Dewa v University of the South Pacific [1994] FJHC 175; Hbj0007d.1994s (18 November 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0007 OF 1994

IN THE MATTER of an Application
by FERETI SERU DEWA for a Judicial Review under Order 53
of the High Court Rules 1988

AND

IN THE MATTER of the Decision of THE UNIVERSITY OF THE SOUTH
PACIFIC made on or about the 1st day of December, 1993
whereby it purported to refuse to extend the Applicant's Contract

Between:

FERETI SERU DEWA
Applicant

and

THE UNIVERSITY OF THE SOUTH PACIFIC
Respondent

Mr. V. Kapadia for Applicant
Mr. G. Keil for Respondent

DECISION

This is Respondent's motion seeking an Order that (as stated in the Motion):

"The Applicant's Notice of Motion for Judicial Review be dismissed with costs on the grounds that the nature of the Applicant's claim is based upon the Respondent as an employer not renewing the Applicant's (as employee) contract of employment 'a claim' not eligible for judicial review but enforceable by ordinary action."

On 8 April 1994 under Order 53 Rule 3 of the High Court Rules 1988 leave to apply for Judicial Review in respect of the decision of the University of the South Pacific (hereafter referred to as "USP") which is the Respondent, made on or about 1 December 1993 whereby it purported to refuse to 'extend' the Applicant's contract, was granted to FERETI SERU DEWA (hereafter referred to as the 'Applicant').

In support of his application the Applicant swore an affidavit on 28 February 1994 and filed it in Court on 2 March 1994. He also filed on the same date a Statement which is required to be filed pursuant to Order 53 Rule 3(2) setting out particulars about the Applicant, his employment details, the reliefs he is seeking and the grounds in support of them.

The learned counsel for USP Mr. Keil wished to contest the leave and hence his present Motion filed 12 April 1994.

After the last of the written submission had been filed by counsel on 31 August 1994, hearing of Motion took place before me on 19 September 1994.

The facts pertaining to the Applicant's history of employment with USP are set out in the said Affidavit sworn 28 February 1994. For the purposes of the present application I give below a brief account of it as far as it is relevant with the view to stating the situation herein.

The applicant was first employed by USP in 1980 as a Preliminary Lecturer on a three year contract. In 1982 the contract was renewed for further three years. He gained his Master of Arts degree in 1987 and in 1988 was awarded a Doctor of Philosophy degree by Loughborough University of Technology, U.K. In 1989 his contract was again renewed for three years. In February 1989 he applied to be made a Senior Lecturer and after some correspondence with USP, on November 1989 he was informed that his application for promotion has been unsuccessful. The applicant showed his disappointment and wrote to USP which replied to his grievances on 24 November 1989. From 1991 his contract was renewed by USP from year to year only instead of the normal three years. There was an offer of Contract dated 11 March 1993 'extending' his contract as Lecturer 1A in Mathematics at USP from 10 March 1993 until 31 December 1993 stating that 'any extension thereafter will be subject to satisfactory staff review' (exhibit 'N' to Applicant's affidavit). In 1993 he obtained a very satisfactory Staff Review. Then on 1 December 1993 USP informed him that the Staff Review Committee decided not to offer an extension of his contract when it expired on 31 December 1993. On 3 December 1993 he wrote asking for an explanation as to why the contract was not being 'renewed'. The USP replied to him but refused to disclose the reasons for the non-extension of his contract.

The grounds upon which the Applicant is seeking relief against USP are as follows (as set out in the Notice of Motion for Judicial Review):

"(a) That THE UNIVERSITY OF THE SOUTH PACIFIC breached the Rules of Natural Justice in that it did not give the Applicant a fair hearing and was biased against the Applicant.

(b) That THE UNIVERSITY OF THE SOUTH PACIFIC failed to give any or any proper reasons for its decision.

(c) That THE UNIVERSITY OF THE SOUTH PACIFIC abused its discretion in that:-

(i) That it took into consideration irrelevant matters and

(ii) It did not take into consideration relevant matters and

(iii) It acted unreasonably, arbitrarily or in bad faith;

(iv) It acted in breach of the Doctrine of Legitimate Expectations.

(d) That THE UNIVERSITY OF THE SOUTH PACIFIC exceeded its jurisdiction."

Mr. Keil's submission is as hereunder. The USP is established by Charter and its operation is governed by its Charter, Statutes, Ordinances, Standing Orders of Council including Staff Ordinance of 1990 and Staff Review Procedures of 1990. It engages staff as in the case of the Applicant under ordinary contracts of service. The matter complained of by the Applicant is the "non-extension" of his contract which expired on 31 December 1993.

