Chand v Attorney-General for Fiji [1995] FJHC 152; Hbj0024d.1994s (2 October 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

ACTION NO. HBJ0024 OF 1994

IN THE MATTER of an application
by SUBHASH CHAND (f/n Suren Chand)
of Koroba Street, Nakasi Park, Nasinu 9 Miles, Labourer,
for leave to apply for Judicial Review
under Order 53 of the High Court Rules

AND

IN THE MATTER of the decision given by MINISTRY OF INFRASTRUCTURE, PUBLIC WORKS AND MARITIME on the 11th day of November, 1993 whereby it purportedly terminated the Applicant from his work.

BETWEEN

SUBHASH CHAND
(f/n Suren Chand) of Koroba Street, Nakasi Park,
9 Miles, Nasinu, Labourer
- Applicant

AND

THE ATTORNEY-GENERAL IN AND FOR FIJI
1st Respondent

AND

THE MINISTRY OF INFRASTRUCTURE,
PUBLIC WORKS AND MARITIME
2nd Respondent

R. Chand for the Applicant
D. Singh for the Respondents

Dates of Hearing: 30th August and 25th September 1995
Date of Ruling: 2nd October 1995

RULING

The Applicant who is a labourer was employed for 14 years by the Ministry of Infrastructure, Public Works and Maritime at the Suva Water Supply and Sewerage Section prior to his employment being terminated with effect from 11th November 1993. The reason for the Applicant's termination was stated to be the negligence of the Applicant on the night of the 1st of July 1993 while he was on duty as a Watchman when a power generator went missing from the Public Works Department, Caubati site. He now seeks leave to apply for Judicial Review of the decision to dismiss him.

In support of his application he has sworn and filed two affidavits. In the first of these sworn on the 17th of August 1994 he states that the generator was found missing sometime between the 21st of June and 23rd of June 1993 and he was informed of this when he reported for work on the 23rd of June 1993 by his Supervisor Mr. Taitusi.

The Applicant states that he asked Mr. Taitusi whether he had reported the matter to the Police but was told he had not. The Applicant states that he then said he would report the matter to the Police but Mr. Taitusi asked him not to as "it would disgrace the name of the Ministry".

After two weeks Mr. Taitusi informed the Applicant that the generator had been found and recovered whereupon the Applicant was transferred to Nakelo and thereafter to Vatuwaqa. It was while he was working at Vatuwaqa that he received his Notice of Dismissal.

The Applicant denies that the generator went missing as a result of any negligence on his part and that the Ministry failed to give him any opportunity to answer any charges. He claims that the Ministry failed to allow him to reply to or rebut any evidence which it had or to cross-examine any witnesses the Ministry may have had to enable it to reach its decision to dismiss him.

The application seeking leave to apply for Judicial Review was filed on the 21st of September 1994 and the relief the Applicant seeks is:

(a) an Order for certiorari to remove and quash the Ministry's decision to terminate his employment;

(b) a declaration that the decision to dismiss him is invalid;

(c) a declaration that he is entitled to his salary from the date of his termination until his reinstatement; and

(d) an order that the Applicant be forthwith reinstated. The Applicant also makes a claim for damages.

I should state here that the actual decision to terminate Mr. Chand's employment was dated the 2nd of November 1993 and was effective as I have said from 11th November 1993.

In reply to these allegations the Second-named Respondent has filed an affidavit which states that the generator was discovered missing on the night of 1st July 1993. The deponent, one Viliame Lewaidua Uluinayau who is the Principal Assistant Secretary of the Second-named Respondent, states that the Applicant was called for an interview in regard to the missing generator; that after investigation the Applicant was found to be negligent and careless during his working hours and that he was given an opportunity to be heard and defend himself when he was asked to make his own statement.

I observe that Mr. Uluinayau does not say that the Applicant was given an opportunity to question or cross-examine any witnesses which the Ministry had against him.

Finally Mr. Uluinayau states that the decision to terminate Mr. Chand was "an overall decision of the Respondent". I do not understand what this phrase means as yet but it may become clearer later.

When the matter first came before me on 30th of August 1995 counsel for the Second-named Respondent stated he would oppose the granting of leave on the ground of excessive delay by the Applicant in making his application and would rely particularly on the case of R. v. Dairy Produce Quota Tribunal for England and Wales ex-parte Caswell [1990] UKHL 5; (1990) 2 ALL E.R. 434 and the local Court of Appeal decision in Civil Appeal No. 19 of 1992 Dharam Lingam Reddy v. Veliamma and State, unreported judgment of 21st May 1993.

