State v Public Service Appeal Board, ex parte Reddy [2002] FJHC 164; HBJ0003r.2001S (31 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0003 OF 2001

Between:

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 the Applicant
Mr. S. Sharma for the Respondents

DECISION

By summons dated 23 May 2002 the applicant has applied to Court for >an order that the decision of Pathik J dated 12 April 2002 in striking out the Applicant=s motion for judicial review filed on 29 January 2001, be set aside and his motion for judicial review be restored and/or alternatively leave to appeal be granted on the grounds set out in the Affidavit of Munsamy Reddy filed herein.=

On the hearing of the summons Mr. Singh abandoned his prayer to set aside the said decision and wished to merely apply for leave to appeal.

The application is made on the following grounds (as stated by the applicant):

1. That the learned Trial Judge erred in law in striking out the Applicant=s judicial review on his misconception that the subsequent promotion of the Applicant on another vacancy has exhausted the Applicant=s right for judicial review of the decision of the Appeal Board on his appeal properly exercised by him.
   
2. That the learned trial Judge erred in law in not giving proper weight to the Applicant=s contention that the Applicant=s right of appeal so accrued and exercised cannot be taken away by the subsequent event.
   
3. That the learned trial Judge erred in law in failing to hold that the RHC Order 15 rule does not allow any objection to raise on an application for declaratory judgment and the RHC Order 53 rule 9(5) allows the proceeding to continue as if it is a writ on damages.
   

In support of his application the applicant in his affidavit stated, inter alia, that he is >entitled for damages on the ground that the action of the Ministry in discriminating me and denying me promotion is so reprehensible=. He further said that his >subsequent promotion from 6 March 2001 did not compensate me the loss I had suffered by the denial of the said promotion, nor it remedied my lost seniority affecting my eligibility to apply for higher position.=

The learned counsel for the Respondents Mr S. Sharma, raised the preliminary issue in this application that the applicant is out of time to appeal. The decision was given on 12 April 2002, the order was perfected on 17 April; time for appealing was on or before 8 May but application for leave was not made until 23 May 2002. Mr Sharma says that there are no merits in the grounds advanced for leave to appeal. He argues that because the applicant was later promoted does not mean that he should have been promoted in the first place. He said that since the judicial review was dismissed no question of damages arises.

Mr Singh for the applicant admits that he is out of time to appeal but he says that he is not seeking an extension of time to appeal from this Court but leave to appeal only. He said that if leave is granted he will apply to Court of Appeal for extension, but if this Court refuses leave he will apply to Court of Appeal for both extension and leave. Counsel submitted that the applicant wants to appeal because he is aggrieved as he has not been compensated for in damages when his judicial review application was dismissed.

Consideration of the Summons

Before I consider the Summons I state briefly the background to the case out of which this application arises.

In dismissing the application for judicial review on 12 April 2002, I said, inter alia, as follows:

AIn 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.

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.).@

In the case before me the said decision was interlocutory one, hence no appeal lay without the leave of the Court (Hunt v. Allied Bakeries, Ltd [1986] 3 All ER 513 (C.A). Also s12 (2)(f) of the Court of Appeal Act provides that:

A(2) No appeal shall lie

(f) without the leave of the judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a judge of the Supreme Court except ......@

To grant or refuse leave is a discretionary matter in each case. As was said by Brett, M.R in Re Manchester Economic Building Society (1883) 24 Ch.1 488 at 497:

AI know of no rule other than this, that the court has power to give the special leave and exercising its judicial discretion is bound to give the special leave if justice requires that that leave should be given.@

However, the court in exercising its discretion has to ensure that the rights and interests of the Respondents are considered equally with that of the Applicant (Latchmi v Moti 10 F.L.R. 138 at 142 C.A.).

I have considered the submissions made by both counsel. Mr Singh contends that leave to appeal ought to be given because the applicant is aggrieved by the said decision and strongly maintains that he is entitled to damages despite his later promotion to the post he was after.

The issue that I have to decide here is whether the order in this particular case is an order from which leave to appeal must be granted within the time limited for appeals from interlocutory orders.

