Dewa v University of the South Pacific [1996] FJHC 125; Hbj0007j.1994s (4 July 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0007 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 the Applicant
Mr. F.G. Keil for the Respondent

JUDGMENT

This is an application for judicial review by FERETI SERU DEWA (referred to as "Dr. Dewa") pursuant to leave given on 8 April 1994.

The decision impugned is that of the applicant's former employer, the University of the South Pacific (referred to as the "USP") which rejected the applicant's application for renewal of his contract of employment conveyed by letter dated 1 December 1993. Prior to this the applicant had been employed by the USP for a period of about 14 years. By letter dated 15 December 1993 MS SAROJINI DEVI PILLAY (referred to as the "Registrar") refused to disclose any reason for the non-renewal stating that the decisions of the Staff Review Committee (referred to as "SRC") are "confidential" and they are "not in a position to disclose" them to him.

I might mention at this stage that the leave for judicial review was contested and the USP had by motion sought an order that:

"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".

In my decision on the Motion delivered on 18 November 1994 I stated, inter alia, that:

"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."

About the Applicant

The applicant was first employed by the 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 the USP in November 1989 he was informed that his application for promotion has been unsuccessful. The applicant showed his disappointment and wrote to the 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 the USP informed him that the Staff Review Committee (SRC) 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 not renewing it.

What is challenged

It is that decision of the SRC acting on behalf of the USP that is now the subject of challenge.

The relief sought

The relief sought are in the following terms:

(a) AN ORDER OF CERTIORARI to remove the said Decision of THE UNIVERSITY OF THE SOUTH PACIFIC made on or about the 1st day of December, 1993 into this Honourable Court and the same be quashed.

(b) AN ORDER OF MANDAMUS directing THE UNIVERSITY OF THE SOUTH PACIFIC to renew the Applicant's contract on existing terms and conditions.

(c) A DECLARATION in any event that THE UNIVERSITY OF THE SOUTH PACIFIC has acted in breach of the Rules of the Natural Justice and/or abused its discretion and/or exceeded its jurisdiction.

(d) Damages against THE UNIVERSITY OF THE SOUTH PACIFIC.

(e) Further Declarations or other relief as to this Honourable Court may seem just.

(f) Costs of this action.

Grounds of challenge

The grounds upon which the Applicant is seeking relief against the Respondent 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 the 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."

The Issues

There are two issues for Court's determination. Firstly, whether the said decision of the USP is amenable to judicial review . Secondly, whether if reviewable, the applicant is entitled to all or any of the reliefs sought by him.

The Applicant's submissions

I now turn to consider the arguments put forward by Mr. Kapadia the learned counsel for Dr. Dewa.

On the first issue Mr. Kapadia submits that the U.S.P. is a public body which is incorporated under Royal Charter and its Charter forms part of Laws of Fiji which is contained in 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 the Staff Review Committee (SRC) is a creature of the 'Statutes' and the Charter. It is a Statutory Committee with delegated powers appointed by the Council of the USP. The 'Statutes' is set out in the Second Schedule to the Charter.

Article 17 of the Charter states:

"Subject to this Our Charter, the Statutes may prescribe or regulate as the case may be:- (a) the status, appointment and continuance in office of the Chancellor, Pro-Chancellor, Vice-Chancellor, Deputy Vice-Chancellor, Registrar and other officers of the University".

He says that Statutes, in Article 1(1) of Cap. 266, defines "the academic staff" to mean:

"the Professors, Librarian, Readers and Lecturers of the University; and includes such other persons and categories of persons as the Council, on the recommendation of the Senate, shall determine."

He further submits that:

The power to delegate by the Council is contained in paragraph 14 of the Statute. The power to remove officers of the University is contained in the Ordinance for Discipline attached to the Statutes. (vide Annexure 'U' in Fereti Dewa's Affidavit filed on the 2nd March 1994). It specifically provides inter alia that members of the academic staff may be removed from office by the Council for misconduct and provides that they shall be given a reasonable opportunity to be heard by the Council which opportunity shall include the right to be represented at such a hearing to question witnesses and to have reasons assigned (if asked for) for any decision that may be taken by the Council leading to removal from office.

In view of the above provisions in the Charter, Mr. Kapadia submits that Dr. Dewa's position as lecturer is a statutory one to which statutory safeguards apply irrespective of the technicalities of the type of employment contract, and where there is failure to observe those safeguards it brings into play principles of public law such as legitimate expectation, unfairness, bias, irrationality and unreasonableness.

He further submits that this is not a mere contract of employment case disentitling Dr. Dewa to any remedy in law if it is not reasonable in the light of the authority of MALLOCH v ABERDEEN CORPORATION (1971) 2 AER 1278 and GLYNN v KEELE UNIVERSITY (1971) 2 AER 89. He says that Dr. Dewa has a statutory status and in his case irrespective of whether there is or not a contract of employment for a fixed time or otherwise, a renewal of that contract of employment brings into play the doctrine of legitimate expectations and other doctrines applicable to public law such as a right to a fair hearing, no bias, fairness and reasonableness in the decision-making process relating to Dr. Dewa's tenure at the USP.

Mr. Kapadia submits that the courts these days are more concerned about looking at the substance of the matter (SCOTT J in GHANSHYAM PRASAD v FPSA and AG C.A. 275/91). In GHANSHYAM (supra) the following passage from the judgment of LORD WILBERFORCE in DAVY v BELTHORNE AC 262 at 278 was quoted with approval on this aspect:

"We have not yet reached a point at which a mere characterisation of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary Courts; to permit this would be to create a dual system of law with the rigidity and procedural hardship for Plaintiffs which it was the purpose of the recent reforms to remove".

Mr. Kapadia submits with reference to MALLOCH and GLYNN cases (supra) that a University lecturer of a University established pursuant to 'statutes' is entitled to the benefit of natural justice and as such whether it is a case of a renewal of a contract or a dismissal from a contract of employment the rules and principles applicable to natural justice apply.

He says that since the USP is a public body pursuant to the USP Charter and Statutes, Dr. Dewa's appointment as lecturer has a statutory basis, the remedy of Judicial Review under Order 53 is available to him.

