State v Public Service Appeal Board, Ex parte Vadei [2004] FJHC 18; HBJ0004R.2002S (20 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

JUDICIAL REVIEW NO. HBJ 004R OF 2002S

THE STATE

v.

PUBLIC SERVICE APPEALS BOARD
Respondent

MRS VINIANA BOLATAKEU
Interested Party

EX-PARTE: SEKOVE VADEI
Applicant

Counsel for the Applicant: H. Nagin: Sherani & Co.
Counsel for the Respondent: Jon Apted: Munro Leys
Interested Party: Mrs Viniana Bolatakeu: (In Person)

Date of Ruling: 20 August, 2004
Time of Ruling: 9.30 a.m.

RULING

This is an application seeking leave to apply for Judicial Review of a decision of the Public Service Appeals Board (“the Board”) of 13 February 2002 allowing the appeal by one Viniana Bolatakeu (“the Interested Party”) against the provisional promotion of the Applicant to the position of the Head Teacher, Bishop Kempthorne Memorial School.

The reliefs the Applicant seeks are:

“(a) AN ORDER OF CERTIORARI to remove the said decision of the PUBLIC SERVICE APPEALS BOARD made on or about the 13th day of February, 2002 into this Honourable Court and the same be quashed.

(b) A DECLARATION in any event that the PUBLIC SERVICE APPEAL BOARD abused its discretion and power and/or acted unreasonably and/or acted unfairly and contrary to the principles of Natural Justice and/or acted contrary to the Applicant’s Legitimate Expectation.

(c) Further Declarations or other relief as to this Honourable Court may seem just.”

The grounds relied upon by the Applicant in support can be summarised as follows:

1. That the Board had abused its power and discretion by taking into account irrelevant matters and did not consider relevant matters, and that at any rate, it had acted unreasonably.
   
2. That the Board had acted unfairly and contrary to the principles of natural justice by not allowing full oral submissions before it unlike the case of the Interested Party.
   
3. That the Board had acted contrary to the legitimate expectations of the Applicant.
   

THE FACTS

In the Republic of Fiji Gazette in 2000, the Public Service Commission (“PSC”) placed an advertisement call for applications to the post of Head Teacher, Kempthorne Memorial School” in the greater Suva area. The advertisement (No. 1210/2000) stated:

“HEAD TEACHER, BISHOP KEMPTHORNE MEMORIAL SCHOOL, ED3C.

To administer and ED3C primary school, offer professional guidance to the staff and teach and liaise with School Committee, parents and Ministry of Education staff. The appointee should be able to contribute towards the social and cultural life of the school and supervise the teaching of vernacular languages.

Qualifications: Qualifications as for teacher ED8 and at least 2 years service with a superior assessment in ED4 or 3 years in ED5E grade or 6 years in ED5A – D or equivalent based upon standard rating scale. Applicant with a relevant degree from a recognised University should be an added advantage. Superior administrative ability and professional leadership skills. Completed 3 years rural service or a superior assessment in the past 3 years. For Special Education post, a relevant tertiary qualification from a recognised institution. Where relevant, hostel management experience will be preferred. Potential to advance to higher post.”

The Applicant applied and in a letter dated 18 October 2001, the Permanent Secretary for Education informed him that he had been successful. It however stated that:

“This promotion will be provisional in the first instance to allow for the determination of appeals, if any, in accordance with the provisions of the Public Service Act 1999.”

The Permanent Secretary for Education was referring in particular to section 25(1)(a) of the Act allowing for such action. It states:

“25 – (1) Subject to this section, every employee, other than an employee on probation, may appeal to the Appeal Board under this part against ----

(a) the promotion of any employee, or the appointment of any person who is not an employee, to a position in the public service for which the appellant, had applied by way of promotion.”

In this instance two appeals were lodged by Mrs Viniana Bolatakeu, the Interested Party, and one Mr Peceli Latianara. These appeals were heard by the Public Service Appeals Board (“PSAB”) on 7 February 2002. On 13th February, the PSAB, informed the Ministry of Education as well as all the parties that Mrs Viniana Bolatakeu’s appeal had been allowed. The PSAB stated, after having examined all the 3 candidates records and submissions concluded that:

“(a) Mrs Bolatakeu has an edge over Mr Vadei in terms of relevant degree qualifications thus showing potential for advance.

