State v Permanent Secretary for Education, Ex parte Autar [1998] FJHC 187; Hbj0021j.1995s (17 June 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 21 OF 1995

STATE

V

PERMANENT SECRETARY FOR EDUCATION, WOMEN, CULTURE, SCIENCE AND TECHNOLOGY

EX PARTE:

RAM AUTAR
s/o Jai Mangal

Mr. A. Kohli for the Applicant
Mr. D. Singh for the Respondent

JUDGMENT

Pursuant to leave granted on 13 December 1995, Ram Autar the applicant applied for judicial review of the decision of the respondent dated 15 June 1995 which, inter alia, is in the following terms:

The Commission at its meeting held on 31/05/95 considered a Medical Board Report on your present health and accepted its recommendation that it would be in your interest to be retired from Public Service on Medical Grounds.

Therefore, it has been decided that you be retired from the Service on Medical Grounds forthwith in accordance with the provisions of Regulation 32 of the Public Service Commission (Constitution) Regulations, 1990, w.e.f. 20/06/95.

Subject to what I say hereafter I do not propose to go into details regarding the delay in the matter coming finally before the Court for hearing suffice it to say that Counsel decided to move at their own pace and neither party appeared to be in a hurry, probably because the applicant had already reached the retiring age of 55 years and was retired six months before time.

About the Applicant

A very brief account of the applicant and the circumstances which culminated in his being retired is as stated by Mr. Kohli (page 1 of his submission in writing) and which are as follows:

The Applicant began his teaching career in 1976. On the 18th of November, 1976 he was offered appointment with Ministry of Education as a teacher of Secondary School with effect from 1st January, 1977. On 20th of May, 1991 the Applicant felt sick and after treatment resumed normal duties on 16th of September, 1991. He continued until 20th January, 1994. On 24th January, 1994 he was transferred temporarily to Education office, Labasa. On the 15th of June, 1995 the Applicant received a letter from the Public Service Commission informing him that it was in his interest to be retired on medical grounds forthwith in accordance with the provisions of Regulation 32 of the Public Service Commission (Constitution) Regulation 1990.

The applicant was born on 6 January 1941 and will have reached the retiring age of 55 years on 6 January 1996.

Reliefs sought

In this application for Judicial Review the applicant seeks the following relief:

(a) AN ORDER OF CERTIORARI to remove the said decision of the Permanent Secretary for Education, Women, Culture, Science and Technology made on or about the 15th day of June, 1995 whereby it purported to retire the applicant on medical grounds.

(b) A DECLARATION (in any event) that the Permanent Secretary for Education, Women, Culture Science and Technology has acted in breach of the rules of Natural Justice and/or exceeded its jurisdiction.

(c) Damages against the Permanent Secretary for Education, Women, Culture, Science and Technology.

(d) Further Declarations or other relief as to this Honourable Court may deem just.

(e) Doctrine of legitimate expectation was breached by Public Service Commission.

(f) Costs of this action.

Grounds of Relief

The Grounds on which the reliefs are sought are as follows:

(a) That the Permanent Secretary for Education, Women, Culture, Science and Technology breached the Rules of Natural Justice in that it did not give the Applicant a fair hearing.

(b) That the Permanent Secretary for Education, Women Culture, Science and Technology failed to give any or any proper reasons for its decision.

(c) That the Permanent Secretary for Education, Women Culture, Science and Technology abused its discretion in that:-

(i) That it took into consideration irrelevant matters and;

(ii) It did not take into consideration relevant matters and;

(iii) It acted unreasonably, arbitrarily or in bad faith;

(d) That the Permanent Secretary for Education, Women Culture, Science and Technology exceeded its jurisdiction under the Public Service Commission (Constitution) Regulations, 1990.

Background

The application was filed on 19 September 1995 and served on 21 September 1995. Affidavit of Service was filed on 5 December 1995 and placed before me on 6 December 1995; on 7 December 1995 I granted leave. The matter lay dormant because of applicant's ignorance of procedure until 9 July 1996 when application to file motion out of time was lodged. The application was granted on 9 August 1996. Counsel decided to talk settlement but this did not eventuate and the Motion was heard on 27 August 1997 when an Order for written submissions was made. Mr. Kohli filed his submission on 6 October 1997 and Mr. D. Singh filed his on 14 October 1997.

