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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW HBJ No. 02 of 2008
IN THE MATTER
of an Application by Savita Nair for Judicial Review
AND
IN THE MATTER
of the decision of the Permanent Secretary for Education
made on 29 November 2007 to transfer Savita Nair from Rishikul Sanatan College
to Mahatma Gandhi Memorial High School
BETWEEN:
SAVITA DEVI NAIR
APPLICANT
AND:
PERMANENT SECRETARY FOR EDUCATION
FIRST RESPONDENT
AND:
ATTORNEY GENERAL OF THE REPUBLIC OF FIJI
SECOND RESPONDENT
Appearances:
Mr J. Raikadroka for the Applicant
Ms S. Seruilagilagi for the Respondents
Date of Hearing: 19 May 2008
Date of Judgment: 14 August 2008
JUDGMENT (No. 2)
Headnote
Teacher transfer; Regulation 13, Public Service (General) Regulations 1999; Administrative decision vs ‘managerial’ or ‘operational’ decision; Public Service not generally limited by national security considerations, or considerations vis-à-vis emergency/security services; Public service not to be equated with Queensland Correctional Centres; Police officers in special contractual position; Legitimate expectations; Reasonable expectations; Written reasons; Date of decision; Procedural fairness in transfer decisions where ‘bad faith’ alleged; Victimisation; Apprehension of bias
Attorney-General of Hong Kong and Ng Yuen Shui [1983] UKPC 2; [1983] 2 WLR 735 (Privy Council, Appeal from the Court of Appeal of Hong Kong, 21 February 1983)
Bartz v. Department of Corrective Services [2002] QC 56 (19 March 2002)
Bartz v. Department of Corrective Services [2001] QSC 392 (12 October 2001)
Bartz v. Chief Executive, Department of Corrective Services [2001] QSC 222 (28 June 2001)
Bartz v. Dept of Corrective Services [2001] QSC 87 (20 March 2001)
Bartz v. Department of Corrective Services [2000] QSC 336 (29 September 2000)
Bartz v. Qld Corrective Services Commission [1999] QSC 237 (4 October 1999)
Bijay v. Permanent Secretary for Education, Women & Culture [1997] FJHC 134; Hbj0005j.1997s (12 September 1997).
Burns v. Australian National University [1982] FCA 59; (1981-82) 40 ALR 707
Council of Civil Service Unions and Ors v. Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935; [1985] AC 374
Usmal Nisha Dean v. Chief Executive Officer for Ministry of Education and Attorney-General of Fiji (HBJ 4 of 2004, 14 May 2004)
Minister of State for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 278;
Mohini Devi v. Permanent Secretary for Education & Attorney General of Fiji (JRA No. HBJ 07 of 2008, 19 February 2008)
Mohina Devi v. Permanent Secretary for Education & Attorney General of Fiji (Judicial Review No. HBJ 18D of 2008S, 20 June 2008)[1]
Federal Airports Corp. v. Aerolinas Argentines [1997] FCA 723; (1997) 147 ALR 649
Gray v. Pettman and State of Victoria [1999] VCAT 33
Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 (18 December 1985)
Sevita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No. 1) (Judicial Review HBJ No. 02 of 2008, 11 February 2008)
O’Reilly v. Mackman [1983] UKHL 1; [1982] 3 WLR 1096
Rejendra Prasad v. Divisional Engineer Northern and Ministry for Transport, Works and Energy (Judicial Review No. HBJ03 of 2007, 17 July 2008)
Public Service Association v. Kotobalavu [2004] FJCA 51; ABU0031.2004S (11 November 2004)
Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396 (11 May 1977)
Re Roland Warwick Sellars v. Sir Colin Woods and Alex Robert Bunt [1982] FAC281; (1982) 69 FLR 105 (23 December 1982)
R. v. Derbyshire County Council; Ex parte Noble [1990] ICR 808
R (on the application of Tucker) v. Director General of the National Crime Squad [2003] ICR 599; [2003] EWCA Civ 57, CA; (English Court of Appeal, Civil Division, 17 January 2003)
Regina v. East Berkshire Health Authority; Ex parte Walsh [1984] EWCA Civ 6; [1985] QB 152; (1984) 3 All ER 425
R. v. Secretary of State for the Home Department; Ex parte Doody [1993] UKHL 8; [1994] 1 AC 531
R. v. Secretary of State for the Home Department; Ex parte Hosenball [1977] 1 WLR 766; [1977] 3 All ER 452
R. v. Secretary for the Home Department; Ex parte Swati [1986] 1 WLR 477 were echoed:
State v. Decision of Public Service Commission & Attorney General; Ex parte Alefina Vuki (Civil Action No. HBJ 0046 of 1999, 9 July 2000)
State v. Fiji Islands Revenue & Customs Authority and Silipa Tagicaki Kubuabolan; Ex parte Barbara Malimali [2003] FJHC 100 (9 April 2003)(HVBJ 2 of 2003, 9 April 2003)
State v. FIRCA; Ex parte Vimal Kustina (HBJ 14 of 2003)
State v. Public Service Commission; Ex parte Laladidi [1995] FJHC 127; Hbj0017j.1992s (19 July 1995)
State v. Small Claims Tribunal; Ex parte Fiji Electricity Authority (Judicial Review No HBJ 48 of 2003)
1. Judicial Review
Sevita Nair, a teacher in the post of Vice Principal at Rishikul Sanatan College (Rishikul) applies for judicial review of the decision by the Permanent Secretary for Education (‘Permanent Secretary’) to transfer her from her post at Rishikul to a similar post at Mahatma Gandhi Memorial High School (MGMHS).
1.1 Ms Nair’s application for leave was heard on 4 February and granted on 11 February 2008, together with a stay of the decision.
1.2 The foundation for Ms Nair’s application essentially lies in an investigation carried out some time in November 2007 by the Ministry of Education into allegations made against Rishikul’s Principal (‘the Rishikul investigation’). In the course of the investigation, Ms Nair was interviewed. She raised some views about the Principal’s behaviour. On 29 November 2007 she received a ’28 day notification’ consistent with Regulation 13 of the Public Service (General) Regulations 1999 (‘the Regulations’)(‘Regulation 13’) that she would be transferred from Rishikul to MGMHS, effective from 21 January 2008. In reply, she wrote to the Ministry setting out her objections to the transfer and asking for reasons. The Ministry did not respond in writing to her request, proceeding with its decision to transfer her. Ms Nair formed a view that the transfer was a consequence of her speaking out during the investigation and, hence, that she was being subjected to victimisation. Ms Nair then made her application for judicial review.
