DECISION
is the Original Respondent's application (hereafter referred to as the "Respondent&dent") for leave to appeal out of time against part of Orders namely, order for reinstatement of the original applicant RANJAY SHANDIL (hereafter referred to as the "Applicant"), which I made in this action on 10 June 1996.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Immediately after hearing on 17 October 19gave a brief decision refusing the application for leave wive with costs, to be followed
by reasons for decision later in writing which I now do.
The Orders which I made in the Judicial Review are as follows:-
"(a) an order of certiorari rng the said decision of the Public Service Commission made made on 1 November 1995 into this Court
and the same is quashed.
p class=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> (b) an order of mandamus directing the Public Service Commission to forthwith reinstate the applicant to his former position.
(c) an order that the applicant be arrears of salary from 22 November 1993 that is the time oime of interdiction to date of reinstatement.
(d) an order that the respondent pay the costs of this action to be taxed if not agreed."
This appion is being made about eleven weeks after judgment which is well out of time to appeal. Thl. The only reason given for delay,
as contained in the affidavit of REX HECTOR HATCH in support, is that it "lay in obtaining instructions on the chances of the appeal being successful".
Mr. Walker for the Respondent submitted along the lines in the affidavit of Mr. Hatch. He said it was the fault of his ofis office
in not advising the Public Service Commission (PSC) in time. He also mentioned the factors to be taken into account in an application
of this nature by reference to my own decision in FCA Civ App 51/94 IST DEO MAJARAJ and BURNS PHILP (SOUTH SEA) COMPANY LIMITED. He agreed that it will prejudice the Original Applicant if application was granted but he said that the Respondent is prepared to
deposit in Court the salary up to date of judgment. He further stated that if leave was granted he would like to add a ground appealing
against order for payment of arrears of salary and concluded by saying that the Applicant "would still be interdicted if the matter was referred back to P.S.C."
In a forceful argument harma in his first submission said that he is "appalled" at the Respondentndent's submissions which is unheard of particularly when it has 'blatantly defied' the Court Orders which have not been appealed. He even went to the extent of saying that before Court entertains this application
the Respondent should be made to comply with Court orders and the Commissioners (PSC) ought to come and explain their conduct to
Court. He said that Mr. Nakora, the learned State Counsel, during the hearing of Judicial Review conceded that the Respondent had
not complied with its own Regulations and that some of the orders that were made were "consent" orders but the form of relief is for Court. Mr. Sharma referred the Court to a recent memorandum dated 16 September 1996 from the
Solicitor General to the Permanent Secretary for PSC (with a copy to Mr. Sharma) advising him, inter alia, "not to implement any orders of the judgment until further advice". He wanted Mr. Walker to explain the contents of this letter.
On the ground of application Mr. Sharma said that Mr. Hatch has not produced any evidence te has delegated authority wity which in
his affidavit he says he has. He said that in reinstating, the Court merely spelt out that which Regulation 53 (page 9 of Judgment)
allowed and which should actually have been done by the Respondent. In this context he said that the case of THE STATE v THE DIRECTOR OF IMMIGRATION Ex parte: Frank Albert Thomas (J.R. 34/91) referred to by Mr. Walker, in which he (Mr. Sharma) himself was counsel, was "different". Mr. Sharma said that the PSC had a duty to take the Applicant back and injustice has been caused by him not having been paid three
years' salary.
The question for my denation is whether I ought to grant the application on the facts and circumstances of this chis case.
Certain factors have to be taken consideration but a lot of discretion is also vested in the Court.
For a fuller discussion on these aspects I refer to the said cf IST DEO MAHARAJ (supra). In the Notes to Or 59/4/49/4/4 of THE SUPREME COURT PRACTICE 1993 under the caption "Extension of time for Appealing" are set out the factors to be taken into account in considering an application of this nature. There it is stated, inter alia:
"An application must be applied for promptly ..... It iirely in the discretion of n of the Court to grant or refuse an extension
of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice
of appeal are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appealing
is extended; and (4) the degree of prejudice to the potential respondent if the application is granted; (See C.M. VAN STILLEVOLDT B.V v E.L. CARRIERS (C.A.) 1983 1 W.L.R. 297
Also, it is stated by RICHMOND J in AVERY v2 PUBLIC SERVICE APPEAL BOARD and OTHERS 1973 2 NZLR 86LR 86 at 91 that:
"When once an appellant a the time for appealing to go by then his position suffers fers a radical change. Whereas previously
he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court. The onus rests upon
him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack
the judgment from which he wishes to appeal."