The applicant has filed three affidavits, namely, first sworn on 19 September 1995, Affidavit in Reply sworn on 5 June 1997 and a further Affidavit filed 17 September 1997.

The respondent filed two affidavits. They are Affidavits sworn 6 September 1996 and one sworn 3 April 1997.

Applicant's submission

Mr. Kohli submitted that the applicant was retired under Regulation 32 of the Public Service Commission (Constitution) Regulations 1990 (the "Regulations"). He emphasized that under Reg. 32(4) an officer may be retired on this ground, inter alia, provided the officer is found "unfit for further service". The Medical Board did not find this to be the case instead it found that he was physically and mentally fit for "office duties". Hence his retirement on medical grounds pursuant to Reg. 32 is unreasonable. He further submited that the said letter of 15 June from the Public Service Commission totally mis-represented to the applicant the report of the Board when it said it would be "in his interest" to be retired from the Public Service on medical grounds when in fact it stated to the contrary, namely, that he was physically and mentally fit for "office duties".

The learned counsel then dealt with the law involved and stated that there was procedural impropriety including the denial of natural justice. He submitted that the applicant should have been given an opportunity of hearing and presenting his case in response to any adverse report on him.

He further submitted that the decision of the Commission was Wednesbury "unreasonable" in that it did not take into account or neglected to take into account matters which they ought to take into account, namely, that he was physically and mentally fit for office duties he then carried out.

Finally, he argued that in view of the Medical Report the applicant had legitimate expectation that he would in the absence of any adverse report continue to serve in the Ministry.

Respondent's submission

Mr. D. Singh for the respondent submitted that section 32(4) which deals with retirement on grounds of ill-health has been 'misquoted' by Mr. Kohli which gives the Commission the discretion to institute further inquiry into an officer's capacity where the medical board has found the officer unfit for further service. He said that the Board in its recommendation of 13 March 1995 stated, inter alia, that "he is not suitable to continue as a teacher because of his speech problem but he is physically and mentally fit for office duties at present".

Mr. Singh said that it is to be noted that the Commission gave the applicant the opportunity to work temporarily in the Education Office at Labasa from 24 January 1994 until 15 June 1995 when he was retired on medical grounds.

The learned counsel submitted that the grounds of relief have not been made out. He said that the Commission "should be commended for acting prudently in retiring the applicant because of the risk of future illness which may have opened the way for a possible claim in negligence against the Commission."

Consideration of the issue

Law

I have considered the submissions of both Counsel.

In an application for judicial review the Court is concerned not as much with the merits of the decision as with the process by which the decision was reached. In REG v INLAND REVENUE COMMISSION, Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862, LORD TEMPLEMAN on this aspect said:

"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".

In a judicial review Courts ensure that the 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.

Procedure adopted

The Applicant was retired from the Service on medical grounds under Regulation 32 of the Public Service Commission (Constitution) Regulations, 1990. Regulation 32 provides as follows:

"32. - (1) A Medical Board appointed by the Permanent Secretary for Health shall be held whenever the Commission considers it necessary for an officer to be examined with a view to ascertaining whether or not the officer should be retired on grounds of ill-health.

(2) An officer may be required by the Commission to undergo an examination by a Medical Board at any time.

(3) The report embodying the findings and recommendations of the Medical Board shall be made known to the Commission without delay. The contents of the report shall not be made known to the officer or to any other officer, person or body except with the permission of the Commission.

(4) Unless the Commission considers it necessary to institute, or cause to be instituted, further enquiry into any matter bearing on an officer's capacity, if an officer is found unfit for further service by a Medical Board, the Commission shall forthwith give the officer notice of retirement on medical grounds to take effect on a date not earlier than a date which shall allow the officer to enjoy the balance of any approved leave on account of sickness to which he might otherwise have been entitled by virtue of his conditions of service."

