State v Acting Divisional Engineer Northern, Ex parte Puran [1998] FJHC 140; HBJ0001d.1998b (15 October 1998)

Fiji Islands - The State v Acting Divisional Engineer Northern; Ex parte Puran - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 1 OF 1998

BE:

:

STATE

v

ACTING DIVISIONAL ENGINEER NORTHERN

Ex parte PURAN f/n Sundar

Mr. hli fe Applicanticant
Mbr> Mr. E. Walker for the Respondent

DECISION

By motion filed on 9 Januar8 Puran f/n Sundar of Labasa (the "applicant") applied for leave to file Jile Judicial Review against the decision of the Acting Divisional Engineer Northern (the "respondent") terminating his appointment as a labourer with effect from 13 January 1997 on the ground of his poor attendance to work.

The application came before Madraiwiwi J at Labasa on 30 January 1998 when it was ordered that an Affidavit in Reply be filed within 21 days and then for mention only on 27 February 1998. Thereafter the matter was adjourned from time to time when the last of the written submissions were filed on 13 August 1998 after the Court stated that it wished to hear argument on application to file for judicial review out of time.

About the applicant

The applicant was employed as a labourer (unestablished) with the Public Works Department from 1965 until 17 December 1996 when his employment was terminated by the respondent.

Thereafter he approached the respondent for his reinstatement through his Union. He says that at one time he was informed that the respondent was waiting for a medical report which was not available in April 1997. He was informed that it was only a matter of time when he would be reinstated. Finally, on or about 1 December 1997 the Union informed him that he will not be reinstated and that his employment is permanently terminated.

The decision of the respondent

The memorandum dated 17 December 1996 stated that the applicant was engaged as a labourer from 24 October 1967. For the period 1 January 1996 to 6 December 1996 the respondent showed his concern about his poor attendance stating that he took 108 hours sick leave, 615 hours excessive sick leave and 616 hours leave without pay. The memorandum further stated that "you were not interested in your work and I noted with concern that you made no effort at all to improve your attendance to work". It said that "in view of your poor attendance to work, I have no alternative but to terminate your services with effect from 13/1/97."

Applicant's submission

The learned counsel for the applicant submits that the applicant was trying for a year to exhaust other remedies available to him, namely, negotiation through his union. Mr. Kohli suggests that because there is nothing to indicate that the respondent has filled in the position of the applicant with someone else, it could be implied that the respondent was aware of the negotiation going on between the union and himself. Mr. Kohli says that Order 53 r.3 of The High Court Rules 'does not lay down any criteria for the Court to follow or decide. The discretion of the Court is unfettered. The Court at this stage is concerned only with delay and the reasons for it, in bringing the action'.

In support of his application Mr. Kohli, on the aspect of whether the delay is undue, referred to two cases, viz. HARIKISUN LIMITED v DIP SINGH & ORS. and THE DIRECTOR OF TOWN & COUNTRY PLANNING and SUVA CITY COUNCIL (Civ. App. No. 19/1995s FCA) and CASWELL & ANOR. v DAIRY PRODUCE QUOTA TRIBUNAL FOR ENGLAND & WALES [1990] UKHL 5; (1990) 2 All E.R. 434 H.L.

Mr. Kohli submits that Court should exercise its discretion and assist the applicant who has spent "some thirty years of his life for a department just to be terminated without any reasons".

Respondent's submission

The learned counsel for the respondent opposes the application on three grounds. Firstly, the applicant has failed to comply with the requirements of Or53 r4 by not filing application for leave within three months of the decision to terminate. Secondly, he has failed to produce evidence by way of affidavit to show that he has "an arguable case on the merits". Thirdly, as the applicant was employed under the terms and conditions of the Joint Industrial Council Agreement, 1967 (the J.I.C. agreement - reissued 1 December 1982), the decision to terminate him is not susceptible to judicial review.

Mr. Walker has dealt at some length with each of these grounds in his written submission and I do not propose to reiterate them here for I will consider them hereunder.

Consideration of the issue

The relevant Rules

The High Court Rules in Order 53 r4 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 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.

(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

It is Order 53 r.4 which calls for consideration in this application to move for leave for judicial review out of time. The applicant seeks, inter alia, an order of certiorari quashing the decision of the respondent.

It is an undisputed fact that ever since his termination letter of 17 December 1996 the applicant made no application to Court for judicial review until 9 January 1998 i.e. a period of over 12 months. There is nothing in writing before me to indicate that his Union had communicated with respondent on any aspect of his termination. There is no affidavit from the Union as to what steps, if any, it took on behalf of the applicant. If the respondent had in actual fact refused to reinstate the applicant, there is no proof of that before me.

The affidavit evidence reveals that both the applicant and the Union have been sleeping on the matter for almost one whole year. On waking up from his slumber to expect the Court to come to his aid on the facts before me and in such circumstances is asking a bit too much. The exercise of Court's discretion becomes difficult and in any case the Court can only act within the ambit of Or 53 r.4 in this regard.

Undoubtedly there has been undue delay in making the application.

Time limits under Or 53 are essential matters in judicial review and tight time limits are set in judicial review applications. Applications have been refused for short periods of delay, one of the reasons being that public authorities should not have to deal with very late applications for which there is no justification.

