N THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 24 OF 1995

IN THE MATTER of an application by Eroni Waqaitanoa
of Naboro Prison Quarters, Naboro, Suva, Civil Servant
for Judicial Review

and

IN THE MATTER of THE PUBLIC SERVICE COMMISSION
(CONSTITUTION) REGULATIONS 1990,
PRISONS ACT, THE PRISONS SERVICE REGULATIONS,
THE PRISONS REGULATIONS, 1966 and
THE PRISONS STANDING ORDERS.

Between:

ERONI WAQAITANOA
Applicant

and

1. THE COMMISSIONER OF PRISONS
2. THE PERMANENT SECRETARY FOR THE
PUBLIC SERVICE COMMISSION
3. ATTORNEY-GENERAL OF FIJI
Respondents

Mr. I. Fa for Applicant
Ms. M. Sakiti for Respondents

DECISION

This is the Applicant's Summons dated 23 August 1996 for an Order for leave to file Motion and Application for Judicial Review under Or.53 R.5(4) of the High Court Rules out of time.

Background

On 20 February 1996 Pain J granted leave to the Applicant to apply for Judicial Review. The Chief Registrar had informed Messrs. Fa & Company that leave has been granted. The solicitors for the Applicant failed to file a motion within 14 days as required by the Rules [order 53 r5(4)]. The reason given for this failure was that the clerk in the employ of Fa & Company, "due to inadvertence and oversight omitted to inform" the firm's solicitors nor Ms Asenaca Uluiviti who had the personal conduct of this matter.

The Summons for extension of time was filed on 16 September 1996.

Affidavit in Response was filed 19 March 1997. The first Respondent filed an affidavit on behalf of the Respondents and stated that six months' delay is unreasonable and unjustifiable. They say that three months after leave was granted a new appointment was made as the post was required to be filled immediately. the Respondents say that the granting of extension of time would be "detrimental to good administration".

The learned Counsel for the Respondents filed written submissions on 21 August 1997 and Mr. Fa for the Applicant filed his on 17 April 1997.

Plaintiff's submission

It is Mr. Fa's submission that the Respondents' argument that there will be "administrative chaos" has "no merit in relation to the Applicant's current application because from the outset the 1st Respondent was put on notice that the Applicant would be challenging its decision to terminate his employment." Mr. Fa further submits that grant of leave "normally operates as an immediate stay of proceedings". He further says that the delays are not "caused by the Applicant but rather by administrative problem in the Applicant's Solicitor's office and as such the Applicant should not be penalised for it."

Mr. Fa further submits that this application is made pursuant to Order 3 Rule 4 of the High Court Rules 1988. He says that the grounds relied upon as objection to the extension of time have no merit in relation to the present application.

The Respondents' contention

While objecting to the application Ms. Sakiti, the learned counsel for the Respondents, submits that the only question for decision by the Court is whether the Applicant is 'statute-barred' from commencing substantive judicial review proceedings.

Ms. Sakiti says that delay of almost seven months is an "unreasonable and unjustifiable delay". She disagrees with Mr. Fa and says that there is no real distinction between an application out of time for leave for judicial review and an application out of time to commence judicial review proceedings, the same reasons and principles ought to apply.

She also contends that the grant of extension of time would be "detrimental to good administration"; the new appointment in this case was made three months after leave was granted and after the Applicant had failed to proceed within a reasonable time. She says that the Prison Service cannot and ought not be allowed to be kept in suspense as to time when the Applicant decides to commence his judicial review action. Counsel further submits that to allow proceedings to commence at this very late stage would also prejudice the rights of the present appointee who took the Applicant's post on promotion.

Consideration of the issue

Rules

Order 53 r.5 of the High Court Rules lays down the procedure to be followed and prescribes time limit after leave is granted for judicial review. It states:

"5. - (1) When leave has been granted to make an application for judicial review, the application shall be made either by originating motion or by originating summons.

(2) The notice of motion or summons must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons must also be served on the court officer or registrar of the court and, where any objection to the conduct of the judge is to be made, on the judge.

(3) Unless the judge granting leave has otherwise directed, there must be at least ten days between the service of the notice of motion or summons and the day named therein for the hearing.

(4) A motion must be entered for hearing within 14 days after the grant of leave." (underlining mine for emphasis) 

Solicitor's fault

It had taken the applicant about seven months to wake up from his slumber for the reasons given by his counsel. I find no merit whatsoever in any of the arguments. Mr. Fa asks why should the applicant suffer for his counsel's fault or inadvertence. First of all, Court is not concerned with the manner in which counsel runs his practice, but he does owe a duty to his client to act diligently and not come up with the type of reasons advanced and expect the Court to grant him an indulgence. The applicant is himself at fault too. Why did he not check with his counsel as to the progress of his case.

