IN THE HIGH COURT OF FIJI CIVIL JURISDICTION AT SUVA BETWEEN :

HUMAN RIGHTS COMMISSION DECREE 2009

HBC CIVIL ACTION NO 183 OF 2011

DAVID FOWLER BURNESS APPLICANT

AND

FIJI NATIONAL PROVIDENT FUND (THE BOARD) FIRST RESPONDENT

AND

THE REPUBLIC OF FIJI SECOND RESPONDENT

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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 Introduction On 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 Arms 2.1 The Application and Affidavit in support for human rights redress were filed on 27 th 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 out his 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 the law. 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 an interim injunction, is a matter related to the application for injunction rather than the 1

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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 reveals the joint enterprise of the two Respondents to have a very significant application for human rights redress struck out at the earliest of stages. The Applicant, for the above reasons, is, therefore, making submissions as ordered by the Hon. 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. The Court, under the circumstances, is respectfully referred to the law on equality of arms 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 the Court said at para 53: The Court reiterates that the principle of equality of arms- a component of the broader concept 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 substantial disadvantage vis--vis his opponent; In the De Haes case the Court said the outright rejection of the documents of the applicants (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. 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 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 Fiji does 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 fair and 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. 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 2

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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 the jurisdictional 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 Applicant dispelled 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. The Thakur 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 right to 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 in legal 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 rights law. 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. 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 the House 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 Ram v 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 follow speciale procedures set down by law, as discussed below. The case of Mariko Anisimai v the 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 be assessed 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. 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 Civil Appeal 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 3

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 not to 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 Human Rights 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 by the 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 made via a form supplied on the Tribunal or Courts website; for example the (Australian) Victorian Civil and Administrative Tribunal provides an on-line form to assist Respondents 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 oral submissions 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 3.3 (d) is otherwise an abuse of the process of the court. 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. 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. 4

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The stewards applied to strike the claim out on the basis that it disclosed no cause of action. 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. In the 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 a statement 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 be struck out. 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 of action 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 Quoting Salmon 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 an abuse 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 under this rule is made at a very early stage of action when there is only the statement of claim without any other pleadings.. 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 be struck 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 struck out 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 the power 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 which there 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 incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be

injected with real life by amendment, it ought to be allowed to go forward for a court of justice 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 in Kenya 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 the Ruling, 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 any doubt 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 decide whether 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 were important 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 of the 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 the Originating 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 reasonable cause 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 of contract 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 funds went 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. 6

(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 since interesting 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 of scandalous, the word being also defined as absurd, the recent 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 Court of 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 the late 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 Mother sought 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 the European 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 that Articles 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 scandalous the 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 that wills 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 of even the Queen of England to have the royal wills sealed, a practice of the monarchy since time immemorial. Assessment

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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 and claim 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 the strike out application of the Respondents in Mr Burness claim for redress cannot succeed. (ii) frivolous 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 is usually the first line of defence, yet distinctions between them are important for the development of case law on point. 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), the Health 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 of Psychologists. 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 the applicant raised issues of human rights pursuant to the Human Rights Code of British Columbia, Freedom of Information and Protection of Privacy Act. 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. 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: RE Insurance 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 the material 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 upon the evidence or law in support of that claim or defense.. The Board went on to say: The term frivolous focuses on the substance of the claim. An application will be frivolous where it is, in all the circumstances, readily recognized as being

groundless, fanciful, lacking in substance and seriousness, or as wasting the Review Boards time. 3.21 The Board went on to dismiss the application from the College as not being able to meet the 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 of success 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 points of the opponents (in this case the FNPF and Attorney-Generals) pleading since there are no pleadings on the record. 3.24 Therefore this application, made properly under the Human Rights Commission Decree No 11, cannot possibly be seen to be frivolous and thus to be struck out. 3.25 (iii) Vexatious 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, or causes the other party anxiety, trouble or expense. The Board goes on to consider Blacks Law Dictionary once again for the definition of vexatious: Vexatious: Without reasonable or probable cause or excuse. 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 merely because it has the effect of being bothersome or vexing to the statutory decisionmaker under review: ICBC, paras 21-22) The Canadian case of Canada Post Corporation v Aditya Narayan Varma Docket: T-49899 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 and remedies. 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 indiscriminately made the subject of vexatious proceedings. 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. 9

