On 9 December 1976 the Applicant was appointed under a 3 year contract as the USP Buildings and Estates Manager (Pillay affidavit
Exhibit A1). The general terms of service were set out in a leaflet (Pillay affidavit Exhibit A3-17) signed by the Applicant (page
12) containing two provisions of especial relevance. The first (clause 5(2)) provided that at the end of the 3 year period the appointee
could be offered permanent appointment. The second (clause 7 (2)) provided that unless his term of appointment was extended by specific
resolution of the Council of the USP (see Charter of the University of the South Pacific - Laws of Fiji 1985 revised Edition - Cap
266 - Section 13) the appointee would be required to retire at the age of 60.
The Couof the USP is a very important body since it has by the Charter "general control over over the conduct of the affairs
of the University and may exercise on behalf of the University all powers conferred on the University by .. [the] Charter."
Under Section 4(a) of the Charter the USP has power:
"to institute ... offices of any kind whether academic or n. to appoint persons to ando and to remove them from such offices
and to prescribe their conditions of service."
During the coursthe years following the Applicant's appointment the provisions governing retirement were chre changed from time to
time. On 19 October 1992 at its 35th meeting the Council approved the following provision which was still in force when the Applicant
was notified of his forthcoming retirement:
"the University has no mandatory retiring age. Employment beyond the agsixty years shall be at thet the option of the University
and shall be conditional upon the provision annually of a medical report satisfactory to the University on the health of the member
and his/her fitness to continue in the employ of the University."
Members of the University such as the Applicant were required to complete an Annual Staff Review Form similar to the annual confidential
report completed in the Civil Service. On 17 October 1994 the Registrar, Ms Sarojini Pillay noted in the Applicant's report that
there had been numerous complaints about matters falling within his area of responsibility. The Applicant in his response noted "comments
under clause 16 are noted and accepted".
On 5 March 1995 (Pillay affidavit Exhibit A30) the Applicant wased in writing that his performance of his duties was not saot satisfactory
and that improvement was looked for.
On 10 October 1995 (Piaffidavit Exhibit A34) Ms Pillay noted in the Applicant's Annual Report that she would be p be proposing to
the Staff Review Committee (a Committee of the Council apparently established under Section 15 (3) of the Charter) that the Applicant
"be retired from the University at the end of 1996". The Applicant whose 60th birthday was in August 1996 responded that
he was not aware that the University had "established 60 years of age as the retiring age".
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On 14 February Ms Pillay wrote to the Appl as follows:
"I write to advise you that the Staff Review Committee at its last meeting noted that you will reach the age of 60 in August
1996.
The Committee has decided that you continue to be employed until the end996 and that your services ices with the University should
come to an end then. Your last day of service will, therefore, be 31 December 1996".
It is this decision of the Committee which the Applicant seeks to have quashed.
As I see it the first question which caor consideration is the nature of the Court's jurisdiction.tion. Two recent decisions of our
own Courts in Fiji are especially instructive. The first is Muma v University of the South Pacific FCA 52/91; FCA Reps. 95/164 and the second is Dewa v University of the South Pacific Suva HC Judicial Review 7/94.
Muma
This second proposition calls for closer examination. In arriving at the conclusion their Lordships in Muma's case referring to Patel v University of Bradford [1978] 3 WLR 1488; [1978] 3All ER 841; affirmed [1979] 1 WLR 1066; [1979] 2All ER 582, described a complaint which should have been referred to the Visitor but which was not as being "not justiciable". It
appears likely that these words have their origin in the words of Megarry V-C who, adopting the same approach as Diplock L.J. in
Thorne v Univeristy of London [1966] 2 QB 237 said at page 1494 B-C:
"the question is not meone of refusing discretionary remedies or requiring alternaternate forms of relief to be pursued first
but is truly a matter of jurisdiction."
It is unfortunate that the FCA did not have its attention drawn to two more recent decisions which have put the problem into a slightly
different perspective. The first is Thomas v University of Bradford [1987] 1 All ER 834 and the second is R v University of London Visitor ex-parte Vijayatunga [1989] 2 All ER 843. Examination of these two authorities reveals that the attitude of the Courts in England has changed. Whereas Megarry V-C held the
view that the Courts have no jurisdiction at all over matters within the jurisdiction of the Visitor the more recent view is, as pointed out by Pathik J in Dewa's case, that while the Court has no appellate jurisdiction it does have a supervisory jurisdiction. This means that a person having
a complaint about a decision of the Visitor may not appeal against that decision but may seek to have it judicially reviewed.