RICHMOND J at p.92 went on to say:
"The rules do not provide that thrt may grant leave if satisfied that no material prejudice dice has been caused by the failure
to appeal in time. Everything is left to the discretion of the Court on the wide basis that leave may be granted in such cases as
the justice of the case may require. In order to determine the justice of any particular case the Court should I think have regard
to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant
on the one hand for leave to be granted together with the effect which the granting of leave would have on other persons involved."
Upon a carefnsideration of the Application bearing in mind the submissions of both counsel and applyinglying the principles involved
I have come to the conclusion that this application is frivolous and devoid of merits.
This was a simple, straightforward case of judicial reand Mr. Maika Nakora who appeared at the hearing conceded tded that the Public
Service Commission had itself contravened its own Regulations. This concession left the Court with no alternative but to make the
Orders that were made, and which are well within the jurisdiction of the Court to make. It is further abundantly clear under Regulation
53 that the Respondent shall not be further punished after acquittal.
I am strongly of the view that the reason given for delay in appealing is no reason at all in all the circumstances of this case.
The following passage from the judgment of MILES C.J in NELSON TOBACCO COMPANY PTY LTD v COMMISSIONER FOR ACT REVENUE (No. 2) 109 FLR 323 at 325 sums up the situation and is apt in this case:
"Ino v Dawson (1990) 64 ALJR 458 at 459, McHugh J said:
"A case would need to be exceptional before rt would enlarge by many mony months the time for lodging an appeal simply because
the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes v National Trustees Executors
& Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257, McInerney J pointed out (at 263) that one object of fixing times under court rules is "to achieve a timetable for the conduct
of litigation in order to achieve finality of judicial determinations." When the time for appealing has expired, the litigation
is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful
party has a "vested right to retain the judgment". It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the
ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege." (underling mine for emphasis).
Given the nature of the case for appeal, the delay in this case is considerable and there is no acceptable explanation for it. Even
where the delay in serving notice of appeal is short and there is an acceptable excuse for it, an extension of time will not be refused
on the basis of the merits of the intended appeal, unless the appeal is hopeless: (PALATA INVESTMENTS LTD & ORS v BURT SINFIELD LTD & ORS (1985) 1 W.L.R. 942, SIR MOTI TIKARAM J.A. (now President) in BASANT KUAR t/a Thakur Singh and HOUSING AUTHORITY (Civ. App. 21/91 FCA). Here I am of the view that the intended appeal is hopeless and the Application has no prospect of success.
In regard to the ground of appeal against the order for reinstatement, I state below what I said in a similar case on application
for stay pending appeal, namely EPELI LAGILOA and 1. THE PUBLIC SERVICE COMMISSION 2. THE PERMANENT SECRETARY FOR EDUCATION (J.R. 16/94 page 5 of Judgment):
"The Court's powers to an Order for "reinstatement" cannot be tabe taken away from it. The said s127(1) (of the Constitution of Fiji) does not do so nor does it deal with the question
of "reinstatement" contrary to what is stated in the Affidavit of HATCH. The said section provides, inter alia:
"127. - ubject to the provisions of this Constitution, power to mako make appointments to public offices (including power to
confirm appointments) and to remove and to exercise disciplinary control over persons holding or acting in such offices shall vest
in the Public Service Commission."
The following passage from the Court of Appeal judgment in MANUNIVAVALAGI DALITUICAMA KOROVLA and PUBLIC SERVICE COMMICOMMISSION (Civ. App. 6/94) at p.18 indicates that it is within the powers of Court to make an Order for reinstatement:
"The Court always has a discretion as to the form of relief to be granted on applications for Judicial Review. It is six and
a half years since these events occurred. It is plainly far too late to quash the notice of termination and re-instate the appellant. The termination must stand. In the circumstances we consider the best course is to make a declaration that the Minister's
termination of the appellants appointment as Principal Licensing Authority was improper and unlawful. Accordingly there will be a
declaration to that effect." (underlining mine for emphasis).
