State v Ad Hoc Arbitration Tribunal, Ex parte Seru [2003] FJHC 133; HBJ0007D.2003S (12 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0007 OF 2003

Between:

THE STATE

and

1. THE AD HOC ARBITRATION TRIBUNAL
of the Ministry of Labour & Industrial Relations
2. THE HOLIDAY INN
Respondents

Ex parte: MELI SERU
Applicant

Mr. S. Valenitabua for the Applicant
Mr. J. Udit for the 1st Respondent
Mr. G. Leung for the 2nd Respondent

DECISION

The applicant Meli Seru had on 11 March 2003 filed an application for leave to apply for judicial review and also leave to apply out of time.

All amended documents were filed on 2 July 2003. Notice of Opposition was filed on 29 July 2003. As ordered, the last of the written submission was lodged in Court on 15 August 2003.

Background facts

The applicant Meli Seru who was employed by the Holiday Inn (the second respondent) was on 11 October 1998 dismissed from his employment by the management of the Hotel. The allegation against him was that he was drunk when he reported for duty on the 11.00 pm to 7.30 a.m. shift from 11 October 1998 to 12 October 1998.

On 25 November 2003 the Ad-Hoc Arbitration Tribunal presented its Award and determination (inter alia) as follows:

“Given the inadequate explanation by the grievant at the hearing this Tribunal is unable to accept his evidence as credential. He also admitted to BW1 that he was drunk and therefore, obviously, he was not in a state to perform his duties to the required standard, plainly this amounts to a breach of his contract of service.”

The Tribunal held

“Therefore, this Tribunal has little difficulty in finding as fact, that at the material time the grievant came drunk to do his shift at the Hotel. It is also the Tribunal’s strong view that such action was an unsuitable breach of the grievant’s express term of employment which allowed him to conduct himself in manner that would destroy the relationship of trust and confidence with his employer.”

“Accordingly, in the outcome, the grievant’s dismissal was justifiable, lawful and reasonable.”

Consideration of the application

There are two applications before this Court, one is for (a) leave for judicial review and the other (b) whether it should be granted out of time.

I shall deal with (b) above first. The decision impugned is that of the Ad Hoc Tribunal made on 25 November 2002. The applications were made on 11 March 2003. The applicant was therefore 3 months 14 days out of time in applying for judicial review.

The applicant says that he has an ‘arguable’ case and therefore he should be allowed to apply out of time.

On the issue of delay the relevant Rule in The High Court Rules 1988 is Or. 53 r.4 which is as follows:

4. – (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 or

(b) any relief sought on 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.

(2) 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.

(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

The effect of this rule is ‘to limit the time within which an application for leave to apply for judicial review may be made in accordance with its terms, i.e. promptly and in any event within three months’ (R v Stratford-on-Avon District Council, ex. P. Jackson, [1985 1 WLR 1319 at 1326 B/C). The ‘Court has however power to grant leave to apply despite the fact that the application is late; this it does by extending the period.’ (ibid 1326C).

Even though the Court is willing to extend the period under the Rule, it may either refuse to grant leave at the leave stage or relief at the substantive hearing stage, in the words of the Rule the ground ‘ would be likely to cause substantial hardship to or substantially prejudice the rights of, any person or would be detrimental to good administration’. (ibid 1326 E).

In this case there is no evidence of any clear hardship prejudice or detriment. The Court’s attitude to delay at either the leave or substantial hearing stage should not be overly technical. The following passage from the judgment of Woolf J in R v Comr for Local Administration, ex p Croydon London Borough Council [1989] 1 All E.R. 1033 is pertinent:

‘While in the public law field, it is essential that courts should scrutinise with care any delay in making an application and a litigant who does delay in making an application is always at risk, the provisions of RSC Ord 53 rule 4 and s 31(6) ... are not intended to be applied in a technical manner. As long as no prejudice is caused, which in my view of the position here, the Courts will not rely on those provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled’.

On the issue of leave to apply for judicial review it is stated in Hals. 4th Ed. Vol. 37 para. 568 that:

‘leave of the court is a necessary pre-condition to the making of an application for judicial review, and no application for judicial review may be made unless this leave has first been duly obtained.’

This requirement is also contained under Order 53 r.3(1) of The High Court Rules 1988 pursuant to which this application is being made. The said Or.53 r.3(1) provides:

‘No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.’

Leave is obtainable provided that, inter alia, there is an arguable case on merits.

So, before the hearing of the judicial review the ‘threshold stage’ (leave stage) as regulated by Or 53 r3 has to be considered and also its purpose.

The Court has held that ‘even though the onus is on an applicant for leave to apply for judicial review to satisfy the Judge that the case discloses an arguable ground for relief, a Judge who grants leave without being so satisfied is acting wrongly”. (so held by Court of Appeal in R v Social Security Commissioner and Another ex parte Pattni Adm. L.R. 1992 p.219).

