BETWEEN:
THE STATE
v
1. THE PERMANENT SECRETARY FOR EDUCATION AND TECHNOLOGY
2. THE SECRETARY, PUBLIC SERVICE COMMISSION
Ex parte SOKOVETI TUIMOALA
Mr. I. Tuberi for the Applicant
Mreph Madubuike-Ekwe for the Respondents
JUDGMENT
Pursuant to leave granted on 10 October 1997 herein SOKOVETI TUIMOALA (the "applicant") applied for Judicial Review of the decision of the Second Respondent who by memorandum dated 21 August
1997 dismissed the applicant from the Public Service effective from 27 June 1997.
The decision
The said memorandum reads as follows:
On 20/8/97 Public Service Commissioner Hector R Hatch considered:
(i) the 3 charges laid against you by the Permanent Secretary for Education & Technology vide his memorandum CPF 1041 of 25/06/97;
(ii) the fact that you were interdicted from the service with effect from 27/06/97 under the provisions of Regulation 42;
(iii) your reply dated 08/07/97 denying all the charges;
(iv) your explanation of 08/07/97 to support your denial of the charges;
(v) the statements of the staff of the Library Services of Fiji;
(vi) the Permanent Secretary's report on the subject dated 14/08/97 and;
(vii) your service record.
After a careful and thorough consideration and assessment/analysis of all the reports and documents submitted to him Commissioner
Hatch was satisfied as to the truth of the charges and did not therefore consider it necessary to conduct any further investigation
or inquiry.
Commissioner Hatch found you guilty as charged and, acting under powers delegated to him by the Public Service Commission, decided
that you should be and you are hereby dismissed from the service with effect from 27/06/97 in accordance with Regulation 51(1)(a)
of the Public Service Commission (Constitution) Regulations, 1990.
The relief
The relief sought are as follows:
(a) A DECLARATION that the decision made by Public Service Commissioner, Hector Hatch on the 20th day of August 1997 whereby it purported
to dismiss the Applicant from the Public Service was ultra vires section 157(2) of the Constitution of the Sovereign Democratic Republic
of Fiji 1990.
(b) A DECLARATION that actions taken under Regulation 41(5) of the Public Service Commission (Constitution) Regulations 1990, are
ultra vires section 11(8) of the Constitution of the Sovereign Democratic Republic of Fiji 1990 and also in breach of the rules of
natural justice.
(c) AN ORDER OF CERTIORARI to remove the said decision of the Respondents dismissing the Applicant on the 20th day of August 1997
to this Honourable Court and the same be quashed.
(d) A DECLARATION (in any event) that the Respondents had acted unfairly and/or in breach of the rules of natural justice and/or abused
their discretions under the Public Service Commission (Constitution) Regulations 1990 and/or exceeded their jurisdiction and/or acted
in breach of the legitimate expectation of the Applicant to have a fair disciplinary proceedings.
(e) A DECLARATION that the provisions of Regulation 41(4) and (5) are a breach of the rules of natural justice and a right of the
Applicant to be accorded a fair disciplinary proceeding under the Constitution 1990, Section 11(8).
(f) A DECLARATION that the Respondents are in breach of the provisions of Regulation 52(1) of the Public Service Commission (Constitution)
Regulations 1990.
(g) Damages
(h) Further declarations or other reliefs as this Honourable Court may deem fit and necessary.
(i) Costs.
Grounds of relief
The grounds upon which the relief sought are:-
"(a) That the Second Respondent through its representative or agent, Public Service Commissioner Hector Hatch's decision to dismiss
the Applicant from the Public Service was ultra vires section 157(2) of the constitution of the Sovereign Democratic Republic of
Fiji 1990 in that he had taken the decision unilaterally without obtaining the majority of all the members of the Second Respondent.
(b) That the Respondents' actions under the provisions of Regulation 41(5) of the Public Service Commission (Constitution) Regulation
1990, are ultra vires section 11(8) of the Constitution of the Sovereign Democratic Republic of Fiji 1990 and also in breach of the
rules of natural justice.
(c) That the Respondents have acted in breach of the rules of natural justice in dismissing the Applicant from the Public Service.
(d) That the Respondents abused their discretions under the Public Service Commission (Constitution) Regulations 1990 in that:
(i) They took into consideration irrelevant matters;
(ii) They did not take into consideration relevant matters such as the provisions of Regulation 52 of the Public Service Commission
(Constitution) Regulations, 1990.