(b) Mr Vadei has an edge over Mr Latianara in terms of seniority in the substantive grade.”

APPLICATION FOR LEAVE

Leave is opposed.

The application for judicial review is normally made in two stages. The first is the necessity to obtain leave and only when granted, will the Court proceed to hear the substantive application for judicial review.

The purpose of the first stage is set out fully at paragraph 53/1 – 14/23 of the Supreme Court Practice (“The White Book”) 1985 Vol. 1. It says:

“The purpose of the requirement of leave is to eliminate at an early stage any applications which are either frivolous, vexatious or hopeless. The requirement that leave must be obtained is designed to “prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.” (R. v. Inland Revenue Commissioners, ex.p. National Federation of Self Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, p.642; 2 All ER 93 p.105 per Lord Diplock).

In deciding whether to grant leave the Court needs only to be satisfied that there is evidence available to it that discloses an arguable case for the applicant. The test is stated by the Fiji Court of Appeal in National Farmers Union v. Sugar Industry Tribunal & Ors. (FCA No. 8/1990). At p. 8 it said:

“We accept at the leave stage of an application for judicial review the Court is not required to do more than decide whether the applicant (leaving aside the issue of locus standi and delay which are not at issue here) has shown prima facie an arguable case on the merits of each ground of relief.” (emphasis added).

The question then is for this Court to decide whether the Applicant, on the evidence before it, has merits on the grounds advanced to satisfy the Court that there is prima facie an arguable case to grant leave for judicial review.

I will deal with each of the Applicant’s ground in turn.

1. Breach of Natural Justice
   

In support of this ground, the Appellant in his affidavit stated that the Board had on the date of the hearing of Viniana Bolatakeu’s appeal, had accepted from her, first her written submissions, before being allowed further “to make oral submissions as well as to elaborate on her written submissions.” The same opportunity to make oral submissions, argued the Appellant, was not accorded to him. Instead, he was stopped by the Board from making oral submissions, which privilege, was granted to Bolatakeu. The Board’s failure to given him equal time to make oral submissions amounted, according to the Applicant, to a clear breach of natural justice.

The Respondent Board, through the affidavit of its Secretary, Josese Bisa, stated that the contrary to the Applicant’s assertion, Viniana Bolatakeu, did not make and file written submissions to the Board, only her academic records. She was given the opportunity to make oral submissions as a result. In the case of the Appellant, he had already submitted to the Board, his written submissions and the Board had permitted him to make oral submissions in addition to the written form. According to the Secretary to the Board, the Appellant’s oral submissions were no more than reading from his written submissions and did not proceed further, after the Chairman of the Board advised him to desist from rehashing matters that were already before them in writing, but to confine his oral presentation to the elaboration of matters that he may consider relevant to his case.

The right to be heard is fundamental to the issue of procedural fairness. The duty under it entails giving the opportunity to affected parties the opportunity to make representations. In In re Hamilton; In re Forrest [1981] AC 1038, Lord Frazer said, at p. 1045:

“One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf make such representations, if any, as he sees fit. That is the rule of audi alterum partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.”

Even more so, insofar as the Applicant’s arguments in this case, it is not only the basic right to be heard but the opportunity to persuade. As Lord Diplock said in Hoffmann – La Roche (F) & Co. AG V. Secretary of State for Trade and Industries [1975] AC 295, p.368:

“[I]t is the duty of the Commissioners to observe the rules of natural justice in the course of their investigation – which means no more than they must act fairly by giving to the person whose activities are being investigated a reasonable opportunity to put forward facts and arguments in justification of his conduct of these activities before they reach a conclusion which may affect him adversely.”

Did the Respondent Board observe procedural fairness or did it deny the Applicant the opportunity of being heard and to persuade at its hearing of 13 February 2002? The Court accepts as fact that Mrs Viniana Bolatakeu did not submit any written submissions to the Board on 13 February. This is clear both from the record of the Board meeting and as well as from Mrs Bolatakeu’s affidavit. What the Applicant wrongly perceived to be written submissions being handed over to the Board by Mrs Bolatakeu on the day, were copies of her academic records, her CV and the vacancy advertisement No. 1210/2000 of the PSC Official Circular of 31 October, 2002. That was all.