1.3 The grounds are:
1.4 The Respondents say that Ms Nair’s participation in the Rishikul investigation had no bearing upon the decision that she be transferred from Rishikul to MGMHS. They say that the decision to transfer her predated the Rishikul investigation. Originally, the Respondents said that, in any event, Regulation 13 was not applicable to her transfer. The Respondent position here is that her response was taken into account in the making of the decision and there is no requirement for a written response. Further, the decision to transfer is a management decision falling into the category of managerial or operational decision and hence is not susceptible to judicial review; in any event, Ms Nair has not exhausted internal remedies.
1.5 In submissions, the Respondents list their grounds for dismissal of the application:
1.6 Ms Nair seeks:
2. Chronology of Events
As timing is an issue in this application and goes to the heart of the dispute, I list here a chronology of events relied upon by Ms Nair, interposing the contrary timeline (in bold) relied upon by the Respondents.[2]
Investigations on the allegations on the Principal concluded that only the Vice Principal of the School is against the Principal hence the need to throw her out as not to disturb the Principal’s organisation in the school.
Investigations on the allegations on the Principal concluded that only the Vice Principal of the School is against the Principal hence the need to throw her out as not to disturb the Principal’s organisation in the school.
2.2 Amongst other matters, Ms Nair further states in that Affidavit:
I have spent twenty five years in the teaching profession and expected to be treated fairly by the Ministry and have suffered much
anxiety and stress since receiving the Notification. I have not been able to enjoy my break for the festive season last year as this
issue has always been on my mind and this is the first time I have experienced such matters: para 21
.
3. ‘Management or Operational’ not Amenable to Administrative Review?
The question whether administrative review is open to Ms Nair is basic to her application. Citing:
the Respondents say not. They have relied upon these decisions for the proposition that ‘operational or management decisions of public or statutory bodies are not susceptible’ to judicial review.
3.1 In Sevita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No. 1) (Judicial Review HBJ No. 02 of 2008, 11 February 2008) I canvassed extensively the authorities relied upon by the Respondents and sought to be relied upon again here, together with the decisions in the Mohini Devi case of 19 February 2008 and 20 June 2008 (postdating my decision in Sevita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No. 1) (Judicial Review HBJ No. 02 of 2008, 11 February 2008).
3.2 True it is that some decisions made by public or statutory bodies may not be amenable to judicial review. This is unremarkable. Otherwise, public or statutory bodies could be tied up endlessly in judicial processes. This would hardly be advantageous to public sector functioning. However, the vast bulk (and perhaps all) administrative decisions by public sector bodies and executive government might be characterised as ‘managerial’ or ‘operational’ – after all the role of the public sector is to ‘manage’. Hence it is necessary to ask where the lines are drawn – ‘against’ the right to judicial review and ‘for’ that right. It is no good simply to say ‘this is an operational or management decision’ for it is difficult to think of an administrative decision that could not be so characterised and conversely operational and management decisions are of necessity ‘administrative’. A blanket statement ‘managerial and operational decisions are outside judicial review’ is, bluntly, wrong. Nor does it accord with what, in my opinion, the judgments of this Court affirm.
3.3 The cardinal rule is that where rights, interests and legitimate expectations of individuals affected directly by a public sector or executive government decision are affected, judicial review is applicable. If it is asserted not to be, a heavy onus lies upon the party so asserting. This much is clear.
3.4 Even, it has been said, in some circumstances ‘regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed ...’: Haoucher v. Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 (7 June 1990), at para [2], per Deane, J.
4. ‘Management or Operational’ in Other Jurisdictions?
I turn first to decision in jurisdictions elsewhere, namely Australia and the United Kingdom, then once again review the decisions of this Court and the United Kingdom authorities upon which they rely.
4.1 (a) Australia – General: The issue was addressed in Re Roland Warwick Sellars v. Sir Colin Woods and Alex Robert Bunt [1982] FAC 281; (1982) 69 FLR 105 (23 December 1982), an employment transfer case. The Court said:
In objecting to the competency of the application for review the respondents contended that this Court has no jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 [ADJR Act] because the decision to transfer was not a decision of an administrative character ...
In contending that the decision was not of an administrative character, counsel for the respondents did not attempt to characterise the decision as being legislative or judicial in nature. He put his submission on the basis that although of an administrative character it was not of that class of decision which Parliament intended to be canvassed by the review provisions. It was, he said, organisational in character and was not of the necessary degree of significance to constitute a reviewable decision. In my opinion, the decision was administrative in character, and it is nothing to the point to contend that it was of the type necessarily made on a number of occasions each day in the course of performance of routine functions of the Police Force ...: at 8
4.2 The Court then referred to Burns v. Australian National University [1982] FCA 59; (1981-82) 40 ALR 707 where Ellicott, J. said:
The word ‘administrative’ carries with it the notion of ‘managing’, ‘executing’ or ‘carrying into effect’. The administration of an enterprise or undertaking whether a business, a government department, a statutory authority or educational institution such as a University, inevitably involves decisions as to the appointment or dismissal of officers and other employees. Such decisions are, in my view, administrative in character. They are an essential part of managing, running or administering the enterprise or undertaking: at 713
4.3 In Sellars v. Woods and Bunt the Court concluded that the decision to transfer Mr Sellars to alternative duties was clearly ‘administrative in character’: at 8
4.4 In the upshot, Mr Sellars did not succeed in claiming judicial review jurisdiction not because of the ‘managerial’ or ‘operational’ contention, but because the decision was made by reference to ‘the engagement into which [he] had entered as a member of the Police Force’. Namely, this was held to be a contract he had entered by taking and subscribing the oath. Upon the basis of Green v. The Queen [1891] VicLawRp 85; (1891) 17 VLR 329 the Court said this constituted a ‘unilateral contract [which] implies no corresponding obligation on the part of the Crown to retain the member in the service’: at 10
4.5 Aronson, Dyer and Groves on Judicial Review of Administrative Action address the ‘managerial or operational’ vs ‘administrative’ contention, too.[4] First, they observe that the Federal Court of Australia has set about reading the term ‘of an administrative character’ (employed in the ADJR Act) ‘as widely as possible’ with the only antithesis being ‘legislative’ and ‘judicial’ decisions which are not, of course, susceptible to judicial review. They then go on to point out that there are ‘many cases, but very few attempts at defining “administrative”’. They cite Evans v. Friemann [1981] FCA 85; (1981) 35 ALR 428 where Fox, ACJ said it ‘is possible to become too theoretical about the definition’: at 435, and observed the warning by Ellicott, J. against attempting ‘a comprehensive definition’: Burns v. Australian National University [1982] FCA 59; (1982) 40 ALR 707, at 714
4.6 In Federal Airports Corp. v. Aerolinas Argentines [1997] FCA 723; (1997) 147 ALR 649 the Full Court of the Federal Court said:
If there is anything that the authorities make plain .. it is that general tests will frequently provide no clear answer. It is, after all, not difficult to point to authority which supports the proposition that a decision which imposes obligations and is of general operation may nevertheless be administrative or executive ... There is no escape, in my view, from the need to examine closely the particular provisions and the particular circumstances: at 657, per Lehane, J.
