State v Public Service Appeal Board, ex parte Reddy [1999] FJHC 177; HBJ0040D.1999 (3 December 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

ACTION NO: HBJ 0040 OF 1999

THE STATE

V

PUBLIC SERVICE APPEAL BOARD

EX PARTE

MUNSAMI REDDY

COUNSEL: Applicants in Person
Mr E. Walker & Ms S. Tabaiwalu for Respondent

Hearing: 26th November 1999
Decision: 3rd December 1999

DECISION

On 16th November 1999, an application for leave to apply for Judicial Review of a decision made by the Public Service Appeal Board on 10th October 1999 refusing an appeal against the appointment of an Elina Raiwalui as Executive Officer at the St. Giles Hospital, was made by Munsamy Reddy and Suresh Charan.

Munsamy Reddy brings this application in his capacity as the person who appealed against Ms Raiwalui’s appointment. Suresh Charan brings this application as representative of Mr Reddy in the Appeals Board.

The matter was set for the hearing of the leave application on 26th November 1999. Mr E. Walker who appeared for the Respondent said that he had no objection to leave being granted in respect of Munsamy Reddy who clearly had sufficient interest. He objected to Suresh Charan being a party to the Judicial Review and objected to leave being granted to that extent. He said that although the issue of standing was usually left to be decided at the substantive stage of the hearing, in this case, Suresh Charan clearly had no standing and should be excluded as a party at this stage.

Mr Charan who appeared in person with Mr Reddy said that he had a right to be a party because he had represented Mr Reddy before the Public Service Appeals Board. He further said that no notice of opposition had been filed by the Respondent and that he clearly had standing in the matter. He filed written submissions in support of the application.

The issue at this stage of the hearing is normally whether the papers raise an arguable case in favour of the relief claimed. It is conceded by the Respondents that there is an arguable case in respect of the First Applicant. I note that by virtue of Order 53 Rule 3 the court must consider standing whether or not the Respondents have raised an objection on this ground.

In Richard Krishnan Naidu -v- Attorney-General of Fiji Civil Appeal No. ABU0039 of 1998S the Court of Appeal discussed the relevance of Order 53 Rule 3(5) of the High Court Rules 1988 at leave stage. That Rule provides that the court shall not grant leave unless the applicant ‘has a sufficient interest in the matter to which the application relates.’ The Court said:

“This rule derives from a corresponding provision in the English legislation. It is apparent therefore that issues of standing can properly be considered at threshold stage. But save in exceptional or obvious cases standing cannot be considered in isolation.”

In Inland Revenue Commissioners -v- National Federation of Self-Employed and Small Businesses Ltd (1981) 2 All ER 92, the Court determined the issue of standing as a preliminary issue at the substantive judicial review hearing. The House of Lords said (at page 96) that it should have been decided on a consideration of the entire case. The Court said (per Lord Wilberfoce):

“There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application, then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies being harassed by irresponsible applications.”

Mr Walker submits that this is one such simple case. I agree with him. Mr Charan concedes that his only interest in the proceedings, is that he was Mr Reddy’s lay representative in the Public Service Appeals Board. The papers filed do not suggest that his legal rights or interests were infringed in any way. He appeared at the Appeal hearing on behalf of Mr Reddy.

Section 26(6) of the Public Service Act (No. 8 of 1999) provides:

“At the hearing of the appeal -

(a) the appellant is entitled to be present and may be represented by a legal practitioner or by any other person ....”

There is nothing in this provision that gives Mr Charan any right or interest over the grievance, other than as a lay representative of Mr Reddy.

What is the test for standing? In the case of certiorari, the applicant must be a person aggrieved by the decision (R v. Thames Magistrates Court ex parte Greenbaum (1957) 55 LGR 129, in relation to mandamus, the applicant must have a legal right to be enforced.

In Richard Krishnan Naidu (supra) the Court of Appeal said at page 10, 11, that the courts had in recent years adopted an increasingly liberal approach to standing. The Court referred to R v. Independent Broadcasting Authority, ex parte Whitehouse (1984) The Times 14 April, which held that every holder of a television licences has an interest in the quality of the programmes.

The relief asked for in this case is as follows:

“1. AN ORDER OF CERTIORARI to remove the said decision of the Public Service Appeal Board made on 10 October 1999 dismissing the first Applicant’s appeal against the provisional appointment of Ms Elina Raiwalui by the Ministry of Health ......

2. DECLARATIONS that the proceedings and decisions of the Public Service Appeal Board are -

(a) Null and Void

(b) In contravention of the provisions of section 140 of the Constitution (Amendment) Act 1997, section 26(8) and (9) of the Public Service Act 1999, and the Public Service Regulations 1999, in particular Regulation 5, and Regulation 7.

(c) In breach of natural justice and fair play.

(d) Prejudicial and in bad faith.

(e) An abuse of discretion or wrong exercise of discretion.

(f) In excess or abuse of jurisdiction.

(g) Unreasonable, unfair and improper.

(h) In breach of legitimate expectations of the Applicant.”

The application does not seek to quash any decision that affects the second applicant personally. The applicant seeks to quash a decision which relates to Mr Reddy’s appeal. It was not Mr Charan’s appeal. The appeal did not affect Mr Charan personally. Nor does the judicial review application affect Mr Charan’s personal or legal rights.

The papers filed fail to show that Mr Charan has any standing at all. His only interest in the proceedings is that he was Mr Reddy’s representative in the appeal hearing. If this was sufficient to lend him locus standi, every representative in subordinate tribunals could seek to be joined as a party in review proceedings. In the absence of any legal or personal interest in these proceedings, I therefore find that Suresh Charan has no standing and I refuse leave in respect of his application.

One final matter. Mr Charan suggested in his oral submissions, that the Appeals Board had failed to serve him relevant documents in the course of the proceedings, and that evidence of this failure is relevant to this review. I agree that evidence of procedural irregularity is certainly relevant, and that there is nothing to prevent Mr Charan from swearing an affidavit in support of Mr Reddy’s application, with the leave of the court.

Application for leave on behalf of the Second Defendant is dismissed. I make no order for costs since the Respondents filed no notice of opposition.

Nazhat Shameem
JUDGE

At Suva
29th November 1999