provident Fund

Board consisting of

(a) twopersons holding an office of emolument under the State;

(b) two representatives of employers not being persons holding an office of

emolument under the State; and

(c ) two representatives of employees not being persons holding an office of

emolument under the State

to be appointed by the Minister who shall appoint 1 of such persons to be Chairman of the

Board

3.89 However, the public website of the FNPF (the Court is respectfully asked to take judicial

notice of this publication) states that currently there are 5 members of the Board; AjithKodagoda as Chairman, Taito Waqa as Government Representative, Tom Ricketts as

Employers Representative, Tevita Kuruvakadua as Government Representative and

Sashi Singh as Employers Representative. Not only is the Board legally one short inmembership but there are two employers representatives and two government

representatives (it is not yet clear to the beneficiaries where Mr Kodagoda fits in-

employer or Government?) with no employees representative whatsoever. Suchcomposition falls far short of the tripartite representation legally required by statute.

3.90 If the Board is going to be pedantic about not being properly cited in the applicants

papers as Respondent, the Applicant will say in reply that the Board was not appointedpursuant to the Act; indeed these appointments were made ultra vires the Act. The funds

deposited in the FNPF do not belong to anyone but the beneficiaries and they have a right

to see that their funds are managed by a legal Board established pursuant to the Act, not

one that asserts its artificial right to be properly named in an application for human rightsredress, but is, in fact, not even a legally-constituted Board. The Applicant would be

within his rights to say that there is no Board in place at FNPF. Therefore, how can the

current non-Board make any decisions about reducing beneficiaries pensions?

3.91 It would behove the FNPF Board to accept the amendment of the Applicant to the titlepage of the application to include Board because an accusation that the Respondent was

appointed and is acting ultra vires the Act is a much more serious matter than theApplicants mere misnomer in his application against the FNPF corporate entity for

human rights redress. This issue of Board composition will be addressed further in our

substantive submissions for redress.

3.92 The Solicitor General made oral submissions on July 4th that under the State ProceedingsAct there can be no injunction granted against the State. Clearly this is an argument to

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8/6/2019 Shame Em Law Burness Sub

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