(iii) They acted arbitrarily and/or in bad faith and/or unreasonably;
(iv) They failed to pay any portion of the Applicant's salary during the period of interdiction as required under Regulation 42(5)
of the Public Service Commission (Constitution) Regulations, 1990.
(e) That the Respondents exceeded their jurisdiction under the Public Service Commission (Constitution) Regulations, 1990.
(f) That the Respondents acted contrary to the legitimate expectation of the Applicant for a fair disciplinary proceedings.
About the applicant and background facts
The applicant entered the Public Service in 1975 as a Library Assistant working at the Western Regional Library, and in 1990 was promoted
to the post of Principal Librarian with the Ministry of Education and Technology and held the said post until her dismissal from
the Public Service.
During 1983 and 1986 she was awarded a British Council Scholarship to undergo a Bachelor of Arts degree course in Librarianship at
Leeds Metropolitan University in the United Kingdom which she successfully completed before returning to Fiji.
The applicant had been in charge of the Library Services of Fiji since assuming the post of Principal Librarian in 1990.
On 24 June 1997 she was posted temporarily to the Ministry of Education headquarters because of allegations of "some serious irregularities in the conduct of financial business at the Library Services in Fiji".
On 26 June 1997 she was served with Disciplinary Charges; and on 27 June 1997 she was interdicted without salary. On 8 July 1997 she
answered the three disciplinary charges laid against her which she completely denied.
The disciplinary proceedings were instituted against her under Regulations 41 and 42 of the Public Service Commission (Constitution)
Regulations, 1990 and the decision to dismiss was made under Regulation 51.
The applicant asserted that in compliance with the provisions of General Orders Nos 306(a), 312(a) and 312(b) of the Public Service
Commission, General Orders (1993) she declared her involvement on the Registration of a company Modern Books and Library Supplies
to the Commission by letter dated 6 December 1995 but the respondents have another version of this aspect as hereafter stated.
On 18 July 1997, through her counsel, she asked the Commission to pay a proportion of her salary during her period of interdiction.
She maintains that failure to do so is in breach of Regulation 42(3) and ultra vires the said regulation.
The applicant complains that despite her counsel's letter objecting to the respondents proceeding with disciplinary proceedings after
having referred the allegations to Police for Criminal investigation is in breach of Regulation 52. By letter dated 28 August 1997
the Commissioner of Police "confirmed the criminal investigation".
Applicant's submission
Disciplinary proceedings were instituted against the applicant under regulations 41 and 42 of the Public Service Commission (Constitution) Regulations, 1990 (hereafter referred to as "the regulations") and her dismissal was under reg.51
Mr. Tuberi's argument is that the Commissioner Hector Hatch (the "Commissioner") exercised his powers through a "Delegation of Powers of Commission" as contained in Legal Notice No. 126 (FRG 6/12/96 p.427) pursuant to the provisions of Section 127(3) of the Constitution and Regulation 15. This he argues is 'ultra vires the provisions of section 157(2) of the 1990 Constitution in that any decision of any commission established under section
157 must have the concurrence of the majority of the members of the Commission.' He says that this is also ultra vires the 1990 Constitution. He is therefore asking the Court to declare the "exercise of powers under the aforesaid Legal Notice and any decision made thereof would be invalid and unlawful unless the aforesaid
decisions
Mr. Tuberiher argues that reg. 41(5) is ultra vires section 11(8) of the Constitution which rech requires that since the disciplinary proceedings instituted against the applicant affected the existence
and extent of her civil right or obligation the case should have been given a "fair hearing by observing the rules of natural justice".
Counsel further argues that section 113 of the constitution empowers the High Court to hear any allegations of the contravention of the Constitution and since the regulations
were made under s157(1) of the Constitution, this Court has power to declare that r.41(5) is ultra vires 11(8) of the Constitution.
Mr. Tuberi further argues that there is breach of reg.51(1). He said that previously there was reg.38 (which was abolished on 26 August
1994) provided for ascertaining from the Commissioner of Police or other enforcement agency concerned whether criminal proceedings
are contemplated. He submits that the effect of abolishing reg. 38 would be to require the First Respondent to exercise his discretion
carefully to choose between instituting criminal proceedings or opting for disciplinary proceedings. He submits that it does not
allow the First Respondent to exercise both options because of the "double jeopardy doctrine". He submits that the applicant
was dismissed on suspicion without the benefit of a proper audited reports. Hence it has abused its discretion in dismissing the
applicant.