4.7 The breadth of decisions in relation to which judicial review applies, and the capacities and offices of decision-makers to whom it applies, indicates the readiness of courts to bring administrative, bureaucratic and public service decision-making within the purview of judicial review. Aronson, Dyer and Groves list the range of cases, by reference to authority, characterised as administrative for judicial review, including:
4.8 Explicitly addressing the notion of ‘managerial’ or ‘operational’ decisions as outside the ambit of judicial review, Aronson, Dyer and Groves observe: ‘... some Queensland prison cases have ominously proposed “managerial” as a third antithesis’ (in addition to legislative and judicial) ousting judicial review.[6] They go on to say, however:
These cases can be read down, because they allow for the possibility of review of a managerial decision made in bad faith. Therefore, they may have intended to indicate that managerial decisions are constrained by fewer administrative law principles than would apply to administrative decisions. It is submitted that the ‘managerial’ antithesis is ill-advised and unnecessary. Further, it sits poorly with the generally held view that a large part of an ‘administrative’ job is to ‘manage’: p. 67, fn 381
4.9 (b) Australia – Queensland Supreme Court: Because the notion that a ‘managerial’ or ‘operational’ function can be quarantined from judicial review is at the heart of the Respondents’ submissions, it is as well to observe the nature of the Queensland prison cases. Every one of them involved the same applicant. There were no fewer than eight (one case including three – these were separate applications, the Court dealing with them together ‘since there is some common history’).
4.10 Commencing in 1999 and running through to 2002, the applications involved, variously:
1. Bartz v. Department of Corrective Services [2002] QC 56 (19 March 2002)
Conditions placed upon the removal of tattoos (requested by Mr Bartz) by the Queensland Prison Service and at its expense, those conditions being:
Held susceptible to judicial review. Application failed. Reference to ‘managerial’ decisions – see later.
2. Bartz v. Department of Corrective Services [2001] QSC 392 (12 October 2001)
A refusal to provide reasons for a decision not to consider Mr Bartz to be a fulltime student at Lotus Glen Farm, in that role not to undertake any employment in (as Mr Bartz said) ‘pointless’ occupations such as working in the fruitshed which ‘would be of no use in his rehabilitation and leave him with insufficient time for study’.
Held decision ‘of a managerial kind’ not susceptible to review – see later.
3. Bartz v. Chief Executive, Department of Corrective Services [2001] QSC 222 (28 June 2001)
Mr Bartz sought review of ‘both the decision and conduct of [the Chief Executive] that defaulted [Mr Bartz]’s security rating to a medium security classification and refused placement in open security accommodation, namely open security accommodation at Lotus Glen Correction Centre ...’ The sentence management review document contained the following record:
Having regard to the fact that the Supreme Court on 29 September 2000, set aside the delegate’s classification decision of 28 January 2000, I advise that the delegate has now considered your security classification afresh. I advise that after viewing all relevant material a decision was med on 26 October. That you are to be classified as a medium security prisoner and remain at Lotus Glen Correctional Centre.
Held susceptible to judicial review. Application failed.
4. Bartz v. Dept of Corrective Services [2001] QSC 87 (20 March 2001)
Mr Bartz sought an additional statement of reasons for the decision by the Chief Executive in relation to Mr Bartz’s request for assistance in having tattoos removed, the question being whether the statement already provided contained adequate particulars of the reasons for the decision.
Held susceptible to judicial review. Sufficient reasons provided. Application failed.
5. Bartz v. Department of Corrective Services [2000] QSC 336 (29 September 2000)
Of the three applications, two principally sought declarations, the third a Statutory Order of Review: ‘In sum, the applications raise issues concerning security classification of prisoners under section 13 of the Corrective Services Regulation 1989 (Qld), and authorisation for taking body samples under section 48 of the Corrective Services Act 1988 (Qld).’ They involved a failure to apply the Regulation and Act requiring six monthly reviews of prisoner classifications, Mr Bartz’s position being that this failure meant reviews carried out at greater intervals were invalid. The Court recognised resource limitations underpinning the failure to comply with the six month requirement. Mr Bartz also sought a declaration that any person not a medical officer, registered nurse or legally qualified medical practitioner should not be entitled to order urine sampling. The relevant provisions in any event required samples to be taken only by those qualified personnel.
Held susceptible to judicial review. Applications for declarations failed. Application for Statutory Order of Review succeeded as ‘there was in two respects a failure to take relevant considerations into account’, it following that the ‘delegate’s decision must be set aside and referred [back] to him for further consideration’: at 16.
6. Bartz v. Qld Corrective Services Commission [1999] QSC 237 (4 October 1999)
A decision to transfer Mr Bartz involuntarily from one correctional facility to another, Mr Bartz stating he was aggrieved by the decision ‘because the transfer was involuntary and because it resulted in reduced access to educational and other facilities and delayed his progression through the security classification system’. Upon the date of the hearing, Mr Bartz was being held at the Borallon Correction Centre. He said he did not wish to be returned to Townsville, but wanted relevant documents, etc removed from his file. His transfer from Townsville had been effected because he had an ‘obsessional fixation’ on a psychologist working at Townsville facility, a major factor influencing her decision to accept the position being ‘the assurance that [Mr] Bartz would have no contact with her’.
