Vincent v Permanent Secretary for Education [2003] FJHC 312; HBJ0036.2002 (17 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ0036 OF 2002

IN THE MATTER of an application by
TPF 44035 JOHN VINCENT (the Applicant)
for a Judicial Review

- AND -

IN THE MATTER of an appointment by the
Ministry of Education dated 03 May 2002

- AND -

IN THE MATTER of a decision by the Public Service Commission on the 04 October 2002 to allow an appeal by Benedict Saverio and appoint him to the position of Assistant Head Teacher ED5A
___________________________________

BETWEEN:

JOHN VINCENT
of Sorokoba, Ba
Applicant

AND:

THE PERMANENT SECRETARY FOR EDUCATION
Of Marela House, Suva, Civil Servant
1st Respondent

THE PUBLIC SERVICE COMMISSION
2nd Respondent

THE PUBLIC SERVICE APPEAL BOARD
3rd Respondent

Mr. I. Fa - For the Applicant
No Appearance - Respondents

JUDGMENT

The applicant is a school teacher at Ratu Sukuna Filimoni Vukinamualevu Memorial School in Ba. In December 2001 the Public Service Commission advertised the position of Assistant Head Teacher at St. Teresa’s Catholic School in Ba. In January 2002 the applicant applied for the post and was provisionally posted to the post. He was notified of the appointment by a letter dated 6^th May 2002. There was an appeal against the appointment by one Benedict Saverio who was a teacher based at St. Teresa’s School. The third respondent heard the appeal on Tuesday 24^th September 2002 in the absence of the applicant. On 30^th September 2002 the third respondent allowed Benedict Saverio’s appeal on grounds that he had edge over the applicant in terms of longer service and superior assessment.

The Reliefs sought by the applicant are:

(a) A Declaration that the 3^rd Respondent’s decision to appoint the Appellant, Mr. Benedict Saverio to the position of Assistant Head Teacher ED5A was ultra vires.

(b) A Declaration that the 3^rd Respondents decision to allow the appeal and appoint the appellant, Mr. Benedict Saveiro to the position of Assistant Head Teacher ED5A was in breach of the rules of natural justice and unfair in the circumstances.

(c) An Order for certiorari to quash the decision of the 3^rd Respondent dated 4^th October 2002, appointing the appellant, Mr. Benedict Saveiro to the position of Assistant Head Teacher ED5A.

(d) An Order that the appointment of the Applicant to the position of Assistant Head Teacher ED5A by the 1^st Respondent dated 3^rd May 2002 to remain.

(e) An Order as to the costs of this proceedings.

(f) Further Declaration and other relief as this Honourable Court may deem just.

The court had before it following affidavits:

(1) Affidavit of applicant dated 4^th December 2002

(2) Affidavit of Josese Bisa Secretary of Public Service Appeal Board dated 19^th June 2003.

(3) Applicant’s affidavit in reply dated 2003.

At the hearing no one appeared for the respondents even though they knew of the hearing date. However, I must say that Josese Bisa’s affidavit is very thorough and it included all relevant documents including minutes of the hearing on appeal. Mr. Fa for the applicant pursued basically one ground of appeal and that was breach of natural justice.

The applicant in his affidavit had alleged that he was not aware of the appeal hearing until after it was over. He contacted the third respondent and was told that notification of appeal was sent to Korovou. Josese Bisa in his affidavit admits that reminders were indeed sent to Korovou Post Office. It appears as Mr. Fa explained that there is a school named Ratu Filimoni Loco Memorial School in Tailevu so the third respondent may have been misled by confusion in the name of the school as there is a Ratu Filimone School in Ba where applicant has been teaching for a number of years. This explains why the applicant did not appear at the hearing as the notification of date was inadvertently posted to Korovou instead of to Ba.

The third respondent in its affidavit stated that the Education Department represented the applicant at the appeal. From the records it appears that the Education Department in fact put up the applicant’s case. The issue however is whether it presented applicant’s case adequately. The applicant submits he was entitled to be heard in a matter which affected him.

Section 6(1) The Public Service (Appeal) Regulations 1999 requires the Secretary of the Appeal Board once appeal is accepted to “advise in writing the appellant, the relevant service commission and the respondent, if any, of the time and place fixed for the hearing”.

Section 6(2) requires notice to be sent by registered post and to allow for sufficient time for transmission of the notice of acceptance and for parties to travel to the hearing.

Respondent is defined in Section 2 as the person against whose promotion or appointment the appeal has been lodged.

The above regulations ensure notification of appeal. The notice of acceptance is acknowledgment by the respondent that he/she has received the mail. Implicit in these regulations is the respondent’s right to be present at the hearing and to make representations on his own behalf so the decision makers become aware of all the relevant material and considerations before making the decision. It ensures fairness in the manner in which a decision is reached.

Lord Mustill in Doddy v. Secretary of State for the Home Department [1993] UKHL 8; 1993 3 All E.R. 92 at 106 remarked as follows:

“What does fairness require in the present case of my Lords? I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. From them I derive the following.”

Among those principles he listed –

“5 - Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.

6 - Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

In Twist v. Randwick Municipal Council [1976] HCA 58; 136 C.L.R. 106 at 109 Barwick C.J. stated –

“The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal ...”

The Fiji Court of Appeal in The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women and Culture v. Lepani Matea Civil Appeal 16 of 1998 after considering various cases on the subject of right to be heard on page 10 summarized the position as follows:

“The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilized legal system that it is to be presumed that the legislative body intended that a failure to observe it would render the decision null and void.”

It is not in dispute that the applicant was unaware of the proceedings and hence he could not make representations on his behalf. The failure to inform him resulted from a confusion in name of two schools so notification was sent to incorrect address.

Given the express provisions of the appeal regulations and various case authorities, I shall grant the judicial review. It is ordered that certiorari go to quash the decision of the third respondent appointing Benedict Saverio as Assistant Head Teacher at St. Teresa’s School. The Board ought to hear the appeal again after giving the relevant parties proper notice. In view of the fact that the oversight on part of the Board was inadvertent and that it has not resisted this application, I award no costs.

Ordered accordingly that certiorari go to quash the decision of the third respondent.

[ Jiten Singh ]
JUDGE

At Suva
17^th July 2003