State v Arbitration Tribunal, Ex parte Suva City Council Staff Association [1999] FJHC 33; Hbj0014d.1999s (14 May 1999)

Fiji Islands - The State v The Arbitration Tribunal, Ex parte Suva City Council Staff Association - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 14 OF 1999

v

THE ARBITRATION TRIBUNAL

AND

THE SUVA CITY COUNCIL
Rdents

EX PARTE

THER>THE SUVA CITY COUNCIL STAFF ASSOCIATION
Applicant

Mr. J.K.L. Maharaj for thor the Applicant
Mr. S. Parshotam for the Second Respondent

DECISIONThe Suva City Council Staff Association's (the 'Applicant') applicpplication for leave to apply for judicial review under Or. 53 rule 3(2) of The High Court Rules 1988 impugning the decision of the Arbitration Tribunal (the "Tribunal" - the first respondent) made on 18 February 1999 whereby it made an Award/decision in favour of Suva City Council (the "SCC" - the 'second respondent') to unilaterally refuse 8 personnel (two of whom are now deceased) from its work force AND also for an Order of Certiorari to quash the decision of the SCC made on 10th December 1997 effective from 10th June 1998 whereby to retire the said employees upon their reaching the age of 55 years upon giving them 6 months notice. The applicant is also seeking an order for stay of the said two decisions until the determination of the substantive application or until further order.

ON LEAVE

In dealing with leave to apply for judicial review I have considered the new set of papers filed herein on 13 April 1999 as ordered by the Court and the submissions made by both counsel at the hearing inter partes on 23 April 1999. Leave was opposed by Mr. S. Parshotam for the second respondent (R2) on the ground that it was well within the powers of R2 to make the decision which it did make.

The R2 acted under clause 19 (ii) of the Collective Agreement between the Applicant and R2.

But then it was pursuant to first respondent's (R1's) said Award that R2 acted to retire the said employees whose ages are 58, 56-57, 57, 55, 57 and 58 years respectively.

Mr. Parshotam said that there was nothing procedurally wrong in the manner in which the R2 acted and that it is the procedure with which the judicial review is concerned with. He says that this is more an 'appeal' than a case of judicial review. He submitted that leave should be refused.

In granting leave the test that is applied is whether the applicant has an arguable case. This requires the Court to analyse the grounds put forward and other matters which would cause the Court to exercise its discretion not to grant a remedy.

In Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd HL [1981] UKHL 2; [1982] AC 617 at page 644 Lord Diplock suggested a threshold as follows:

'If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief'.

The grant of leave is simply this that an applicant is given permission to bring proceedings and implies no more approval and no more relief than that.

On the evidence before me, the Applicant is entitled to apply for judicial review. Leave is therefore granted.

ON STAY

On application for stay, I have given due consideration to counsels' submissions.

Mr. Maharaj submits that 'stay' is akin to 'injunction' and that there can be a 'stay'.

Mr. Parshotam on the other hand submits, inter alia, that if the respondents are found to be in "error" then the employees would have a remedy against the SCC.

Or.53 r3(8)(a) states that "(a) if the relief sought is an order of prohibition or certiorari and the court so directs, the grant shall operate as a stay of the proceedings to which an application relates until the determination of the application or until the Court otherwise orders".

In granting 'stay' certain principles apply.

The authorities state that the 'basis upon which a stay will be granted is, essentially, the same as for interlocutory injunctions' (Judicial Review: Law & Procedure by Richard Gordon - 2nd Ed). The essential principles are as stated in the leading case of AMERICAN CYANAMID CO. v ETHICON LTD [1975] UKHL 1; (1975) A.C. 396. The applicant must establish that damages are an inadequate remedy and that the balance of convenience favours the making of an interim order but in the context of judicial review "where public bodies are concerned, the balance of convenience may be more difficult to make out" (R v Secretary of State for Transport, ex p. Factortame Ltd (No. 2) (1990) UKHL 13; [1991] 1 A.C. 603 at p673 C).

On this application for judicial review the only relief sought by the applicant is an order of certiorari to quash the said two decisions. The issue before me is whether there has been procedural impropriety and this has to be looked at in the light of the provisions of clause 19 of the Collective Agreement and interpretation given to it by the Respondents. It is quite clear from Clause 19 that because the employees in question herein are over 55 years of age and one or two are very close to age of 60 years they are being retired from service. The propriety of this action on the part of the second respondent will depend on whether there has been procedural impropriety and that is the purpose of judicial review under administrative law. There is no claim by way of relief for 'damages' in this application and it is not the purpose of public law to compensate an applicant for invalid administrative action and also damages are not available simply because an application for judicial review is successful. (ex p. Factortame Ltd, supra).

Having considered the submissions put forward by both counsel I am not satisfied in the exercise of my discretion that I ought to make an Order for a stay or an injunction.

In coming to this conclusion I have borne in mind the factors to which reference has been made by me hereabove.

The applicant has not shown a strong prima facie case to enable me to grant a stay. The balance of convenience favours the refusal of stay in all the circumstances of this case. The principle dictates that the Court ought not to interfere with the said decisions but that the judicial review hearing determine the appropriateness of the decisions which are being challenged.

In the outcome, leave to apply for judicial review is granted but the application for a stay and an injunction is refused.

D. Pathik
JUDGE

At Suva
14 May 1999

Hbj0014d.99s