Held susceptible to judicial review. Application dismissed. Reference to ‘managerial decisions’ – see later.
4.11 As observed, the majority of Mr Bartz’s applications were classed as susceptible to judicial review. The ‘managerial decisions’ rubric was both limited and qualified.
4.12 To determine whether these decisions can provide support to the Respondents’ proposition in the present application, namely that the transfer of a teacher by the Ministry of Education is ‘managerial’ or ‘operational’ so outside the scope of administrative review I turn then to the references to ‘managerial’ in the Bartz cases.
4.13 In Bartz v. Department of Corrective Services [2002] QSC 56 (19 March 2002), involving the Department’s decision as to placing conditions on the removal of Mr Bartz’s tattoos, the Queensland Supreme Court devoted a section to the question, ‘Was the Decision a Managerial Decision?’ First, the Court concluded as unsustainable the contention that the decision was solely a contractual one and hence not judicially reviewable. The Court then determined on the ‘managerial’ issue:
It is therefore necessary to consider the respondent’s argument that ... it was not a decision to which the [Judicial Review] Act applies, because it was a purely managerial decision, which the Courts will not review, except on the grounds of bad faith: McEvoy v. Lobban [2004] QCA 68; [1990] Qd R 235, at 236, 241; Re Walker [1993] 2 Qd R 345, at 349; Abbott v. Chief Executive, Department of Corrective Services, SC No 9096 of 2000, 21.12.00 at [27]; Masters v. Chief Executive, Department of Corrective Services, SC No. 4827 of 2000, 2.3.00 at paras [14]-[16].
It is necessary to determine whether or not the impugned decision involved the exercise of a statutory power which deprived the applicant of a right, interest or legitimate expectation of a benefit so that the exercise of power is reviewable as falling within the category described by Mason J. ... in Kiao v. West [1985] HCA 81; (1985) 159 CLR 550, at 582.
It was submitted by the respondent that the decision was one not to loan money to the applicant to pay for the tattoo removal, or not to permit it until two years prior to release, and that that was a purely managerial decision.
As mentioned, I consider that that artificially restricts the nature of the decision in question. What the applicant was seeking was assistance with tattoo removal because of a number of specified reasons. Such assistance also broached the issue of funding. The respondent’s decision involved a determination as to whether the treatment in respect of which assistance was sought was necessary for the welfare of the applicant and if not, what support or assistance could be given for treatment of a cosmetic nature. In my opinion, the decision therefore involved the exercise of a power in respect of statutory rights or benefits concerning the applicant’s welfare and therefore was not of a purely managerial nature: at paras [25]-[28]
4.14 Hence, not only did the Court classify the decision in question as covered by judicial review, but the Court was explicit as to the limited scope of a proposition that a decision’s being ‘managerial’ casts it outside judicial review. Such decisions are not wholly quarantined: they will be judicially reviewable on the grounds of bad faith. The ‘managerial’ decisions proposition is, thus, not an answer. If it is to be called upon, it is not incontrovertible; nor is it limitless.
4.15 The two cases where the ‘managerial’ nature of the decision was employed to oust judicial review are instructive. In each, the Court employed the lack of ‘legitimate expectation’ as the basis for its determination. In each, the Court restricted its decision to the issue of prisoners and prison management and decision-making. Even then, the ‘bad faith’ qualification was again invoked. The cases do not stand for a proposition that ‘managerial’ and/or ‘operational’ decisions are outside judicial review.
4.16 In Bartz v. Department of Corrective Services [2001] QSC 392 (12 October 2001) Mr Bartz relied upon the proposition that section 18(b) of the Corrective Services (Administration) Act 1988 obliged the Department of Corrective Services to ‘respect [his] desire to be assisted to be integrated back into the community when granted parole or at the expiration of his sentence by employing [him] in the position of full-time student to acquire suitable skills’. In correspondence with the Department, Mr Bartz said he ‘has insufficient time to engage in other employment within the prison system’: at para [16]
4.17 Section 18(b) of the Corrective Services (Administration) Act says:
Subject to the Minister, the chief executive –
(a) ...
(b) shall develop and administer services and programs for the purposes of assisting prisoners to be absorbed into the community and to assist and encourage them to acquire such skills as may be necessary or desirable for their integration with the community upon their release from prison; ...
4.18 The Department contended that the decision not to employ Mr Bartz ‘as he would wish’ was ‘a managerial decision about prisoners and not one which the courts will review’. Listing the four cases later referred to in Bartz v. Department of Corrective Services [2002] QSC 56 (19 March 2002) – namely McEvoy v.Lobban [2004] QCA 68; [1990] Qd R 235, at 236, 241; Re Walker [1993] 2 Qd R 345, at 349; Abbott v. Chief Executive, Department of Corrective Services, SC No 9096 of 2000, 21.12.00 at [27]; Masters v. Chief Executive, Department of Corrective Services, SC No. 4827 of 2000, 2.3.00, the Court said this was:
... a long line of decisions to the effect that courts will not review decisions pertaining to the management of prisons and prisoners unless bad faith is shown to be present .... No element of bad faith is alleged’: at para [17]
4.19 The Court went on to observe that section 18(b):
... does not grant [Mr Bartz] any entitlement and there could be no relevant expectation that he would be employed as a full-time student at the Lotus Glen Farm of the kind envisaged in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 (18 December 1985), see Flynn v. The King [1949] HCA 38; (1949) 79 CLR 1, per Latham CJ at 5-6 and Dixon J. at 7. It is not for the prisoner alone to decide what is best for him in terms of rehabilitation which binds the [Department]. The [Department] must undertake an assessment, both of the individual in general, his place at a particular institution and the general management of all prisoners and staff in the institution.
Permission to engage in full-time study and to be remunerated for it is a privilege. The privileges which pertain to prisoners do not impose correlative duties upon the manager of a prison, Grey v. Hamburger [19993] 1 Qd R 595.
It follows that ... the decision not to employ the applicant as a full-time student at the Lotus Glen Farm is a decision of a managerial kind which the courts will not review: at paras [18]-20]
4.20 Earlier, in Bartz v. Qld Corrective Services Commission [1999] QSC 237 (4 October 1999) the classification of a decision as ‘managerial’ was linked to whether there is a ‘right, interest or legitimate expectation’ affected. That was the application involving transfer of Mr Bartz from Townsville by reason of safety concerns for a staff member of the facility.