He further submitted that there has been a breach of the applicant's legitimate expectation to have a fair disciplinary proceeding.
Respondents' submission
In reply to the applicant's affidavit in support, Krish Prakash Singh, the Director of Administration and Finance with the first respondent
(R1) deposed (10.11.97) that:
(a) the company was registered on 28.11.95 by the applicant under her own name, using the bottom flat of her own residential address
at No. 7 Dovi Road Laucala Beach Estate as the place of business. That by memorandum referenced RC 3/1/4 of 10.7.97 the Registrar
of Companies further confirmed that the applicant registered the company in her own name without reference to Wati Lolohea Ligavatu.
Then on 10.6.97 the applicant filed a notice of cessation of business backdated to 1.1.96 and the business was re-registered on 10.6.97
in name of the said Ligavatu. This cessation was done in bad faith while the respondents' investigation was well underway.
(b) she did not comply with the mandatory provisions of General Orders Nos.306(a), 312 (a) and 312(b) of the Public Service Commission
General orders 1993.
(c) between January 1996 and May 1997 all cheques made out to the business for books bought totalling in excess of $74,000.00 were
endorsed and presented to the Bank by the applicant.
(d) interdiction without salary was not ultra vires.
(e) no criminal proceedings have been instituted in any court against the applicant and hence there was no breach of reg.52.
(f) powers exercised by the Commissioner under Legal Notice No. 126 was not ultra vires the provisions of s157(2) of the Constitution
or any other provisions of the Constitution.
The learned counsel for the respondents submits that the books from the applicant's company the "Modern Book and Library Supplies" were not accounted for through the normal stores and accounting procedures and their whereabouts remain unknown to date. When
the R1 accounting staff visited the Library Services of Fiji to verify some of the Purchases made, the applicant could neither produce
the books nor their records nor their receipts and dispatches to other centres. A detailed examination of all payments made to the
company amounted to in excess of $74,000.00; and it was also discovered that the applicant herself had endorsed and presented to
the Bank all the cheques made out to the company.
Mr. Ekwe says that following the procedure laid down under reg.41 the applicant was dismissed from the Public Service.
Consideration of the issue
The decision in this case has to be made with the above background to the case and on the submissions made by both counsel. Mr. Tuberi
has gone to great lengths in asserting that the various sections of the 1990 Constitution of the Republic of Fiji has been contravened
in the decision-making process.
The grounds can be summarized into four main ones, namely:
(a) Is Delegation of Powers ultra vires the provisions of the Constitution?'
(b) whether there was a denial of natural justice;
(c) Is it a case of Wednesbury unreasonableness?; and
(d) whether there has been a procedural impropriety.
I shall now consider the issues before me in that order.
(a) Is 'Delegation of Powers' ultra vires the provisions of the Constitution?
The learned counsel for the applicant has made a lengthy submission on the subject of delegation of powers to Commissioner Hatch by
way of Legal Notice No. 126. He referred the Court to a number of authorities which to him appear to throw some light on the subject.
As the learned counsel for the respondents says, the applicant is challenging the provisions of the law more than the decision making
process which is the function of judicial review.
This very issue, among others, namely that the sole Commissioner under 'delegation of powers' had no authority to exercise the disciplinary
powers of the PSC was raised by Mr. Tuberi in The State v Permanent Secretary for Education and Technology and The Secretary Public Service Commission (JR No. 38/97 - judgment delivered 29.6.98) when SCOTT J rejected the argument. In arriving at his decision his Lordship said as follows and I concur with him:
'In support of (a) Mr. Tuberi relied on Lee v. Showmen's Guild of Great Britain [1952] QB 329 and the proposition therein contained that:
"While an administrative function can often be delegated a judicial function rarely can be. No judicial tribunal can delegate
its function unless it is enabled to do so expressly or by necessary implication".
Mr. Tuberi suggested that on their proper construction Sections 127(3), 157 (1) and 157 (2) of the 1990 Constitution meant that a
single Commissioner (in this case Mr. Hatch) could not exercise the Commission's disciplinary powers. With respect, I disagree. In
my view Section 157 (2) has no application to the Regulations once a delegation has been made. As I see it the 1990 Constitution
by authorising delegation of "any of its powers" has impliedly authorised delegation of the PSC's judicial powers and accordingly
this first submission fails."
For ease of reference the relevant provisions of the Constitution referred to by Mr. Tuberi are set out hereunder.
