State v Public Service Appeal Board, Ex parte Public Service Commission [2007] FJHC 97; Judicial Review 0039.2006 (6 February 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0039 OF 2006

IN THE MATTER
of an application by THE PUBLIC SERVICE COMMISSION for
LEAVE TO APPLY FOR JUDICIAL REVIEW
under Order 53 Rule 3(2) of the High Court Rules of Fiji and for STAY.

AND

IN THE MATTER of the decision of the
PUBLIC SERVICE APPEALS BOARD
dated 11th October 2006 allowing the appeal
of the Interested Party against a decision of the
Applicant regarding downwards the position
of the Interested Party from Director Immigration to
Principal Immigration Officer made on 2nd February 2006.

THE STATE

v

THE PUBLIC SERVICE APPEAL BOARD
a body constituted in existence under Section 24 of the
Public Service Act 1999 of Takayawa Building, Toorak in Suva.
Respondent

EX-PARTE:
PUBLIC SERVICE COMMISSION
a Constitutional body whose address is Berkley Crescent, Domain, Suva.
Applicant

AND

ERONI MOTO LUVENIYALI
Interested Party

Counsel: Ms. A. Uluiviti for the Applicants
Mr. E. Veretawatini for the Respondents
Mr. V. Maharaj for the Interested Party

Dates of Hearing: 12th December, 2006 & 29th January, 2007
Date of Ruling: 6th February, 2007

RULING

[1] It is unusual for a public service commission to seek judicial review of the body which hears appeals from that commission. Nevertheless, that is what is sought in this case. Applications for judicial review are governed by Order 53 of the High Court Rules. I am able to make a decision in this case without considering whether or not as a matter of law the Commission can make this application for judicial review.

[2] The application for leave was filed on the 10th of November 2006 a statement in pursuance of the application and the affidavit of Anare Jale were also filed on that day. A stay of the respondent's decision, pending adjudication of the application for review, and various other procedural directions were sought.

[3] On the 20th of November 2006 the respondents filed their Notice of Opposition. I also have before me the affidavit in reply of Josese Bisa filed on the 24th of November and the two affidavits of Eroni Moto Luveniyali filed on 24th of November and 1st December 2006.

[4] The usual course is for the court to deal with applications for leave to apply for judicial review on the face of the papers. In this case, the applicants sought an inter partes hearing. Further, as it transpired, amendments were needed to the application.

[5] Argument was heard on the 12th of December. It became clear that amendments were required to the application. One opportunity was given to do this and the hearing of the application was adjourned to 29th of January. In accordance with the directions an amended application for leave was filed on the 19th of December.

[6] I remind myself that this is an application for leave to apply for judicial review. I need only be satisfied that the material available discloses what might, on further consideration, turn out to be an arguable case in favour of granting the relief. The brief hearing that I have held has assisted in deciding whether or not leave should be granted. That, of course, did not approach the nature of a full hearing, should leave be granted.

[7] I have considered the amended application together with the supporting affidavit of Anare Jale. I have considered the other affidavits. Where there is any factual disagreement I have, for the purposes of considering leave, assumed that what is said in Mr. Jale's affidavit is correct.

[8] There are four grounds upon which the applicant seeks relief:

"(a) The decision was made with bias, ...;

(b) The Board had regard to an irrelevant consideration and failed to have regard to a relevant consideration ...;

(c) It is a breach of natural justice and procedurally improper for the respondent Board to accept any evidence without first presenting such evidence to the Commission to challenge or accept it ...;

(d) Unreasonableness is clearly evidenced in the manner in which the Board conducted itself ..."

[9] Each of these four headings is then followed by more detailed grounds in support. It must be stated that it is not always easy from those following sentences to divine exactly what is being said and how it supports each heading. However, without being exhaustive, the grounds can be summarised as follows: the Board was unduly influenced by its secretary and information he had obtained, the Board fast tracked this appeal ahead of some ten other appeals which had been waiting far longer, the Board's secretary actively sought extraneous information, the Board referred to the interested party as being a "scapegoat", regard to irrelevant considerations and disregard of relevant ones, failure to present extra evidence to the Commission for its comment and "Wednesbury unreasonableness" in considering evidence that was not properly put to the Commission before or at the appeal hearing.

[10] I have considered all the grounds. In my judgment, they are not prima facie supported by the applicant's affidavits or are matters of merit which cannot be impugned in judicial review proceedings or are questions of failures to observe procedure which are in fact permitted by the governing Act or are insufficient to establish a breach of natural justice or Wednesbury unreasonableness.

[11] In the circumstances, I refuse leave to the applicants to apply for judicial review.

[12] The respondents are entitled to their costs.

(R.J. Coventry)

JUDGE