In re Application by Waqavonovono [1995] FJHC 41; Hbj0030d.1994s (24 February 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

CIVIL ACTION NO. 030 OF 1994

Between:

IN THE MATTER of an Application by JIUTA WAQAVONOVONO
of Kinoya, Nasinu, Fiji, Unemployed (The Applicant)

for LEAVE to apply for a JUDICIAL REVIEW under Order 53
of the Rules of the High Court of Fiji

-and-

THE PUBLIC SERVICE COMMISSION
as Constituted under Section 126 of the Constitution
(The Respondent)

Mr. J. Baledrokadroka for the Applicant
Mr. Isikeli Mataitoga for the Respondent

DECISION

This is an application by JIUTA WAQAVONOVONO (hereafter referred to as the "applicant") for leave to apply for Judicial Review under order 53 r 3(2) of the High Court Rules.

In accordance with the said Order 53 the applicant filed an Affidavit in Support of Notice of Application for Leave to Apply for Judicial Review and a Statement.

When the Notice of Application for Leave was served on the respondent the Public Service Commission (hereafter referred to the "Commission"), it opposed the application on the grounds that: " (1) there are no proper basis in law for this application and (2) that there has been undue delay in the filing of this Judicial Review Application".

Mr. Mataitoga counsel for the Commission filed an Affidavit in Reply by POSECI BUNE the Secretary to the Commission together with a written submission as to why the Application should be refused.

After reading the documents filed in Court, I decided to hear the application inter partes particularly on the aspect of the very long delay on the part of the applicant in making the application. In any case where delay has occurred, the reasons for it should be explained on the Notice of Application for Leave and the verifying affidavit. (Application for Judicial Review, 2nd Ed by ALDOUS & ALDER p.136); although the fact that the respondent consents (which is not the case here) is no bar to the court considering the delay of its own motion and refusing to extend time. (R v DAIRY PRODUCE QUOTA TRIBUNAL, exp. WYNN JONES 1987 2 EGLR 9; ALDOUS & ALDER ibid p. 136). Accordingly both counsel appeared before me and made their submissions.

The details pertaining to the application are contained in the documents filed and I do not consider it necessary to reiterate them in this Decision except to state some very brief facts which have given rise to the problem of delay in making the application.

The applicant was employed by the Fiji Meteorological Service from 1987 to 1990. He was stationed at Yasawa-i-Rara Out Station before his dismissal. He was notified that his services were terminated from 4 July 1990 on the ground that he had been "deemed to have resigned" under the provisions of Regulation 34(7) of the Public Service Commission (Constitution) Regulations 1990 for failing to report back to work within 7 days from the date of expiry of his leave. He said that it was on 25 February 1993 through his solicitors that he was notified for the first time in writing of the termination but by letter dated 4 July 1990 the applicant was dismissed. He said that an Appeal was filed with the Commission. On 16 November 1993 the Commission informed the applicant's solicitors in writing that the Commission has at "its meeting held on 25 August 1993 reconsidered the dismissal of Mr. Jiuta Waqavonovono, former Senior Technical Assistant with the Department of Meteorology and decided that the decision to dismiss Mr. Waqavonovono from the service should not be revoked."

Mr. Joeli Baledrokadroka for the Applicant relies on the documents filed by him. On delay he said that it was because of distance application could not be made in time though he agreed that the applicant was informed orally on 4 July 1990 of his termination. When asked by Court, he said that the applicant did return to his Headquarters at Nadi and said that he appealed on 8 October 1991 and handed to Court a handwritten letter in that regard. He agreed that there is 'no proof' that the letter was sent to the Commission and he does not know himself that it was forwarded.

I turn now to the consideration of the application for leave. Order 53 r4 specifies the time limit within which an application should be made. The order reads as follows:-

4. - (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, 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 sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.

(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made". (underlining mine for emphasis)

There is no doubt that the delay in applying has been far too long despite the fact that the applicant was informed of his termination on 4 July 1990. He chose not to communicate with the Respondent and he has not picked up his letter of termination from the headquarters of the Fiji Meteorological Service at Nadi (vide FMS letter of 25 February 1993). He did not attach to his affidavit copy letter dated 8 October 1991 which he alleges he sent to the Commission questioning the termination and it was only when the court asked the learned counsel for the applicant that he produced it. There is neither any proof that it was in actual fact sent to the Commission nor could the learned counsel throw any further light on it. In ALDOUS & ALDER (supra p.133) it is stated:

"In the leading case of Caswell v Dairy Produce Quota Tribunal for England and Wales (1990 2AC 738 Lord Goff emphasised that questions of delay are best dealt with in depth at the substantive hearing. Leave should, therefore, only be refused in clear cases of unjustifiable delay. In Caswell itself leave was granted even though nearly two years had passed. In R v Comr for Local Administration, exp Croydon London Borough Council, Woolf LJ stated that the delay provisions should not be construed technically and should not be invoked strictly against an applicant who has behaved sensibly and reasonably. Nevertheless, an applicant delays at his peril." (underlining mine for emphasis)

In this case there was an "unjustifiable delay" and the applicant did not behave "sensibly and reasonably".