4.21 Transfer of prisoners in Queensland is covered by section 2 of the Corrective Services Act 1988 (Qld):
Transfer of prisoners
69. (2) Subject to the provisions of the Mental Health Act 1974, the commission may, by instrument and subject to such conditions as it thinks fit, order the transfer of a prisoner from 1 institution to another.
(3) An instrument made under subsection (2) shall be I the prescribed form and shall specify –
- (a) the person or class of person who will have control of the prisoner during the transfer;
- (b) the place to which and the purpose and period for which the prisoner is to be transferred;
- (c) any other conditions to which the transfer is subject.
4.22 In adverting to the principle of ‘legitimate expectation’, the Court cited Re Walker [1993] 2 Qd R 345:
The real question raised by the proceedings is whether or not the impugned decisions involved the exercise of a statutory power which deprived the applicant of a benefit or privilege which he had a legitimate expectation of obtaining or continuing to enjoy, without according him procedural fairness. (cf Kioa v. West [1985] HCA 81; (1985) 159 CLR 550; Haoucher v. Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648; and Annetts v. McCann [1990] HCA 57; (1990) 170 CLR 596): at 348-49, per Williams, J.
4.23 The Court observed that the decision in question was one ‘to effect an emergency transfer of a prisoner in order to maintain prison security and discipline’, with evidence available to justify its making: at [16]
4.24 Mr Bartz, said the Court, had no ‘right, interest or legitimate expectation ... affected by the decision’:[7]
He had no specific benefit clearly conferred by statute which was affected. He submitted that his progression through the security classification system (as to which see Corrective Services Regulations 1989, s. 13) had been delayed. In fact his classification was not elevated as a result of the transfer and there was really no evidence as to whether it had been delayed. But be that as it may, he had no legitimate expectation that it would not be altered. Insofar as he suggested that the transfer may in the future have an adverse effect on his entitlement to be considered eligible for parole, I respectfully adopt what Fryberg, J. said in Graveson v. Queensland Corrective Services Commission (unreported, 4 June 1998):
The transfer decision, like the decision to segregate prisoners referred to in McEvoy v. Lobban [2004] QCA 68; [1990] 2 Qd R 235 is much more of a managerial decision than a decision which has a relevance to a man’s freedom on parole.
In short, this was not a decision which would affect a right, interest or legitimate expectation and so not a decision to which the rules of natural justice were applicable ...: at [12]
4.25 Hence, on the authority of the Queensland Supreme Court decisions,[8] if the ‘managerial’ decisions-outside-judicial-review submission of the Respondents here is to be accepted, it should nonetheless be ‘caught’ were there a ‘bad faith’ contention. Furthermore, it is unlikely that public servants, including teachers, would see a parallel between their position vis-à-vis their employer, and those of persons serving prison terms vis-à-vis managers of the prison service or corrections, so that the transfer of a teacher from one school or posting to another is equivalent to, regarded in the same light, and governed by the same ‘managerial dictum’ as the transfer of a prisoner from one facility to another, particularly in the circumstances as existing in Bartz.
4.26 (c) Australia - High Court: The Australian High Court has not limited its approach to judicial review by introducing a ‘managerial’ or ‘operational’ dictum. Its decisions exemplify a firm commitment to the notion that the right to natural justice cannot be eliminated from public sector administration ‘affecting rights, interests and legitimate expectations’ unless unequivocally excluded by statute.
4.27 As Mason, J. said in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 (18 December 1985), the law in respect of administrative decisions:
... has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of statutory intention: at 584
4.28 There are limits:
4.29 However, once a person is ‘directly affected’ ‘individually and not simply as a member of the public or a class of the public’, then the principle (later restated by Mason, J.) applies to the decisions of public sector and executive government decision-makers:
It is not a question whether [the particular provision] manifests a positive intention that the Minister, in taking action under [it], will act in accordance with the principles of natural justice ... The question is whether the legislature has manifested an intention to negate the necessity in any circumstances for the Minister, in taking action ..., to observe the principles of natural justice. [With] statutory provisions it is always a matter of discovering the intention of the legislature. But that does not carry us very far: at 451
4.30 Passing to the ‘circumstances of the case’, Jacobs, J. noted that the legislature ‘... is assumed by the courts to be aware of the principles of natural justice which are a part of the common law’. How those principles are applied is dependent upon the circumstances of the case:
It is seldom possible to say in the case of the exercise of any particular statutory power ‘All the principles which have ever been applied in ensuring natural justice will here apply’ or on the other hand ‘Natural justice was intended to be wholly excluded’. The questions which must be asked are - in particular circumstances such as exist in this case did the legislature intend that the principles of natural justice should be wholly excluded? If not, what particular principles should be applied? I recognize that the search for legislative intention can be described as somewhat artificial. What the courts do in the absence of express legislative intention is to ensure that power, whether it be judicial or quasi-judicial or executive, be exercised fairly, weighing the interests of the individual and the interests of society as a whole: at 451
4.31 Again in 1990, the High Court of Australia affirmed the direction of administrative review: rather than contracting so as to deny judicial review, recognising both the individual’s right to procedural fairness in decision-making affecting directly her or him, and the responsibility of public sector decision-makers to embrace procedural fairness in the making of those decisions.
4.32 In Annetts v. McCann [1990] HCA 57, (1990) 170 CLR 596 (20 December 1990), Mason, CJ, Deane and McHugh JJ. said:
... the critical question in the present case is not whether ‘the rules of natural justice require an extension of the rights expressly conferred upon the (appellants) by the ... Act’ ... It is whether the terms of the ... Act ... display a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests ...