Section 127 which provides as follows empowers the Public Service Commission to delegate its powers and that is what was done in this case when
Hector Hatch was given certain powers under the said Legal Notice No. 126:
"Except in relation to any office referred to in subsection (5) or (6) of this section, the Public Service Commission may, subject
to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the
Commission or, subject to any limitations that Parliament may prescribe, to any public officer or class of public officer.
The provisions of s157(1) and (2) are given hereunder on which Mr. Tuberi based bulk of his arguments:
"157. - (1) Any Commission established by this Constitution may by regulations make provision for regulating and facilitating
the performance by the Commission of its functions under this Constitution.
(2)Any decision of any such Commission shall require the concurrence of a majority of all the members thereof and, subject as aforesaid,
the Commission may act notwithstanding the absence of any member."
As for the present position the 1998 Constitution of the Republic of the Fiji Islands has the following powers of delegation:
"150. Subject to conditions prescribed by the Parliament, the Public Service Commission may, either generally or as otherwise
provided by the instrument of delegation, by instrument in writing, delegate to a member or officer of the Commission or to the holder
of a public office all or any of the functions or powers of the Commission, other than its power to appoint or remove, or to take
disciplinary action against:
(a) an agricultural tribunal established under the Agricultural Landlord and Tenant Act;
(b) a Secretary of a department or the Secretary to the Cabinet; or
(c) any other person having the powers of a Secretary of a department in relation to staff under his or her control."
For the reason that there has been a proper delegation of powers, I find that there is no merit whatsoever in
Mr. Tuberi's argument based on the provisions of the 1990 Constitution of the Republic of Fiji pertaining to delegation of powers
to a single Commissioner. Similarly, his submission in regard to 'fair disciplinary proceedings' and application of principles of
'natural justice' based on section 11(8) of the Constitution is also devoid of any merits for in any case the Court can and will
still consider hereafter 'natural justice' and 'fair play' aspects when it considers the application of Reg.41 which lays down the
procedure required to be followed in regard to disciplinary proceedings.
Therefore this ground of the applicant's application fails.
(b) Whether there was a denial of natural justice?
It is Mr. Tuberi's contention that under reg.41(5) the R1 should have obtained a reply to the statements which R1 had in his possession
before submitting to R2 for a decision and also the applicant should have been heard.
Hence, he says this was in breach of the rules of natural justice. Mr. Tuberi also submitted that reg. 41(5) is inconsistent with
sec.11(8) of the 1990 Constitution but this argument I reject outright for reasons already given hereabove.
I do not find on the affidavit evidence before me that there was denial of natural justice.
LORD DIPLOCK in O'Reilly v Mackman [1983] UKHL 1; (1982) 3 ALL E.R. 1124 at 1126-1127 said that the observance of 'the rules of natural justice' means 'no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it'.
The content of the rules of natural justice are customarily summarised by reference to two maxims:-
(a) audi alteram partem (the opportunity to be heard); and
(b) memo debit esse judex in propria sua causa (no man should be a judge in his own cause - the "anti-bias" rules).
These rules are examined only if the statute conferring the relevant power either expressly or by necessary implication does not exclude
the rules of natural justice.
There are many cases on the subject of natural justice. They cover all questions which relate to the manner in which a decision is
reached and one of the things here is whether a person or body affected by a decision has been given a fair opportunity to make representations.
Much will depend on the facts and circumstances of the case and largely relate to the nature of the rights affected and what procedures
are necessary to give the affected party a proper opportunity to fairly put his case. When there is potential for adverse findings
which may seriously affect a party, then one of the things that may be involved is to give an "oral hearing".
