State v Decision of the Permanent Arbitrator, Ex parte Botiki [2000] FJHC 18; Hbj0042j.1999s (28 January 2000)

Fiji Islands - The State v The Decision of the Permanent Arbitrator, Ex parte Botiki - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

JUDICIAL REVIEW NO: HBJ 0042 OF 1999

THE STATE

-v-

THE DECISION OF THE PERMANENT ARBITRATOR

Ex parte APOROSA BOTIKI

COUNSEL: Applicant in Person

: Mr S. Karavaki for Respondent

Hearing: 21st January 2000

Judgment: 28th January 2000

JUDGMENT

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 Respondent objects to leave 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 Aporosa Botiki sworn on 14^th April 1998. That affidavit states that he was dismissed from the post of Junior Operations Clerk at the Ports Authority of Fiji on 27^th June 1996. He states that the matter was referred to the Permanent Arbitrator by the Fiji Public Service Association, and that the dispute was heard on 25^th March 1997.

An award was delivered on 3^rd April 1997 to the effect that whilst the dismissal was unfair, the Arbitrator could not order reinstatement. The Judicial Review application is in respect of that award.

Mr Botiki states that the reason he did not make this application until 4^th November 1999, was because he was unemployed and could not pay for a 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 Arbitrator “ruled that the dismissal was unfair but failed to order reinstatement.” The other paragraphs in the affidavit allege unfairness on the part of the Ports Authority, referred to by the Applicant as the “Respondents.” The only Respondent is in fact the Permanent Arbitrator.

The Respondent filed Notice of Objection, and an affidavit in response. The affidavit of Emosi Varea of the Maritime and Ports Authority of Fiji, sworn on 30^th November 1999, states that two and a half years have now lapsed since the award was made, and the Applicant is still unrepresented. He states that the Ports Authority has now been re-structured which resulted in the redundancy of employees and the creation of two entities; the Maritime and Ports Authority of Fiji and the Ports Terminal Limited. The position the Applicant previously held no longer exists. Reinstatement therefore would serve no useful purpose. In any event the Applicant is now 66 years old and past retiring age.

He states that the Applicant was heard, and was properly represented at the Tribunal and that the grant of leave would cause substantial hardship to the Maritime and Ports Authority of Fiji.

Order 53 Rule 4 of the High Court Rules provides that:

“(1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay 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 -

(a) leave for the making of the application ... if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Order 53 Rule 4(2) provides:

“In the case of an application for an order of certiorari to remove any judgment, 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 considered by the English Court of Appeal in R v. Stratford-on-Avon District Council, ex parte Jackson (1985) 1 WLR 139. The court held that the test of undue delay is an objective one, and the court must consider whether, on the facts there is a reasonable excuse for the delay and there are good reasons for extending time. The Court said that the time taken to obtain legal aid may be a reasonable excuse provided the application for legal aid has been expeditiously pursued by the applicant.

The question of what is detrimental or prejudicial to good administration was considered in R v. Dairy Produce Quota for Tribunal for England and Wales ex p. Caswell (1989) 1 WLR 1089. In that case the Court of Appeal said that the Respondent must prove by affirmative evidence detriment to good administration, which meant that the foreseen consequences of granting the relief sought must be positive harm to good administration. Furthermore the court can take into account not only the particular case but also the effect on other potential applicants if their applications were successful.

However, the Fiji Court of Appeal in Harikisun Ltd. -v- Dip Singh and Others 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 considers 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 3^rd April 1997. The three month period in respect of certiorari therefore expired on 3^rd July 1997. The application was made two 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 reinstatement has become difficult 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. (supra) said 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 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 refused in clear cases of unjustifiable delay.

In this case, the delay is undoubtedly excessive. The reason given for the delay, is the inability of the Applicant to obtain legal representation.

The Applicant continues to be unrepresented. He has however been able to file the relevant papers in respect of this application and to make submissions at the leave application. If he had made the application 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 delay of over two years for lack of legal advice, is both excessive and unjustifiable. The effect of judicial review on the new re-structured bodies of the Ports Authority particularly when the Applicant’s post no longer exists, would be prejudicial. I note that the affidavit in support of the Applicant alleges unfairness and unreasonableness on the part of the Ports Authority in refusing reinstatement, although the Judicial Review action purports to review only the award of the Tribunal. I note also that the application did not disclose the Ruling of the Arbitrator (which was later disclosed by the Respondent) or the terms of reference determining the jurisdiction of the Tribunal. Even if there had been no delay in bringing 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 to apply for Judicial Review. I make no order for costs.

Nazhat Shameem

JUDGE

At Suva

28^th January 2000

HBJ0042J.99S