Although Mr. Singh says he is not applying for extension of time to appeal to this Court, it is my firm view that he must when leave application is being considered. To extend time is a discretionary matter for the court which has to be exercised judicially with the established principles in mind (Bahadur Ali & Others v Ilaitia Boila & Others Civil Appeal No. ABU0030 of 2002 by Reddy J.A. President Court of Appeal). The applicant has to satisfy the Court as to why he delayed in applying for leave. No reason has been given by him.
Extension of time to appeal

If extension was applied for, but it is not now, some of the factors to be taken into account are the >length of delay, the reasons for the delay, the chances of the appeal succeeding if time is extended, prejudice to the Respondent.= (Bahadur Ali, supra).

Even if the application for extension was before me I would not have granted it. I adopt the following statements of Mc Hugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459:

AA case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257, McInerney J pointed out (at 263) that one object of fixing times under court rules is Ato achieve a timetable for the conduct of litigation in order to achieve finality of judicial determination.@ When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a Avested right to retain the judgment@. It would make a mockery of O 70, r 3 if, months after the time of appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege. Since I am firmly of the opinion that the proposed appeal of the applicant cannot possibly succeed, however, it is unnecessary to determine what conclusion I would have reached in this matter if I had thought that the appeal was arguable.@

On extension of time, the following extract from the judgment of the Privy Council in Ratnam v Cumarasamy and Another 1964 3 All. E.R. 938 at 935 sums up the situation very well:

AThe rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.@

It is important that in judicial reviews time limit must prevail to protect public bodies. In Van de Velde v Special Educational Needs Tribunal [1996] COD 121 there was refusal of extension of time for serving notice of motion for statutory appeal. Similarly in R v Haringey London Borough Council, ex p Haringey Letting Association [1993] COD 489 extension was refused.

There is discretion in the Court to extend time in order to avoid injustice which involves, inter alia, a consideration of factors including the prospects of success of the appeal if the extension is granted. In the light of my said decision for the reasons given, the intended appeal is an uphill battle for the applicant.

Application for leave

I shall now consider whether leave to appeal should be granted or not. It has been held in R v General Commissioners of Income Tax for Tavistock, ex. p. Worth (1987) 59 T.C 116 by Webster J that the >giving of leave did not amount to an extension of time, and that the circumstances did not warrant the court exercising its discretion to extend time=.

For the principles governing grant of leave from interlocutory orders I have borne in mind the following extract from the judgment in Ex Parte Bucknell [1936] HCA 67; 1936 56 C.L.R 221 at 226.

AAt the same time it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and, therefore, an application for leave to appeal under sec.35(1)(a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statement of the considerations which should be regarded as a justification for granting leave to appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment.@

And at p. 225 it is stated that:

ABut any statement of the matters which would justify granting leave to appeal must be subject to one important qualification which applies to all cases. It is this. The court will examine each case and, unless the circumstances are exceptional, it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.@ (emphasis mine).

For the purposes of this application the following observations of the then President (Sir Moti Tikaram), Fiji Court of Appeal in Kelton Investments Limited and Tappoo Limited and Civil Aviation Authority of Fiji & Motibhai & Company Limited (Civil App. 52/95) are apt:

AThe Courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal are not readily given. Having read the affidavits filed and considered the submissions made I am not persuaded that this application should be treated as an exception. In my view the intended appeal would have minimal or no prospect of success if leave were granted. I am also of the view that the Applicants will not suffer an irreparable harm if stay is not granted.@

For the reasons I have given in my decision as stated hereabove the intended appeal is patently unmeritorious and there are no arguable points requiring decision. I find that there are no exceptional circumstances in this case warranting the grant of leave and the applicant will not suffer any injustice or prejudice if the application for leave to appeal is refused. If anything it is the Respondents who will be greatly prejudiced if leave is granted bearing in mind the whole background to the applicant=s case and the said firm decision to which I had come.

For these reasons leave to appeal is refused. The application is therefore dismissed with costs against the applicant in the sum of $250.00.

D. Pathik
Acting Chief Justice

At Suva
31 October 2002