State v Public Service Appeal Board, ex parte Reddy [2002] FJHC 102; HBJ0003d.2001S (12 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0003 OF 2001

THE STATE

v.

1. PUBLIC SERVICE APPEAL BOARD
2. MINISTRY OF HEALTH
3. ELINA RAIWALUI
Respondents

Ex-parte:

MUNSAMY REDDY
Applicant

Mr. R.P. Singh for Applicant
Mr. S. Sharma for Respondents

DECISION

By summons dated 20 July 2001 the Respondents have applied to Court for an Order that the Applicant=s application for a judicial review of the decision of the Public Service Appeal Board dated 28 November 2000 be struck out upon the ground that: 1. It is scandalous, frivolous and vexatious and 2. that it is otherwise an abuse of the process of the Court. The application is made under Or.18 r.18(1)(b) & (d) of the High Court Rules 1988 and under the inherent jurisdiction of this Court.

Background facts

On 10 October 1999 the applicant=s appeal to Public Service Appeal Board against the decision of the Ministry of Health not to promote him to the position of executive officer was disallowed.

His application for judicial review was allowed by the Court and the decision of the Appeal Board was quashed. After rehearing the appeal on 6 November 2000, the Board made a decision on 28 November 2000 disallowing to appeal for promotion to the position of Executive Officer. He again sought judicial review on 15 January 2001 (the present application for judicial review).

The position at present is that on 6 March 2001 the applicant had been promoted to the position of Executive Officer in the Ministry of Justice. His appointment has also been Gazetted (Gazette No. 31 of 12 April 2001). No appeal has been lodged against the promotion.

Respondent=s submission

The Respondents say that in these circumstances the pending judicial review now becomes merely academic and will not achieve any useful purpose.

It is further submitted that it will be impractical for the Board and will be detrimental to good administration for the Board to re-hear an appeal on whether a person should be promoted to the position of Executive Officer, when in fact that person has already been promoted to that position.

Therefore respondents say that the judicial review is now frivolous and vexatious and an abuse of the process of the Court for the applicant to pursue this judicial review against the decision of the Board when he has in fact already obtained the promotion to the position of the Executive Officer and has achieved the result that he was seeking in his appeal to the Board and in this judicial review application.

Applicant=s submission

It is the applicant=s submission, inter alia, that the respondents= application is itself >frivolous and vexatious, tends to prejudice, embarrass or delay the fair hearing= of the applicant=s judicial review and it is >otherwise an abuse of the process of the court=. He says that if he succeeds in this judicial review he will be entitled to seek promotion and return to the post of Executive Officer at St. Giles Hospital backdated at least from 9.8.99 if not from 6.11.97 when the third respondent was appointed to act. He said that he is seeking a declaratory judgment on the ground that the Board is biased and is no longer in a position to give a fair decision.

Consideration of the issues

I have before me for consideration of the issue the useful written submissions from both counsel.

The issue for the Court=s determination is whether in view of the applicant=s promotion to the post of Executive Officer which he had fought for previously, the present Judicial Review No. 3 of 2001 should now be proceeded with or not.

The applicant is now in the post which he wanted and he accepted it. What purpose will it serve him in continuing with the action in the circumstances? It is merely an academic exercise for the Court. He could have very easily refused to accept promotion and continue with the judicial review.

I agree with the respondents= argument that no useful purpose will be served in continuing with the review. If the matter goes back to the Board, there will be nothing for it to decide as the Executive Officer=s post has already been accepted by the applicant.

It is not what the applicant wants but what the law permits. The applicant wants the best of both the worlds. The Court is not sitting to decide on hypothetical situation and it is in actual fact going to be an academic exercise which the Court does not do in a review. That is not one of the functions of judicial review. If the Court were to do so it will be detrimental to good administration. It is clear that the application if allowed to be continued will be frivolous and vexatious and an abuse of the process of the court.

On hypothetical and academic applications Lord Goff in R v Secretary of State for Home Department, ex parte Wynne ([1993] 1 WLR 115 (HL)) said this which is apt:

AIt is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta, expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future.@

Further in Ainsbury v Millington [1987] 1 W.L.R. 379 (HL) Lord Bridge on the same subject said:

AIt has always been a fundamental feature of our judicial system that the courts decide disputes between parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved@.

In the review before the Court the applicant still intends to pursue the claim for damages against the respondents. I agree with counsel for the respondents that under Or. 53 r.7 damages can only be awarded where a judicial review would first be available. When certiorari is not available a claim for damages cannot be made separately on its own. The situation is well stated by the Privy Council in Davy v Spelthorne Borough Council [1983] UKHL 3; [1984] AC 262 by Lord Wilberforce thus:

AThe right to award damages conferred by Order 53 Rule 5 is by its terms linked to an application for judicial review. Unless judicial review would lie, damages cannot be given. ... Since no prerogative writ, or order, in relation to the present claim could be sought, since consequently, no declaration or injunction could be asked for, no right to judicial review exists under rule 1, and no consequential claim for damages can be made under rule 7.@

Having come to the conclusion that there is merit in the Respondents= grounds for striking out, the matter of considering the aspect of damages does not arise and I do not propose to say any more on it.

Conclusion

To sum up, the judicial review is a discretionary remedy. While the review has been pending the applicant has accepted the post of Executive Officer for which he has been knocking the door of the Court.

Therefore, in the changed circumstances as far as the applicant is concerned, one has to look at the position as it stands. The applicant knew very well what he was doing when he accepted the position. Hence the respondents= present application under Or.18 r.18 is quite appropriate.

In the outcome, the applicant has suffered no injustice and that >to grant the remedy would produce a barren result there are no grounds for granting relief.= (O=Connor L.J. in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1988] EWCA Civ 7; [1989] 1 All E.R 655 at 659 (C.A.).

For these reasons, in the circumstances, in the exercise of my discretion I allow the application and dismiss the application for judicial review with costs against the applicant in favour of the respondents in the sum of $150.00.

D. Pathik
Judge

At Suva
12 April 2002