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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 though the applicant tried to have his case re-litigated which 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 the application. 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 England and 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 without any 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 vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible 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 an abuse 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. Many of 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 UK Supreme Court Act 1981. Assessment 3.33 It can hardly be said, in light of the rules established in two jurisdictions, Canada and the United 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 of original 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 18 because to do so would restrict Mr Burness free access to the courts for the declaration of his rights and remedies as a pensioner. 3.35 (c) Action may prejudice, embarrass or delay the fair trial of the action 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 10

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 obvious that the Plaintiffs Statement of Claim discloses no reasonable cause of action. Quoting from paragraph 33 of Wilson J in Hunt v 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 of action, 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 intelligible form. 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 almost impossible 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 the Plaintiff, Mr Rose, had been subjected to Invasive Brain Computer Interface Technology Research Experiments, Field Studies and Surgery conducted by the University of British Columbia, The Royal Canadian Mounted Police (Uniform Civilian Contract and subcontract employees), Microsoft Corporation and Microsoft Certified Professionals, Google, Telus, Wal-Mart, Cyber Logic, Great Canadian Gaming, The Provincial Sheriffs department, 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 and obvious 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 and vexatious 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 the Attorney 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 fact that 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. 11

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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 court 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 all military 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 Chief Justices 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. The Fiji Law Societys summons to strike out the claim was based on the grounds in Order 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 the court; these grounds in the Law Societys summons closely resemble those of the summons issued orally on July 4th 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. 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. The bringing 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 AG [1911] 1 KB 410. 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 to equity, 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 the HRC 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. The Acting Chief Justice declined the Fiji Law Society summons to strike out. 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 12

3.49

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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 were not based on the merits of the claim it was not an abuse of the process of the court. 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 wrongful imprisonment 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 court the 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 it was therefore an abuse of the process of the court. 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 an unjustifiable and disproportionate restriction on the access to the court by the claimants. At paragraph 57 of the judgment, the Court said that: the implementation of the Human Rights Act in 1999 has gradually led to a further 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 or defend 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. 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 Court said 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. 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 Much was made at the July 4th hearing by the Respondents, the Fiji National Provident Fund 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. Both will now be discussed in our submissions at some length due to the critical issues they 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 13

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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 the Individual 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 could no 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 for constitutional 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 be seen 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 do not provide the procedural path for human rights applications, as human rights applications. 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 no Rules 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 1990 Constitution, 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 her rights 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. Both these Constitutional chapters are appended to the Submissions in the Bundle of Authorities as are the relevant pages of the FHRC Compendium. 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. 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

14

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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 rights violation? 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 only the 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 social contract between Citizen and State and is justiciable. Under the circumstances, the Applicant 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. 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 an application 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 other laws 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 the military, 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 that Constitution was inadequate for the occasion. The extraconstitutional action authorised by that doctrine is essentially of a temporary character and it ceases to apply once the crisis has passed. 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 total chaos. 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 1997 Constitution. 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 the Interim Civilian Government.

15

On the basis of the further materials before this Court (including the 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 at the time, did have a genuine desire to do just that. The doctrine of necessity would have authorised him to have taken all necessary steps, 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 have reverted 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 authorise permanent 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 application procedure 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 application by 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 person considers that any of the provisions of the Bill of Rights Chapter has been or is likely to be contravened in relation to him or her The section refers to the right to make application to the High Court and that it is without prejudice to any other action with respect to the matter that the person concerned may have [Section 41(2)]. The High Court has original jurisdiction to hear and determine applications referred to it, and is empowered to make such orders and give such directions as it considers 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 High Court (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 the relief 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 16

the circumstances require. I have already stated, as indicated by the 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 this important 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 Fijis crisis. 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 be ignominiously 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 on the 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. 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 human rights grounds, despite two attempts, within as many months, to abrogate it. 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 not necessarily 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. 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 Constitutional Redress application process is not available to an applicant. Nevertheless the Notice of Motion 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 the Court process for the Applicant, David Burness, to make his application in this way since all other procedural avenues for human rights redress, previously provided by Constitution, are closed to him. 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 a Statement of Claim form. The form is easy to fill and guidelines are available to the 17

