State v Public Service Commission, Ex parte Nasalasala [1997] FJHC 172; Hbj0036d.1997s (14 November 1997)

Fiji Islands - The State v Public Service Commission, Ex parte Nasalasala - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0036 OF 1997

The State

v.

Public Service Commission

ex-parte Sevuloni Nasalasala

Mr. S. Matawal the Applicant
Mr. S. Kumar for the Respondent

RULING

On the 7th of September 1993 the applicant was appointed on a probationary basis as a temporary relieving Clerical Officer in the Forestry Department, Lautoka. He was subsequently transferred to the Accounts Section of the Ministry of Health in Suva where he remained working as Cashier until he took his annual leave in October 1996.

I digress in order to point out here that whilst lengthy probationary periods (in this case in excess of 3 years) may be an administrative convenience, it is, in my opinion, a contradiction in terms. It provides almost no security to the probationer, lends itself to nepotism and what's more, having regard to the 'time-frames' envisaged in Regulations 21 to 25 of the PSC (Constitution) Regulations 1990, may be 'ultra vires' and therefore of doubtful legality.

Be that as it may, during the applicant's absence on leave, internal inquiries revealed short-falls in revenue allegedly received by the applicant but unaccounted for. The matter was reported to the Police and after necessary investigations were conducted the applicant was charged with the offence of Larceny by Servant on 8th November, 1996.

The applicant resumed work on 31st December, 1996 and despite the pending criminal charge against him, was permitted to continue working ostensibly to enable the Department to recover some of the revenue which he had allegedly misappropriated.

On 7th January, 1997 the applicant pleaded guilty to the criminal charge in the Suva Magistrate Court and was conditionally discharged without conviction under Section 44(1) of the Penal Code (Cap. 17). No appeal has been lodged against the magistrate's order.

Steps were thereafter taken by the Permanent Secretary for Health to have the applicant interdicted from service, but after some correspondence with the applicant's solicitor, nothing eventuated. Finally, by letter dated 20th March 1997 the Public Service Commission (PSC) annulled the applicant's probationary appointment "... due to your conviction by the Court for a criminal offence of larceny by servant".

Regulation 21 of the PSC (Constitution) Regulations 1990 provides:

"Except as otherwise provided in this Part, an officer on first appointment to the Public Service shall be required to serve on probation for a period of one year:

Provided always that the Commission may at any time in writing, confirm or annul the appointment to the Public Service of a probationer."

On 5th April 1997 the applicant through his solicitor, advised the Commission that contrary to the reason ascribed: "... (he) was (conditionally) discharged without conviction ..." and the letter demanded his 'immediate reinstatement'.

On 11th June 1997 after seeking legal advice, the Commission advised the applicant that "... (its) decision to annul (the applicant's) appointment is in order and therefore stands".

Four (4) months later on 21st October 1997 the present application for leave to issue judicial review was filed based upon the following two (2) 'grounds':

(1) The reason relied upon by the PSC to annul the applicant's appointment was erroneous in fact and in law since the Magistrate's Court did not enter a conviction against the Applicant but it discharged him without conviction on the condition that he did not reoffend within 12 months from the day of sentencing. As the applicant did not reoffend within 12 months of the date of sentencing, the Applicant's discharge had been confirmed.

(2) The charge of larceny by servant arose from circumstances under which the Applicant was instructed by his superiors to carry out duties which he as clerical officer was not authorised to perform by the Finance Regulations."

It will be seen at once that no ground was advanced suggesting a breach of the principles of natural justice nor is it suggested that the decision was 'Wednesbury' unreasonable. In simple terms, without doubting the Commission's power to annul probationary appointments, the applicant says that his appointment was wrongly annulled for an improper or incorrect reason and is therefore 'null and void'.

If I may say it is difficult to imagine a more 'technical' and unmeritorious 'ground' as that advanced in (1) above, based as it is, upon a strict legalistic analysis of what occurred in the Magistrate Court criminal proceedings and predicated on the legal technical meaning of the word 'conviction'. As for ground (2) above, I have no hesitation in saying that nothing therein raises a sufficient basis for judicial review.

State Counsel opposes the grant of leave on two (2) grounds:

1. THAT there has been an inordinate delay in bringing this application to Court ...; and

2. THAT the applicant was never denied Natural Justice and hence the decision of the Commission is not unreasonable.

In light of the State's grounds for opposing leave, the application was listed for argument before me on 5th November 1997 and Notice of Opposition was ordered to be served on the applicant's solicitors '... on or before 24.10.97'. This was done.

Despite the ten (10) clear days given the applicant, no affidavit explaining the 'inordinate delay' was filed nor was any attempt made to amend or add to the two (2) 'grounds' already advanced in the application for leave to issue judicial review.

Indeed, when these 'failures' were highlighted to counsel at the hearing, he made an oral application for a short adjournment to enable the applicant to file an affidavit. In similar vein, but this time, at the reply stage, counsel for the applicant orally sought leave to amend the 'grounds' to include a breach of natural justice based upon the Commission's alleged failure to hear the applicant before annulling his appointment.

