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State v Public Service Commission, Ex parte Cagica [1997] FJHC 89; Hbj0033d.1996s (21 July 1997)

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

IN THE HIGH COURT OF FIJI

(AT SUVA)

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDICIAL REVIEW NO. 33 OF 1996

THE STATE

v.

PUBLIC SERVICE COMMISSIONn>

Respondent

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> Ex parte OLIMIVA CAGICA

Applicant

T. Fa for the Applicant

S. Kumar for the Respondent

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> DECISION

These proceedings have been re-intituled to accord the Chief Justice’s Practice Note No. 1 of 1997.

This is an application for leave to move for Judicial Review of a decision of the Public Service Commission (the Commission) reached on 25 September 1995 the result of which was the imposition of 3 penalties upon the Applicant namely:

i) &nbssp;&nnsp;&&nsp; &nsp; Downgrading fr0m TE T/span/span>

iii) &&nsp;;&bsp;&nbpp;nbsp; A s; A severe reprimand and warning.

TheB>These proceedings were commenced on 18 November 1996 with the filing of the O53 statement and supportingdavit which were placed before Byrne J who, having considersidered the papers, called for submissions from both side and adjourned the matter for hearing inter partes on 29 January 1997.

Unfortunately, Byrne J was unwell and after a number of mentions before the Deputy Registrar the matter came before me on 18 June. By this time the Attorney General’s Chambers had filed an affidavit in opposition, that of the Commission’s Acting Director, Personnel Mr. Shiri Chand.

The purpose of obtaining leave before moving for Judicial Review isliminate frivolous, vexatious or hopeless applications and, as made clear by the Fiji CourtCourt of Appeal in Harikisun Limited v. Dip Singh and Others - FCA Reps 96/365 it is at this stage that the Court should first consider whether there has been undue delay in applying for leave (see RHC O.53 r 4) although where in-depth consideration of the question of delay is required then such consideration should best be dealt with at the substantive hearing: leave should only be refused in obvious cases of unjustifiable delay.

Having considered the affidavit material filed I directed el for the parties to file written submissions restricted first, to a public servant’s righ right of hearing, if any, in disciplinary proceedings and secondly, to the matter of delay. Both Counsel filed careful and helpful written submissions for which I am grateful.

As has been seen the Applicant, although aggrieved by the Commissioncision of 25 September 1995 did not commence these proceedings until 18 November 1996, a fe a few days short of 14 months later. Mr. Fa conceded that the reason only declaratory relief was being sought was the non-availability of certiorari in view of the provisions of RHC 0.53 r 4(2) but did not demur when it was suggested that the purpose of seeking the declarations was to overturn, albeit indirectly, the decision impugned. In my view the effective result of either relief if granted would almost certainly be the same.

In paragraph 17 of her supporting affidavit the Applicant pleaded cial constraints as the reason for not applying for relief more promptly but beyond deposinposing that she and her husband were separated and that she was bringing up the children on her own without the benefit of maintenance no details were provided. As pointed out on 18 June the Applicant held a relatively well paid job as well, presumably, as having the ability or eligibility to raise a loan to commence proceedings either from a private bank, from the FPSA, from a Credit Union or by way of advance against salary. In my view it is not sufficient merely to plead financial hardship without providing any details and on the evidence offered I am not satisfied that an adequate excuse for the delay has been advanced.

While the questions of hardship, prejudice or detriment as referred to in the last part of RHC O.53 r 4(1) are not expressly cable at the leave stage Harikisun’s case is authority for the proposition that in considering whether there has been undue delay the effect on others is a factor to be taken into account. In the present case given the Applicant’s former position as a school principal which position has doubtless long ago been filled by her replacement I am satisfied that the almost 14 months delay in applying for leave is unjustifiable.

Where there is obvious and unjustifiable delay there is, strictly speaking, no need for the Court to consider the merits of the grounds for seeking review but for the sake of completeness I think it proper to indicate that in my opinion the Applicant’s prospects of success in an action proper, leave having been granted, were somewhat remote.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The leading Fiji authority on the rights of audience of public servants in disciplinary proceedings is Public Service Appeals Board v. Mahendra Singh (FCA Rep 82/136). While the Public Service Act 1974 has been repealed and with it the Public Service Commission (Constitution) Regulations 1974 (Cap 74- Subs-1985 Edn) the 1990 Regulations which replaced them not only derive their authority directly from the Constitution 1990 (see Sections 127(1) and 157(1)) but are in substantially the same terms as the 1974 Regulations - the main relevant difference being the stage at which an officer facing disciplinary charges is entitled to be present and heard. In the former Regulations the officer was entitled to be present only at any inquiry set up under Regulation 27 where such an enquiry was deemed necessary by the Commission whereas under the present Regulations the officer is only entitled to be present if a disciplinary tribunal is set up under the provisions of Regulation 44 “when the Commission is not satisfied as to the truth of the charge”.

In my view the reasoning which led to the result in Maheningh’s case is not disturbed by the legislative changes which have since occurred. In o In other words, there is no general right to be heard under Regulations 40(4) or 41(6). This conclusion accords with that reached by Fatiaki J in The State v. Public Service Commission ex parte Michael Raman (Suva Judicial Review 13/94).

Where Michael Raman’s case marks a development from Mahendra Singh’s case is that it establishes that in reachingconclusion that it is in fain fact “satisfied as to the truth of the charge” the Commission must act reasonably in all the circumstances. In Michael Raman’s case it was clear that the Commission did not. In the present case, given the contents of the paragraphs 6 - 9 of the Commission’s affidavit it is equally clear that it did.

Leave to move for Judicial Review is refused.

M.D. Scott

Judge

21 July 1997

Hbj0033d.96s


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