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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 instead of 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 Mr Burness 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, the Applicant would certainly have followed it. 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. These other jurisdictions make it very convenient for people complaining of human rights violations 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 the independence 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 the Human 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. 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 Asia Pacific region come to mind immediately in this regard- that of Sri Lanka and India- as well as one outside the region, South Africa. The Constitution of the Democratic Socialist Republic of Sri Lanka, by virtue of section 118, 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 executive or 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 such Court praying for relief or redress in respect of such infringement. Such 18

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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 or quo 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 refer the 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 making of 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. The Supreme Court of Sri Lanka has been robust in its application of the law in defence of peoples rights through the petitionary mechanism. Perhaps the most far-reaching and important decision on the principle of State responsibility 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 should apply 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. 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 redress for 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. 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 was inadequate. The Court held the Section 80 of the Ceylon (Parliamentary Elections) Order19

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in-Council provided that The petition shall also be accompanied by an affidavit in the prescribed 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). 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 in relation 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 the citizen 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 he should follow. In this situation the drastic step of dismissing the petition for this lapse, 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. 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 in favour of redress of rights (see Chaskalson Js remarks at page 2 in Brink v Kitshoff Case No CCT 15/95). The Supreme Court of India in its Practice and Procedure Handbook of Information has a section 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 of India 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 reason of 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 or disability 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 in case 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 the weaker 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 20

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Harijan workers engaged in road construction in the Ajmer District, who are living 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 letter addressed by such individual acting pro bono publico. It is true that there are rules 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 the forefront. 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. 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 been filed and served pursuant to the High 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 a minor technical ground, the soundness of which objection was questionable 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 the matter 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:

21

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 have adduced 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. This was 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 both the 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 of Uganda 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 or relief 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 first instance 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 22

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 the courts have taken an enabling rather than a technical approach. In Mokotso and Others v. HM King Moshoeshoe II and Others [1989] LRC (Const.) 24 Cullinan 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 legal mind, might appear beyond argument. The first applicant, however, would not seek legal assistance, and I considered myself in fairness obligated therefore to deal with all submissions made. Further, due to the constitutional aspect of the 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 made available 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. 23

(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 of Motion 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 the Burness case. Objection was made by the Solicitor General to the report by Ernst and Young 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. 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 the end 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 of reports to the Commission of Inquiry should the applicant be successful in having this prayer granted. Much was made by the solicitor for the FNPF Board about the missing word Board next to 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 27th, 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 a number of respects. The case of Commission on Human Rights State of Connecticut, exrel: 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 amended to 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 the issue 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 misnomer rather 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. 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 24

3.84

3.85

3.86

3.87

it was the correct defendant (there is no other FNPF); and it could not have been misled to its prejudice. Indeed, this last question of prejudice raises an issue of concern for the Applicant as beneficiary 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) two persons 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

3.90

3.91

3.92

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; Ajith Kodagoda 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 in membership but there are two employers representatives and two government representatives (it is not yet clear to the beneficiaries where Mr Kodagoda fits inemployer or Government?) with no employees representative whatsoever. Such composition falls far short of the tripartite representation legally required by statute. 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 appointed pursuant 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 rights redress, 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? It would behove the FNPF Board to accept the amendment of the Applicant to the title page 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 the Applicants 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. The Solicitor General made oral submissions on July 4th that under the State Proceedings Act there can be no injunction granted against the State. Clearly this is an argument to 25