The matter of 'visitor' of the University was touched upon by Mr. Keil in his submissions. On this Mr. Kapadia submitted that although under paragraph 27 of the Charter a 'visitor' could be appointed, there is "nowhere published" that one has been appointed.

Mr. Kapadia says that Dr. Dewa's legitimate expectation has been breached by the manner in which the SRC dealt with his matter despite the favourable recommendations of the Head of Department to renew his contract. The USP failed to follow its own guidelines and the procedures relating to disclosure of adverse material to Dr. Dewa. The USP has shown unreasonableness, unfairness and bias towards Dr. Dewa which entitles him to have the said decision quashed.

The Respondent's submissions

Mr. Keil for the U.S.P. contends that the U.S.P. 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 the 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. He says that 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 the USP is not susceptible to judicial review.

The learned counsel also takes issue with the Applicant that the requirement of natural justice has to be complied with in all matters being considered by the USP when dealing with staff. He says that it does not apply as far as it affects the USP's granting of contract of employment.

Mr. Keil says that there are detailed provisions as to the manner in which appointment for staff are being considered under the internal Rules of the U.S.P. These are not under the control of any outside body or "statutory regulation". It includes the provision that the hearings of the SRC are confidential and which being an internal procedure of the USP would be expected to have been binding on members of the staff.

Mr. Keil further submits that there is no public law element in this case. He referred to decided cases, showing how the universities were established including the role which the 'visitor' played but he did say that a visitor is "not free from all control of courts".

The consideration of the first issue

The main contention of the USP is that it is not a public body and hence it is not amenable to Judicial Review when it comes to the issue involving employer/employee relationship. In fact it is asserting that this is purely a master and servant relationship and hence there is no room for the application of the rules of natural justice. It maintains that it is not bound to give any reason to Dr. Dewa as to why his contract was not renewed despite his request for it in writing. Mr. Keil says that Dr. Dewa's remedy lies in the area of private law and not by way of judicial review.

The applicant on the other hand submits to the contrary as stated hereabove and says that the decision is subject to judicial review.

The Public and Private Law approach
Establishment of the University

Much has been said in the submissions about the distinction between public law and private law and I shall now consider this distinction and the modern approach to the demarcation line between the two with particular reference to the USP.

The issue whether the USP is a private body as stated by Mr. Keil so as to exclude its decisions being amenable to judicial review can only be decided by looking at the way it has been established and the function it performs.

On the question of whether or not the High Court has jurisdiction to entertain an application for judicial review, LATHAM J in R v SUPREME COURT TAXING OFFICE ex p. Singh & Co. (QBD) 11 April 1995, Adm L.R Dec 1995 p849 at p853 said:

"It seems to me that the question of jurisdiction has to be resolved by looking at the function being performed by the person or body whose decision is being challenged, and not the office held by that person, or the general description of that body."

In the Writ action of SATENDRA PRATAP NANDAN s/o Shiu Nandan and THE UNIVERSITY OF THE SOUTH PACIFIC (Action No. 818/82 Sup Ct at p 10 cyclostyled judgment) KERMODE J said:

"The University is a Body corporate established by Royal Charter. There are also what are termed "Statutes of the University". The Charter and Statutes have been given statutory recognition and effect and appear as Cap at 266 in the 1978 Volume XIV of the Revised Laws of Fiji"

The University's predecessor was established by the University of the South Pacific (Interim Council) Ordinance of 1967 (being Ordinance No. 8 of 1967 in the laws of Fiji). This Ordinance was repealed by Ordinance No. 7 of 1970 being the University of the South Pacific (Interim Council) (Repeal) Ordinance, 1970 which came into force on 5 March 1970.

The Charter of the USP is contained in Volume XIV of the Laws of Fiji as Cap. 266. It is dated 4 February 1970 but was first published as Legal Notice No. 35 in the Supplement to the Fiji Royal Gazette of 20 March 1970. Some of the relevant provisions of the Charter relevant to the issue are as follows (as stated in the preamble).

Grant of charter

"WHEREAS Our Principal Secretary of State for Foreign and Commonwealth Affairs has on behalf of the Interim Council of the University of the South Pacific and in accordance with the wishes of the Governments of the British Solomon Islands, Fiji and the Gilbert and Ellice Islands and after consulting Our High Commissioner for the Western Pacific as regards the interests of the people of the New Hebrides, represented unto Us that it is expedient that We should constitute and found a University of the South Pacific for the maintenance, advancement and dissemination of knowledge by teaching, consultancy and research and otherwise and for the provision at appropriate levels of education and training responsive to the well-being and needs of the communities of the South Pacific and should grant a Charter with such provisions in that behalf as shall seem to Us right and suitable;

The University is constituted and its powers

There shall be and is hereby constituted and founded for the communities of the South Pacific a University in Fiji with the name and style of "The University of the South Pacific" (in this Our Charter referred to as "the University").

University a body corporate and its powers

The Chancellor, the Pro-Chancellor, the Vice-Chancellor and all other persons who are for the time being members of the University pursuant to this Our Charter and the Statutes of the University are hereby constituted and henceforth for ever shall be one Body Politic and Corporate with perpetual succession and a Common Seal by the name and style of "The University of the South Pacific" with power and capacity in that name to sue and be sued, to take, purchase, hold, charge, sell, exchange, demise or otherwise dispose of real and personal property, to invest, lend or borrow money, and, subject to this Our Charter, to perform such other acts as by law Bodies Corporate that are created by Charter may do; and the University shall have the constitution and powers and be subject to the provisions in this Our Charter prescribed or contained."

The powers vested in the USP are contained in item 4 of the Charter. It provides, inter alia:

"4(a) to institute Professorships, Readerships and Lectureships and other offices of any kind and whether academic or not as the University may consider appropriate; to appoint persons to and remove them from such offices and to prescribe their conditions of service"

In view of what I have stated hereabove, I agree with KERMODE J in NANDAN (supra) and with Mr. Kapadia that from the Charter and the 'Statutes of the University', the USP has been given a Statutory recognition. It is therefore quite obvious that the USP is a public body. It performs public law functions. Its decisions are therefore subject to judicial review including in the sphere of employment contract of the nature before me. On statutory power, in MANUNIVAVALAGI DALITUICAMA KOROVULAVULA and PUBLIC SERVICE COMMISSION (Civ App. 6/94) the Fiji Court of Appeal said:

"The Common law makes it clear that, generally speaking a statutory power conferred on any person or authority for public purposes is conferred, it were, upon trust and not absolutely. Accordingly the holder of such a power does not have an unfettered discretion in exercising the power."