In determining whether this Act has excluded the rules of natural justice, two considerations need to be kept in mind. The first is that many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine’s protection. Thus, it was not until 1969 that the common law rules of natural justice were extended to the protection of legitimate expectations: see Haoucher ...[9] It was even later that the common law rules of natural justice were held to apply to public inquiries whose findings of their own force could not affect a person’s legal rights or obligations ...: at paras [3], [5] (Emphasis added)
4.33 In Haoucher v. Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 (7 June 1990), Deane, J. said:
Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to ‘the particular statutory framework’ (see Mobil Oil Australia Pty Ltd v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at 504) it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just: at para [2]
4.34 Recognising ‘an obligation to observe procedural fairness’ does not mean that ‘a body of rigid procedural rules ... must be observed regardless of circumstances’. The precise content of the obligation ‘varies to reflect the common law’s perception of what is necessary for procedural fairness in the circumstances of the particular case’. Sometimes, this will require ‘nothing less than a full and unbiased hearing of each affected individual’s case’. In other circumstances, ‘something less may suffice’: at para [2]
4.35 This means that procedural fairness will not always require ‘each person affected be accorded an effective opportunity of being personally heard before a decision is made’. However, it does require that the decision-maker ‘be, and appear to be, personally unbiased’:
Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf Halsbury’s Laws of England, 4th ed (1989), vol 1(1), para 85) and where the question whether the particular decision affects the rights, interests, status of legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances: at para [2] (Emphasis added)
4.36 (d) United Kingdom - General: Similarly to Australia, the United Kingdom has increasingly recognised the right of persons individually affected by executive government or public body decision-making to access judicial review. Rather than a restriction on judicial review, the approach has been to expand access to it. A brief review of authorities confirms this, cases ranging from those relating to persons under deportation orders, prisoners claiming remission rights, and unions claiming rights of consultation as to alterations in terms and conditions of employment of staff.
4.37 In Attorney-General of Hong Kong and Ng Yuen Shui [1983] UKPC 2; [1983] 2 WLR 735 (Privy Council, Appeal from the Court of Appeal of Hong Kong, 21 February 1983), the English Privy Council the question was whether, at common law, an alien was entitled to ‘a fair inquiry’ before a removal order was made against him, where he had illegally entered and remained in Hong Kong. An official had stated publicly that each case would be ‘treated on its merits’. The Privy Council addressed the proposition that a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if s/he has a ‘legitimate expectation’ of being accorded such a hearing:
The phrase ‘legitimate expectation’ in this context originated in the judgment of Lord Denning MR in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149, at 170. It is in many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396, at 404, Barwick CJ construed the word ‘legitimate’ in that phrase as expressing the concept of ‘entitlement or recognition by law’. So understood, the expression (as Barwick CJ rightly observed) ‘adds little, if anything, to the concept of a right’. With great respect to Barwick CJ their Lordships consider that the word ‘legitimate’ in that expression falls to be read as meaning ‘reasonable’. Accordingly ‘legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see Reg. v. Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864. So it was held in Reg. v. Board of Visitors of Hull Prison; Ex parte St Germain (No. 2) [1979] 1 WLR 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it .. : at 739
4.38 Thus, United Kingdom law affirms ‘reasonable expectations’ and ‘legitimate expectations’ as extending to prisoners for decisions made within the prison system directly affecting them, where there is no private law right to be pursued, and attracting judicial review. Ex parte St Germain (No. 2) was approved in O’Reilly v. Mackman [1983] UKHL 1; [1982] 3 WLR 1096:
It is not, and it could not be, contended that the decision of the board awarding [Mr St Germain] forfeiture of remission had infringed or threatened to infringe any right [he] derived from private law, whether a common law right or one created by a statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by rule 5(2) of the Prison Rules, of one-third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy in private law.
In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted without the powers conferred upon it by the legislation under which it was acting; and such grounds would include the board’s failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it: at 110-1101, per Lord Diplock
4.39 In Ng Yuen Shui’s case, the English Privy Council said further that expectations could be based ‘upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied ... an inquiry’. The conditional order of prohibition which had been issued by the Court of Appeal was replaced by ‘the appropriate remedy’, an order of Certiorari to quash the removal order made against Mr Ng. The holding of a fair inquiry was required, with Mr Ng being given an opportunity to ‘make such representations as he may see fit as to why he would not be removed’.
4.40 In Council of Civil Service Unions and Ors v. Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935; [1985] AC 374 the dispute involved works at the Government Communications Headquarters (GCHQ) a branch of the public service under the Foreign and Commonwealth Office, of which, said the English House of Lords:
... the main functions ... are to ensure the security of the United Kingdom military and official communications, and to provide signals intelligence of the government. These functions are of great importance and they involve handling secret information ... vital to national security. The main establishment of GCHQ is at Cheltenham, where over 4,000 people are employed [with] a number of smaller out-stations, one ... at Bude in Cornwall: at 939
4.41 The English House of Lords observed that since 1947, when GCHQ was established in the form now existing:
... all staff employed there have been permitted, and indeed encouraged, to belong to national trade unions, and most of them did so. Six unions were represented at GCHQ ... [T]here was a well-established practice of consultation between the official side and the trade union side about all important alterations in the terms and conditions of employment of the staff.
On 25 January 1984 all that was abruptly changed. The Secretary of State for Foreign and Commonwealth Affairs announced in the House of Commons that the government had decided to introduce with immediate effect new conditions of service for staff at GCHQ, the effect of which was that they would no longer be permitted to belong to national trade unions but would be permitted to belong only to a departmental staff association approved by the director. The announcement came as a complete surprise to the trade unions and to the employees at GCHQ ...: at 939
4.42 There having been no consultation with the unions, the principal question raised in the appeal was whether the instruction by which the decision received effect was valid and effective or was invalid because there was a procedural obligation on the Minister for the Civil Service to ‘act fairly by consulting the persons concerned before exercising her power under ... the [relevant] Order in Council, and she failed to do so’:
Underlying that question, and logically preceding it, is the question whether the courts, and your Lordships’ House in its judicial capacity, have power to review the instruction on the ground of a procedural irregularity ... : at 939
4.43 The English House of Lords observed that the courts had already shown themselves ready to control by way of judicial review actions of tribunals set up under the prerogative. This was unremarkable: R. v. Criminal Injuries Compensation Board; Ex parte Lain There was therefore, they said, ‘no reason for treating the exercise of power’ differently if exercised under the royal prerogative or under statute. The question was whether there was a duty to consult.
4.44 There was no legal right to prior consultation. However:
.... Even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter or public law ... Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice ... the claimant can reasonably expect to continue ... Legitimate expectations such as are now under consideration will always related to a benefit or privilege to which the claimant has no right in private law, and it may even be to one which conflicts with his private law rights ... : at 940
4.45 Lord Diplock spelled the scope of judicial review in this way:
Judicial review .. provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ‘decision-maker’ or else a refusal by him to make a decision.