The Applicant’s sole ground of breach of the rules of natural justice, is based on the Board’s “failure to give and opportunity to the applicant to elaborate his submissions and highlighted some of the important points.” In support of this argument, the Applicant pointed to the fact that the Board had permitted Mrs Bolatakeu to address it fully by oral submissions, whereas he had been stopped by the Chairman of the Board from doing the same. But, as made clear by the Respondent in the affidavit of its Secretary, the Applicant had already submitted his written submissions to the Board and rather than reading from it, the Respondent directed that he confined his oral submissions to emphasising issues or matters which he considered relevant. Mrs Bolatakeu on the other hand, was allowed to make full oral submissions, as she had not, unlike the Applicant, filed or submitted any written submissions. The procedure of the hearing, according to the Respondent, was fully explained to the Applicant by the Chairman before the hearing began.

Did the Chairman of the Board’s ruling “curtailing” the Applicant’s presentation before it, amount to a material irregularity that could have resulted in the Applicant suffering real prejudice? In this Court’s view, the Chairman’s ruling did not. The Applicant was not prevented from making representations to the Board on any issues in addition to those matters which were already in his written submissions. He was only stopped from reading verbatim from his written submissions. It surely cannot be suggested that the Applicant’s failure to read directly from his submissions, which the Board was already seized, amounted to procedural irregularity which could have given rise to a real risk that injustice may have been done. The Board, after all had every opportunity to read the Applicant’s written submission afterwards before making its decision. I am mindful of Lord Diplock’s statement in O’Reilly v. Mackman [1983] UKHL 1; [1983] 2 AC 237, referred to by the Applicant’s Counsel, in which he stated at p.276:

“But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any criticised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision in breach of this requirement."

The facts and situation in O’Reilly are distinguishable, but even so, I am satisfied that in this case, the Appellant was given both the opportunity of being heard together with the opportunity of presenting his case.

Counsel for the Applicant had made particular reference to the statutory requirements that demand of the Board the express duty to observe procedural fairness and act in accordance with the rules of natural justice. In particular, section 26 of the Public Service Act 1999, sets out the procedures under which the Board may conduct an appeal. Sub-section (9) provides –

“(9) In the conduct of an appeal, the Appeal Board is not bound by the procedures, legal forms and rules of evidence of a Court of law but should –

(a) accord natural justice to the parties to the appeal;
(b) keep a written record of its proceedings; and
(c) give reasons for its decision on the appeal.”

(emphasis added)

It has always been accepted practice by the court where there are express provisions of the statute under which a public body such as the Respondent in this case is acting, to add and read into such provisions the requirement and the standards of basic fairness. In Lloyd v. McMahon [1987] UKHL 5; [1987] AC 625, Lord Bridge said at p.702:

“[I]t is well established that when a statute has conferred on anybody the power to make decisions affecting individuals, the Courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

These are general rules that the Courts will readily apply to fill any procedural gaps that are left by the express provision of the law.

The Court’s discretion to imply procedural safeguards on the action of the Respondent in this case however, is necessarily tempered by the express limitation of the general rules as set out under section 26 (6) and (8) of the Act. These provide:-

“(6) At the hearing of an appeal –

(a) ......
(b) the officer or person against whose promotion or appointment the appeal has been lodged is entitled to be heard in such manner as the Appeal Board thinks fit and may be represented by a legal practitioner or by any other person.

(7) ......

(8) In performing its functions, the Appeal Board must endeavour to combine fairness to the parties with economy, informality and speed.” (emphasis added)

When the actions of the Board is considered alongside these provisions, namely the Chairman’s direction as to the procedure that were to be followed before the hearings of the appeal began, and later the Board’s stopping the Applicant from reading his written submissions, I can see no conceivable grounds upon which the Applicant can argue that he had been denied natural justice. I am therefore satisfied that the Respondent had acted fairly. The Applicant’s claim of breach of natural justice is without merit. This ground fails.

2. Taking Irrelevant Matters Into Account and Failure to Take Relevant Matters into Account
   

The Applicant claimed that the Respondent had taken into consideration the fact that Mrs Bolatakeu had a degree qualifications and therefore potential to advance notwithstanding that the degree was in Literature and Language. This qualifications, the Applicant argued, was not relevant to the post of Head Teacher, and should not have been taken into consideration by the Board.