For the Applicant to succeed he has to give a good reason to enable the Court to exercise its discretion in his favour as stated below in the judgment of the Privy Council in RATNAM v CUMARASAMY (1964) 3 All E.R 933 at 935:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation" (underlining mine for emphasis)

Also in JASWANT SINGH s/o Gopal Singh and PETER FRANCIS s/o Francis Appana (Action No. 57/73 FCA) cyclostyled judgment) MARSACK JA refused extension of time when there was four weeks' delay and stated "...can find no grounds for holding that good reasons for the delay have been shown" even when the Appellant's solicitor was engaged in a Supreme Court criminal trial at the relevant time for filing appeal, he did not think that "the granting of an extension of time is required in the interests of justice".

In the case of GATTI v SHOOSMITH (1939) 3 All E.R 916 C.A. the failure of solicitors to take action, was considered. In his judgment, LORD GREENE MR at 919 stated as follows on the factors to be taken into consideration by the Court in deciding how judicial discretion is to be exercised:

"the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the court in exercising its discretion. I say 'may be' because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What I venture to think is the proper rule which this court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

The discretion of the court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised." (underlining mine for emphasis)

The case before me is not one in which in my discretion leave ought to be granted as the delay has been far too long for no satisfactory reason. The rights and interests of the Respondents had to be considered as MARSACK JA in LATCHMI & ANOTHER v MOTI & OTHERS (10 FLR 1964 FCA 138) said:

"In deciding whether justice demands that leave should be given, care must, in my view, be taken to ensure that the rights and interests of the Respondent are considered equally with those of the Appellant."

Application of Order 53 r 4

A similar situation as in this case arose in the Court of Appeal case of R v INSTITUTE OF CHARTERED ACCOUNTANTS in ENGLAND and WALES ex parte ANDREOU (ADM.L.R. Vol 8 557 19.3.96) where counsel did not know that the Rules required the substantive application to be begun within 14 days of the grant of leave. There they proceeded with the substantive application almost four months out of time. POPPLEWELL, J refused the application, which then came before the Court of Appeal by way of an application for leave to appeal.

The decision in ANDREOU (supra) is my answer to the Applicant in the application before me. I agree entirely with the arguments put forward by Ms. Sikiti and reject those of Mr. Fa. I ought to clear one misconception that Mr. Fa has; he says that grant of leave gives rise to an automatic stay; that is not so, for Or.53 r.3(ii) provides that if the court "so directs", the grant of leave "shall operate as a stay of proceedings to which the application relates until the determination of the application or until the Court otherwise Orders".

On extension of time and the exercise of discretion in the requirements of public administration the following passage from the judgment of SIR THOMAS BINGHAM, MR in REGALBOURNE LIMITED v EAST LINDSAY DISTRICT COUNCIL (1993 Adm.L.R. Vol 6 102 at 111 to 112) is pertinent:

"In this case the appellants seek to challenge the decision of a statutory tribunal. They did not comply with a clear and short time limit. In this context the reasonable requirements of public administration have a significance which is absent in ordinary inter partes litigation. By contrast, prejudice may assume a rather smaller significance. But most importantly, there is in this context a different statutory framework and the court must do its best to give effect to the intention of Parliament in the particular context before it. I would be reluctant to lay down a rule that in this context an application to extend time may never be granted in the absence of a satisfactory explanation for the delay. Had the learned Judge here decided, in the exercise of his discretion, to grant an extension of time, I question whether his decision could have been successfully challenged as unlawful. But he took the view that, on the facts here and in particular in the absence of a satisfactory explanation of the delay, he should not exercise his discretion to grant an extension. In my opinion, that decision cannot be impugned as contrary to law. The decision of the tribunal was final unless subject to appeal. Unless an appeal was initiated within the time limit there was no right to appeal. The Judge found no good reason to extend time." (underlining mine for emphasis).

Furthermore, the headnote to REGALBOURNE (supra) at 103 on the question of exercise of discretion is pertinent to the issue before me. It was held:

"(1) In the absence of agreement, before the court will consider exercising its discretion to extend time under ord.3, r.5, it will normally need to be satisfied that there is an acceptable explanation for the delay. Lawyers' commitments or ignorance would be unlikely to amount to an acceptable explanation. (2) If such an explanation is found, then the risk of prejudice will be considered. (3) Where decisions of public law bodies are the subject of the application, the court will be reluctant to extend time because of the need for such bodies to know where they stand. (4) Per Sir Thomas Bingham, M.R: The dicta in Costellow v. Somerset Country Council [1993] 1 W.L.R. 256 at p.264 were not intended to apply to an application for leave to appeal out of time, or applications for extensions in relation to the decisions of statutory tribunals." (emphasis added)

The second point I wish to make is that Or 53 provides for time limit within which an application for judicial review should be made and one does not have to resort to order 3 r.4 as Mr. Fa has done in this case for leave to extend time. Or 53 r.4 deals with delay in applying for relief in an application for judicial review. It 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."