(emphasis added)

Further to the decision impugned the applicant wrote in response on 22 June 1995 stating, inter alia, that he objects to his retirement as he is fit to work based on his previous Medical Board Reports on him. On 22 June 1995 he requested the Public Service Commission (the "Commission") to allow him to continue his "6 months service to the Government and retire when I attain my 55 years". He would have reached the retiring age six months after he received the memorandum to retire him.

The respondent's affidavit sworn 6 September 1996 in response to the applicant's affidavit stated, inter alia, that the "Commission's decision to retire the applicant was based not only on the medical report but prior medical history and records of the applicant".

It is pertinent to note here that Mr. Singh while commending the respondent on the steps it took to retire said that that was done "because of the risk of future illness which may have opened way for a possible claim in negligence against the Commission". This statement of his is unsupported by any evidence or even by the Medical Board recommendations.

There was the further affidavit of SHRI CHAND the Acting Director for Personnel for the Commission sworn 3 April 1997 in response to the applicant's affidavit in support of his application for judicial review. To this affidavit he annexed details of medical treatment and medical board reports leading to the Commission's decision to retire the applicant on medical grounds.

I have very carefully studied all the affidavits together with the annexures filed herein. The annexures reveal as hereunder and it is important that I set out the salient features contained in them.

I am inclined to agree with Mr. Kohli as far as his submissions on the applicant's fitness to continue working. Let me now deduce what the Medical Board had said on the applicant's medical condition in relation to his work bearing in mind Reg.32(4) which says, inter alia, that an officer may be retired on medical grounds provided the Officer is "found unfit for further service by a Medical Board".

The Medical Board had on 13 May 1993 recommended "that he is still fit for continuing his duties in the school". Then again on 10 March 1994 it recommended that he is "fit for Office work which we understand he is already engaged in. At the same time the Board thinks there is no need for repeated medical boards because his speech has not deteriorated over the last few years".

Then on 24 January 1994 he was "transferred temporarily" to the Education Office, Labasa on his existing terms and conditions. The applicant carried out a proper handing-over to his successor at the school. Right on the heels of this transfer i.e. on 25 January 1994 the Commission requested the Permanent Secretary for Health to reconvene Medical Board "with a view of retiring the Officer".

Subsequently on 31 March 1994 the Commission, based on Medical Board's recommendation of 10 March 1994, informed the respondent that it "endorses the Board's recommendation that he be given Office Work".

It is pertinent to note that despite these reports in regard to his fitness to work, the Commission was on 2 May 1994 requested by the respondent for "Regrading" of the applicant's post. In response the Commission said on 6 June 1994 that:

"it is sad to see that the man is not wanted by the Ministry. His health condition is not such that he cannot continue to work and contribute quite effectively in the Ministry to which he has given 26 years service. It would be in his interest to remain in his professional area instead of going through the stress and strain to put up newer skills at this terminal part of his career in the Public Service". (emphasis added)

This is the sort of sentiment which should have been maintained but unfortunately it was not. On 6 December 1994 convening of another Medical Board was again requested but it was declined by Memorandum from the Commission on 4 January 1995 in the following terms:

"1.0 We have carefully considered your submission under reference and advise that your request to convene another Medical Board to determine the suitability of the above named officer to continue in the service is inappropriate and untimely as he has been previously examined by the Medical Board on two separate occasions, the last being on 10/03/94, whereby he has been recommended fit for office work. Furthermore, the Board felt that there is no need for repeated Medical Boards.

2.0 In view of the above, any suggestion for him to be retired on medical grounds cannot be effectively pursued.

3.0 Therefore, in view of his current post as a Principal and with administrative capabilities, you are requested to identify and redeploy him to a suitable post within the education system at his substantive level so as to free the Principal's post at the school concerned." (emphasis added)

By memorandum dated 7 March 1995 the Applicant was required by the Respondent to "attend a Medical Board at the Colonial War Memorial Hospital on 13/3/95 at 1.30 p.m. in a S.O.P.D. Section".