To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (b) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for including in class (b) a ‘legitimate expectation’ rather than a ‘reasonable expectation’, in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a ‘reasonable’ man, would not necessarily have such consequences ... ‘Reasonable’ furthermore bears different meanings according to whether the context in which it is being used is that or private law or of public law. To eliminate confusion it is best avoided in the latter.): at 945
4.46 Further, he said, for a decision to be susceptible to judicial review the decision-maker ‘must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph’: at 945
4.47 Lord Diplock further observed that the ‘ultimate source of the decision-making power’ today nearly always lies in a statute or subordinate legislation made under the statute. Nonetheless, where there is no statute regulating the subject matter of the decision ‘the source of the decision-making power may still be the common law itself, ie that part of the common law that is given by lawyers the label of “the prerogative”’. This too is susceptible to judicial review: at 950
4.48 In the upshot the unions lost their appeal: but this was on the basis of national security which, the English House of Lords said, was a matter better determined by executive government, it having all the requisite information, than by the courts. Again, however, there was no notion of ‘managerial’ or ‘operational’ decision-making to be distinguish from ‘administrative’ decision-making so as to take it outside judicial review. Rather, there was again the recognition of the development and expansion of judicial review, not its contraction. Lord Diplock went so far as to suggest a further ground upon which judicial review could be brought, namely ‘proportionality’ – to be added to ‘illegality’, ‘irrationality’ and ‘procedural impropriety’: at 950
4.49 In R. v. Secretary of State for the Home Department; Ex parte Doody [1993] UKHL 8; [1994] 1 AC 531, Mustill, LJ set out six principles distilled from the authorities, providing guidance on when procedural fairness was indicated, a guide for judicial review jurisdiction:
4.50 The United Kingdom authorities echo the Australian authorities in recognising that attempts to make ‘blanket’ determinations as to what will and what will not be amenable to judicial review is impossible. In R. v. Derbyshire County Council; Ex parte Noble [1990] ICR 808, Woolf, LJ said:
Unfortunately in my view there is no universal test which will be applicable to all circumstances which will indicate clearly and beyond peradventure as to when judicial review is or is not available. It is a situation where the courts have, over the years, by decision in individual cases, indicates the approximate divide between those cases which are appropriate to be dealt with by judicial review and those cases which are suitable dealt with in ordinary civil proceedings: at 814E
4.51 What is clear, however, is the broad scope of the jurisdiction and the reluctance of the courts to truncate it. Hence, in R. v. Panel on Take-overs and Mergers; Ex parte Datafin PLC [1986] EWCA Civ 8; [1987] QB 815, Sir John Donaldson, MR concluded:
In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction: at 838E
5. ‘Management or Operational’ – Cases Relied Upon
For the proposition that ‘operational’ and/or ‘management’ decisions are outside judicial review, the Respondents rely upon a number of decisions here and, effectively, from the United Kingdom.
5.1 (a) United Kingdom – Cases Relied Upon: United Kingdom cases are limited in the support they might provide to the Respondents’ reliance upon a ‘managerial’ or ‘operational’ distinction. Rather, those authorities oust judicial review because of the following factors or a combination of them:
5.2 In the case where ‘operational’ is referred to, it is entirely distinguishable from the present.
5.3 In Regina v. East Berkshire Health Authority; Ex parte Walsh [1984] EWCA Civ 6; [1985] QB 152; (1984) 3 All ER 425, the English Court of Appeal held the claim to be properly a matter of private, not public, law. The case effectively hung upon:
5.4 Even then, there were circumstances contemplated which could, had they been present, have precipitated judicial review coverage.
5.5 Mr Walsh was dismissed on disciplinary grounds. He had two actions on foot: one before the relevant industrial tribunal (on the basis of unfair dismissal, and seeking compensation) and the judicial review application (asserting that his employment subsisted because the purported dismissal was invalid). Sir John Donaldson, MR said:
I have ... to consider whether and to what extent Mr Walsh’s complaints involve an element of public law sufficient to attract public law remedies, whether in the form of certiorari or a declaration. That he had the benefit of the general employment legislation is clear, but it was not contended that this was sufficient to attract administrative law remedies. What is relied on are statutory restrictions on the freedom of the authority to employ senior and other nursing officers on what terms it thought fit. This restriction is contained in the National Health Service (Remuneration and Conditions of Service) Regulations 1976 ... which provides:
... where conditions of service other than conditions with respect of remuneration, of any class of officers have been the subject of negotiations by a negotiating body and have been approved by the Secretary of State after considering the result of those negotiations, the conditions of service of any officers belonging to that class shall include the conditions so approved.
5.6 Senior nursing officers’ conditions of service had been negotiated by the Whitley Council for the Health Service (Great Britain). The resultant agreement was approved by the Secretary of State. It therefore followed, said Donaldson MR, that if Mr Walsh’s conditions of service had been different from the approved conditions, an administrative law remedy through judicial review would have been open to him, enabling him to require the authority to amend the terms of service in his contract of employment. This, however was not the position.
5.7 Mr Walsh’s complaint was that under those conditions of service there was no right to dismiss him and he was thereby entitled to ‘natural justice’. However, he had private law rights and it was these that ousted an administrative law remedy:
The ordinary employer is free to act in breach of his contacts of employment and if he does so his employee will acquire certain private law rights and remedies in damages for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement or re-engagement and so on. Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee ‘public law’ rights and at least making him a potential candidate for administrative law remedies. Alternatively, it can require the authority to contract with its employees on specified terms with a view to the employee acquiring ‘private law’ right under the terms of the contract of emplacement. If the authority fails or refuses thus to create ‘private law’; rights for the employee, the employee will have ‘public law’ rights to compel compliance, the remedy being mandamus requiring the authority so to contract or a declaration that the employee has those rights. If, however, the authority gives the employee the required contractual protection, a breach of that contract is not a matter of public law’ and gives rise to no administrative law remedies: at 160
5.8 May, LJ, agreed with Donaldson, MR, saying that both ‘in the light of the limited relief claimed’ (a declaration) by Mr Walsh, and because there was no element of ‘public’ or ‘administrative’ law, judicial review was not appropriate: ‘... there is in my opinion nothing in this case which takes it out of the ‘ordinary’ ... employer/employee unfair dismissal dispute, one which could and should long ago have been relatively cheaply determined by an experienced industrial tribunal’.