Holding as I do as above, I therefore do not agree with Mr. Keil that the employment of Dr. Dewa was a private law matter although there was an employer/employee relationship. Even after looking into the distinction between public law and private law and the present day view on the subject, the matter before me is of a public law nature.

It is difficult to draw the distinction between public and private law. This is one area and, in the context of employment, as has been said "many had doubted the utility or even existence of such a distinction. There remain, nonetheless, broad considerations of policy justifying the creation of a separate regime for certain grievances against public bodies." (JUDICIAL REVIEW - CROWN OFFICE PROCEEDINGS p3141 - C1-001)

It is said that even private law has a place in Order 53 for it is further stated in Crown Office Proceedings (supra) at p.3107 - C1-017:

"It would, however, be unwise to conclude that private law has no place in Order 53 applications. Particular difficulties can arise where public and private law issues are mixed. Can it be said that in such instances an applicant is obliged to select a public law remedy or vice versa?...

The reality of judicial review is that the court decides, on a policy basis, which interests are to prevail so as to enable its supervisory jurisdiction to be exercised. This is made necessary because, although the actio popularis is unknown in English law, there is a continuing need for judicial control of public misuse of power. In practice, procedural rules and substantive principles under Order 53 are governed predominantly by the court's view of the permissible limits of judicial intervention in cases savouring of misuse of public power."

Master and servant relationship

The case of Dr. Dewa was no ordinary case of master and servant relationship. There was considerable public law element involved in this case and the USP was required to take certain preliminary steps before making the decision. This was not done. On this aspect LORD REID in MALLOCH (supra) at 1284 said:

"But in my view if any employer fails to take the preliminary steps which the law regards as essential he has no power to dismiss and any purported dismissal is a nullity. We were not referred to any case where a dismissal after failure to afford a hearing which the law required to be afforded was held to be anything but null and void."

Lord Wilberforce at p.1293 said:

"The appellant's challenge to the action taken by the respondents raises a question, in my opinion, of administrative law. The respondents are a public authority, the appellant holds a public position fortified by statute. The considerations which determine whether he has been validly removed from that position go beyond the mere contract of employment, though no doubt including it. They are, in my opinion, to be tested broadly on arguments of public policy and not to be resolved on narrow verbal distinctions.

The appellant is entitled to complain if, whether in procedure or in substance, essential requirements, appropriate to his situation in the public service under the respondents, have not been observed and, in case of non-observance, to come to the courts for redress." (underlining mine for emphasis)

He goes on to say (on master and servant relationship)

"..... One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume this is inevitably so), these must be confined to what have been called 'pure, master and servant cases', which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection"

He also said at p.1295 and 1296:

"In Ridge v. Baldwin my noble and learned friend Lord Reid said 'It has always been held, I think rightly, that such an officer (sc one holding at pleasure) has no right to be heard before being dismissed'. As a general principle, I respectfully agree; and I think it important not to weaken a principle which, for reasons of public policy, applies, at least as a starting point, to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute, or regulations, or code of employment or agreement. The rigour of the principle is often, in modern practice, mitigated for it has come to be perceived that the very possibility of dismissal without reason being given - action which may vitally affect a man's career or his pension - makes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred on him expressly or by necessary implication, and how far these extend."

Dealing with a case of judicial review in employment situation, it is interesting to note what LORD CLYDE said in the Scottish case of BLAIR v LOCHABER DISTRICT COUNCIL (The Times 4.11.94 p.40 SCOTS LAW REPORT):

"The cases in which the exercise of the supervisory jurisdiction was appropriate involve a tripartite relationship, between a person or body to whom the jurisdiction power or authority had been delegated or entrusted, the person or body by whom it had been delegated or entrusted and the person or persons in respect of or for whose benefit that jurisdiction, power or authority was to be exercised."

The above is the situation in the present case. From the above passages it is clear that judicial review is very much available in a situation such as this.

As far as this case is concerned, I adopt the following passage from the judgment of LORD LOWRY in ROY v KENSINGTON and CHELSEA FPC [1991] UKHL 8; (1992) 2 WLR 239 as apt on the procedure adopted by Dr. Dewa:

"It seems to me that unless the procedure adopted by the moving party is ill-suited to disposition of the question at issue there is much to be said in favour of the proposition that a court having a jurisdiction ought to let a case be heard rather than entertain a debate concerning the form of proceedings."

The "Visitor" approach to judicial review

In case I am wrong in the above approach to the issue in holding as I do that the USP is a public body and performs public law functions even in the case of employment of academic staff, there is another way in which I find that judicial review is available to the applicant and that is through the "Visitor" provision in Article 27 of the Charter. It provides:

"27. We reserve unto Ourself, Our Heirs and Successors, the right, on representation from the Council made in pursuance of a resolution passed by a simple majority of the members of the Council present and voting, to appoint by Order in Council a Visitor of the University for such period and with such duties as We, Our Heirs and Successors, shall see fit and his decision on matters within his jurisdiction shall be final."

Visitor of the University

What then is the situation regarding the appointment of a visitor as far as the USP is concerned?

As will be seen from the authorities I shall refer to hereafter, a person aggrieved by the decision of the USP has the right to resort to the visitor and the visitor's decision is subject to review by the Courts. In DR PATRICK MUMA and THE UNIVERSITY OF THE SOUTH PACIFIC & 2 OTHERS (Civ. App. 22/91 FCA judgment 22.5.95) it was held (infra) that there is a visitor of the USP in the person of the President of the Republic of Fiji. Whether His Excellency the President is aware that he holds this position or not I cannot say.

However, in view of the decision in DR. MUMA (supra), the applicant here could have taken his grievance to the visitor but subject to what I say hereafter he did not, as it appears that he could not have as he was not aware that that was possible until this decision which was given after he filed this application.

In some of the leading cases it has been stated that the "visitor" dealt with disputes etc and matters of the nature such as the one before this Court and that the visitor's decision would be subject to judicial review. In these cases the Universities, as in this case, had their own charter, statutes and regulation and these dealt with the internal domestic affairs including, staff matters of the universities. I shall deal with the visitor's duties and powers a little later in my judgment.

