State v Public Service Commission, Ex parte Prasad [2005] FJHC 133; HBJ0017d.2004s (16 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 17 OF 2004

Between:

STATE

v.

1. PUBLIC SERVICE COMMISSION
2. ATTORNEY-GENERAL & MINISTER FOR JUSTICE
Respondents

Ex parte: RAM PRASAD
f/n Ram Rattan
Applicant

Mr. A. Seru for the Applicant
Ms. A. Uluiviti for the Respondents

DECISION

This is an application by Ram Prasad (the ‘applicant’) filed on 6 September 2004 for leave to apply for judicial review of the decision of the Public Service Commission (the ‘PSC’) dated 15 January 1992 which was backdated to 17 December 1985 dismissing the applicant from the Public Service in accordance with Regulation 51(1)(a) of the Public Service Commission (Constitution) Regulations 1990.

Court of Appeal’s observation of 27 August 1999

The applicant in his application says that this application has been brought as a result of the following observations in the judgment of the Court of Appeal in Civil Appeal No. ABU0058 of 1997S given on 27 August 1999:

“As the Judge pointed out, the appellant can apply under Order 53 of the High Court Rules for leave to bring an application for judicial review. In the normal course, such a long delay from 15 January 1992, when the appellant was dismissed, would be fatal to any application for leave. However, in the end the dominating consideration would be the interests of justice. Provided that it can be established that this delay was not due to the appellant personally, it may well be that in these somewhat exceptional circumstances the granting of leave may be appropriate. But we emphasise that on that issue we are expressing no concluded view. If an application for leave is brought, it will be for the Judge before whom it comes to decide whether the appellant should be allowed to proceed at this very late stage.

Background to the case

On 18 December 1985 the applicant was interdicted from his duty without pay due to a criminal charge of conspiracy to defraud.

The Director of Public Prosecutions on 11 February 1991 entered nolle prosequi and the criminal prosecution was discontinued.

On 6 August 1991, 26 counts of disciplinary charges were laid against the applicant. He denied all the counts.

The Public Service Commission dismissed the applicant on 15 January 1992 and backdated the dismissal to 17 December 1985.

On 27 February 1992 his solicitors issued a writ of summons with a Statement of Claim and served on 9 July 1992.

On 12 September 1997 the High Court decided that the applicant should have proceeded by way of judicial review and the writ of summons was dismissed as an abuse of process.

The applicant appealed to the Fiji Court of Appeal which on the said 27 August 1999 dismissed the appeal, confirming the High Court decision that the matter should have come by way of judicial review.

It was in this appeal that the abovementioned observation was made by the Appeal Court.

Consideration of the application

As can be seen from the history of the case, after his dismissal on 15 January 1992 (backdated to 17 December 1985) the applicant instituted proceedings by way of Writ of Summons on 27 February 1992.

Even after the Court of Appeal judgment on 27 August 1999 the applicant did not make the present application for leave until 6 September 2004 i.e. about 5 years afterwards.

Explanation for delay in applying for leave

It is clear from the background to the case that the Court of Appeal dismissed his appeal. Before his said appeal, after the High Court dismissal of his writ he could not apply for judicial review because it was well out of time. The time limit is 3 months from the decision which is impugned.

The applicant explains the reason for delay in applying for leave to apply for judicial review so long after the Court of Appeal judgment.

He says that at the time of judgment by Court of Appeal his counsel was in a criminal trial in the High Court as an accused person until the completion at the end of September 1999 ‘followed by his preparation of filing his appeal papers with his Counsel hence the further delay in this matter.’

The explanation given by the applicant for the delay in applying to the High Court on issuing the writ of summons is not acceptable to the Court. Apart from anything else it would create a dangerous precedent if such long delays are accepted to apply for judicial review. Even the Court of Appeal agreed with the High Court judgment and dismissed the appeal. Even before the Court of Appeal
there was no explanation for delay or that the delay ‘was not due to the appellant personally.’

On 15 September I made an order granting leave to hear application for leave to apply for judicial review under Order 53 rule 3(2). But the applicant sealed an order as if leave to apply for judicial review was granted. Consequently by 4 March 2005 he filed affidavit of service of documents after filing Notice of motion on 24 December 2004. I was away on leave until end of February 2005 and on return called both the counsel and adjourned for hearing of my said order on 23 March 2005 and ordered them to file written submissions. After oral hearing on 23 March the decision was to be on notice.

Again there was long delay in applying after the appeal judgment. The explanation given for this delay of about 5 years is not acceptable to Court at all. It is stated that the relevant documents were not located until November 2003 and remainder of missing documents were not recovered until about July 2004.

These explanations are not acceptable at all. The Rules have to be complied with. There has to be finality to the proceedings. For an applicant to judicial review moving at a snail’s pace will not assist him at all.

There are very strict provisions in Order 53 as to the time within which an application for judicial review should be made bearing in mind always the interests of justice.

In this context it is important to note the following passage from the judgment of Lord Diplock in O’Reilly v Mackman [1983] UKHL 1; [1983] 2 A.C. 237 at 280.