At that stage I informed the Applicant's counsel that I would give the Applicant leave to file and swear a supplementary affidavit relating to the correspondence between his Union and his solicitors and the First-named Respondent. The Applicant swore such an affidavit on the 5th of September 1995 and it exhibits copies of the Notice of Dismissal, a letter from the Applicant dated 10th November 1993 asking the Respondent to reconsider his decision to terminate his decision, a copy letter from the First-named Respondent to the Applicant's Union dated 14th March 1994, a copy letter in reply by the Union dated 24th March 1994, a copy letter from the Applicant's solicitors dated 11th April 1994 to the Respondent asking the Respondent to review its decision to dismiss the Applicant and a further letter by them dated 20th July 1994.

In his supplementary affidavit the Applicant claims that no replies were ever given by the Respondent to his solicitors' letters. He says that as a result of this his solicitors issued the present application. He also deposes that he was not in a financial position to engage a solicitor previously.

Order 53, Rule 4 of the Rules of High Court deals with delay in applying for relief in any application for Judicial Review and is the subject of extensive case law. It provides that where in any case the Court considers that there has been undue delay in making an application for Judicial Review the Court may refuse to grant:

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief would be likely to cause substantial hardship to or substantially prejudice the rights of, any person or would be detrimental to good administration.

In the case of an application for an order of certiorari the time limit for applying for relief is three months after the decision sought to be reviewed. As Lord Donaldson M.R. speaking for the English Court of Appeal in R. v. Civil Service Appeal Board, ex-parte Cunningham (1991) NLJ said at page 455:

"Such leave will only be granted if the applicant makes out a prima facie case that something has gone wrong of a nature and extent which might call for the exercise of the judicial review jurisdiction."

Recently Fatiaki J. had to consider the question of whether to grant Judicial Review after leave had been given in R. v. Minister for Labour and Industrial Relations ex-parte Shore Buses Limited and Others, Judicial Review No. 0021 of 1993 in unreported judgment of 17th August 1995. In that case leave for Judicial Review was granted by consent by myself on 22nd November 1993 but various procedural delays then occurred culminating on the 4th of August 1994 when owing to the non-appearance of counsel for the Applicants the application was adjourned sine die. As His Lordship said on page 3 of his judgment the action 'went to sleep' for ten (10) months until the respondent revived it with an application filed in the Court on 31st May 1995 for an order that the action be dismissed for want of prosecution.

In that case the Applicants had made their application within the three months period but the Respondent complained that 17 (seventeen) months elapsed since the substantive application for Judicial Review was filed and more especially 10 (ten) months since the application was adjourned sine die for non-appearance of counsel for the Applicants His Lordship then quoted from various mainly English cases including the remark of Lord Diplock in O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237 at page 280:

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.

Likewise Lord Goff of Chieveley in R. v. Dairy Produce Quota Tribunal ex-parte Caswell referred to the meaning of the phrase "detrimental to good administration" and said at page 441:

"In asking the question whether the grant of relief would be detrimental to good administration, the court is at that stage looking at the interest in good administration ... (which) interest lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision. Matters of particular importance, apart from the length of time itself, will be the extent of the effect of the relevant decision, and the impact which would be felt if it were to be re-opened."

He also quoted from the headnote in Regalbourne Limited v. East Lindsay District Council (1994) 6 Admin L.R. 102 (loose leaf) where it was:

"Held: (dismissing the appeal) (1) In the absence of agreement, before the court will consider exercising its discretion to extend time ... it will normally need to be satisfied that there is an acceptable explanation for the delay. Lawyer's commitments or ignorance would be unlikely to be an acceptable explanation:

(2) If such an explanation is found, then the risk of prejudice will be considered.

(2) Where decisions of public law bodies are the subject of the application, the Court will be reluctant to extend time because of the need for such bodies to know where they stand."

In Caswell's case the application for leave was made nearly two years and eight months after the decision of the tribunal sought to be reviewed. The Applicants were dairy farmers who claimed that the Dairy Produce Quota Tribunal had erred in not holding that the Applicants were entitled to milk an additional 80 cows to the 70 they were already milking. The judge hearing the substantive claim for Judicial Review upheld this claim but then refused relief because there had been undue delay on the part of the Applicants in applying for Judicial Review and the grant of relief would be likely to be detrimental to good administration.

Both the Court of Appeal and the House of Lords dismissed the Applicants' appeal on the ground that to grant relief would be likely to lead to applications for leave from other disappointed applicants and to the re-opening of the quota for back years.