On the other hand, the Applicant claimed the following matters to be relevant and not taken into account by the Board:

- that Mrs Bolatakeu had made false and malicious allegations at the hearing.

- that Mrs Bolatakeu had poor record and annual confidential reports compared to the Applicant.

- that the Applicant was senior in post and grade to Mrs Bolatakeu.

- that the school preferred the Applicant as its Head Teacher, over Mrs Bolatakeu.

The principle that guides the court is that a statutory body must have regard to all, and to only, legally relevant consideration. As Lord Keith said in R v. Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525 at p.533:

“[T]he discretion .... must be exercised .... by reference to relevant and not irrelevant considerations.”

The position is best summarised in Simon Brown L J judgment in R v. Somerset County Council ex p Fewings [1995] EWCA Civ 24; [1995] 1 WLR 1037 referred to by Counsel for the Respondent. At page 1049, he said:

“It is important to bear in mind, however ... that there is in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process.”

Lord Justice Simon Brown also referred to Cooke J.’s judgment in CREEDNZ Inc. v. Governor-General (1981) 1 NZLR 172 where at p.183 he said:

“What has to be emphasised is that it is only when the statute expressly or impliedly identified considerations required to be taken into account by the authority as a matter of legal obligations that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.”

In this case except as provided for under section 140 of the Constitution which requires that promotion “should be on the basis of merit,” there are no statutory provisions under which the Respondent is required to take specific considerations into account. In respect of the matters relating to work records and seniority which the Appellant argued favoured him over Mrs Bolatakeu, it could be argued that they fall under Category 1 of Lord Justice Simon Brown’s classification. The other two remaining matters come under Category 3. The question is whether the Respondent had failed to take any and all of the matters raised by the Appellant into consideration.

I have had the opportunity of perusing the minutes of the deliberations of the Respondent to verify its claim that it had regard to all legally relevant considerations. The minutes of the meeting reveals very clearly that the Board had done so. It considered all matters relevant, including those the Applicant claimed were not considered. It is important to note here that in respect of almost all these matters, there were in addition, submissions made on them by the Ministry of Education representations. The Applicant’s allegation is without foundation.

The Court is equally mindful of the fact that while there maybe relevancy of matters raised, there is also the important issue of the materiality of such matter to the subject or the decision. For example, the claim by the Appellant that Mrs Bolatakeu had made false and malicious allegations, are in my view not material to the decision. The allegations were in the main levelled against the Ministry of Education and its officials, and did not implicate the Applicant. At any rate, some of the allegations including errors in the bio data of Mrs Bolatakeu, were in fact conceded by the Ministry. Equally, the issue of the preference of the school for the Appellant as claimed by him, is not strictly a matter that the Respondent is obliged to consider. The Respondent is concerned essentially with ensuing that the best candidate is given the job.

Finally as to whether the Respondent had taken irrelevant matters into account by considering Mrs Bolatakeu’s degree in Literature and Language as an asset in her favour. According to the evidence before this Court, Mrs Bolatakeu’s Bachelor of Arts degree from the University of the South Pacific in Literature and Language/Applied Psychology. The vacancy advertisement stated that “Applicant with a relevant degree from a recognised University would be an added advantage.” Given that part of the job description was that “the appointee should be able to contribute towards the social and the cultural life of the school and supervise the teaching of vernacular languages,” Mrs Bolatakeu’s degree in Literature and Language, is surely a “relevant degree” for the purposes of the Respondent’s consideration. I do not agree with the argument that Mrs Bolatakeu’s degree was irrelevant and should not have been considered by the Respondent. In the end, I find no merit in the Applicant’s arguments on this ground.

3. Legitimate Expectations
   

Upon this ground, the Applicant argued that the Respondent “has breached the Applicant’s legitimate expectations of promotion and also legitimate expectations of a fair hearing and a proper reason for the decision.”

In this Court’s understanding, what basically the Applicant is claiming is that he was deprived of his legitimate expectation as to procedural protection namely, “fair hearing” and “proper reason for the decision” and to substantive benefit, which I can only assume means the Applicant’s promotion.

