IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0030 OF 2003

BETWEEN:

THE STATE
THE MINISTER FOR FINANCE
THE PERMANENT SECRETARY FOR FINANCE AND NATIONAL PLANNING
THE ATTORNEY-GENERAL OF FIJI
RESPONDENTS

AND:

METUISELA MUA
EX-PARTE APPLICANT

Mr. S. Valenitabua for the Respondents
Miss M. Rakuita for the Applicant

JUDGMENT

BACKGROUND:

On 15th September 2003 Pathik J granted leave to the applicant to apply for judicial review and to apply out of time.

The applicant, while on peace-keeping duties in South Lebanon and whilst being a member of the Fiji Military Forces, was shot in his buttock near the hip in January 1979. One piece of the bullet, which hit the applicant, was surgically removed. Two pieces were, and are still imbedded in the bone around the applicant’s hip.

The applicant retired from the Public Service Commission in October 1999. Upon his retirement, the applicant made application to the Royal Fiji Military Force and to the Ministry of Finance for a disability pension pursuant to the Pensions Act 1986.

On or about 24th October 2002 the Permanent Secretary for Finance determined that the applicant was not entitled to a disability pension. This determination was made after the respondent had caused the applicant to be medically examined by Dr. Eddie McCaig who determined that he, the applicant, suffered a 5% incapacity. The report of Dr. McCaig states: “reference is being made to the schedule of the Fiji Workmen’s Compensation Act.”

The applicant in support of his application furnished to the respondent a report of Dr. Jeke Wata which report assessed the applicant as having a permanent disability rating of 55%.

The applicant seeks:

(a)	an order of certiorari to remove and/or quash the decision of the Minister of Finance and/or the Permanent Secretary for Finance and National Planning made on or about the 24th day of October 2002 whereby the first and/or the second respondents above-named decided that the applicant was not entitled for disability pension under the division of the Pensions Act 1983

(b)	a declaration that the first and/or the second respondents had acted unreasonably and/or was biased and/or was likely to be biased and/or took into account irrelevant consideration and/or failed to take into account relevant considerations when making the said decision

(c)	an order of mandamus directing the first and second respondents to pay disability pensions to the applicant under the Pensions Act 1983.

THE ISSUES:

In the course of the hearing it was agreed by counsel for the applicant and counsel for the respondent that the report of Dr. McCaig is based upon an irrelevant consideration in being referenced to the Workmen’s Compensation Act and further that the respondent relied upon the report of Dr. McCaig in making its determination. The written submissions of the respondent however draw my attention to the terms of s.4 and s.2 of the Workmen’s Compensation Act as they now are, which clearly indicate that they apply to the applicant and therefore there is no “irrelevant consideration” in the report of Dr. McCaig.

Apart from irrelevant consideration the applicant alleges that the respondents acted unreasonably and displayed bias. 

THE LEGISLATIVE PROVISIONS:

Section 4 of the Workmen’s Compensation Act (Cap. 94) relevantly provides:

“(1) Subject to subsection (2), this Act, shall apply to workmen employed by the Government in the same way and to the same extent as if the employer were a private person ……”

Workman is defined in s.2 of the act as follows:

“workman… includes personnel and officers in the Fiji Police Force, the Prisons Service, the Fiji Military Forces and Fiji Military Forces personnel and officers engaged on military duties in foreign countries”

It is patently obvious that the Workmen’s Compensation Act applies to the applicant.

Section 37 of the Pensions Act 1986 states:

(1)	Where any member of the Forces whilst engaged in any active operations–

(a)	is injured in circumstances specifically attributable to the nature of his service an injury which is not wholly or mainly due to or seriously aggravated by his own serious and probable negligence on his conduct; or

(b)	…………….… 

and that member dies as a direct result thereof the Minister may grant to the person specified in Part II of the Regulations contained in the Sixth Schedule a pension in accordance with subject to such regulation.

(2)	Where any such member does not die but is disabled as a direct result of injuries so sustained or a disease so contracted the Minister may grant to him a pension or a gratuity and reduce pension, in accordance with and subject to the provisions of Part III of the Regulations contained in the Sixth Schedule

(3)	……………….

(4)	in this section – 

“active operations” means operations in which any contingent of the Royal Fiji Military Forces assigned for peacekeeping service with the United Nations Interim Force in Lebanon is or had been engaged, ………….”. 

Regulation 5 to the Sixth Schedule being contained in Part III of that Schedule provides:

“(1)	where a member of Forces is disabled as a direct result of injuries sustained or disease contracted in the circumstances specified in section 37 of the Act the Minister may grant to him on or after his retirement a pension at the annual rate appropriate to his case as provided in the succeeding paragraphs of this regulation.”

Section 43(1) of the Pensions Act provides:

“No person shall have an absolute right to compensation for past service s or to pension, gratuity or other allowance under this Act nor shall anything contained in this Act affect the right of the Crown to dismiss any public officer without compensation.”

THE ARGUMENT:

The applicant contends that the words “may grant” where appearing in section 37(1) and section 37(2) and regulation 5(1) mandates a discretion in the respondent only up to the applicant passing the threshold of 20% disability as required by regulation 5(3). 

The respondent however contends that the words “may grant” where appearing as detailed above give to the respondent a discretion at all stages of the process of considering the applicant’s application for a pension.

If the applicant’s contention be correct then the court could grant the relief of mandamus as sought by the applicant. If, however, the respondent’s contention is correct then the court upon granting the order of certiorari could only refer the application to the respondent for determination according to law. 

I am referred by the respondent to the words of Sir John Donaldson MR in R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] QB 227 at 241H – 242A where he said:

“…………….on the society’s application for judicial review it is not for the court to consider whether the chief registrar’s decisions were ‘right’ or ‘wrong’, or to entertain an appeal from them or to substitute the court’s discretion for his. The role of the court is to consider whether the chief registrar has exceeded his powers.” 

The respondent also refers the court to R v Secretary of State for the Home Department ex p Khawaja [1984] AC 74 at 109 where Lord Scarman when referring to the Wednesbury principle said:

“The principle formulated was that the courts will not intervene to quash the decision of a statutory authority unless it can be shown that the authority erred in law, was guilty of a breach of natural justice or acted “unreasonably.” If the authority has considered the matters which it is its duty to consider and has excluded irrelevant matters. Its decision is not reviewable unless so absurd that no reasonable authority could have reached it. The principle excludes the court from substituting its own view of the facts for that of the authority.”

The applicant refers the court to Raz v. Matane & Others [1987] Commonwealth Law Reports (LRC) (Const.) 616 at 637, National Court of Papua New Guinea, McDermott, A.J. which is one of the numerous decisions which have over the years considered and applied Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.

The applicant also refers the court to the decision of Pathik J in Waiqele Buses Ltd v. Transport Central Board & Another Judicial Review No. 7 of 1997 (unreported). Again the passages referred to are a statement of the Wednesbury principles. 

CONCLUSION:

Regulation 5(3) provides:

“Provided that the member shall not be granted pension under this paragraph where the impairment of his capacity is less than 20%.”

This provision is mandatory and must be satisfied for the applicant to have a pension entitlement. Once the applicant, under section 37, has a pension entitlement then it would appear that s. 43 gives to the respondent a discretion as to whether a pension is granted or not.

It appears to me that whilst there is significant disparity in the medical assessments of the applicant there is no evidence before me to suggest that the respondent has taken into account any irrelevant consideration has acted unreasonably in the Wednesbury sense or has displayed bias.

ORDERS:

1.	Application dismissed
2.	Applicant to pay the respondents costs

[ John Connors ]
JUDGE

At Suva
11th December, 2003