"This patient from the cardiac point of view is in a very stable state. His only disability is his speech which is slurred. It is less likely that his speech is going to improve in future. The Board feels that he is not suitable to continue as a teacher because of his speech problem but he is physically and mentally fit for office duties at present. However, his suitability to continue in service will need to be reviewed in the light of any changes to his health in future" (emphasis mine)

All the above correspondence reveals that although he is unsuitable to continue as a teacher he is still fit for service under s.32(4) and that is why it appears he was 'temporarily' transferred to do Office Work after a proper handing over. The last Report evidently expected another examination should there be a change in his health. But without that he was retired. There was no change in his medical condition according to the three Medical Board Recommendations. Further, the memorandum conveying the decision states 'that the Board "accepted its recommendation that it would be in your interest to be retired from the Public Service Commission on medical grounds". I could not find any such recommendation in the Board's Reports. I regret to say that a proper interpretation was not given to the Board's recommendation. The Respondent had transferred him to another section of the Ministry and he was fit for Office work and I do not see why he was not kept back six months longer and that would not have "broken the camel's back" so to say.

In these circumstances it is abundantly clear that the manner in which the decision was reached was Wednesbury unreasonable and ultra vires the powers given to Respondent under Regulation 32.

In the circumstances of this case, particularly when the Applicant had given 26 years of service and he was still fit for office work according to the last Medical Board recommendation the court can interfere by certiorari if the punishment is altogether excessive and out of proportion to the occasion (LORD DENNING M.R in REG. v BARNSLEY COUNCIL, Exp. HOOK (C.A.) 1976 1 WLR 1052 at 1057)

As I see it, it was Regulation 32 on which alone the Respondent wished to act as evident from the memorandum conveying the decision. It adopted its own procedure; it appears that apart from the Medical Board's Report it took into account the applicant's prior history.

It is pertinent to note at this stage that the applicant was 'transferred' from actual teaching and was kept in the Education Office for quite some time. He was not told as to how long he would be kept there or whether he will be asked to return to teaching; according to the applicant he was given the assurance that he would go back to teaching in due course and that he would be able to continue his service until his retirement. It appeared from papers filed that due to his sickness he suffered from speech defect and if he returned to class-room teaching students are likely to ridicule him. Be that as it may, there was no complaint about the work he was doing in the Office. All of a sudden, 6 months before his retirement, much to his astonishment the said decision is handed to him without first hearing him.

Application of law to facts

The right to be heard

The decision in this case was an exercise of a statutory power which affects the rights of an individual and in this case the applicant. It was held in DIXON v COMMONWEALTH 55 F.L.R p.34 that "where a statute confers power upon a person to make a decision affecting the rights, property or legitimate expectations of a person, the rules of natural justice will prima facie be applicable". It was further held that "the audi alteram partem rule did apply to s. 62(1) of the Act in the absence of any clear legislative intent to the contrary" and that "the appellant was denied the opportunity of being heard to which the rules of natural justice entitled him".

There was an obligation on the respondent to give notice to the applicant of its intended action and the general reasons therefor so that he could make his submissions. This step becomes all the more important in the light of the fact that the applicant has served the Ministry for 26 years and he had just 6 months to retire and also the fact that the three Medical Reports which say something contrary to what, in part, the respondent communicated to the applicant in its memorandum conveying the decision to retire him. I refer to the case of DAGANAYASI v MINISTER OF IMMIGRATION (1980) 2 NZLR 130 at p.131 where it was held, and which I adopt here, that:

"The Minister's decision was invalid on the grounds of procedural unfairness because the report and memoranda of the medical reference or at least the substance of any prejudicial contents, should have been disclosed to the appellant or her advisers before a decision was made, to allow her a reasonable opportunity of answering them". (emphasis added)

According to the Director of Personnel's affidavit sworn 6 September 1996, in retiring the applicant the P.S.C. 'also' based its decision "not only on the medical report but prior medical history and records of the applicant". And to top it all the learned Counsel for the respondent in his written submission went to the extent of even stating that this course of action to retire avoided a possible negligence claim against the respondent when in fact there was no evidence before the Court in this regard.

Natural Justice

There is no express provision in Regulation 32 incorporating or excluding the rules of 'natural justice' in relation to the decision to retire the applicant. Upon a careful consideration of the relevant Regulation I am not persuaded that there is any basis for implying that rules of natural justice which would otherwise be applicable should be either excluded or modified. (Dixon, supra at p.1981).