This is case in which as the Court has found, and it is not appealed, the Applicants as employers yers have done wrong, and they should
not be allowed, as LORD DENNING M.R. in HILL v C.A. PARSONS & CO., LTD (1972) 1 Ch 305 at 316 C.A. said, "to break the law" by raising the Ground they have raised that Court has no jurisdiction in this case. It is a clear case of "reinstatement".
I quote again from LORNING M R ibid at p316 that:
"Whenever a man has a right, the law should give a remedy. The laaxim is ubi jus ibi remediumedium. This principle enables us
to step over the trip-wires of previous cases and to bring the law into accord with the needs of today."
How appropriate are these statements to the facts and circumstances of this case. Ir there was a case where "reinstatement" should have been ordered against the Applicants, this is the case.
Alsohis case there were special circumstances which existed to enable the Court to make an orde order of reinstatement to be in line
with the statements of LORD MORRIS OF BORTH-y-GEST in FRANCIS v KUALA LUMPUR COUNCIL & ORS (1962) 1 W.L.R. 1411, 1417 P.C when he said:
"In their Lordships' view, when there has been a purported termination of a contract of service a declaration to the effect that
the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts
will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the
court." (underlining mine for emphasis)"
On appeal out of, in TEVITA FA t/a TEVITA FA & ASSOCIATES and TRADEWINDS MARINE LTD & OCEANIC DEIC DEVELOPERS (FIJI) LTD (FCA Civ. App. 40/94, photocopy judgment at p.3) THOMPSON J.A. said:
"The application for leave to appes filed only 4 days after the end of the period of six week weeks. That is a very short period
but time-limits are set with the intention that they should be observed and even lateness of only a four days requires a satisfactory
explanation before an extension of time can properly be granted. In this case, as stated above, the applicant has given no explanation
at all. That he may have been confused is merely an inference that Mr. Patel has asked me to draw from his statement of a present
belief that time began to run only from 8 August 1994. As Mr. Fa is in practice as a barrister and solicitor, that explanation, even
if it is true, is certainly not satisfactory."
Similarly, in this case, as I have already stated, the explanation given for delay is nlanation at all in my view.view. We are not
dealing with an applicant in person trying to seek legal advice on a matter involving complicated question of law, and there is none
here, but with State Law Office.
Further THOMPSON J.A. in TEVITA FA (suat p.3, on prospect of success, goes on to say, as follows:lows:-
"However, as important as the need fsatisfactory explanation ofon of the lateness is the need for the applicant to show that
he has a reasonable chance of success if time is extended and the appeal proceeds."
On prejudice Mr. Walker concedes that it will greatly prejudice the Applicanapplication was granted. Asd. As it is, the Respondent
has not come to Court with 'clean hands' as it has blatantly disregarded some of the Court orders against which there are no appeals and has the audacity to say at the hearing
of this application that the Applicant "would still be interdicted" and that it intends to add a ground of appeal challenging the order for payment of arrears of salary, despite the fact that it has
missed the boat so to say because it was sleeping over the file.
To conclude, the discretion to extend time is conferred in order to avoid injustice and I have considered whether justice between
the parties is best served by granting or refusing the extension sought, which involved a consideration of all factors, including
the prospect of success of the appeal if extension is granted. On justice between the parties MARSACK J.A. in LATCHMI & ANOR. v MOTI & OTHERS (10 FLR 1964 FCA p138) pointed out:
"In deciding whether justemands that leave should be given, care must, in my view, bew, be taken to ensure that the rights and
interests of the Respondent are considered equally with those of the Appellant."
In the outcome I find that there was considerable delay in applyinh no acceptable explanation, there being no prospect of sucf success
in the appeal and great prejudice will be caused to the Applicant, it is in the interests of justice that leave should be refused
to appeal out of time.
For these reasons, the application is re with costs to the Applicant which is to be taxed if not agot agreed.
D. Pathik
Judge
At Suva
23rd October 1996
Hbj0004d.96s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1996/60.html