Not surprisingly, State Counsel opposes both oral applications which would have further prolonged the delay, and more so, of an application, which counsel submits, is 'doomed to failure'.

At the conclusion of the hearing I refused counsel's oral application to file an affidavit explaining the delay.

The strictness with which the Courts approach time-limits in judicial review proceedings was recently reaffirmed in R. v. Institute of Chartered Accountants in England and Wales ex-parte Andreou (1996) 8 Adim L.R. 557 (loose leaf) where the Court of Appeal (U.K.) in refusing leave to appeal against a refusal to extend time to begin judicial review proceedings:

"Held: (1) The purpose of the procedure governing applications for judicial review is to provide a simplified and expeditious means of resolving disputes in the field of public law.

(2) This purpose would be frustrated if the relatively leisurely and casual approach to time-limits which characterises civil litigation in the field of private law were to be adopted in the field of public law.

(3) Therefore, notwithstanding that the error had been entirely that of the applicant's lawyers (the judge) had been right to dismiss the application."

(See also: per Sir Thomas Bingham M.R. in Regal Bourne Ltd. v. East Lindsay District Council (1994) 6 Admin Law Rep. 102)

In my view it would have been clear to any experienced counsel that the present application for judicial review was being commenced outside the time-limit imposed by the High Court Rules, and consequently, some reason, excuse or explanation ought to have been deposed in the affidavit in support of the application for leave if counsel was seriously minded to avoid the discretionary consequences provided for in Order 53 r.4(1). Counsels can not assume that the Court will always adopt a lenient approach to late applications for judicial review or that an adjournment will be automatically granted on request and in the face of opposition.

In this regard Order 53 r.4 of the High Court Rules provides:

"4.-(1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant -

(a) leave for the making of the application, or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration.

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

It is clear from the chronology of events traced earlier and considering relief (b) sought by the applicant, that "... there has been undue delay in making (the) application for judicial review ..."

In R. v. Stratford-on-Avon DG ex-parte Jackson (1985) 1 W.L.R. 1319, Ackner L.J. said of the meaning of 'undue delay' in the context of the U.K. equivalent of Order 53 r.4, at p.1325:

"... we have concluded that whenever there is a failure to act promptly or within three months there is undue delay (and) even though the Court may be satisfied ... that there is good reason for that failure nevertheless the delay, viewed objectively, remains 'undue delay'. The Court therefore retains a discretion to refuse to grant leave ..."

A fortiori when no reason or excuse has been given or advanced by way of explanation for the 'undue delay'.

I turn next to consider counsel's oral application to amend the 'grounds' upon which the application is based and which counsel submits raises an important and simple issue of law, namely, whether a probationer in the Public Service is entitled to be heard before his probationary appointment is annulled by the PSC?

Order 53 r.3(4) gives a discretion to the Court hearing an application for leave to allow the applicant to amend or add to the 'grounds' specified in the Statement filed in support of the application "... on such terms, if any, as it thinks fit". Clearly amendment of the 'grounds' for judicial review is not a matter of right.

In my view in considering whether or not to exercise its discretion to allow an amendment under the above sub-rule, the Court is obliged, amongst other factors, to consider the following:

(1) The nature of the amendment sought;

(2) Whether or not the amendment would or should have been obvious to the applicant or his professional advisors at the time of commencing the proceedings;

(3) The grounds upon which the amendment is sought and the explanation for its earlier omission;

(4) Whether or not the amendment, if granted, will entail the filing of additional or supplementary affidavit(s); and

(5)Whether or not the application is opposed.

Quite plainly the proposed amendment, if supportable, does raise a substantive issue of 'natural justice', in particular, breach of the 'audi alteram partem rule'.

State Counsel for his part disagrees that the proposed amendment is sustainable, and submits that a probationer in the Public Service does not have a 'right' to be heard before the annulment of his appointment which, in accordance with Regulation 21 of the PSC (Constitution) Regulation 1990, (op.cit at p.3 above) can occur 'at any time'.

In counsel's submission the nature of the applicant's probationary appointment is such that the onus lay on the applicant during the probationary period to demonstrate his suitability for permanent appointment to the Public Service and by his own admission in the Magistrate Court proceedings, to having committed a serious criminal offence of dishonesty in the handling of government revenue, counsel submits, the applicant unequivocally demonstrated his unsuitability for permanent appointment.

Given the above, counsel submits that no useful purpose would be served in allowing an amendment which is 'doomed to fail' in an application which is already 'out-of-time' and which would be seriously detrimental to the effectiveness and efficient administration of the Public Service.

Having carefully considered the matter I have come to the firm conclusion that, in all the circumstances, leave to apply for judicial review ought to be refused.

The application is accordingly dismissed.

D.V. Fatiaki
JUDGE

At Suva,
14th November, 1997.

Hbj0036d.97s