I am strongly of the view that Reg 32, a statutory provision, did not preclude the respondent from applying the principles of natural justice. Had the legislature intended complete exclusion it would have said so in clear terms. The Fiji Court of Appeal in its very recent decision delivered on 29 May 1998 in THE PERMANENT SECRETARY FOR PUBLIC SERVICE COMMISSION and THE PERMANENT SECRETARY FOR EDUCATION, WOMEN AND CULTURE and LEPANI MATEA (Civ. App. No. 16/98) dealt with this aspect at some length referring to cases which deal with this subject and I refer to some of them hereunder.

The broad general principle is stated by LORD DIPLOCK in O'REILLY v MACKMAN [1983] UKHL 1; (1983) 2 AC 237 at p.276 as follows:

"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 civilised 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)

Also in PRATT v WANGANUI EDUCATION BOARD and OTHERS (1977) 1 NZLR 476 SOMERS J quoted LORD UPJOHN in DURAYAPPAN v FERANANDO (1967) 2 AC 337 on the question of audi alteram partem when he said:

"A long course of decisions, beginning with Dr. Bentley's case (1723) 1 Stra 557; 8 Mod Rep 148, and ending with some very recent cases, establish, that, although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature" [1967] 2 AC 337, 348. (emphasis added)

Further in WISEMAN v BORNEMAN (1971) AC 297 LORD WILBERFORCE said:

"..... the legislature may certainly exclude or limit the application of the general rules. But it has always been insisted that this must be done, clearly and expressly.

Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment."

Finally, on this aspect, the following passage from the judgment of BARWICK CJ in TWIST v RANDWICK MUNICIPAL COUNCIL [1976] HCA 58; (1976) 136 CLR 106 at p.109 is apt and I have applied this to the facts of this case;

"But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power." (emphasis added)

Looking at the facts of this case and all the circumstances surrounding it, it is abundantly clear that this was one case in which the applicant should not only know the exact basis on which he was retired but also allowed to make submission to the respondent to ensure fairness to the applicant. He must be given the opportunity to state his position. In this case the respondent failed to do so and therefore did not act fairly towards the applicant.

Procedural unfairness

There was therefore unfairness in the manner in which the decision was reached. This is an important head of challenge. There is a duty to act fairly as failure to accord procedural fairness could vitiate the respondent's decision. On the aspect of 'fairness' I find the following passage from the judgment of LORD MUSTILL in DODDY v SECRETARY OF STATE FOR THE HOME DEPARTMENT (1995) 3 All E.R. 92 at 126 apt:

"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive the following:

(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(4) As essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may-weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

(emphasis added)

On the facts of this case I find that the said decision is "Wednesbury unreasonable". The affidavit evidence reveals, and I have already stated this, that apart from invoking the provisions of Regulation 32 the Respondent considered his prior history whatever that was and not communicated to him and learned counsel for the respondent also went to the extent of submitting to the effect that the applicant was good "riddance" so to say to avoid possible negligence action without any supportive evidence. All this goes to show that the respondent took into consideration irrelevant and extraneous matters.

On Wednesbury principle LORD TEMPLEMAN in the House of Lords case of BRIND v SECRETARY OF STATE [1991] UKHL 4; (1991) 1 All E.R. 720 at 725 said:

"The English courts must, in conformity with the Wednesbury principles (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; (1947) 2 All ER 680, (1948) 1 K.B. 223) discussed by Lord Ackner, consider whether the Home Secretary has taken into account all relevant matters and has ignored irrelevant matters ..... If these conditions are satisfied, then it is said on Wednesbury principles the court can only interfere by way of judicial review if the decision of the Home Secretary is 'irrational' or 'perverse'."