The principles governing this aspect of the case has been succinctly stated by Richardson J in the New Zealand Court of Appeal case of Birss v Secretary for Justice [1984] NZCA 24; (1984) 1 NZLR 513 at 516 thus, which I consider pertinent to the consideration of the issue before me:
"The principles of natural justice and fairness have been reviewed in a number of cases in this Court in recent years: see for
example Ronaki Ltd v Number One Town and Country Planning Appeal Board [1977] 2 NZLR 174; Daganayasi v Minister of Immigration [1980] 2 NZLR 130; and, in relation to the administration of s.58, Fraser v State Services Commission [1984] 1 NZLR 116. It is unnecessary to traverse the whole ground again. Paraphrasing what was said in Fraser the requirements of natural justice depend on the nature of the power being exercised, the effect which the decision may have on persons affected by it, and the circumstances of the particular case; where they find
it necessary to do so in order to ensure that the procedure is fair in all the circumstances the Courts will require the adoption
of appropriate procedures or the supplementation of the procedures laid down in the legislation; in determining whether an opportunity
to be heard must be given before a decision potentially adverse to the person is made it is necessary to consider the scheme and
context of the governing statute; and the precise content of the rules of natural justice and standards of fairness have to be tailored
in a realistic way to meet the need of the particular case. In Fraser it was dismissal that was in issue. In that situation there
is what Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 66 described as "an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without telling him
what is alleged against him and hearing his defence and explanation"; and see also Chief Constable of the North Wales Police v Evans [1982) 3 All ER 141. (emphasis added)
The following extract from the judgment of SIR THADDEUS McCARTHY in BIRSS (supra) at 523 is also apt to be borne in mind:
"there is no perfect recipe which covers for all cases what natural justice may require to be done. What is necessary in a particular
case must be determined in the light of the facts of that case. In some nothing beyond ordinary administrative procedures will be
called for; in others much more is necessary. When that is and what should be done is not always easy for a permanent head to decide,
and it ill befits us to be unduly technical or critical. In the final analysis we are concerned with what is fair, and that means
fair between the person concerned. In some situations, as Richardson J points out, a permanent head may have to act immediately and
suspend without notice or without giving an opportunity for discussion."
There are certain factors which ought to be borne in mind when considering the aspect of 'procedural fairness.' It has been stated
as follows by ORMISTON, COLDREY and O' BRYAN JJ in CORNALL v A.B. (A Solicitor) 1955 1 V.R. Sup. Ct. 372 at 395:
".....in order to show that those entrusted with investigative duties ought to be subject to the obligation to afford procedural
fairness, certainly in circumstances where the outcome of their investigation may directly or indirectly affect the reputation of
the person investigated. We would agree that investigations may in certain circumstances be subject to that obligation but we would
not agree that such an obligation applies in every case, even where reputation may be affected."
The following passage from the judgment of MASON C.J. and DEANE and McHUGH JJ in ANNETTS & ANOTHER and McCANN & ORS. [170 C.L.R. High Court) p.596 at 598 is also apt in this case:
"It can now be taken as settled that, when a statute confers upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment." (underlining mine for emphasis).
The following statement by McHUGH J in JOHNS v AUSTRALIAN SECURITIES COMMISSION [1993] HCA 56; (1993) 178 CLR 408 at 470 effectively states the present test as to exclusion of the rules of natural justice:
"An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute. Such an intention
cannot be gleaned from "indirect reference, uncertain inferences or equivocal considerations". (COMMISSIONER OF POLICE v TANOS (1958), 98 CLR 380, at p.396).
It is not that in every case procedural fairness is to be accorded as stated in CORNALL (per MASON CJ Dawson, Toohey and Gaudron JJ: at 576.
It continues (p.395):
"On the other hand, as was said by the High Court in the passage immediately following that sentence, it does not follow that,
because a body is engaged in an exercise which may be characterised as an inquiry or investigation, there is no duty to ensure procedural
fairness. What is decisive is "the nature of the power, not the character of the proceeding which attends its exercise.":
ibid. Thus Ainsworth's case confirms that it is not appropriate merely to characterise a particular process of decision-making as
investigative without enquiring as to the consequences of that investigation."
In the leading case of O' REILLY v MACKMAN [1983] UKHL 1; (1983) 2 AC 237, LORD DIPLOCK observed as follows on the subject of giving a party the opportunity of hearing and of presenting his own case:-
"But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory
tribunal, has consequences that will, or may affect him adversely, should be given a fair opportunity of hearing what is alleged against him and
of presenting his own case, is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that a failure to observe it
should render null and void any decision reached in breach of this requirement." (emphasis added).
On 'rules of natural justice' OGNALL J in R v JOINT HIGHER COMMITTEE ON SURGICAL TRAINING ex parte MILNER (Adm. L.R. 1995 (July 1995) 454 at p.465 quoted the following passage from the judgment of LORD BRIDGE in LLOYD v MCMAHON [1987] UKHL 5; (1987) AC 625, 702:
"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying
concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which
will affect the rights of individual depends on the character of the decision-making body, the kind of decision it has to make and
the statutory or other framework in which it operates."