Mr. Keil says that in effect the Applicant is seeking a remedy for breach of contract of employment which in principle is ineligible for Judicial Review but that the remedy should be sought by ordinary action. He said that once the question of renewal of the Applicant's contract of employment was dealt with by USP under the Staff Ordinance provisions and Staff Review Procedures his remedy lay in ordinary action.

On the Applicant's claim that he was entitled to a renewal of his contract on the principles of his "legitimate expectations", he says that such principle only applies to a person who has some form of right or liberty and the expectation must spring from or be associated with a legal right. The principle has no application to the circumstances of this case concerning the question of the unfettered right of an employer not to renew the contract of employment of an employee.

For these reasons Mr. Keil asserts that this decision of USP is not susceptible to judicial review.

In reply to USP's submission the Applicant, through his counsel Mr. Kapadia, states that USP is a public body which is incorporated under Royal Charter and that its Charter forms part of the Laws of Fiji, Cap. 266. He says that all public bodies are subject to the rules of 'natural justice' and are required "to act reasonably" and "within their jurisdiction".

He says that in not "extending" his contract USP acted "unreasonably, arbitrarily and in breach of the doctrine of legitimate expectations". The Applicant says that he "is not complaining of a breach of contract which would come within the domain of Private Law. What the Applicant is complaining about he says clearly must come within the domain of public law".

The issue is whether on the facts and in the circumstances in which the Applicant's contract was not 'extended' gives rise to a right to bring an action by way of Judicial Review instead of an action by writ.

As USP seeks to have the proceedings dismissed in limine, if it is to succeed it can only do so on the basis that, accepting all that the applicant complains as valid, the remedy of judicial review is nevertheless wholly inappropriate and the continuance of the application for judicial review would involve a misuse of the procedure of the court under the High Court Rules 1988 Order 53.

To decide the issue before me it is necessary to consider the facts of the case, the various grounds of complaint and counsels' submissions.

As far as his contract is concerned as already stated USP communicated to the Applicant by letter dated 11 March 1993 that any extension after 31 December 1993 will be subject to satisfactory staff review and that it will be subject to the provisions of the Charter and statutes of the University and the University of the South Pacific Ordinance (1990). The Staff Review was satisfactory as on 17 November 1993 Professor Brian D.C. Richards, Professor of Mathematics and Computing Science and Head of Department gave a very favourable report on the applicant which, inter alia, stated as follows:-

"I am satisfied with Dr. Dewa's Academic, administrative, and "town and gown" performance in 1993, and consider him to be vital to the mathematics education research and development initiative planned for commencement in 1994, to be conducted jointly with me, and referred to in the main body of supporting evidence in section B.

Dr. Dewa is now proving to be a very cooperative colleague with a positive attitude. His performance in teaching is of a quality similar to that of twenty per cent of members of staff.

I have no hesitation on this occasion in recommending that his contract be renewed and to trust that a positive decision by the Committee will not result in deviation in performance from the satisfactory profile now established. The research project to be initiated early in 1994 should assist greatly in his maintaining this satisfactory level of performance".

In another section of his said report on the Applicant he said:

"Again, not having received adverse reports from anyone, one must assume a satisfactory performance. From observations within the Department it is evident that benefit has been derived from the experience of his working together with the outgoing coordinator".

In the face of Professor Richards very good report on the Applicant and despite his firm recommendation, in his own words "I have no hesitation on this occasion in recommending that his contract be renewed ...", the Staff Review Committee (hereafter referred to SRC) wrote to the Applicant on 1 December 1993 and informed him that SRC has decided "not to offer you an extension of your contract when it expires on 31 December 1993". When asked by the Applicant for an "explanation why the contract was not renewed", USP replied on 15 December 1993 that the decisions of SRC are "confidential" and they are "not in a position to disclose them" to him.

The procedure adopted by SRC is as set out in "STAFF REVIEW: ACADEMIC AND COMPARABLE ADMINISTRATIVE, LIBRARY AND TECHNICAL STAFF" (annexure 'T' of applicant's affidavit) and item 4 sets out "Sources of Information used by Committee".

In considering the issue before me I cannot loose sight of the fact that FATIAKI J had on 8 April 1994 granted leave to apply for judicial review. It was then that Mr. Keil stated that he wished to contest leave and hence the present application.