Although there is a visitor of the University of the South Pacific, evidently no one has been appointed under the said Article 27. However, the learned counsel for the USP referred the Court to DR. MUMA'S case (supra), which was a writ action, wherein the Court held:

"...that in August 1989, when the appellant's writ of summons was issued, even though no Visitor had been appointed in pursuance of section 27 of the charter, the University had a Visitor, namely the President of Fiji, by operation of law and that it has done so ever since. Accordingly, we are satisfied that the learned judge was right when he ruled that the appellant could not come to a Court to seek the declarations which he was seeking in his Statement of Claim. As a member of the University he could have taken to the Visitor his complaint about the matters raised in paragraphs 4 to 11 of his Statement of Claim; they were, therefore, not justiciable in a court."

(underlining mine for emphasis)

How the Fiji Court of Appeal arrived at the above conclusion is set out at length in DR. MUMA'S case (supra).

The case before me is not a writ action but one by way of judicial review under Or.53. However, in this case Mr. Keil, when asked by Court about the "Visitor" aspect in view of Dr. Muma's case, said "not raising here - only in relation to public or private body". I understood that to mean that, although Dr. Muma's case decided who the visitor is, counsel did not require me to deal with the issue on the basis that there was a visitor. Impliedly, it meant that Mr. Keil waived the necessity to refer the matter to the visitor if the court was minded to do so as it did in Dr. Muma, and that I deal with the matter as a visitor would have dealt with it if he was asked to do so. In these circumstances it is clear that had the matter gone to the visitor he would have dealt with it first and there would have been no need to come to Court; and if the applicant was dissatisfied with his decision it would have been reviewed by way of judicial review which the authorities which I cite hereafter allow. In that situation through the visitor approach no question of the need for the distinction between private law and public law would have arisen and the court would have been able to look into the allegations, inter alia, of denial of natural justice and legitimate expectation etc as raised by Dr. Dewa.

In the English cases it has been held that the visitor's decisions are subject to judicial review. LORD ACKNER stated to this effect in the House of Lord's case of THOMAS v UNIVERSITY OF BRADFORD 1987 1 AER 834 at 852.

"The source of the obligation on which Miss Thomas relies for her claim is the domestic laws of the university, its statutes and its ordinances. It is her case that the university has failed either in the proper interpretation of its statutes or in their proper application. Miss Thomas is not relying on a contractual obligation other than an obligation by the university to comply with its own domestic laws. Accordingly, in my judgment, her claim falls within the exclusive jurisdiction of the visitor, subject always to judicial review." (underlining mine for emphasis).

There is also the following passage from the judgment of LORD GRIFFITHS in THOMAS (supra) at p.849-850 which strengthens this view allowing for the availability of certiorari over the visitor's decision:

"Finally, there is the protection afforded by the supervisory, as opposed to appellate, jurisdiction of the High Court over the visitor. It has long been held that the writs of mandamus and prohibition will go either to compel the visitor to act if he refused to deal with a matter within his jurisdiction or to prohibit him from dealing with a matter that lies without his jurisdiction.... Although doubts have been expressed in the past as to the availability of certiorari, I have myself no doubt that in the light of the modern development of administrative law, the High Court would have power, on an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers." (underlining mine for emphasis)

As KERR L.J stated in University of London ex parte Vijayatunage 1987 3 AER 204 at 211 that the above passage formed part of the ratio of LORD GRIFFITH'S decision is clear from the following paragraph when he continued as follows (at 850):

"These considerations lead me to the conclusion that the visitatorial jurisdiction subject to which all our modern universities have been founded is not an ancient anachronism which should now be severely curtailed, if not discarded. If confined to its proper limits, namely the laws of the foundation and matters deriving therefrom, it provides a practical and expeditious means of resolving disputes which it is in the interests of the universities and their members to preserve." (underlining mine for emphasis).

LORD ACKNER in THOMAS (supra) at 852 concluded by saying:

"Accordingly, in my judgment, her claim falls within the exclusive jurisdiction of the visitor, subject always to judicial review."

(underlining mine for emphasis).

At this juncture, having decided that there is a visitor whose decision is subject to judicial review, it is pertinent to state the extent and nature of the visitor's powers particularly in so far as it has a bearing on this case. In this regard I can do no better than refer to the following passage from KELLY L.J's judgment in Re WISLANG'S APPLICATION (1984) N I 63 which was referred to in the judgment of LORD GRIFFITHS in THOMAS (supra) at 843-844 and which passage dealt with the argument that the "issues in dispute involved question of contract and were thus outside the jurisdiction of the visitor":-

"That the matters in dispute were internal matters lying within the visitatorial jurisdiction was of course strongly challenged by Dr Wislang. They were not, he said, because they included the question of the validity of the decision to dismiss him, the authority of the Vice-Chancellor and the Secretary of the University, the legality and regularity of the proceedings before the Board of Curators and the Appeal Committee and the Senate. All these were matters he submitted outside the jurisdiction of the board of visitors, because they were or many of them were in breach of his contract of employment. But what the authorities show, as I read them, is that matters may well be in breach of a contract of employment, yet within visitatorial jurisdiction, if those matters are of an internal domestic character or touch upon the interpretation or execution of private rules and regulations of the university. Of course the applicant has the right under his contract to have the criteria relating to the assessment of his fitness as a lecturer observed and the special procedures of the university bodies who determine this and as a result terminate his employment, regularly and fairly followed. But this right while a right under a contract of employment seems to me to relate to the regular and fair execution of procedures in accordance with the internal rules and regulations at the university. If the matters in dispute under his contract of employment related to purely common law or statutory rights and not to private or special rights of the university, then of course visitatorial jurisdiction could not determine them and Dr Wislang's remedies would be in the ordinary courts or the appropriate statutory tribunals. This must follow from the nature of visitatorial jurisdiction itself as analysed and explained by the case-law, as well as the relationship between the university and a lecturer and who by his contract of employment becomes a member of the university and submits himself to its internal rules on matters touching his standing and progress at the university. Undoubtedly a contract of employment may contain terms some of which are concerned with private or special rights given as a member of the university and other terms express or implied which give purely contractual or statutory rights. In these circumstances the visitatorial and the common law or industrial jurisdiction co-exist. The common law or statutory rights are enforceable in the courts of the appropriate statutory tribunals, but the visitatorial jurisdiction is not ousted." (underlining mine for emphasis).

