State v Public Service Commission, Ex parte Shah [2004] FJHC 335; HBJ0046.2003S (1 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ0046 OF 2003

BETWEEN:

STATE

V

PUBLIC SERVICE COMMISSION
Respondent

Ex-Parte: INTAZ SHAH
Applicant

Counsel: Ms A. Rokomokoti – for Respondent
Mr. R. Singh – for Applicant

Date of Decision: 1st October, 2004

DECISION

This decision is supplementary to the settlement of these proceedings on the 31st of March, 2004 where the defendant consented to the entire relief applied for in the review application. The parties were, however, unable to settle the issue of costs.

It was agreed that the applicant was to file submissions on costs by the 7th of April and that the respondent would reply by the 14th of April. Thereafter it was agreed that my consideration of the matter could proceed on the papers with the decision being given on notice.

The respondent then sought and was granted further time within which to file a response. They were given until the 16th of July. Nothing was filed. As at the 29th of September, 2004 the respondent has not filed its reply. They have had more than enough time to comply. The matter now proceeds to judgment in the absence of its submission.

Background

The applicant Intaj Shah worked as a Civil Servant in the Public Service for several years.

On the 9th of July 2003 the respondent Public Service Commission advised him that his promotion to the post of Executive Officer (Companies) in the Ministry of Justice was being put on hold. The underlying reason for this action is to be found in an allegation that the applicant had forged some official documents during service in the Births, Deaths and Marriages Registry during his service with that department.

The Application

The original proceedings were commenced on the 5th of November 2003 by notice of motion. The respondent was given leave on the 10th of December 2003 to file an affidavit in response. The matter was adjourned before Justice Scott on the 26th of January 2004.

When called on that day the respondent made no appearance. Costs and a wasted hearing fee were ordered against them.

The matter was resurrected on the 25th of February before the Deputy Registrar Civil where the respondent was granted yet another 14 days to file an affidavit. It did not do so. Rather it came back before the Deputy Registrar Civil on the 10th of March 2004 and requested yet another 14 days to file an affidavit. This application was granted.

The matter came before me for argument on the 17th of March 2004 and was adjourned to the 31st of March, 2004 for hearing.

I should note that the respondent’s treatment of the applicant throughout the course of this proceeding has been most unsatisfactory. The respondent has displayed a cavalier attitude towards its obligations to the Court, the applicant and these proceedings. This is crowned by its spectacular lack of interest in the successful applicant’s costs application. Despite a lengthy period nothing has been filed.

The applicant upon this basis not unreasonably seeks indemnity costs.

The Law

An excellent summary of the applicable law is contained in the judgment of his Honour Justice Scott in the case of The State v The Police Service Commission, Ex-parte Naiveli, HBJ0029 of 1994, that decision has been cited with approval in the State v The Public Service Commission, The Public Service Appeals Board and Arvind Kumar, Ex-parte Ajay Singh, HBJ0013 of 2001 and Fereti Seru Dewa v The University of the South Pacific, HBJ0007 of 1994, two decisions of my brother Justice Pathik. I respectfully adopt the reasoning of their lordships in these cases.

It appears yet again that a situation has arisen in public servant employment where a disgruntled public servant has had to file for a judicial review to get some proper attention to his claim. This wasted effort could have been easily avoided had the dispute been handled properly. Instead of diligently pursuing this matter, making the necessary enquiries and resolving the dispute the respondent has simply chosen to stand on the sideline, offering only a huge legal shrug of the shoulders, before consenting to judgment.

I find the conduct of the respondent completely unsatisfactory. Special orders on costs are called for (Dillon & Others v Boltic Shipping & Co., the Mcquire Lemon of “Mikhail Lermontov”) 1991 2 LL.R. 155 at 176 (Kerby P.).

I disagree, however, with the applicant’s assessment of appropriate costs. Each of the examples he cites in his submission filed in support of the application amounted to costs awarded after cases had been fully argued. The one thing going for the respondent on this occasion is that it gave up early in the piece.

Nonetheless I expect that the applicant was put to the costs of pursuing his claim and the expense of appearances of his counsel in support of it on several occasions.

Conclusion

Accordingly, I order that the respondent pay the applicant’s costs in the sum of $4,500.00. This payment is to be made on or before the 15th of October, 2004. In default of payment I order simple interest on the costs awarded at the sum of 11% per annum.

Gerard Winter
JUDGE

At Suva
1st October, 2004