Similar observations were made by LORD LANE in R v COMMISSION of RACIAL EQUALITY ex parte COTTRELL and ROTHON (1980) 3 All ER 265, 271 as follows:
"Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly.
Accordingly, before assessing the fairness of the manner in which the decision complained of was taken ..., it is necessary to analyse
the context in which [it] was made and the nature of the decision."
Further on 'opportunity to be heard' in KIOA v WEST [1985] HCA 81; (1985) 159 CLR 550, 584-565 MASON J (as his Honour then was) remarked that:
"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia,
the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting. ...
In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair
procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly,
i.e. in accordance with procedures that are fair to the individual considered in light of the statutory requirements, the interests
of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits
to be taken into account as legitimate considerations ....."
In this case I cannot see that there were any special circumstances which rendered a hearing desirable. (Regina v Immigration Appeal Tribunal, ex parte ENWIA 1984 1 WLR CA p.11).
In considering the application of the principles of natural justice in this case I bear the following very important passage right
at the commencement of the judgment of LORD MORRIS OF BORTH-Y-GEST in the House of Lords case of WISEMAN v BORNEMAN (1971) A.C. 297 at 308-309 and that is how I have considered this case on its own facts. LORD MORRIS said:
"My Lords, that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely
an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is
nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis
must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application.
We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and
fair. Natural justice, it has been said, is only "fair play in action". Nor do we wait for directions from Parliament.
The common law has abundant riches: there may we find what Byles J. called the "justice of the common law" (Cooper v. Wandsworth Board of Works [1863] EngR 424; (1863) 14 C.B.N.S. 180, 194)
In view of what I have stated hereafter under the caption of "procedural impropriety" and bearing in mind the authorities
referred to hereabove I do not find there was a denial of natural justice to the applicant arising out of the procedure under reg.
41 adopted by the Respondents in considering the charges against the applicant. I do not consider that it was necessary to the Respondents
to obtain a reply to the statements from the applicant before interdicting her and finally dismissing her. To use the words of LORD DENNING MR in Regina v Secretary of State for Home Department, Ex parte Mughal 1974 1 QB (CA) 313 at 34 the "rules of natural justice must not be stretched too far". Only too often the people who have done wrong seek to invoke "the rules of natural justice" so as to avoid the consequences".
I find that in this case the procedure did match with what justice demanded and there was nothing unfair in not giving an oral hearing
to the applicant.
For these reasons the application fails on this ground of judicial review as well.
(c) Is it a case of Wednesbury unreasonableness?
On "unreasonableness" the applicant alleges that the respondents took into account irrelevant matters.
It is clear from affidavit as to what matters were taken into consideration. The memorandum containing the decision of the respondents
referred to at the beginning of this judgment sets them out quite fully. I see nothing irrelevant in them.
In administrative law, there is need on the part of a decision-maker to act reasonably and there has to be a reasonable basis for
the decision. Much of what I have said hereabove applied to this head of challenge, namely, "Wednesbury unreasonableness".
The guiding principle on this subject of "reasonableness" is stated quite clearly in ASSOCIATED PROVINCIAL PICTURE HOUSES LD v WEDNESBURY CORPORATION (1988) 1 KB (C.A.) 223 at 233-234 thus and I have borne that in mind in considering the matter before me:
"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account
matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account
matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible
to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have
nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again,
I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a
decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority
have contravened the law by acting in excess of the powers which Parliament has confided in them."
Taking into account all that I have said on the other heads under which I have dealt with this judicial review, I find that the whole
approach to the applicant's case has not been Wednesbury unreasonable on the part of the respondents.
This ground of relief therefore fails as well.
(d) Procedural impropriety - whether Reg.41 breached
In considering the application for judicial review the court is concerned with review of the decision-making process namely whether
the process by which the decision was reached is authorised or valid. The basic question is whether the decision-maker has acted
intra vires or within the discretion conferred reasonably and fairly. As stated by LORD TEMPLEMAN in REG. v. INLAND REVENUE COMMISSIONER Ex parte PRESTON [1984] UKHL 5; (1985) AC 835 at 862 that:
"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach
of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. Judicial review should
not be granted where an alternative remedy is available."
In a judicial review courts ensure that administrative actions are intra vires and keep within the bounds of their authority. These
actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important that
administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must
be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless
a statute, expressly or by clear implication provides a contrary intention.