LORD GRIFFITHS at 847 further stated:

"In the present case, the entire dispute is centred on the statute, ordinances and regulations of the university. Were they correctly applied and were they fairly administered? Such a dispute in my view falls within the jurisdiction of the visitor and not the courts of law, notwithstanding that its resolutions will affect Miss Thomas's contract of employment"

The above two passages were referred to by KERR L.J in his judgment in UNIVERSITY OF LONDON (supra) when he said that "these passages obviously leave no doubt as regards the jurisdiction of this court to entertain the present proceedings in principle". KERR L.J further said in reply to counsel's submission that "the court's powers of judicial review over visitors are more restricted than in relation to other tribunals or authorities" etc, that:

"my present view, however, is that I can see no reason for concluding that the general principles of the court's powers of judicial review are any different in relation to the acts and decisions of visitors from other cases. What may well be different, however, is the appropriate way, as a matter of the court's discretion, of exercising those powers in relation to visitors and the circumstances in which visitatorial powers fall to be exercised. An approach of self-denial may well be appropriate in such cases, depending on the circumstances." (UNIVERSITY OF LONDON (supra) at 214).

To sum up, as far as the visitor aspect is concerned, the applicant's grievance but for the reason I have already stated could have been taken to the visitor whose decision on the authorities referred to above would have been subject to judicial review even in the case of employment contracts which in this case is no ordinary contract of employment.

For these reasons particularly because the USP is a public body, it performs public law functions, and the visitor's decision being subject to judicial review in a matter such as the one before me, I hold that the remedy of judicial review is available to Dr. Dewa.

The second issue
The Law - legal principles

Having held as above, I shall now consider whether the applicant is entitled to any of the relief.

Judicial review may be invoked by a person who is adversely affected by the misuse of public power. It is a process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.

In a judicial review the Court's function is to review not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. In CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS (1982) 1WLR 1155 at 1174 LORD BIRGHTMAN said:

"Judicial review as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made".

And as SIR THOMAS BINGHAM MR said:

"... We have one function only, which is to rule upon the lawfulness of decisions" (R v CAMBRIDGE DISTRICT HEALTH AUTHORITY ex p B 10.3.95 CA NLJ. March 24, 1995 p.415).

Also as LORD HAILSHAM said at 1160 in EVANS (supra) on the purpose of the remedy by way of judicial review under order 53:

"...It is intended to see that the relevant authorities use their powers in a proper manner".

At this juncture I would like to refer to the following extract from the judgment of BRENNAN J in ANNETTS AND ANOR. and McCANN & ORS 170 CLR (High Court) p.596 at 604 which is a useful statement on the purpose of judicial review which I consider apt with the view to applying it to the facts of this case:-

"Judicial review is not designed to control the way in which coroners and other public officers perform their functions; it is simply an application of the law governing the extent and exercise of a power. The focus of judicial review is a power created by statute conferred on an authority prescribed by statute. (It is unnecessary to consider whether the remedies of judicial review are available in respect of an exercise of prerogative power.) The remedies prohibit the exercise of a power or compel the exercise of a power or hold invalid a purported exercise of a power. To hold a purported exercise of power invalid is to deny it the legal effect which, if it were valid, it would have. An order prohibiting or compelling an exercise of power is made when the intended exercise of the power or the failure to exercise the power is contrary to law; an order holding a purported exercise of a power to be invalid is made when its purported exercise fails to satisfy a condition governing its validity. The law governing the extent and exercise of a power exists independently of the circumstances which evoke its exercise or the circumstances in which the exercise or purported exercise occurs. That must be so not only as a legal truism but as a matter of practical necessity: a repository of a power must know what the law requires for the valid exercise of the power before attempting its exercise."

In COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE (1985) A.C. 374 LORD DIPLOCK at p.410 observed that:

"one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety.' That is not to say that further development on a case by case basis may not in course of time add further grounds."

The duty to give reasons

Now to the grounds raised in this case.

Here no doubt Dr. Dewa feels aggrieved by the manner in which the matter of the renewal of his contract was handled. He has therefore come to Court by way of judicial review as he was a member of the staff of the USP at the time when his contract was not renewed. As I have already found, this was not a case of an ordinary employer and an ordinary employee where the former is free to act in breach of his contract of employment as SIR JOHN DONALDSON MR in R v EAST BERKS HEALTH AUTHORITY (1984) 3 AER at 429 said:

"The ordinary employer is free to act in breach of his contracts of employment and if he does so his employee will acquire certain private law rights and remedies in damages for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement or re-engagement and so on. Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee public law rights and at least making him a potential candidate for administrative law remedies."

Here the decision was taken but no reasons were given for it at any time despite the applicant asking for it. Hence he does not know till this day why this has happened. This decision naturally affects his future livelihood and the refusal to give reason may well be the mainspring of all that followed. However, the Court's main concern is the principles which fall to be applied to the application for judicial review in this case.

"If an administrative body is obliged to act fairly, it has to give its reasons to those affected by its decisions". (R v LAMBETH LONDON BOROUGH COUNCIL ex p. WALTERS, The Times, October 6, 1993, SIR LOUIS BLOM - COOPER, Q.C). The following passage from de SMITH'S JUDICIAL REVIEW OF ADMINISTRATIVE ACTION (4th Ed.) (1980) page 148 is apt in this case:

"If moreover no reasons for an administrative decision are proffered at all, it does not follow that the courts are powerless to intervene. For if a person seeking to impugn such a decision establishes a prima facie case of misuse of power by the administrative authority, failure by that authority to answer any allegation may justify an inference that its reasons were bad in law or that it had exercised its powers for an inadmissible purpose."