bring to the hearing for interim injunction on the application already before Your Lordship, and not in his preliminary application for strike out. In any event, the Constitutional (High Court Redress) Rules, at section 3 (1) (ii) is unequivocal that an injunction can be prayed for. Moreover, Section 40 of the Human Rights Commission Decree also provides for remedies, including orders. More will be submitted on this point at the hearing for the application for interim injunction if the application to strike out is refused by the Hon. Court and this matter proceeds to hearing on the applications. Assessment 3.93 None of the alleged defects in the application of David Burness, as aggrandized by the solicitors for FNPF and the Attorney General from the bar table on July 4th, can actually be said to be (1) real rather than constructed, or (2) so serious as to imply an abuse of the process of the court under the fourth limb of Order 18 Rule 18. It may be that David Burness application came as so much of a surprise, out of left field as it were, that all the procedural grounds for strike out were brought to bear by the State and FNPF on the application without the slightest knowledge or understanding of how these grounds have in fact been discussed by the courts in human rights cases. On the abuse of process ground the strike out application should therefore fail. 4.0 4.1 Further Discussion of Section 38 (5) of the Human Rights Commission Decree No 11 The application was made pursuant to section 38 (5) of the HRC Decree No 11. The provision states: (5) Nothing in this section limits the right of any person to apply to the High Court for redress for a contravention of his or her human rights; Provided however that no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or as may be made by the President, shall be brought before the High Court. Clearly the first part of subsection (5) allows any person to apply to the High Court for redress for a contravention of his or her human rights. The applicant has already stated that his application is to protect his right to life, property, social security, home and family, rights that the State is bound to protect in view of its membership of the United Nations and in view of the commitment to protect human rights and the right to be free from unfair discrimination provided in the Human Rights Commission Decree, common law and international law. The second part of section 38 (5) which presumably was supposed to place a limitation on the first part, is the proviso: Provided however that no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or may be made by the President, shall be brought before the High Court. There are several ways of dealing with the second limb of section 38 (5). First, the established rule, as expressed in the UN Siracusa Principles, (see Bundle of Authorities last tab submitted by the Applicants counsel to the Court on July 4th) that if a law exists to declare a right, there can be no limitation that will so erode the right in question that it becomes meaningless even to have any such law in place. Referring to civil and political rights, Principle I A 3., 7, and 8 state: 26

4.2

4.3

4.4

4.5 4.6

4.7

4.8

4.9

3. All limitation clauses shall be interpreted strictly in favour of the rights at issue 7. No limitation shall be applied in an arbitrary manner 8. Every limitation imposed shall be subject to the possibility of challenge to and remedy against its abusive application Therefore the limitation posited by the second limb of section 38 (5) must be interpreted strictly in favour of the rights at issue- and the right at issue in section 38 (5) is the right to access the courts. The right to access the courts is a common law right that pre-dated the invention of Parliament. In the celebrated case of Taylor v New Zealand Poultry Board [1984] 2 NZLR 394 the eminently respected New Zealand Judge, Sir Robin Cooke, later Lord Cooke of Thorndon, said Some common law rights presumably lie so deep that even Parliament could not override them. Sir Robin Cooke said this in reference to whether literal compulsion by torture was within the lawful powers of Parliament; however, the fundamental right to access the court for the determination of ones rights would surely not be denied by this maxim. Another way is to read down the limitation; in the case of Anisminic Ltd v Foreign Compensation Commission [1968] APP.LR 12/17 Lord Pearce avoided the appearance of an ouster clause in section 4 (4) of the Foreign Compensation Act 1950 which stated that a determination by the commission shall not be called in question in any court of law . Lord Pearce interpreted this ouster clause to mean a real determination not a purported determination and that therefore a court could question a purported determination. In this way, courts have been creative in circumventing ouster clauses that purport to diminish rights of people. Therefore, the applicant can bring his case to the High Court; firstly he is not challenging the legality or validity of the revocation of the Constitution of 1997; secondly he is not challenging the legality or validity of any Decree made or as may be made by the President. He is challenging the right of the FNPF (improperly-constituted Board) to put in place a review that reduces his pension which will affect his human rights. Since the Human Rights Commission Decree binds the State, the State is the second Respondent. It has a duty to protect. In any event, not to be able to challenge non-reviewable Decrees from a human rights perspective goes a little too far for a nation state that prides itself on being a member of the United Nations. What if there was a non-reviewable Decree having the effect of breaching the right to life, or right to personal property, or the rights of the child, or the rights of women in Fiji? Could the Courts abdicate their responsibility as courts of justice and refuse to entertain an application brought pursuant to the right to life and other fundamental common law rights? If Sir Robin Cooke said that some common law rights lie so deep that not even Parliament can override them, what would he say about the executive? Can an executive override rights that not even Parliament can override? These are questions for the courts on application. The issue raised by Mr Burness application is whether the High Court is able to protect his fundamental common law right to come to the courts door and seek justice in relation to his pension. Articles 8 and 10 of the UDHR provide him with right of access to the court. This is why the Applicant is seeking declarations- he wants the High Court as the court of original jurisdiction in human rights