Even if Or 3 r4 were to be applied the approach and the principles stated below in the Supreme Court Practice under Or 3 r.5 is relevant but this does not assist the Applicant on the facts before me:

"The R.S.C. as to time have to be observed, and if substantial delay occurs without any explanation being offered, the Court is entitled, in the exercise of its discretion, to refuse the extension of time, e.g. to serve a notice of appeal from the master to the Judge in Chambers, even though the delay could be compensated for by costs and no injustice would be done to the other party (Revici v. Prentice Hall Inc. [1969] 1 W.L.R. 157) ... Ord.3, r.5 is not to be used merely as an 'escape route' where practitioners have not been prompt in dealing with cases (Smith v. Secretary of State for the Environment, The Times, July 6, 1987, C.A.).

Moreover an acceptable explanation required more than a mere statement that the person in charge of the action forgot about it or was too busy to get on with it. An acceptable excuse such as illness will prompt a more sympathetic response to the application than if the omission is caused by neglect."

It is clear that even under Or 3 r.4 Court will have to be satisfied with the explanation for the delay. In this regard KENNEDY, L.JJ in REGALBOURNE (supra) at 110 said:

"before the court will consider exercising its discretion to extend the time pursuant to ord.3, r.5, it will normally need to be satisfied that there is an acceptable explanation for the delay. The fact that lawyers were unaware of the relevant time limit, or found it difficult to comply with the time limit because of other commitments such as a holiday or other work, is unlikely to amount to an acceptable explanation. If there is no acceptable explanation, the question of prejudice is unlikely to arise and, even if there is an acceptable explanation for the delay, the court may refuse to exercise its discretion to extend time if the delay is substantial or if to do so would cause significant prejudice to the respondent. In any event, as in the interests of good administration, the law requires that public law challenges to decisions of tribunals should be made within a limited time scale, the courts will always be reluctant to extend time in such a situation: see what was said by Mr. Justice Schiemann in Cartwright." (emphasis added)

He goes on to say at 110 (supra):

"Obviously, if time is not extended, there is prejudice to the potential appellant because he or she loses his or her right to appeal and the prejudice will be greater if the intended appeal had good prospect of success. But in most cases that is unlikely to be of great weight. If the failure to appeal within the time allowed is due to neglect on the part of the potential appellant's lawyers, such a litigant may have some redress against his own lawyers, but that again is not something with which the court is likely to be concerned when it is being asked to extend time." (emphasis added)

With the above passages in mind I find that in this case no satisfactory and acceptable explanation has been given as to why the application was not made within time. Even if the Court were to exercise its discretion in the Applicant's favour the delay has caused great prejudice to the Respondents. What was held in ANDREOU (supra) is apt, namely:

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

(2) This purpose would be frustrated if the relatively leisurely and casual approach to time-limits which characterizes 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, (a) Popplewell, J had been right to dismiss the application for an extension of time within which to begin the substantive application for judicial review; and (b) the application for leave to appeal against that decision should also be dismissed." (emphasis added)

There HENRY, L.J stated that Thomas Q.C. said that the reason put forward was "lawyer error" and that it was no fault of the applicant. Henry L.J said that "That is the explanation for the delay. It does not, in my opinion, and in the opinion of the trial judge, provide an acceptable reason for extending time".

Because of the great frequency with which applications for extension of time arise I would refer extensively to HENRY L.J's judgment where he deals particularly with the general principles applicable to pubic law vis a vis private law in identifying and in redressing public wrongs.

In rejecting Thomas Q.C's submission that Popplewell J should have considered the matter with "greater flexibility"; Henry L.J said this it was "plainly wrong for a number of fundamental reasons". He said:

"First that of general principle. Public law deals with the identification and redress of public wrongs generally in disputes between the citizen and the State or its institutions. It provides under Ord.53 a simplified and expeditious procedure which is essential to enable the Crown Office List fulfilling its purpose, while recognizing both the general importance of the issues at stake and the large numbers often potentially affected by them, and the necessity for an early resolution of them. If "normal" private law delays and private law's relaxed attitude to rules and time-limits creep into the Crown Office List, then the delays in that list will build to the point that it can no longer properly perform the important public duty entrusted to it. Public law litigation cannot be conducted at the leisurely pace too often accepted in private law disputes. As has been pointed out in relation to the Woolf interim report on "Access to Justice", what is wrong in private law is often not so much the time-limits for individual steps laid down, but the fact that they are routinely not enforced. This case may be an example of just such a bad habit. It would be clear to any lawyer that there must be a time-limit for service of the notice of motion for which leave had been given, and if time-limits in private law were routinely in force, then the next step for any lawyer would inevitably have been to look up that time-limit."

