The Applicant Epeli Naqase joined the Respondent in 1976 and was appointed Customer Services Manager Western on the 25th of June 1993
by an Executive Employment Contract of that date. On the 3rd of July 1996 he was dismissed from his employment because of his alleged
involvement in a number of cases of loan irregularities in the Western Division. He too appears to deny the charges.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The last Applicant in HBJ 0028 of 1996 Joeli Rokorasei joined the Respondent in 1983 and on or about the 5th of April 1994 was appointed
General Manager Strategic Support and Housing Authority Board Secretary under a Contract of Employment. On the 2nd of October 1996
the Applicant received a letter dated the 1st of October 1996 from the Respondent terminating his appointment on the ground that
his post of General Manager Strategic Support had been made redundant.
It appears that the ContractEmployment in each case are similar. A copy of Epeli Naqase's Contract is annexed to an affn affidavit
by Jagdish Prasad the Manager Legal of the Respondent sworn on the 22nd of January 1997.
Clauses 3, 4, 7, 8 and 9 are relevant here.
Clause 3 simply states that theoyee is employed in Mr. Naqase's case as Customer Services Manager Western based in Lautokautoka.
Clause 4 sets out the individual dutnd accountabilities of the employee and lists his prime tase tasks as:
(1) p;&nbbsp;& bsp; ensurinsuring the achievements by the WesteWestern Division of the sales, loans approval and disbursement,
collectionrearsction and other targets of the Corporate Plan;
(2) & ensuring customer saer facisfaction and that the operations of the Western Division are customer driven;
&nb"> span>
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(3) ;&nbssp; bsp; managing his Divisioi efficefficiently and cost effectively;
(4) &nbbsp;& p; bsp; providroviding the Chief Executive and Dind Director and Marketing with accurate and timely reports.
Clause 7 fixes the employsalary for the first six months of his employment but then adds, significantly in my opiniopinion, that an
incentive payment of, in Mr. Naqase's case, $4,000.00 is available if performance targets are achieved. The employee was also entitled
to various executive fringe benefits and conditions set out in Appendix B to the Agreement. One of these is that the employee is
entitled to be paid a leave allowance of $790.00 when he proceeds on his vacation leave at the end of the tour of duty. The employee
also appears to be entitled to an entertainment allowance which it is said will be restricted to the Director's level for the entertainment
of their clients. There was also provision for the payment by the Authority of professional registration fees and any annual membership
or subscription fee to a maximum of $200.00 per staff.
The Authority also agrees to pay an annual Club Membership fee per of a maximum of $100.00.
I think it fair to say that very few public servants would be entitled to conditions such as the above even in managerial positions
and that it is more likely that such conditions are to be found only in the contracts of employment of employees in private industry.
The Housing Authority however, whilst no doubt accepting the opinion I have just expressed, does noe its opposition to these fese
four applications only on the Contract of Service of the Applicants. It argues that before the Applicants can be given leave to apply
for judicial review of their dismissals they must establish some statutory underpinning on which to base their applications so as
to bring them within the ambit of public law. The Authority claims simply that they can not do so. The Authority submits, and I accept,
that once it became a statutory Authority then all employees such as the Applicants became Corporate employees.
The Applicants deny that there is no public law element in their claims and through their counsel refer me to various sections of
the Housing Authority Act Cap. 267 including, to begin with, the title to the Act which states that it is an Act to make provision
to enable workers, meaning persons whose average income does not exceed a particular amount per week, to purchase or lease dwelling-houses
at a reasonable cost.
Under section 3 the Minister for Housing is under a public duty to appohe members of the Authorityority.
Under section 3A the appointment of the Authority is determined by the Minister.
Section 3B provides that ousing Authority shall with the approval of the Minister appoint a Chief Executive and Secr Secretary. The
salary of the Chief Executive is to be paid by the Higher Salaries Commission.
Section 6 makes the Authority a body corporate; section 7 states that the Auty may sue or be sued in itin its corporate name in contract
or tort.
By section 8 the salaries of at least three of the Applicants arbe struck only with the consent of the Higher Salaries Comm Commission.
Under section 9 members of the Authority are to be paid from tthority's funds only such remuneration including allowancesances for
travelling and subsistence as are approved by the Minister.
Finalction 19 states that the Authority may, from time to time, raise loans for the purpose of e of exercising its functions only
with the approval by the Minister of the terms and conditions of such loans.
When these cases came before me again on the 18th of April tear I was informed by counsel for the Authority that a case case on all
fours with the instant cases was to be heard by the Court of Appeal in May and I was asked to defer my decision in this case until
the Court of Appeal had delivered its judgment. That case was Civil Appeal No. ABU0028 of 1996 Praveen Palani and the Fiji Electricity
Authority Executive Officers' Association v. Fiji Electricity Authority, an appeal from the judgment of Lyons J. given on the 17th
of May 1996. Lyons J. held that the application for leave to obtain judicial review of the dismissal of Mr. Palani from his employment
with the Fiji Electricity Authority depended on his being able to satisfy the Court that there was an element of public law in his
case. He held that there was not and the Court of Appeal upheld his judgment. The Court quoted from several of the relevant authorities
on this question which held that judicial review does not lie in a strict master and servant relationship and is only available where
an issue of public law is involved in master and servant cases.
The Court quoted from the judgment of Woolf J., as he then was, in R. v. BBC ex parte le (1983) 1 WLR 23 who who said that the prerogative remedies of mandamus, prohibition or certiorari were not generally available for judicial review
of purely master and servant cases. He went to say on page 30:
The Court of Appeal in Palani then mentioned several of the other authorities on this subject including R. v. East Berkshire Health Authority ex parte Walsh [1984] EWCA Civ 6; (1984) 3 ALL E.R. 425, Vine v. National Dock Labour Board (1956) 3 ALL E.R. 939, Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 and R. v. Civil Service Appeal Board ex parte Bruce (1988) 3 ALL E.R. 686.
It seems to me that the Court of Appeal in Walsh's case summed up the law on this topic when it said that whether a dismissal from
employment by a public authority was subject to public law remedies depended on whether there was special statutory restriction on
dismissals which underpinned the employee's position and not on the fact of employment by a public authority per se.
In my jnt the Court of Appeal decision in Palani is directly applicable to the present applicationations so that I have no hesitation
in holding that the applications for leave to apply for judicial review must be dismissed. The Applicants are to pay the Respondent's
costs.
John E. Byrne
JUDGE
Legislation and authorities cin judgment:
Housing Authority Act Cap. 267.
R. v. BBC ex parte Lavelle (1983) 1 WLR 23.
R. v. East Berkshire Health Authority ex parte Walsh [1984] EWCA Civ 6; (1984) 3 ALL E.R. 425.
Civil Appeal No. ABU0028 of 1996 Praveen Palani v. Fiji Electricity Authority & Another
Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40.
R. v. Civil Service Appeal Board ex parte Bruce (1988) 3 ALL E.R. 686.
Vine v. National Dock Labour Board (1956) 3 ALL E.R. 425.
No other authorities cited in ant.
Hbj0015j.96s
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