State v Fiji Islands Revenue and Customs Authority, Ex parte Krishna [2004] FJHC 407; HBJ0014.2003L (19 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBJ0014 OF 2003L

BETWEEN:

THE STATE

AND:

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
Respondent

EX-PARTE:

VIMAL KRISHNA
Applicant

Counsel for the Applicant: Mr. I. Khan
Counsel for the Respondent: Ms. S. Tabaiwalu

Date of Hearing: 5 April 2004
Date of Judgment: 19 April 2004

JUDGMENT

Application

This is an application for Leave to Apply for Judicial Review which first came before Byrne J. on 11^th November 2003 when the issue of Leave was not considered but a stay was granted and the proceedings adjourned to enable the respondent to file affidavits.

Background

The applicant is employed by the respondent (FIRCA) and has been so employed since 1969. On the 14^th March 2000 the applicant was promoted from the position of Senior Assessor to the position of Principal Assessor and was transferred from Suva to Lautoka, such transfer being effective from 27^th March 2000.

In February 2002 the respondent endorsed two Collective Agreements with the two major unions representing employees of FIRCA. These unions are the Fiji Public Service Association and the Fiji Islands Revenue and Customs Officers and Staff Association.

By letter dated 13 August 2003, further transfer the applicant from Lautoka to Suva with such transfer being effective from 17^th November 2003. As a result of the stay order granted on 11^th November 2003 the applicant is still serving in his position at Lautoka.

No appeal was lodged by the applicant pursuant to the provisions of Clause 66.8 of the FIRCAOSA Collective Agreement 2002. This clause provides for appeal against transfer to the Fiji Islands Revenue and Customs Authority Appeal Board.

Leave to Apply for Judicial Review

Applications to the court for a Judicial Review are governed by Order 53 of the High Court Rules. Order 53 Rule 3(1) provides: -

“No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule.”

Lord Diplock in Inland Revenue Commissioners, ex p. National Federation of Self-Employed & Small Business [1981] UKHL 2; [1982] A.C. 617 at 642 said: -

“The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is 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 whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

The respondent submits and I agree that the issues for consideration by the court are: -

1. Does the applicant have sufficient interest in the application;
   
2. Is the transfer of the applicant an act of private or public nature;
   
3. Was the decision to transfer the applicant an operational and/or managerial decision; and
   
4. Are there alternative remedies available to the applicant.
   

Sufficient Interest in the Application

This is a requirement of Order 53 Rule 3(5).

The applicant is employed as a Principal Assessor with the respondent. The respondent transferred the applicant from Lautoka to Suva.

In the circumstances of this application it would seem without further that the applicant does indeed have a sufficient interest in the application.

Is it a matter of private or public nature?

The respondent is clearly a statutory body governed by the Fiji Islands Revenue and Customs Authority Act 1998. The procedure with respect to the transfer of the applicant and the rights of the respondent and of the applicant would appeared to be governed by FIRCASOA Collective Agreement 2002 which gives, pursuant to Clause 8.0, the right to the respondent to transfer employees from one station to another within Fiji and gives to the employees a right of appeal against such a transfer.

In Regina v East Berkshire Health Authority, ex p. Walsh [1984] EWCA Civ 6; [1985] Q.B. 152, the Court of Appeal when dealing with a claim in connection with the dismissal of an employee from employment with a public authority, where the conditions of that employment were governed by statutory instrument held that the claim was properly a matter of private, not public law.

Jitoko J. referred to this authority in State v FIRCA & Silipa Tagicaki ex p. Barbara Malimali [HBJ0002 of 2003 - unreported 16 April 2003] His Lordship said at page 4: -

“The law is clear. While it is true that FIRCA is a creature of statute and performs a public function, this does not necessarily mean that every decision personal to individual employees of FIRCA, including the Applicant, are matters that automatically attract public law remedies.”

As mentioned above, the applicant appears to be bound by the conditions of employment covered by the collective agreement between the respondent and FIRCAOSA.