The Respondents raised the matter of "prejudice" to the rights of the Respondents and "detrimental to good administration" (Or.53 r.4(1)) resulting from the long delay in making the application for judicial review further to the leave granted herein.

As to how the delay provision has to be construed is stated by ALDOUS & ALDER in their book APPLICATION FOR JUDICIAL REVIEW, 2nd Ed. at p.133 thus:

"Leave should, therefore, only be refused in clear cases of unjustifiable delay. In Caswell itself leave was granted even though nearly two years had passed. In R v Comr for Local Administration, exp Croydon London Borough Council, Woolf LJ stated that the delay provisions should not be construed technically and should not be invoked strictly against an applicant who has behaved sensibly and reasonably. Nevertheless, an applicant delays at his peril." (underlining mine for emphasis)

I find that in this case there was an "unjustifiable delay" and the applicant did not behave "sensibly and reasonably". Because of the long delay the position was filled by the Respondents. It will be prejudicial to the present holder if the application was granted. The delay on the applicant's part was at his peril. On delay and its effect the following extract from the judgment of ACKNER L.J. in R V STRATFORD-ON-AVON DC ex p. JACKSON (1985) 2 All E.R. 769 is worth quoting which covers the provisions of Or. 53 r.4:

"...we have concluded that whenever there is a failure to act promptly or within three months there is "undue delay". The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that 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."

Further on the aspect of delay and its prejudicial effect I refer to the following remarks of LORD DIPLOCK in O'REILLY v MACKMAN (1983) 2 AC 237 at 28:

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision."

Detrimental to good administration

Now I shall deal with the statutory ground, namely, whether in this case the granting of extension would be "detrimental to good administration".

There have been a number of authoritative pronouncements on the meaning and impact of this term. To begin with LORD GOFF of CHIEVELEY in R v DAIRY PRODUCE QUOTA TRIBUNAL ex parte CASWELL (1990) 2 All E.R. 434 at 441 had this to say:

"In asking the question whether the grant of relief would be detrimental to good administration, the court is at that stage looking at the interest in good administration ... (which) interest lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision. Matters of particular importance, apart from the length of time itself, will be the extent of the effect of the relevant decision, and the impact which would be felt if it were to be re-opened."

The control of judicial review proceedings at an early stage is very important particularly in a case like the present. In this regard the Fiji Court of Appeal in ANURADHA CHARAN (F.C.A. No. 2/92) said:

"In a world of burgeoning bureaucracy and use of administrative powers by an increasing number of official bodies, judicial review is an essential means of redress. The special procedures are designed for a relatively straightforward and prompt determination of the case. We see an unfortunate and growing tendency by litigants to seek judicial review in cases suited to different proceedings and remedies and to submit ever more prolix documents for the court to consider. This is all too frequently matched by an apparent unwillingness of the court to take firm control of proceedings particularly at the early stages."
(Emphasis Added)

Conclusion

To conclude, the delay in making the application has been far too long and no satisfactory explanation has been given for it. In all the circumstances of this case, as discussed hereabove, the granting of application, in the words of Or.53 r.4 "would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration". I cannot see how even in the interests of justice I can grant the application. On this aspect I conclude with the following passages from the judgment of RICHMOND J in AVERY v PUBLIC SERVICE APPEAL BOARD (No. 2) (1973) 2 NZLR 86 at 91 which are apt (which were approved by the Full Court of Fiji Court of Appeal in KENNETH JOHN HART v AIR PACIFIC LTD (Civ. App. No. 23/83) in refusing leave to appeal out of time:

"When once an appellant allows the time for appealing to go by then his position suffers 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."

Further in his judgment at p.92 RICHMOND J said:

"Mr. O'Flynn pointed out that this was a case of a solicitor's error resulting in a short period of delay after the expiration of the ordinary time for appealing. That delay, he said, had not prejudiced anybody. No doubt there may be many cases where this type of argument might prevail upon the Court to grant leave. Clearly however the Court is not restricted to such considerations. The rules do not provide that the Court may grant leave if satisfied that no material prejudice 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."

In the outcome, for the above reasons I refuse the application for extension of time with costs against the Applicant to be taxed if not agreed.

D. Pathik
Judge

At Suva
26 September 1997
HBJ0024D.95S