The next question to be answered is what is the consequence of failing to take the preliminary step of complaining to the Visitor
before approaching the Court?
In Muma's case the Fiji Court of Appeal held that as the complainant had not firstn his complaint to the Visi Visitor his complaint was not
justiciable. This conclusion depends on acceptance of the principle that the jurisdiction of the Visitor is exclusive and that principle
has been accepted in England, as pointed out by Lord Griffiths in Thomas's case on page 839 (e), since the 17th century.
In New Zealand a different view has been adopted. In 1984 the New Zd Court of Appeal in Norrie v Senate of University of Auof Auckland [1984] 1 NZLR 129 held that the jurisdiction of the Visitor was not exclusive and therefore the Court retained the power to adjudicate over matters
within the Visitor's jurisdiction whether or not the Visitor's jurisdiction had first been resorted to. Two important points were
however made clear. First, the jurisdiction being exercised by the Court was supervisory and second, absent allegations of flagrant
unfairness or pure questions of law the Courts would be unwilling to grant discretionary remedies in university disputes by way of
Judicial Review or otherwise if the applicant had not first resorted to his domestic remedy i.e. the Visitor.
In Dewa's case Pathik J judicially revie decision of the same Staff Review Committee of the USP notP notwithstanding that the Applicant had
not first appealed to the Visitor but as Pathik J made clear the decision in Muma was not delivered until after Dr. Dewa had filed for Judicial Review.
The position in Fiji is now governed by Muma and I find it to be as follows. A member of a University having a dispute with the University falling within the jurisdiction of
the Visitor should first take his grievances to the Visitor. A decision of the Visitor is reviewable but not appealable. If he does
not first take his grievance to the Visitor then the Courts will not entertain his motion for review.
The next question which obviously arises is whether the USP's decision to retire the Applicant was a decision within the jurisdiction
(and therefore the exclusive jurisdiction) of the Visitor. In my view it was. In his submissions on issue one on page 7 of his written
submissions Mr. Lateef suggested that issues of promotion, demotion, reviewing of contracts and retiring of staff do not fall within
the exclusive jurisdiction of the Visitor. With respect I disagree. Adopting the reasoning of Kelly L.J. in Re Wislang's Application [1984] NI 63 cited in Thomas at pages 843 & 844 I hold that notwithstanding that the Applicant's central complaints are those set out on page 5 of Mr. Lateef's
written submission and that these complaints involve consideration of the USP's right to terminate the Applicant's employment the
matter was nevertheless of an internal domestic character touching upon the interpretation or execution of the private rules and
regulations of the USP and were accordingly within the Visitor's exclusive jurisdiction.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Although that is really the end of the matter I offer three further observs on the merits of this apps application. First, as appears
from the Charter, the University has full power and authority to lay down the terms and conditions of the contracts of its employees.
The Applicant suggests that it was incumbent upon the University to seek his consent before the terms of his employment were varied.
I disagree. Secondly, at no time between 1976 and 1996 was there a provision in the Applicant's contract of employment that enabled
him to continue in employment with the University after the age of 60 without the University's consent. Without that consent, however
it was termed, his period of employment simply expired through effluxion of time. Looked at this way there can be no question of
the Staff Review Committee lacking jurisdiction to terminate his period of employment. Thirdly, it cannot be doubted that the Applicant
was fully aware that there were numerous complaints about the way he discharged his duties and that improvement was looked for. While
it is generally better for a Board considering termination of employment to allow oral representations to be made to it I am not
satisfied that the Applicant has shown that he was treated with any degree of unfairness.
As has been observed the Visitorial jurisdiction is an ancient one. Althouge thought to be an "unot;unwelcome survivor from the
past" it is now seen within its proper limits to be wholly beneficial. Some of the benefits were set out by Megarry V-C in Patel's case and referred to with approval by Cooke J in Norrie's case. I am informed by Counsel that the USP has 304 academic staff, 674 administrative and support staff and 9,381 students. With
such large numbers involved it is obvious that the sooner the Council moves for the appointment of a Visitor under Section 27 of
the Charter the better. Following the decision in Muma it is clear that in the absence of such a body first resorted to redress for grievances cannot be had from the Courts.
The motion for Judicial Review fails and is dismissed.
M.D. Scott
Judge
22nd day of January 1997
hbj007j.96s
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