In his submission, Counsel for the Applicant referred to Lord Bridge’s statement in Re Westminster CC [1986] AC 688 at 692 explaining that:

“The Courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by province or by an established practice of consultation.”

Counsel also referred the court to Lord Diplock’s exposition of the principle in Council of Civil Service Unions v. Minister of Civil Service [1984] AC 374. In Behluli v. Secretary of State for the Home Department {1998} Imm AR 407, Bedlam L J at p.415 said:

“Although legitimate expectation may in the past have been categorised as a catchphrase not to be elevated into a principle, or as an easy cover for a general complaint about unfairness, it has nevertheless achieved an important place in developing the law of administrative fairness. It is an expectation which, although not amounting to an enforceable legal right, is founded on a reasonable assumption which is capable of being protected in public law. It enables a citizen to challenge a decision which deprives him of an expectation founded on a reasonable basis that his claim will be dealt with in a particular way.”

I accept the principle of legitimate expectation as one of the tests of deciding the fairness or otherwise of the decision-making procedure of a statutory body. I also accept its legitimacy in the arguments on substantive benefits that stand to be derived from the exercise of the authority and discretion of such a body. However in the case of the latter, the Applicant must prove the prior existence of a policy that gives rise to such an expectation. For example, is it always the practice for the Respondent to favour the promotion of the candidate already acting in the post? Or, is there a standing policy adopted by the Respondent that it will always favour candidates with longer actual teaching hours to their credit from others? These are but illustrations of elements that may genuinely give rise to the issue of legitimate expectation of a substantive benefit namely, the expectation of the Applicant’s promotion. They are also in essence what the court refers to as expectation of past practice being followed and the existence of regular practice: Webster v. Auckland Harbour Board [1987] NZCA 80; [1987] 2 NZLR 129; Council of Civil Service Unions v. Minister of Civil Service (supra).

There is no evidence before me that there had existed or presently exists certain policies of the Respondent which was or were not followed to the detriment of the Applicant.

There remains only the question of legitimate expectation of a procedural protection. This essentially goes to the issue of the Respondent’s duties of fairness and reasonableness, which I have already decided on above, except on the issue of “proper reason.”

4. Failure to Give Reasons
   

This ground was not included in the application for Judicial Review and the Respondent has rightfully argued that the Court should not entertain it. But even if the Court were to allow the Applicant’s submissions, the evidence before it does not support the argument that the Respondent had failed to give reasons.

The Applicant referred to the Fiji Court of Appeal decision in Akbar Buses Limited v. Transport Control Board & Or. CA 9/1984 and more recently in Pacific Transport Company Limited v. Mohammed Jalil Khan & TCB CA 21/1996 and the High Court cases of State v. Transport Control Board ex p. S. Nair Transport HBJ 20/1996; The State v. Transport Control Board ex p. Dee Cees Bus Service Ltd. HBJ 36/1996 to support the position that the court will intervene and quash a decision in the absence of reasons or where they are not sufficiently clear.

The position at common law is that there is no duty to give reasons, although the general trend show the movement towards a general duty. The English Court in Stefan v. General Medical Council [1999] UKPC 10; [1999] 1 WLR 1293 said at p.1301:

“There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required maybe taking on the appearance of exceptions.”

Earlier at p.1300 the Court observed:

“The trend of the law has been towards an increased recognition of the duty upon decision-makers of many kinds to give reasons. This trend is consistent with current developments towards an increased openness in matters of government and administration. But the trend is proceeding on a case by case basis.”

The advantages of giving reasons including public confidence in the system and the desirability of the disclosure of error where error exists are fully explored in the Stefan judgment.

In this case there is a specific duty under section 26 (9) of the Act to give reasons. This the Respondent had done and to all intents and purpose, its statutory obligation has been fulfilled. While it may be termed as “brief”, it is in my view very clear and concise and conveys in effect the sum total of the Respondent’s deliberation as to the more meritorious of the candidates. I do not share the Applicant’s assertion that the reasons are not sufficient to fulfil the requirements of the Act.

In the final, I find that the Applicant has failed to show an arguable case for permission to proceed with a claim for judicial review. Leave is refused.

Costs of $200.00 to each of the Respondent and the Interested Party.

F. Jitoko
JUDGE

At Suva
20 August 2004