In the Shore Buses case the Ministerial Order challenged was made under the Wages Councils Act (Cap. 98) which, as Fatiaki J. said, may be classed as 'social legislation' for the protection of workers or employees in trades or industries without adequate machinery for dealing with such matters as remuneration or terms and conditions of employment. He continued towards the end of page 9 of his judgment:

"In this regard the existence of an order suspending the operation of a ministerial 'wages regulation order' not only creates uncertainty within the Ministry charged with responsibility for administering the Wages Councils Act but in addition, the workers for whose benefit the 'wages regulation order' was made are denied the statutory minimum standards to which they would otherwise have been entitled to receive but for its suspension."

In those circumstances the judge was satisfied that this was an appropriate case for the exercise of the Court's discretion and dismissed the application for Judicial Review.

In the present case I accept that default on the part of a professional, non-legal adviser is not good reason for extending the period as was apparently held in R. v. Tavistock General Comrs, ex-parte Worth (1985) STC 564 referred to at page 348 of the recent book "Judicial Review" by Michael Supperstone QC and James Goudie QC published in 1992.

It will be readily apparent that the delays both in Caswell and the Shore Buses Limited were greater than in the instant case. Also counsel for the Respondent initially submitted that the Applicant had failed to exhaust his alternative remedies and could have appealed to the Public Service Commission about his dismissal but had failed to do so. On being reminded by counsel for the Applicant that this right of appeal had been abolished by Section 14 of the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990, counsel for the Respondent abandoned that submission. This means that unless I at least give the Applicant a chance to present his case on a substantive motion he will stand dismissed from his employment after 14 years of what is so far not denied to have been an unblemished work record.

So far also the Respondent has not denied the Applicant's claim that he was denied an opportunity to see the affidavits apparently implicating him in the disappearance of the generator and the further opportunity of cross-examining the deponents of those affidavits. In some ways the facts resemble those in R v. Barnsley Metropolitan Borough Council, ex-parte Hook (1976) 3 ALL E.R. at 452 where Mr. Hook, a stallholder in the local market for 6 years without complaint, was banned from trading in the market without being given any particulars of any charge or of the evidence against him.

The Court of Appeal held that he had been denied natural justice and furthermore the punishment imposed on him was excessive and out of proportion to the facts admitted.

I also recall the pungent comment by Megarry J. in John v. Rees (1970) 1 Ch.D. 345 at 402 who said that experience shows that which is confidently expected by no means always happens. His Lordship was remarking on those who would decry the importance which the Courts attach to the observance of the rules of natural justice by saying "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." His Lordship then continued:

"Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

Had the Applicant any right to appeal to the Public Service Commission I would have dismissed his application for leave for Judicial Review on the ground that he had not exhausted his alternative remedies but that right has been denied him by the decree promulgating the 1990 Constitution.

Furthermore I am not satisfied that to allow the Applicant leave would be detrimental to good administration or would be likely to lead to a flood of similar applications. If anything would be contrary to good administration in my view it would be to allow the Applicant to be dismissed from his employment after 14 years by an employer who has so far not denied that he was given no opportunity to see affidavits or cross-examine their deponents. I fail to see how such a denial could be described as "good administration".

I also note the remark of Lord Goff at page 439 of his speech that questions of delay are best dealt with in depth at the substantive hearing. Leave should therefore be refused only in clear cases of unjustifiable delay.

The material before the Court at present does not satisfy me that there has been unjustifiable delay or that any delay has been detrimental to good administration. I therefore grant the Applicant leave to apply for Judicial Review.

JOHN E. BYRNE
J U D G E

List of authorities referred to in judgment:

R. v. Dairy Produce Quota Tribunal for England and Wales ex-parte Caswell [1990] UKHL 5; (1990) 2 ALL E.R. 434.
R. v. Civil Service Appeal Board ex-parte Cunningham (1991) NLJ 455.
R. v. Barnsley Metropolitan Borough Council ex-parte Hook (1976) 3 ALL E.R. 452.
John v. Rees (1970) Ch.D. 345.
Dharam Lingam Reddy v. Veliamma and State unreported judgment of 21st May 1993.
State v. Minister for Labour and Industrial Relations ex-parte Shore Buses Limited and Others, Judicial Review No. 0021 of 1993 unreported judgment of Fatiaki J. of 17th August 1995.
R. v. Tavistock General Comrs ex-parte Worth (1985) STC 564.

Additional case mentioned in argument:

R. v. Chief Constable of Thames Valley Police Force ex-parte Cotton (1990) IRLR

HBJ0024D.94S