On the duty to give reason, I quote from BYRNE J's judgment in STATE v THE PERMANENT SECRETARY FOR LABOUR AND INDUSTRIAL RELATIONS Ex p FOODS (PACIFIC) LIMITED (JR No. 1/94 judgment 27.9.95) when at p.12 he quoted the following passage from the HAMLYN lectures for 1989 delivered by WOOLF L.J.:

"However, I regard the giving of satisfactory reasons for a decision as being the hallmark of good administration and if I were to be asked to identify the most beneficial improvement which could be made to English administrative law I would unhesitatingly reply that it would be the introduction of a general requirement that reasons should normally be available, at least on request, for all administrative actions. The only exception which I would countenance is one to cover those few situations where there is a compelling case for saying that the giving of reasons would be harmful in the public interest."

The question whether there is a substantive duty to give reasons in administrative law was also considered by the House of Lords in DOODY v SECRETARY OF STATE FOR THE HOME DEPARTMENT [1993] UKHL 8; (1993) 3 AER 92. There LORD MUSTILL found in recent cases of judicial review "a perceptible trend towards an insistence on greater openness in the making of administrative decisions" (p.107) and went on to say at p.110:

"..... the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied."

The same view was held in R v THE UNIVERSITIES FUNDING COUNCIL, ex p. The Institute of Dental Surgery [1993] EWHC Admin 5; (1994 1 WLR 242) by the Divisional Court, and the question for the court was whether the general demands of fairness, or the characteristics of the particular decision, could call a duty to give reasons for a decision. SEDLEY J said (at p.257):

"...each case will come to rest between two poles, or possibly at one of them: the decision which cries out for the reasons, and the decision for which reasons are entirely inapposite. Somewhere between the two poles comes the dividing line separating those cases in which the balance of factors calls for reasons from those where it does not. At present there is no sure indication where the division lies."

When a decision affects the rights and livelihood of a person it is all the more reason that the tribunal should give reasons for its decision. There is nothing in what is regarded as the 'Record' of the meeting of the SRC of 18-19 November 1993 to indicate why the contract was not renewed except to say, in so far as it is relevant, that "the Committee discussed Dr. Dewa's performance at length and agreed that it was not satisfied with it. The Committee resolved not to offer Dr. Dewa renewal of contract" (vide para 8 of ESEKIA SOLOFA'S affidavit sworn 22 May 1995). This decision was reached despite the Head of Department's recommendation to renew the contract. There was legitimate expectation on the part of Dr. Dewa that it will be renewed in view of the said recommendation. Nothing to the contrary was conveyed or even intimated to Dr. Dewa. It would have been a fair thing to do to bring to his attention any adverse reports. There is nothing in the rules or statutes to exclude this being done.

After having heard Mr. Keil I get the distinct impression that the USP was looking for a more and better qualified person, but there is nothing in any of the documents, including Prof. Richards Report and Recommendation on him, that that was so. It seems to me that Mr. Keil is giving his own views on the matter which I cannot accept. That is not evidence on which I can act. Similarly, the Registrar in her affidavit has attempted to volunteer her own impression of Dr. Dewa's capabilities for the post which she is neither qualified nor required to do. This is clearly outside the function of the Registrar.

All these submissions and the Registrar's comments suggest that irrelevant material have been introduced and unwarranted views have been expressed in the decision-making process resulting in denial of natural justice and culminating in procedural impropriety.

Here the procedure followed boils down to saying, that with the excellent report from the Head of Department on Dr. Dewa's performance dangling in front of him and no adverse report of any kind before the SRC, he was led up the garden path and then chopped down without any reasons being divulged to this day. The applicant's future career has been affected for no one will employ him as he will never be able to explain why his contract was not renewed. All this because of the USP's contention that it is protected by its rules of confidentiality and this in the face of item 4(e) of the Staff Review Procedures (A101 of Registrar's affidavit) which requires the staff member to have "been made aware of any matter of an adverse nature" about which I shall have more to say hereafter.

There is an interesting discussion by NEIL L.J and THOMAS L.J in R v MAYOR COMMUNITY and CITIZENS OF THE CITY OF LONDON and ANOTHER ex p MATSON (1995 Adm L.R. Vol 8 p.49) on the circumstances in which reasons ought to be given.

In Dr. Dewa's case I am strongly of the view that fairness and natural justice require that this decision should not be allowed to go unexplained. Some of the factors which have persuaded me to this conclusion are: (a) Dr. Dewa had an excellent report from Prof. Richards who is the Head of Department and who in no uncertain terms recommended renewal of contract, and from what transpired without his knowledge in SRC meeting Dr. Dewa had no means of knowing what the reasons were, (b) may be the basis of the decision was that some adverse report may have been given which he was entitled to know and be heard and (c) the adverse decision in bound to cast a shadow on his reputation which could be interpreted as meaning that there is a black-mark against him.

In MATSON (supra) at p50 it was held, inter alia, that "fairness and natural justice required that the alderman elect should have been given reasons, because .... (g) the alderman elect's rejection was bound to cast a shadow on his reputation; (b) the giving of short reasons by the court of alderman would not impede the court in the exercise of its powers, but would, on the contrary, enable it to ensure that its decisions in every case are sound, manifestly just, and in the interest of the City".

Whether the refusal to give reasons is fair or not will have to be determined in the context of the decision which is challenged. The following passage from the judgment of LEGGATT LJ in R v CIVIL SERVICE APPEAL BOARD ex parte CUNNINGHAM (1991 4 A.E.R. 310 (C.A.) at p.325 is apt:

"There are not here, as in certain contexts there are, any valid grounds for adhering to the general rule that there is no duty to give reasons. On the contrary, there are here particular grounds for departing from the general rule. Mr. Cunningham has a legitimate grievance, because it looks as though his compensation is less than it should be, and yet he has not been told the basis of the assessment. ... The cardinal principles of natural justice are that no one shall be a judge in his own cause and that everyone is entitled to a hearing. But the subject-matter of the decision or the circumstances of the adjudication may necessitate more than that."

I conclude the consideration of the need to give reasons with the following passage from the judgment of THOMAS L.J in MATSON (supra) at p.68 which is pertinent:

"In coming to a conclusion as to whether reasons must be given for a decision, much will depend upon the nature of the decision itself and the process by which that decision was reached. Once again the courts must be slow to interfere with decisions arrived at by bodies to whom the decisions are entrusted. It is impossible to lay down rules or guidelines of general application. I start with the very well-known passage from the speech of Lord Bridge in Lloyd v McMahon [1987] UKHL 5; [1987] AC 625 at p.702:

"Rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic or administrative or judicial, has to make a decision, which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on anybody the powers to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards and will ensure the attainment of fairness." (underlining mine for emphasis).