As stated in ALDOUS & ALDER (supra p. 133) as the above provision in Order 53 r4 shows, application for judicial review are subject to time limits and the Court can refuse leave as a result of quite short periods of delay. If it was not so, public authorities would be saddled with dealing with unjustifiably late applications. The provisions regarding delay from the Rules and authorities can be summarised thus:

(a) applications must be made promptly and in any event within three months but the court may extend time if there is a good reason to do so;

(b) for undue delay the court may refuse leave if the granting of relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration;

(c) failure to apply promptly or in any event within three months will be treated as undue delay;

(d) the courts still treat the issue of delay as a matter of discretion within the express provisions.

The applicant says that the final decision on his appeal to the Commission was received by him on 16 November 1993 and he files his application on 12 November 1994 which is some 13 months later.

In that period of 13 months there have been appointments to the post. It will be prejudicial to the present holder if the application was granted. Therefore the delay on the applicant's part was at his peril. In considering this application I have borne in mind the following extract from the judgment of ACKNER L.J in R v STRATFORD-ON-AVON DC ex p. JACKSON (1985) 2 AER 769 (referred to Court by the Respondent):

"...we have concluded that whenever there is a failure to act promptly or within three months there is "undue delay". The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."

As the respondent argued, here the delay exceeded the 3 months period by another 10 months. As already stated the granting of leave would substantially prejudice the rights of the present appointee. Therefore the undue delay is a ground for refusing leave even if the applicant makes out his case on other grounds (ALDOUS & ELDER supra p.137).

I shall now deal with the second statutory ground, namely, whether in this case the granting of leave would be "detrimental to good administration".

I agree with the Respondent that judicial review of administrative action is an essential means of redress and the procedure laid down for it is intended for prompt determination of the case. The following passage from the judgment of Fiji Court of Appeal in ANURADHA CHARAN (FCA No. 2 of 1992) is worth noting in this regard:

"In a world of burgeoning bureaucracy and use of administrative powers by an increasing number of official bodies, judicial review is an essential means of redress. The special procedures are designed for a relatively straightforward and prompt determination of the case. We see an unfortunate and growing tendency by litigants to seek judicial review in cases suited to different proceedings and remedies and to submit ever more prolix documents for the court to consider. This is all too frequently matched by an apparent unwillingness of the court to take firm control of proceedings particularly at the early stages".

(Emphasis Added)

Although there is no definition of "good administration", ALDOUS & ELDER supra at p. 137 states:

"It is suggested, however, that 'good administration' means more than mere uninterrupted or smooth running administration but is intended to reflect what Lord Diplock in O'Reily v Mackman expressed as:

"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".

Mr Bune has set out in paragraphs 7 & 8 of his affidavit the "substantial hardship" that would ensue and detriment that would be caused to good administration in this case if the application was granted. He states:

"7. THAT I verily believe that granting of leave in this case would affect the efficient and good personnel management in the Public Service, in that it will allow uncertainty in determining the exact date when an officer can be taken to be terminated and a new officer expeditiously appointed in his place. Furthermore, that would permit others later not to seek Judicial Review of the Commission's decision within the stipulated time and that is certainly not good for the proper and efficient administration of the Public Service."

"8. THAT since Jiuta Waqavonovono's removal from the Service two officers have have occupied the post vacated by him. The first was Ajesh Kumar f/n Ram Sharan and when this officer was promoted to a higher post, Kolinio Levuiciva was appointed to the post. All this took place because there were no steps being taken by the applicant Jiuta Waqavonovono to contest the confirmation of his dismissal advised through his Solicitors on 16 November 1993."

To summarize, the delay in making the application has been far too long and no proper explanation has been given for it. In all the circumstances of this case, as discussed hereabove, the granting of leave, in the words of Order 53 r4 "would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration".

I therefore refuse leave for judicial review in this matter with costs against the applicant to be taxed if not agreed.

D. Pathik
PUISNE JUDGE

At Suva
24th February, 1995

HBJ0030D.94S