In any review of a decision the court is concerned to evaluate fairness. Lord Hailsham L.C. has in Chief Constables of North Wales Police v Evans (1982) in WLR 1155 at 1160 very succinctly put the essential function of judicial review thus:
"It is important to remember in every case that the purpose ... is to ensure that the individual is given fair treatment by the
authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of
individual judges for that of the authority constituted by law to decide the matter in question".
The parameters of this ground called the 'procedural impropriety' has been explained by LORD DIPLOCK in COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE (1985) AC 374 at 408 thus:
"I ... describe the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice
or failure to act with procedural fairness towards the person who will be affected by the decision. This is because the susceptibility
to judicial review under this head covers also the failure by an administrative tribunal to observe procedural rules that are expressly
laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial
of natural justice."
Disciplinary proceedings are regulated by Reg.36 to 53. The applicant was charged under Reg.36(t) for improper conduct in her official
capacity; under reg.41(1) she was charged for committing a major offence; under reg. 41(2) she was required to state in writing within
14 days from the date of receipt of the charges whether she admitted or denied them. She was further informed to provide in writing
such explanation as she thought would enable proper considerations to be given to the charges laid against her; under reg. 41(3)
she was also informed that one of the penalties specified in Reg.51(1) may be imposed upon her by the Public Service Commission.
The applicant denied the charges and provided a detailed explanation in respect of the subject-matter. Thereafter the R1 in accordance
with reg.41(5) forwarded to the PSC a copy of the charges, reply of the applicant and report of R1 for the PSC to consider and determine
the matter.
I find that the procedure as required to be followed under reg.41 was complied with before reaching the said decision to dismiss the
applicant. I cannot find any fault whatsoever in the decision-making process.
The respondents had all necessary facts and information before them. It was a clear cut case of the government having been defrauded
of such a huge sum of money with no satisfactory explanation for such misconduct on the part of the applicant. I do not find any
procedural impropriety at all in the respondents' handling of the matter and reaching the decision that they reached. Although there
was a complaint to the Police about the matter, no criminal proceedings had been instituted against the applicant while the respondents
were investigating and dealing with the matter under reg.41. Hence I do not see anything improper in the respondents proceedings
with the disciplinary charges after complaints were lodged with the Police to give rise to any contravention of the regulations.
On the facts and circumstances of this case there was no need for a hearing by the applicant being present in person or even further
clarification. The applicant cannot expect any latitude from her employer which has already been defrauded of $74,000 by this obvious
dishonesty to say the least on the part of the applicant. She has the audacity to ask for salary or part of it during her interdiction
in the face of such serious charges for which there did not appear to be any defence to enable her to be freed from these charges.
The applicant could not have succeeded any way even if there was the hearing of the nature sought. I adopt what was said by HOOPER J in REGINA v MINISTRY OF DEFENCE Ex parte MURRAY (The Times Law Reports, Q.B., Div. Ct. 17.12.97 p.32) when he said:
"judicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion
than that reached was realistically possible".
It has even been held that "there is no principle of law that says that unfairness can never be ignored if a fair hearing would not have made any difference
to the decision taken;" (CELIK (Ali) and CELIK (Hanifa) v Secretary of State for the HOME DEPARTMENT (1991) Imm. A.R. 8, C.A. referred to in CLY p.489 1991 item 1969). There STAUGHTON L.J. said:
"Ordinarily, if there has been improper procedure, one needs to be soundly convinced that the impropriety made no difference
before one should refuse to act upon it."
For these reasons there is no sign of procedural irregularity or impropriety or unfairness. The respondents complied with the procedural
requirements of reg.41 and conducted a proper investigation. I therefore find no merit on this grounds of judicial review.
This ground of her application also fails.
Conclusion
To conclude on the facts and circumstances of this case I see no merit in any of the grounds of relief. The attack on the regulations
as being ultra vires certain provisions of the 1990 Constitution of the Republic of Fiji and which formed the bulk of Mr. Tuberi's
arguments has no leg to stand on for the reasons I have given hereabove. This was a clear cut case of a fraud committed on a grand
scale and the Government was fortunate that it was detected when it was. To succeed in a situation such as this one has to come with
'clean hands' and that was far from the case here. No question of 'legitimate expectation' arises in this case.
For these reasons the applicant has failed on all the grounds of judicial review. The application is therefore refused with costs
to the respondents in the sum of $700.00 (seven hundred dollars) to be paid by the applicant.
D. Pathik
Judge
At Suva
1 December 1998
Hbj0034j.97s
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