For those reasons I am firmly of the view that the USP was under a duty to give reasons for the decision not to renew Dr. Dewa's contract.

Doctrine of Legitimate expectation

There is a further ground that there was breach of the doctrine of legitimate expectation on the part of the USP.

Are the facts such as to base the challenge to the decision on this ground? To answer that one has to analyze the evidence.

The doctrine of legitimate expectation, like the duty to give reasons, is considered as part of the duty to act fairly as discussed above (The Applicant's Guide to Judicial Review by Lee Bridges and Ors. 1995 p.18). A person may have a legitimate expectation "that they will be consulted if they have a history of being consulted by the decision-maker or if the decision maker has made promises or given undertakings which the decision in question will alter" (quoting Bridges (supra) p.18, R v SWALE BOROUGH COUNCIL and MEDWAY PORTS AUTHORITY ex p. R.S.P.B. (1990) 2 Admin L.R. 790).

The Affidavit of the Registrar sworn 7 March 1995 sets out, inter alia, how the decision not to renew the contract was arrived at. It is interesting to note the Registrar's statement that although a sub-committee was established consisting of the Head of Department of Mathematics and Computing Science (Prof. B.C. Richards), Head of School of Pure and Applied Science (Prof. S. Willatt) and Deputy Director of University Extension (Richard Wah) "to report to the Staff Review Committee regarding Dr. Dewa's performance under his newly defined role," Willatt and Wah were not prepared to endorse that report which is contained in annexure A87-95.

As a matter of comment there is nothing anywhere in the papers filed to indicate that Willat and Wah showed their dissent. If they did and if it was done in the SRC meeting, which does not say so, it would be like saying things behind a person's back. They should have come out openly in writing like Professor Richards did. Then again what the Registrar is saying about Willatt and Wah's attitude is only what she is saying unsupported by anything in writing from them. In these circumstances one can safely conclude that there was no opposition to the Report to renew the contract from the persons who really mattered. If the others said anything there is nothing in the so-called scanty and confidential "minutes" of the proceedings relative to Dr. Dewa.

It is also a matter of comment that the Registrar in paragraph 24 says that "when analysed" the report "does not address the terms expected to be addressed in a staff review report in connection with the granting of a contract of employment ..." If that is so then it appears that she took no steps to obtain the necessary information. In any case, as Registrar, how is she competent to analyse the Report on an academic and volunteer comment on it in an affidavit.

Also in paragraph 25 she expected Dr. Dewa to submit a "report regarding his performance". If he did not do what was expected then the Registrar should have written to him and obtain the necessary information. It does not appear that she did that.

The Registrar did emphasize that Staff Review Procedures (annexures 99 - 106) were followed and that Dr. Dewa was not dealt with differently from others and that SRC "acted properly and in accordance with its established practice and procedures in reaching its decision". If that is so then what is the answer to item 4(e) of the Staff Review Procedures (A101 of Registrar's affidavit) which provides:

"Chairman will put before the Committee any other information which he considers relevant, provided that the staff member had been made aware of any matter of an adverse nature".

ESEKIA SOLOFA, the Vice Chancellor of USP stated what transpired under his Chairmanship at the meeting of the Staff Review Committee held on 18 and 19 November 1993 in relation to Dr. Dewa's renewal of contract matter. He said, inter alia, that the Applicant's case was discussed and, although they had the head of department's report which recommended renewal of contract, the committee "agreed that it was not satisfied with it" and it was "resolved not to offer Dr. Dewa renewal of contract." The Vice-Chancellor further stated that Dr. Dewa was "dealt with no differently from any other staff member, nor was the conveying of the decision of the Staff Review Committee, which was in accordance with Staff Review Procedures, not to renew his contract, nor the not giving of reasons for the Committee's decision".

Surely then, to reach the decision complained of there must have been some "adverse" comment from the USP via SRC to come to the said decision thus bringing into play the provisions of the said item 4(e). The doctrine of 'legitimate expectations' has been expressed colloquially as "moving the goalposts". Here Dr. Dewa has been grossly misled by Prof. Richards Report and Recommendation before him, and the decision-makers were grossly unfair to depart from that Report in the absence of any adverse report having been brought to the notice of the SRC and the applicant.

The evidence that I have before me is that by letter dated 11 March 1993 (A80 of Registrar's affidavit) it was clearly stated:

"I am pleased to offer you an extension of your contract as Lecturer 1A in Mathematics at the University of the South Pacific from 15 March 1993 until 31 December 1993. Any extension thereafter will be subject to satisfactory staff review".

The applicant did receive a "satisfactory staff review" for there is nothing in the evidence to the contrary, for if there was some such thing then it should have been communicated to Dr. Dewa in accordance with the said item 4(e).

For completeness, in so far as the Report is relevant, Prof. Richard's Recommendation is 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."

It was against the above background that Dr. Dewa bases his ground of legitimate expectation.

Now what is the law governing this notion of legitimate expectation.

This concept was first formulated by LORD DENNING M.R. in SCHMIDT v SECRETARY OF STATE FOR HOME AFFAIRS (1969) 2 Ch. 149 where he said:

"The speeches in Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say."

It was expressly recognised by the House of Lords in O' REILLY v MACKMAN [1983] UKHL 1; (1983) 2 A.C. 237 and Re FINDLAY (1985) A.C. 318. As observed in O' REILLY'S case, a person may have a legitimate expectation or being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. That answers Mr. Keil's contention in this regard. The basic principles are clearly set out in CCSU case (supra) where LORD DIPLOCK approached it as follows:

"To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:

(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or

(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind if expectation that qualifies a decision for inclusion in class (b) a 'legitimate expectation' rather than a 'reasonable expectation,' in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might be entertained by a 'reasonable man,' would not necessarily have such consequences)."

LORD FRASER (ibid at p.401) supplemented the above analysis by observing that such expectation may arise by an express promise or, by implication, from past practice.