The provisions relating to delay have been summarised as follows by ALDOUS & ALDER in their Book Applications for Judicial Review, Law and Practice 2nd Ed. at p.133:

(a) applications for leave must be made promptly and in any event within three months, but the court may extend time if there is a good reason to do so;

(b) if there has been undue delay then the court may refuse leave or substantive relief if the granting of relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration;

(c) a failure to apply promptly or in any event within three months will be treated as undue delay;

(d) the courts still treat the issue of delay as a matter of discretion within the context of the express provisions summarised above.

The authors further state:

In the leading case of Caswell v Dairy Produce Quota Tribunal for England and Wales Lord Goff emphasised that questions of delay are best dealt with in depth at the substantive hearing. 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, ex p 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.

Although in CASWELL (supra) leave was granted even though two years had elapsed, in the case before me on the facts this is a clear case of unjustifiable delay. The difficulties will be insurmountable if all cases of this nature relating to termination etc. were to lie idle for one or two years and then an employer is sprung with surprises with judicial review applications. This is not a proper application of Order 53 as it goes against the principles which govern judicial review applications. If this were allowed, in the words of Or 53 r.4(2) it would "be detrimental to good administration". As Aldous & Alder say, that 'good administration' means "more than mere uninterrupted or smooth running administration but is intended to reflect what LORD DIPLOCK in O'REILLY v MACKMAN [1983] UKHL 1; (1983) 2 AC 237 at 280-281 expressed as":

"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."

I think it is pertinent to note on the aspect of 'good administration' the following passage from the judgment of LORD GOFF OF CHIEVELEY in CASWELL AND ANOTHER v DAIRY PRODUCE QUOTA TRIBUNAL FOR ENGLAND AND WALES (1990) 2 All E.R. 424 at 441:

"I do not consider that it would be wise to attempt to formulate any precise definition or description of what constitutes detriment to good administration. This is because applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another...........

In asking the question whether the grant of such relief would be detrimental to good administration the court is at that stage looking at the interest in good administration independently of matters such as these. In the present context that 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 reopened. In the present case the court was concerned with a decision to allocate part of a finite amount of quota, and with circumstances in which a reopening of the decision would lead to other applications to reopen similar decisions which, if successful, would lead to reopening the allocation of quota over a number of years. To me it is plain, as it was to the judge and to the Court of Appeal, that to grant the appellants the relief they sought in the present case, after such a lapse of time had occurred, would be detrimental to good administration."

Bearing in mind the authorities, the reasons given for the delay will not hold any water. This case involves public law proceedings (as the application is for judicial review instituted rightly or wrongly which I do not have to decide at this stage for the respondent's counsel has stated this to be a ground of opposition); a reason which would be acceptable in civil suits involving private law proceedings will not be accepted in judicial review proceeding in which there is no true lis inter partes or suit by one person against another (vide R v. Secretary of State, ex p Hackney London BC (1983 3 All E.R. 358 at 367).

I would wish to emphasise that if a Union is handed a judicial review type of case to handle that it should act with special expedition where prompt action is so very important for the reason stated by Lord Diplock in the passage quoted hereabove. In R v INSTITUTE OF CHARTERED ACCOUNTANTS IN ENGLAND AND WALES, ex p. ANDREOU (1996) 8 Admin. L.R. 553 - HENRY LJ C.A.) it was held and it is apt here:

"dismissing the appeal, that (1) the argument that the more flexible private law rules as to time limits, as stated in Costellow v. Somerset CC [1993] 1 W.L.R. 256, [1993] C.L.Y. 3338, should apply, must be rejected. On a matter of principle, public law litigation cannot be undertaken at the slow pace adopted too often in private law disputes. Further, it is clear from the decision in Regalbourne Limited v. East Lindsey DC (1994) Admin. L.R. 102, [1994] C.L.Y. 3904 that the principle laid out in Costellow is not appropriate in a judicial review context and (2) the submission that the case lacked the importance to justify unyielding application of the rules was to be rejected. If less important cases were left to proceed at their own relaxed pace this would undoubtedly cause delay and give the wrong impression to court users. It was clear that the judge's decision was right and within his discretion."

I conclude with the following passage from the judgment of ACKNER LJ in R v Stratford-on-Avon District Council and another, ex parte Jackson (1985 3 All E.R. 769 at 774 C.A.) summing up what the position is in a situation such as the one before me and I adopt it here:

"but we have concluded that whenever there is a failure to act promptly or within three months there is 'undue delay'. Accordingly, even though the court may be satisfied in the light of all the circumstances, including the particular position of the applicant, that there is good reason for that failure, nevertheless the delay, viewed objectively, remains '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".

To sum up, on the facts and circumstances of this case in the exercise of the Court's discretion to grant extension of time within which to apply for judicial review in view of 'undue delay' it would be 'detrimental to good administration' within the meaning of s53 r4 and I so hold. In coming to this decision I have also considered the reason for termination which is within the powers of the respondent under the said JIC agreement which governs the applicant's employment and I do not see any prospect of success even if he was allowed to proceed. As can be observed from the memorandum of termination that the attendance to work is a cause for concern, and no employer is expected to tolerate that and will at the first available opportunity try to get rid of the employee with such poor attendance record.

For these reasons the application to extend time to apply for leave and also the application for leave are refused with costs in the sum of $150.00.

D. Pathik
Judge

At Suva
15 October 1998

Hbj0001d.98b