State v Public Service Commission, Ex parte Kunatuba [2003] FJHC 33; Hbj0018j.2002s (1 January 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 18 OF 2002S

THE STATE

v.

PUBLIC SERVICE COMMISSION

ex parte

PENIASI KUNATUBA

T. Fa for the Applicant
S.S. Navoti for the Respondent

JUDGMENT

In this matter which proceeds by consent under the expedited provisions of Order 53 rule 3 (9) the Applicant seeks judicial review of a decision of the Public Service Commission (the PSC) dated 26 June 2002 to refuse his request to stay disciplinary proceedings initiated against him on 1 May 2002 by the PSC until determination of civil proceedings HBC 259 of 2002S commenced by him against the PSC on 18 June 2002.

Copies of the 61 disciplinary charges dated 1 May 2002 and 5 further disciplinary charges dated 16 May 2002 are Exhibits B, C, D and E of the Applicant’s supporting affidavit filed on 27 June 2002. A copy of the writ and Statement of Claim in HBC 259 of 2002S is Exhibit F to the same affidavit. The first paragraph of the prayer in HBC 259 of 2002S reads as follows:-

“1 – A Declaration that the disciplinary action that is being taken against the Plaintiff by the Public Service Commission, the 23^rd Defendant herein in relation to the Farming Assistance Scheme and the Blueprint for the advancement of indigenous Fijians and Rotumans is unfair and unjust given the facts of this case and that the Plaintiff was only carrying out the instructions of his Minister, the 20^th Defendant herein in implementing Government Policy.”

The 5^th paragraph seeks a declaration that the PSC and the 1^st Defendant in HBC 259 of 2002S colluded in commencing the disciplinary proceedings against him. The 6^th and 7^th paragraphs seek declarations that the disciplinary proceedings against him were unfair.

According to written submissions made by Mr. Fa to the PSC on 24 June 2002 (Exhibit G):

“the writ seeks 11 declarations and 2 orders from the High Court. Of these 11 Declarations, 6 directly relate to the PSC and these disciplinary proceedings.”

Although I have been provided with a copy of the Writ and Statement of Claim in HBC 259 of 2002S I am not seized of that action and do not know what stage it has reached and in particular whether any other pleadings have been filed. Mr. Fa suggested that I might care to look at the file however I do not think such a course, involving pending proceedings, would be appropriate.

The Applicant in his application for leave to move for judicial review filed on 27 June sought a stay of the disciplinary proceedings pending the determination of HBC 259 of 2002S on the following grounds:

(i) that the PSC erred and breached the rules of natural justice in deciding to proceed with the disciplinary proceedings notwithstanding the commencement of proceedings HBC 259 of 2002S;

(ii) that a finding against the Applicant in the disciplinary proceedings would pre-empt and undermine the High Court proceedings;

(iii) that the decision to proceed the disciplinary proceedings was unfair;

(iv) that it would be unfair to proceed with the disciplinary proceedings as the PSC was biased;

(v) that the PSC’s decision was unreasonable; and

(vi) that the PSC’s decision “to commence the disciplinary hearing before the High Court case” was capricious, wanton and malicious.

The Applicant’s grounds were supplemented by a clear and helpful written submission filed by Mr. Fa on 11 September 2002. On 26 September Mr. Navoti filed a comprehensive written submission in answer. As will be seen from the written submissions the Applicant’s principal submission is that the PSC is biased against his client and that the decision to go on with the disciplinary proceedings was unfair.

Both of these submissions were rejected by Mr. Navoti who then went on to submit (paragraph 6 of his written submission) that the application for Judicial Review was premature, no reviewable decision having yet bet taken.

In the State v. Secretary PSC ex parte Vuniwai (HBJ 29/98S) I reminded practitioners that save in exceptional circumstances the High Court will not judicially review the proceedings of an inferior tribunal until the final outcome of those proceedings was known. I referred, among other authorities, to Chief Justice’s Practice Note No. 1 of 1993.

In Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1, 26 Gibbs ACJ said:

“Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.”

Disciplinary proceedings are of course not criminal proceedings but both proceedings are established by law, the latter by the Criminal Procedure Code (Cap 21) the former by the Public Service Act 8/99 and the Public Service (General) Regulations LN 48/99. As I see it a number of similar considerations apply to the judicial review of both kinds of proceedings and in particular to interlocutory decisions taken during their course.

In my opinion the intention of Parliament in giving the power to the PSC to take disciplinary action against holders of public offices (1997 Constitution – Section 147 (1) (c)) was to allow the PSC to pursue that action to its conclusion and not, save in the most extraordinary circumstances, to have that power taken away by the intervention of the High Court.

In the present case the Applicant is seeking to block the exercise by the PSC of Constitutional and statutory powers given to it. He is asking the High Court to stay the disciplinary proceedings on the basis of bare allegations of bias made by the Applicant himself and on the ground that subsequently to the commencement of those proceedings he himself began proceedings HBC 259 of 2002S in the High Court. Although, as has been seen, his claim was stated to be closely involved with the subject matter of the disciplinary proceedings he did not in fact seek to stay those proceedings in the action which he commenced. Instead he launched yet further proceedings, namely the present proceedings for judicial review.

As is well understood delay in applying for judicial review may result in the refusal of relief on the ground that the grant of such relief would be detrimental to good administration (see RHC O 53 r 4 (1)). In my opinion to allow protracted civil proceedings to prevent the exercise by the PSC of its constitutional and statutory disciplinary powers would also be detrimental to the good administration of Fiji’s public service.

The Applicant clearly has a very strong sense of grievance. The law requires the disciplinary proceedings against him to be conducted with full regard to the principles of natural justice (Regulation 22 (2)). If, at the conclusion of the proceedings the Applicant considers that he has been unfairly dealt with then this Court will be ready to hear him and if necessary to intervene. At this stage however to stop the disciplinary proceedings commenced by the PSC on the grounds advanced by the Applicant would be quite wrong.

The application for judicial review fails and is dismissed.

M.D. Scott
Judge

January 2003