“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”

The following passage from R v Stratford-on-Avon District Council & Anor., Ex parte: Jackson (1985) 3 All E.R 767 is apt on undue delay, where Ackner L.J. said:

“... we have concluded that whenever there is a failure to act promptly or within three months there is ‘undue delay’. Accordingly, even though the court may be satisfied in the light of all the circumstances, including the particular position of the applicant, that there is good reason for that failure, nevertheless the delay, viewed objectively, remains ‘undue delay’. The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

In State v Acting Divisional Engineer Northern Ex parte: Puran (Labasa High Court J.R. No. 1/98) on time limits under Order 53 I stated:

“Time limits under Or 53 are essential matters in judicial review and tight time limits are set in judicial review application. Applications have been refused for short periods of delay, one of the reasons being that public authorities should not have to deal with very late application for which there is no justification. The difficulties will be insurmountable if all cases of this nature relating to termination etc were to lie idle for one or two years and then an employer is sprung with surprises with judicial review applications. This is not a proper application of Order 53 as it goes against the principles which govern judicial review applications. If this were allowed, in the words of Or 53 r. 4(2) it would be “detrimental to good administration.”

I again refer to my judgment in Eroni Waqaitanoa v The Commissioner of Prisons & Ors. [1997] 43 FLR 245 to illustrate that Courts have approached time limits in judicial review applications very strictly.

Further in The State v Public Service Commission Ex parte Sevuloni Nasalasala (Suva High Court JR No. 36/97 Fatiaki J now Chief Justice echoed similar view as follows:

‘The strictness with which the Courts approach time-limits in judicial review proceedings was recently affirmed in R v Institute of Chartered Accounts in England & Wales ex parte Andreou (1996) 8 Admin L.R. 557 (loose leaf) where the Court of Appeal (UK) in refusing leave to appeal against a refusal to extend time to begin judicial review proceedings:

“Held: (1) The purpose of the procedure governing applications for judicial review is to provide a simplified and expeditious means of resolving disputes in the field of public law.

(2) This purpose would be frustrated if the relatively leisurely and casual approach to time-limits which characterises civil litigation in the field of private law were to be accepted in the field of public law.”’

I cannot see how the applicant can be assisted in this case as the law is against him. In his case it is pertinent to note the following words of Henry J in Doyle & Ors. v Northumbria Probation Committee (1991) 1 WLR 1340 at 1344:

“Under Order 53, where the plaintiff wrongly brings his claim in the form of an application for judicial review, the court has power to order that claim to be continued as though it had been commenced by writ. But where a claim is wrongly commenced by writ, the court has no power to convert it into a claim for judicial review.”

Conclusion

In the outcome, bearing in mind the said observation of the Court of Appeal, and applying the principles as to time-limit, I conclude with the following passage from the judgment of Sir Thomas Bingham M.R in Regalbourne Limited v East Lindsay District Council (1993) Adm. L.R. Vol 6 102 at 111 to 112 which is apt:

“In this case the appellants seek to challenge the decision of a statutory tribunal. They did not comply with a clear and short time limit. In this context the reasonable requirements of public administration have a significance which is absent in ordinary inter partes litigation. By contrast, prejudice may assume a rather smaller significance. But most importantly, there is in this context a different statutory framework and the court must do its best to give effect to the intention of Parliament in the particular context before it. I would be reluctant to lay down a rule that in this context an application to extend time may never be granted in the absence of a satisfactory explanation for the delay. Had the learned Judge here decided, in the exercise of his discretion, to grant an extension of time, I question whether his decision could have been successfully challenged as unlawful. But he took the view that, on the facts here and in particular in the absence of a satisfactory explanation of the delay, he should not exercise his discretion to grant an extension. In my opinion, that decision cannot be impugned as contrary to law. The decision of the tribunal was final unless subject to appeal. Unless an appeal was initiated within the time limit there was no right to appeal. The Judge found no good reason to extend time.” (underlining mine for emphasis).

Furthermore, the headnote to Regalbourne (supra) at 103 on the question of exercise of discretion is pertinent to the issue before me. It was held:

“(1) In the absence of agreement, before the court will consider exercising its discretion to extend time under Ord. 3, r.5, it will normally need to be satisfied that there is an acceptable explanation for the delay. Lawyers’ commitments or ignorance would be unlikely to amount to an acceptable explanation. (2) If such an explanation is found, then the risk of prejudice will be considered. (3) Where decisions of public law bodies are the subject of the application, the court will be reluctant to extend time because of the need for such bodies to know where they stand. (4) Per Sir Thomas Bingham, M.R: The dicta in Costellow v. Somerset County Council [1993] 1 W.L.R. 256 at p.264 were not intended to apply to an application for leave to appeal out of time, or applications for extensions in relation to the decisions of statutory tribunals.” (emphasis added)

For these reasons, on the basis of the principles as expressed hereabove, it seems to me that in all the circumstances I would not be justified in granting leave to apply for judicial review.

So the application is dismissed with each party to bear his/its own costs on the facts and circumstances of this case.

D. Pathik
Judge

At Suva
16 June 2005