THE STATE
-v-
THE DECISION OF THE PERMANENT ARBITRATOR
Ex parte APOROSA BOTIKI
COUNSEL: Applicant in Person
: Mr S. Karavar Respondent
Hearing: 21st January 2000
Judgment: 28th January 2000
JUDGMENT
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The Applicant has applied for leave to apply for Judicial Review of a decision of the Permanent Arbitrator, pursuant to Order 53 Rule
3(1) of the High Court Rules. The Rdent objects to leaveleave being granted on the ground of delay and on the ground that the application
is bound to fail.
The application is supported by the affidavit of Aporosiki sworn on 14th April 1998. That affidavit states he w he was dismissed ssed from the post of Junior Operations Clerk at the Ports Authority of
Fiji on 27th June 1996. He states that the matter was referred to the Permanent Aator by the Fiji Public Serc Service Association, and that the
dispute was heard on 25th March 1997.
An award was delivered on 3rd April 1997 to the effect that whilst the dismissal wasir, the Arbitrator could not order reinstatement. The; The Judicial w applicpplication
is in respect of that award.
Mr Botiki states that the reason he did not make this application until 4th November was because he was unemployed and could not pay for a soli solicitor.
The orders he seeks if leave were to be granted are certiorari for the quashing of the decision of the Permanent Arbitrator, a declaration
that the decision was unfair and invalid, and a declaration that the Applicant should be reinstated and compensated for loss of salary.
His affidavit in support of the application states that the Permanent rator “ruled that the dismissal was unfair but failed to order
reinstatement.” The othe other paphs in thin the affidavit allege unfairness on the part of the Ports Authority, referred to by
the Applicant as the “Respondents.” The only Respondent isact the Permanent Arbitrator.
The Respondenondent filed Notice of Objection, and an avit in response. The affidavit osi Varea ofea of the Maritime and Ports Authority
of y of Fiji, sworn on 30th November 1999, states that two and a half years have now lapsed since the award was made, and the Applicant is still unrepresented.
Htes that the Ports Authoruthority has now been re-structured which resulted in the redundancy of employees and the creation of
ttities; the Maritime and Ports Authority of Fiji and the Ports Terminal Limited. The The posithe Applicanticant previously held
no longer exists. Reinstatemeerefore would suld serve no useful purpose. In any event the Apnt is n is now 66 year and past retiring
age.
He states that the Applicant was heard, and was properly repred at the Tribunal and that the grant of leave would cause substantial
hardship to the Mari Maritime and Ports Authority of Fiji.
Order 53 Rule 4 of the High Court Rules provides that:
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“(1) Subject to the provisions of this rule, where in ase the Court considers that there has been undue delay in y 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 -
Order 53 Rule 4(2) provides:
“In the case of an application for an order of certi to remove any judgment, ont, 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.”
The nature and scope of the English Order 53 Rule 4 (and of the U.K. Supreme Court Act 1981, section 31(6)) were consideredhe English
Court of Appeal peal in R v. Stratford-on-Avon District Council, ex parte Jackson (1985) 1 WLR 139. Thrt held that the test ofst of undue delay is an objective one, and the court must consider whether, on the facts there is a rease
excuse for the delay and there are good reasons for extending time. The Court said said that ihe time taken to obtain legal aid
may be a reasonable excuse provided the application for legal aid has been expeditiously pursued by the applicant.
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The question of what is detrimental or prejudicial to good administration was considered iR v. Dairy Produce Quota for Tribunal for England and Wand Wales ex p. Caswell (1989) 1 WLR 1089. In that case the Cof AppeaAppeal said that the Respondent must prove by affirmatiidence dnce detriment to good administration,
which meant the foreseen consequences of granting the relief sought must be positive harm to good adminidministration. Furthermore
the courttake into account not only only the particular case but also the effect on other potential applicants if their applications
were succl.
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However, the Fiji Court of Appeal in Harikisun Ltd. -v- Dip Singh thers Civil Appeal No. ABU0019 of 1995, held that:
“... the questions of substantial hardship, prejudice to rights and detriment to good administration, which depend upon the granting
of the relief sought are matters for the court on the substantive review application, not on the application for leave which is concerned
with delay, and the reasons for it, in bringing the action .... It follows in our view that for leave a court on the hearing of an
application should consider the question of delay in terms of rule 3 and rule 4(1). Thus where the court cons ders there has been
undue delay it may refuse to grant leave; or where the application is made after “the relevant period”, that is, in the case of applications
for certiorari, three months after the date of the proceeding it may refuse to grant leave...”
In this case, the Arbitrator’s award was made on 3rd April 1997. The three month period inerespect of certiorari therefore expired on 3rd July 1997. The application was made ewo years and four months after the expiry of the three month period.
The result of the delay is that the Ports Authority of Fiji is now a different body, and the issue of reinment has become difficult
sult since the post that the Applicant previously held (along with many others which were made redundant) no longer exists.
The Court of Appeal in Harikisun Ltd. (suprad that “undue” delay meant “excessive, extreme, unjustifiable or going
beyond what is appropriate. The effect upon others may well bear upon what these terms import.”
In n Caswell -v- Dairy Produce Quota Tribunal for England and Wales[1990] UKHL 5; (1990) 2 AC 738 it was said that leave should only be refusrefused in clear cases of unjustifiable delay.
In this case, the delay is undoubtedly excessive. The reason given fo delay,elay, is the inabili the Applicant to obtain legal representation.
The Applicant continues to be unrepresented. He has however been to filo file the relevant papers in respect of this application
and to make submissions at the leave application. If he had mae application tion shortly after he realised that he would not be
reinstated pursuant to the Tribunal’s recommendations, delay would not have been excessive or unjustifiable. However, the del over
two two years for lack of legal advice, is both excessive and unjustifiable. The effect dicial review oiew on the new re-structured
bodies of the PAuthority particularly when the Applicant’s post no longer nger exists, would be prejudicial. I note the affidavit
in suin suppf the Applicant alleges unfs unfairness and unreasonableness on the part of the Ports Authority in refusing reinstatement,
although tdicial Review action purports to review only the award of t of the Tribunal. I note also that tplicatiocation did not
disclose the Ruling of the Arbitrator (which was later disclosed by the Respondent) or the terms of reference determining the jurisdictiothe
Tribunal. Even if there had been no delay in bringing ting this application, the Court would have found that there was no arguable
case to justify the grant of leave.
In the circumstances I consider that the delay in bringing this application was undue, excessive, and unjustifiable. I refuse leave
ply for Judr Judicial Review. I no order for costs.
<1"> Nazhat Shameem
JUDGE
At Suva
28th January 2000
HBJ0042J.99S
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