Disagreement

In Clause 8.1 provides: -

“Employees are liable to be transferred from one station to another within Fiji subject to appeal against such a transfer in accordance with the appeals provisions of this agreement. Due consideration on a case-by-case situation must be given to ensure minimal disturbance to the employee and family.”

In State v FIRCA ex p. Barbara Malimali referred to above where the applicant sought leave to apply for judicial review of the acting appointment of the Manager Legal in FIRCA on the basis that the applicant was more senior and more experienced, Jitoko J. held that as the acting appointments were covered by the collective agreement between the employees and FIRCA and that the action of the management in appointing an acting Manager Legal did not amount to an action of a public nature. It appears to me that similarly the management decision to transfer the applicant in accordance with the provisions of the collective agreement is not a public law determination.

Is the decision operational and/or managerial?

Again some assistance with respect to this determination can be gleaned from State v FIRCA ex p. Barbara Malimali where Jitoko J. said at page 9: -

“Whatever will be the outcome of the search by FIRCA for a new Manager Legal, the fact of the matter is, insofar as the action of the Chief Executive and the Board is concerned in deciding an acting appointment in the meantime, such a matter is properly within the competence and the domain of operational or managerial decisions of the organization. This category of decisions, the Court holds, are not amenable to judicial review.”

Even without the provisions contained in Clause 8.1 of the Collective Agreement 2002, it is difficult to conceive of situations where the transfer of employees of a public authority from one station within Fiji to another would not be a managerial decision. It is a decision relating clearly to the operation of the authority and accordingly following the decision of Jitoko J., with which I agree, is not amenable to judicial review.

Are there alternative remedies available?

Clause 8.1 of the Collective Agreement quoted above states that whilst employees are liable to be transferred from one station to another that such transfer is subject to appeal. The appeal provisions are contained within Chapter 9 of the Collective Agreement. Clause 66.8 of that agreements state: -

“Every employee, other than an employee on probation, may appeal to the Appeal Board against –

(a) .....

(b) .....

(c) the transfer of the appellant from one district to another within the Fiji Islands.”

Chapter 9 goes on to detail the manner in which appeals are to be dealt with by the Appeals Board.

It would appear that upon the applicant being transferred pursuant to Clause 8.1 of the Collective Agreement, the applicant then had immediate rights to seek an appeal in accordance with Chapter 9 of the Collective

Agreement. Again this issue was considered by Jitoko J. in State v FIRCA and Silipa Tagicaki ex p. Barbar Malimali where at page 5 he said: -

“The general principle on alternative remedies, is that, “......save in the most exceptional circumstances, the [judicial review] jurisdiction will not be exercised where other remedies were available and have not been used” per Sir John Donaldson MR in R v Epping and Harlow General Commissioners, ex p. Goldstraw [1983] 3 All E.R. 257 at 262.”

The applicant clearly has not exhausted or even exercised the alternative remedies available to him and is therefore deprived of the right to seek judicial review.

Conclusion

For the reasons stated above, the application for leave to apply for judicial review must be refused. To summarize, the issue the applicant seeks to challenge is of a private nature and public law remedies are not available; the decision is an operational and managerial decision and is not therefore amenable to judicial review; there are alternate remedies available which have not been availed upon by the applicant.

I note in passing that it is regrettable that such a large amount of money appears to have been spent in the preparation of this matter which is in no small way due to the delay of this court in dealing with the matter which was first filed with the court on 10^th November 2003. It is a matter in which an application for leave should have been considered at an early date in the interest of the parties.

Lord Diplock, speaking of the need for leave, said in Inland Revenue Commission v National Federation of Self-Employed and Small Business Limited: -

“Its purpose is 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 when they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

The Orders of the Court therefore are: -

1. Application for leave to apply for judicial review is refused;
   
2. Consequential upon Order 1, the stay granted by Byrne J. on 11^th November 2003 is revoked.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
19 APRIL 2004