In BRIND (supra) at 737 LORD LOWRY talking of "Wednesbury unreasonableness" stated that statements in cases pertaining to this principle "emphasises the legal principle that judicial review of administrative action is a supervisory and not an appellate jurisdiction". He goes on to say on "Wednesbury unreasonableness" that:

"I believe that the subject is nowhere better discussed than by Sir William Wade in his authoritative textbook Administrative Law (6th edn, 1988) Ch 12 'Abuse of Discretion' pp 388 - 462. The learned author, with the aid of examples covering more than a century, clearly demonstrates that what we are accustomed to call Wednesbury unreasonableness is a branch of the abuse, or misuse, of power: the court's duty is not to interfere with a discretion which Parliament has entrusted to a statutory body or an individual but to maintain a check on excesses in the exercise of discretion. That is why it is not enough if a judge feels able to say, like a juror or like a dissenting member of the Cabinet or fellow-councillor: 'I think that is unreasonable: that is not what I would have done.' It also explains the emphatic language which judges have used in order to drive home the message and the necessity, as judges have seen it, for the act to be 'so unreasonable that no reasonable minister etc would have done it'. In that strong, and necessary, emphasis lies the danger. The seductive voice of counsel will suggest (I am not thinking specifically of the present (case) that, for example, ministers, who are far from irrational and indeed are reasonable people, may occasionally be guilty of an abuse of power by going too far. And then the court is in danger of turning its back not only on the vigorous language but on the principles which it was intended to support. A less emotive, but, subject to one qualification, reliable test is to ask: 'Could a decision-maker acting reasonably have reached this decision?' The qualification is that the supervising court must bear in mind that it is not sitting on appeal, but satisfying itself whether the decision-maker has acted within the bounds of his discretion. For that reason it is fallacious for those seeking to quash administrative acts and decisions to call in aid decisions of a Court of Appeal reversing a judge's finding, it may be on a question of what is reasonable. To say what is reasonable was the judge's task in the first place and the duty of the Court of Appeal, after giving due weight to the judge's opinion, is to say whether they agree with him. In judicial review, on the other hand, the task of the High Court is as described above, and the task of the Court of Appeal and, when necessary this House is to decide whether the High Court has correctly exercised its supervisory jurisdiction." (underlining mine for emphasis)

I have relied heavily on Wednesbury principles. In this case the reason for retiring the applicant was because of Medical Board report. The situation such as the present is reviewable and factors to be borne in mind have been stated very well as follows by LORD LANE C.J. in REGINA v IMMIGRATION APPEAL TRIBUNAL, ex parte KHAN (MAHMUD) (1983) 2 W.L.R. 759 at 762-3 when he said:

"Speaking for myself, I would not go so far as to endorse the proposition set forth by Sir John Donaldson that any failure to give reasons means denial of justice and is itself an error of law. The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions.

Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not." (emphasis added)

Conclusion

To conclude, by not giving the applicant the opportunity to respond on the basis on which the decision was reached the respondent has acted ultra vires. The applicant had been denied natural justice. The fact that the respondent was required to exercise a statutory power and make a decision affecting the rights of the applicant imposed on it the duty to act fairly arose. This it has failed to do.

The situation prevailing in the case before me calls for the application of the principles I have outlined in considerable detail hereabove. I think the following passage from the judgment of the Fiji Court of Appeal in LEPANI MATEA (supra at p10 - unreported) has summed up the law that should be applied on the facts and circumstances of a case of this nature:

"The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilised legal system that it is to be presumed that the legislative body intended that a failure to observe it would render the decision null and void. If there are no words in the instrument setting up the deciding body requiring that such a person be heard the common law will supply the omission. It will imply the right to be given a fair opportunity to be heard. While the legislative body may exclude, limit or displace the rule it must be done clearly and expressly by words of plain intendment. The intention must be made unambiguously clear. Finally we add that what is a fair hearing will depend upon the circumstances of each case; it does not mean that in every case a right of personal appearance must be given."

In the result, for the above reasons, I will grant judicial review.

It is ordered that certiorari go to quash the decision of the respondent of 15 June 1995 to retire the applicant. I also declare, now that he has been retired prematurely without salary, the applicant is to be paid his salary from the date of his termination until the time he was to have retired in the normal course of events. The respondent is to pay the costs of the application to be taxed if not agreed.

D. Pathik
Judge

At Suva
17 June 1998

HBJ0021J.95S