In an interesting article ESTOPPEL and LEGITIMATE EXPECTATION by RAMNIK SHAH (NLJ November 3, 1995 p.1615), the author after reviewing the most recent cases on the subject sums up the present situation admirably and I adopt it for the purposes of this case. This is what he says:

"What conclusions may be drawn from these cases? Clearly where an unequivocal statement is made, either as to the existence of a status or as to the course to be followed in given circumstances the authorities making the statement would be estopped from asserting the contrary if the person to whom or for whose benefit it is made has relied on or acted upon it or seeks to do so. The position may be less certain where a claimant to some right or concession seeks to establish it by reference to a general practice or note of guidance, for not only would its precise terms have to be looked at but also whether the claimant fulfilled them to the letter. Every case must turn on its facts."

PROCEDURAL IMPROPRIETY (incorporating NATURAL JUSTICE)

The next ground for judicial review which I would consider is whether there has been a denial of natural justice in this case.

The real question is whether in the circumstances procedural fairness was required before the USP reached its decision not to renew the contract.

Much of the facts I have outlined and the comments I have made hereabove when I considered 'legitimate expectation' apply to the head of natural justice.

The concept of a fair hearing embodies the idea of even-handedness between the parties in the information which is made available and the opportunity to make representations. (The Applicant's Guide to Judicial Review by Bridgess & ors 1995 p.17). Where someone's livelihood is at stake, the public body's procedure may entail the right of representation. Factors which could lead to a finding that there has been a breach of the duty to act fairly include situations where the decision-maker:

(a) failed to tell the individual the case against him or took account of factors of which he was not made aware. That was the case in this case.

(b) failed to call the applicant to put his case at all; this was the case here as well.

(c) failed to give an opportunity to counter any adverse report that may have been presented, as was the case here, as deduced from the evidence.

(d) failed to consult the applicant when it was under a duty to consult, or who had a legitimate expectation of being consulted before a decision is made. This was also the case here.

I now refer to dicta from a number of cases to show the circumstances in which procedural fairness is required particularly where a person's reputation is at stake and which destroys, defeats or prejudices a person's rights, interests or legitimate expectations. In this case Dr. Dewa's reputation, rights, interests and legitimate expectations are affected.

The following passage from the judgment in CORNALL v A.R. (A Solicitor) 1995 1 V.R. Sup. Ct. 372 at 395 is relevant.

"....in order to show that those entrusted with investigative duties ought to be subject to the obligation to afford procedural fairness, certainly in circumstances where the outcome of their investigation may directly or indirectly affect the reputation of the person investigated. We would agree that investigations may in certain circumstances be subject to that obligation but we would not agree that such an obligation applies in every case, even where reputation may be affected."

I also refer to an extract from the judgment of MASON C.J. in ANNETTS (supra) 598 which is as follows:-

"It can now be taken as settled that, when a statute confers upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

LORD DIPLOCK calls this "procedural impropriety" rather than "natural justice" as stated in the following passage from his judgment in CCSU case (supra) at 950:

"I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."

In Dr. Dewa's case he should have been given the opportunity of hearing and presenting his case in response to any adverse report on him. On this aspect LORD DIPLOCK in O'REILLY v MACKMAN (supra) at 23 said:

"But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement."

The process by which the USP reached its decision was clearly wrong. It had disregarded its own rules particularly the said item 4(e) of the Staff Review Procedure which required the staff member to be made aware of "any matter of an adverse nature". On procedural fairness LORD DIPLOCK in MAHON v AIR NEW ZEALAND LTD (1984) AC 804 at pp 820-821 delivering the judgment of the Privy Council said as follows regarding the duties of a person making a finding in the exercise of an investigative jurisdiction:

"The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made...."

To sum up this aspect, I find that Dr. Dewa was treated unfairly in that he was denied natural justice.

Unreasonableness

I also find that the decision was unreasonable in a WEDNESBURY sense particularly in the light of Professor Richard's recommendation to renew the contract with no evidence of any objection from any source whatsoever. In this regard I conclude with the following passage from ASSOCIATED PROVINCIAL PICTURE HOUSE LTD v WEDNESBURY CORPORATION (1948) 1 K.B. (C.A.) 223 at 233-234:

"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."

Before I conclude my judgment I should pay tribute to both counsel for their useful contribution in their submissions both oral and written for the determination of the issue before me. They assembled a large body of decided cases, references to statutes, learned articles and text books and were placed before me. I have considered all that they had to say and I have used only the material that was most relevant to decide the issue.

In the outcome, for the reasons I have given in the judgment this application for judicial review succeeds. It follows that the USP has never made a proper decision upon the matter of renewal of contract. It means that the decision was a nullity and therefore Dr. Dewa's employment was not validly brought to an end.

The applicant is a specialist in the subjects he lectured on and is academically highly qualified and his services were dispensed with in the manner aforesaid. He is affected in regard to future employment elsewhere unless the air is cleared as to his suitability and eligibility to have his contract renewed after full compliance with the laid down procedure and the matters to which I have made reference to in this judgment on the part of the USP.

I consider this to be a proper case for remission to the USP in accordance with Or.53 r.9(4) of The High Court Rules 1988 which provides:

"(4) Where the relief sought is an order or certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court."

Had the USP followed the proper procedure and had then decided to renew the contract, it would have been for one year like it was for the previous two years before Dr. Dewa's services were no longer required. His contract would therefore have been for the period 1 January 1994 to 31 December 1994 presumably again as before with renewal subject to satisfactory Staff Review report. The applicant has therefore lost one year's salary in the decision-making process which I have held to be procedurally unfair.

The form of relief to be granted in an application for judicial review is always in the Court's discretion. Therefore, bearing in mind what I have stated above, in the exercise of my discretion, I make the following orders:

(a) an order of certiorari removing the decision of the University of the South Pacific made on 1 December 1993 refusing to renew FERETI SERU DEWA'S contract into this Court and the same is quashed;

(b) an order that FERETI SERU DEWA be paid full salary together with all benefits and entitlements if any for the period 1 January 1994 to 31 December 1994;

(c) the matter is remitted to the University of the South Pacific under Or.53 r.9(4) of the High Court Rules 1988 to reconsider it and reach a decision in accordance with the findings of this Court;

(d) an order that the University of the South Pacific pay the costs of this action to the applicant to be taxed if not agreed.

D. Pathik
Judge

At Suva
4 July 1996

HBJ0007J.94S