27

4.10

4.11

4.12

4.13

matters to declare his right to have his pension left alone by a Board that is not even properly constituted according to the FNPF Act. To give effect to this, a rule of construction can be applied. Rules of statutory construction are used by the Courts to consider legislative intention and interpret law. In a proper separation of powers jurisdiction, that is, the separation of powers between the legislature, the executive and the judiciary, this is probably not too problematic. But in a situation where the law is not one emanating from the legislature, but from the executive, some other considerations arise which should indicate to the court that it is even more necessary to ensure that rights of citizens are not affected by too narrow an interpretation of executive promulgations and decrees in a nation where the first language is not English, or where those drafting decrees whose first language might be English can take advantage of the citizens of the country whose ordinary civil rights, some of them quite fundamental, are being curtailed without their knowledge, consent or, at best, consultation. Therefore, to give effect to the rights expressed in section 38 (5) of the Human Rights Commission Decree No 11, of 2009, the best canon of statutory construction that can be employed to ensure access to courts by human rights applicants, is that of ejusdem generis. Using this tool of interpretation, the second limb of section 38 (5) : Provided however that no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or may be made by the President, shall be brought before the High Court means that the Courts jurisdiction is only ousted from considering Decrees made or may be made by the President that have to do with the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009. Clearly the word such in the second limb of the provision must mean only those Decrees on legality or validity of the revocation of the 1997 Constitution. If it is interpreted to mean all or any Decrees, past, present and future, the court would not be able to consider even those Decrees that might be manifestly contradictory to the Human Rights Commission Decree, including those that make the operation of the Human Rights Commission Decree No 11 of 2009 patently unworkable by cancelling it out altogether. The President of Fiji could not possibly have put in place a human rights decree just for the sake of having one in name only.It seems therefore that the limitation in the second limb of section 38 (5) might have only contemplated the possibility of a Chandrika Prasad type of action, where rights were used by the Applicant to un-revoke the 1997 Constitution, rather than a blanket cancellation of rights per se. But the applicant David Burness has no desire to challenge the revocation of the 1997 Constitution by his application. He wants to claim his right to a pension pursuant to the Human Rights Commission Decree, which he does not believe is a dead letter and, furthermore, as indicated, there is no FNPF Decree in sight yet that could trigger the operation of the second limb of section 38 (5) even if the Court believed that this second limb served as a brake on all human rights applications in respect even of all future Decrees, yet unknown, and whether or not they might violate human rights, which would not only make the law in Fiji very uncertain and lawmakers very unpopular indeed but also make it impossible to give full effect to the Human Rights Commission Decree in all respects for all the people of Fiji.

28

4.14 5.0 5.1

5.2

In any event, the Applicant is not in favour of any FNPF review, reform, policy or action that reduces his pension. That is all that his specific human rights claim is and he respectfully requests the Hon. Court to declare his rights pursuant to his application. Conclusion For the reasons and authorities provided in these submissions, the Applicants claim ought not to be struck out as having no reasonable cause of action, being scandalous, frivolous or vexatious, or that it may cause prejudice, embarrassment or delay the fair trial, or is an abuse of the process of the court. Furthermore his application for human rights redress cannot be ousted by statute to the extent that he cannot claim any rights at all under the Human Rights Commission Decree or common law. At least his right to seek justice in the High Court, the court of original jurisdiction in human rights matters, will be secure if the interpretation of the second limb of section 38 (5) is to be given its sensible meaning according to the strict rule of construction, ejusdem generis, which would be consistent with delivery of rights protected by the Human Rights Commission Decree No 11 of 2009, common law, and international law, taking into account the guidelines on statutory limitations set out in the UN Siracusa Principles.

Respectfully. Submissions on behalf of the Applicant

Dr Shaista Shameem ShameemLaw Date: 11th July 2011 IN THE HIGH COURT OF FIJI CIVIL JURISDICTION AT SUVA

HUMAN RIGHTS COMMISSION DECREE 2009 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

29

SUBMISSIONS IN RESPONSE TO FIJI NATIONAL PROVIDENT BOARD AND ATTORNEY GENERALS ORAL APPLICATION TO STRIKE OUT DAVID FLOWLER BURNESS APPLICATION FOR HUMAN RIGHTS REDRESS
Address for Service: Suva Business Centre 217 Victoria Parade, Suva

Phone: 3100071

Mobile 9514751

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