The purpose of leave is:

".... to filter out the applications of cranks and busybodies who might otherwise impose an excessive burden in the process of legitimate administrations. The granting of leave does not prevent a respondent from applying to strike out an application, just as applications to strike out are possible in actions begun by or originating summons. The fact that leave is required, however, gives the Court an opportunity to control applications of its own motion, e.g. refusing leave or permitting them to proceed only in such manner as it may direct. The Court does not require extensive argument on an application for leave but simply need to be satisfied that the applicant has a prima facie arguable point." (per LORD DONALDSON in R v SECRETARY OF STATE FOR HOME DEPARTMENT, ex. p. Cheblak (1991) 1 WLR 890 at 901 (APPLICATION FOR JUDICIAL REVIEW Law and Practice of the Crown Office by ALDOUS & ALDER 2nd Ed. p. 139).

Also the effect of the granting of leave simply meant that the court gave the Applicant its permission to bring proceedings and "implies no more approval and gives no more relief than that" (ibid ALDOUS & ALDER p.147).

In this case his Lordship must have considered all relevant matters before granting leave accepting thereby that the Applicant has a "prima facie arguable point". But there is nothing to prevent USP making the present application.

Prima facie the facts as outlined and the circumstances surrounding the decision in this case do raise questions of "natural justice" and "legitimate expectations" and which are matters about which the Applicant complains. Whether or not SRC should have given reasons for non-extension and denying him the right to be heard are matters which in my view I cannot properly delve into without a proper hearing of the Judicial Review application. The procedure adopted by SRC in arriving at its decision adverse to the Applicant in the circumstances of this case particularly in the face of the satisfactory report and a strong recommendation for an extension of contract does compel me to examine the status of USP, acting through SRC, as a public body and to see whether some element of 'public law' comes into play thus making the Applicant's case susceptible to judicial review despite the fact that he was an employee of USP and the relationship of master and servant existed between them.

It is said that:

"Where any person or body exercises a power conferred by statute which affects the rights or legitimate expectations of citizens and is of a kind which the law requires to be exercised in accordance with the rules of natural justice, the court has jurisdiction to review the exercise of that power. (JUDICIAL REVIEW by Superstone and Goudie p.32)

In any particular case it is for the court to determine whether a sufficient degree of 'public law' is present. No doubt there are cases where universities are subject to special limitations on the availability of judicial review derived from special rules and regulations pursuant to the powers given to them under statutes governing their administration.

In R v BBC, ex p. LAVELLE (1980) 1 AER 241 at 249 WOOLF J said:

"An application for judicial review has not and should not be extended to a pure employment situation. ..."

It is settled law that private employment is clearly outside the realms of judicial review.

I have come to the conclusion that in all the circumstances of this case the Judicial Review application should proceed to hearing. In the approach that I have taken on the issue before me I have ample support in a number of decided cases such as GLYNN v KEELE UNIVERSITY (1971) 1 WLR 487, AINSWORTH & ANOR and CRIMINAL JUSTICE COMMISSION (175 CLR p.64), UNIVERSITY COUNCIL OF THE VIDYODAYA UNIVERSITY OF CEYLON and ORS and LINUS SILVA (1965) 1 WLR p.77 PC, PAGE v HULL UNIVERSITY VISITOR [1992] UKHL 12; (1993) 1 AER 97 H.L. COUNCIL OF CIVIL SERVICE UNIONS and ORS. v MINISTER FOR THE CIVIL SERVICE [1983] UKHL 6; (1984) 3 AER 935 H.L, O' REILLY & ORS and MACKMAN & ORS [1983] UKHL 1; (1983) 2 A.C. 237 and UNIVERSITY OF CEYLON v FERNANDO (1960) 1 AER 631 PC.

In some of these cases involving Universities actions by way of judicial review have been instituted in matters of employment. I am not so much concerned at this stage with the decisions reached in these cases as much as how the matter of employment was handled by the courts and how the various principles in judicial review matters were discussed in employer and employee situations. Each case has to be looked at on its own merits.

I feel that in all the circumstances of this case I should not shut the door on the Applicant on the hearing of this motion, for this case, prima facie, does involve, as I have stated earlier, considerations of elements of 'public' and 'private' law, relationship of master and servant, principles of 'natural justice' and 'legitimate expectations'. On the evidence before me in the form of affidavits I consider that there is insufficient evidence to enable me to decide properly on the motion and it would be proper to examine and consider these matters in the hearing and therein decide whether I accept Mr. Keil's arguments that the Applicant's case is one of ordinary master and servant thus making the application not amenable to Judicial Review. This approach will also avoid the Court having a second bite at the cherry.

For the above reasons I dismiss the motion with costs against the Respondent which are to be costs in the cause. I also order that the Respondent file an Affidavit in Reply to the Applicant's Affidavit in Support of Application for Judicial Review within 14 days and thereafter the action to take its normal course.

D. Pathik
Judge

Suva
18 November, 1994

HBJ0007D.94S