To conclude, on leave aspect, I refer to the following passage and it is pertinent to this case and should be borne in mind:

“..... to filter out the applications of cranks and busybodies who might otherwise impose an excessive burden in the process of legitimate administration. The granting of leave does not prevent a respondent from applying to strike out an application, just as applications to strike out are possible in actions begun by or originating summons. The fact that leave is required, however, gives the Court an opportunity to control applications of its own motion, e.g. refusing leave or permitting them to proceed only in such manner as it may direct. The Court does not require extensive argument on an application for leave but simply need to be satisfied that the applicant has a prima facie arguable point.” (Per Lord Donaldson in R v Secretary of State for Home Department, ex. p. Cheblak (1991) 1 WLR 890 at 901 (Application for Judicial Review Law and Practice of the Crown Office by Aldous & Alder 2nd Ed. p.139).

On the question of whether there is an arguable case, I find the following passage from the judgment of Lord Diplock in IRC v National Federation of Self-Employed and Small Businesses Ltd. (1982) AL 617 at 643 apt and this I have borne in mind:

“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the Court were to go into the matter in any depth at that stage. If on a quick perusal of the material then available, the Court thinks that it discloses what might turn out to be an arguable case in favour of granting the relief claimed, it ought, in the exercise of a judicial discretion, to give leave to apply for that relief.”

Conclusion

The applicant is well out of time, namely, 3 months 14 days in making this application for leave to apply for judicial review. He has given no explanation for the delay. Even counsel for the applicant after stating in his written submission that the ‘time limit aspect will be addressed later’ failed to say anything in that regard.

I am not unmindful that in an exceptional case, Court may grant relief though the applicant has failed to show a good reason for extending time. (R v London Borough of Newham, ex parte Ajayi (1996) 28 HLR 25). But this is not such a case.

The first respondent gave its decision after a proper hearing when both parties adduced evidence in the dispute. The decision of the Ad Hoc Tribunal as stated hereabove is, inter alia, that the applicant’s “dismissal was justifiable, lawful and reasonable”.

On the facts and circumstances of this case, as the said Or.53 r.4 says, ‘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’.

I accept what Harry Thaliwal has said in his affidavit sworn 4 August 2003 on this aspect of the matter as to how the second respondent would be affected if relief was granted after such a long delay in making the application.

Mr. Thaliwal said, inter alia, that if relief sought are granted it would be prejudicial to the second respondent. No compensation was sought in the Ad Hoc Tribunal hearing except an order for ‘reinstatement’. He further says that since the Tribunal’s award, the second respondent had proceeded on the basis that the applicant would not be reinstated and that there is no longer a position available for the applicant to come back to.

This is one such case in which leave stands to be refused because the application has not been brought promptly and there is no good reason to extend time.

Utmost promptness is required where third parties, like the Holiday Inn in this case, are affected. As stated in Avon County Council, ex p Terry Adams Ltd [1994] Env. LR 442 (Ralph Gibson LJ):

“There is much importance in the principle that, if objection is to be made by an objector to the conduct of a public authority of a continuing administrative process, in which costs will be incurred by the authority and by other interested parties, application should be made promptly”.

Also as stated in R v Secretary of State for Employment ex parte Seymour-Smith [1995] ICR 889 (C.A.) 941E:

“if the Order were granted countless post transactions might have to be reopened. It is quite plain that the quashing of the Order of 1985 would be likely to cause financial hardship and would undoubtedly be detrimental to good administration”.

For these reasons, and because the applicant does not have an overwhelming case on the merits I would refuse the application for extension of time on the score of insufficiently explained delay.

Although, I have refused extension of time resulting in the application for leave not capable of being entertained, I would, however, deal with leave aspect if I am found wrong in my said decision.

Bearing in mind the principles governing the grant of leave as stated hereabove, I find on the affidavit evidence before me, that there is no ground to grant the relief sought.

Although the applicant has “sufficient interest” in the subject-matter of this application, there is no ‘arguable case’, on the quick perusal of the material before me. Merely stating under on the caption ‘reliefs sought’.

(a) that a declaration is required that ‘the First Respondent had acted unreasonably and/or unfairly and/or in breach of the rules of natural justice and or failed to take into account relevant considerations and/or took into account irrelevant considerations when making the said Award or Decision’;

(b) a declaration that the application was wrongfully dismissed by the Hotel and is entitled to compensation for the said wrongful dismissal;

(c) An Order that the Applicant be paid compensation to be assessed for the wrongful dismissal,

are not good enough without details or particulars as to where the Tribunal went wrong.

It is perfectly clear from the evidence before me that none of the allegations against the procedure of the Tribunal merit any consideration even at the leave stage, for a full and proper hearing was given and there was no denial of natural justice. The facts were ascertained by the Tribunal and it came to the decision that the dismissal by the second respondent was “justifiable, lawful and reasonable”.

In the outcome, I find that there are no grounds revealed on the affidavit evidence for the review of the decision. It is a frivolous application.

Therefore, the application for leave to apply for judicial review and to apply for leave out of time are both refused with costs to the solicitors for the respondents $200.00 each to be paid within 21 days.

D. Pathik
Judge

At Suva
12 September 2003