5.9 In R (on the application of Tucker) v. Director General of the National Crime Squad [2003] ICR 599; [2003] EWCA Civ 57, CA; (English Court of Appeal, Civil Division, 17 January 2003) the English Court of Appeal said:
It seems to me that this was an entirely operational decision similar to the kinds of decision that are made with officers up and down the country every day of the week. Examples are transferring officers form uniform to CID or from traffic to other duties. These, to my mind, are run of the mill management decisions involving deployment of staff or running the force. They are decisions that relate to the individual officer personally and have no public element. They are, if you like, the nuts and bolts of operating a police force, bit it the NCS or any other. It is, in my judgment, quite inappropriate for the courts to exercise any supervisory jurisdiction over police operational decisions of this kind. There is, quite simply, no public law element to them ...: at para [32], per Scott Baker, LJ
5.10 Further perusal of the judgment makes it clear, however, that the restriction is not consistent with the notion that a vast range of decisions is being placed outside the purview of judicial review. Rather, the judgment runs parallel with the decision in Council of Civil Service Unions and Ors v. Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935; [1985] AC 374 where ‘national security’ was the key, and R. v. Secretary of State for the Home Department; Ex parte Hosenball [1977] 1 WLR 766; [1977] 3 All ER 452 which is cited. There, a United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. Decisions in the public sector cannot be lumped together so that what follows for emergency services such as police, along with military establishments and prisons applies without consideration of the nature of the operation in question, the particular decision and the circumstances under which and in relation to which it is made.
5.11 First, Tucker’s case must be judged on its facts: this is a principle shining out of the whole of the authority on judicial review from the United Kingdom and Australia. Secondly, the circumstances of the particular case are crucial. It is to the facts and the circumstances one must turn in order to make any conclusion as to any implications that can be drawn from the above-extracted passage, and what effect or impact it ought to have, if any, on judicial review as a whole.
5.12 Mr Tucker was a Detective Inspector in the Derbyshire Constabulary. Having joined in 1978, in 1996 he was seconded for five years to the Regional Crime Squad (later the National Crime Squad (‘NCS’)). Secondment required both the seconded officer’s consent and approval of that officer’s chief officer. In January 2001 Mr Tucker’s secondment was extended to May 2002. On 28 April 2001 his secondment was terminated. He was summarily returned to his local force. In the first instance, it was held that the decision was amenable to judicial review but his application failed because the Director General of the NCS ‘had acted fairly notwithstanding the absence of reasons for the decision and lack of opportunity for [Mr Tucker] to make representations’: at para [1]
5.13 On appeal:
5.14 ‘A creature of statute’, the NCS purpose is ‘the prevention and detection of serious crime ... of relevance to more than one police area in England and Wales’. Under the Police Act 1997 (UK) officers are appointed ‘on such terms and conditions as the NCS Service Authority considers appropriate’. Throughout any secondment, disciplinary procures relating to the seconded officer, if any, remain the responsibility of the officer’s home force whether or not they relate to conduct as an NCS officer.
5.15 In April 2001 an NCS covert operation ‘Operation Lancelot’ into drug related crime resulted in arrests of then people, some being officers seconded to the NCS. Two officers had their secondments terminated with immediate effect, being returned to their home force for disciplinary investigation. Mr Tucker’s secondment was summarily terminated, he was returned to his home force, however, there were no disciplinary implications. He was told that the Deputy Director General of the NCS had, as a result of information, ‘lost confidence in his management performance and he was being returned to the Derbyshire Constabulary forthwith’. A notice provided to him reiterated this, but said the lack of confidence was not related to the criminal investigation but to ‘managerial issues in connection with your duties and conduct whilst a serving member' of the NCS: at para [7] He was confined to clerical duties: at para [11]
5.16 Mr Tucker later had it explained to him that the decision had been taken, with the prior concurrence of the Director General and on the recommendation of the Management Board, by the Deputy Director General. Having asked for further information, Mr Tucker was told none could be given beyond that appearing in the notice already provided. A press release ‘which might have been more felicitously worded’ was issued by the NCS: at para [8]
5.17 Aggrieved by ‘the insensitive manner in which his secondment was terminated and the resulting association in the eyes of colleagues and others with serious allegations against other officers’, and unable to respond to the Deputy Director’s concern ‘without being told the basis of them’ Mr Tucker eventually made application for judicial review. This was preceded by ‘several weeks of correspondence and meetings’ and a response to his solicitor’s letter that the Director General had again reviewed evidence upon which the decision had been made and was satisfied the decision was right. The response accepted secondment to the NCS ‘was a high status position’ and it was ‘possible his return to [his home] force might have an impact on his career advancement’. It also said:
Legal constraints, after receipt of clear legal advice, prevent the Director General from disclosing the source of information which led to the Director General’s lack of confidence in the integrity of the claimant as an NCS seconded officer ...
The source of the information that the Director General and others were acting upon, as already stated, cannot be disclosed. The Director General is however under a general duty to uphold the integrity of the NCS, its officers and the particular operations that they may be involved in: at para [9]
5.18 Further matters such as public interest immunity, operational and confidential integrity of NCS and its operations in both specific and general terms, urgency of the situation, paramount considerations being integrity and security of the NCS, its officers and Operation Lancelot were included.
5.19 A further review in December 2001 resulted in advice to Mr Tucker from the Deputy Chief Constable of the Derbyshire Constabulary:
I was advised that your development needs should encapsulate the skill areas of informant handling and decision making, bearing in mind the difficulties surrounding the source of the intelligence. I took the view that it was not appropriate at this stage to take action on your development needs until the results of the judicial review are known. For any development to have value it will inevitably encroach into the subject of the judicial review with its attendant difficulties: at para 10]
5.20 The English Court of Appeal accepted that if the decision were not amenable to judicial review, that ended the matter: Mr Tucker had no alternative remedy. Scott Baker, LJ said:
The boundary between public law and private law is not capable of precise definition, and whether a decision has a sufficient public law element to justify the intervention of the Administrative Court by judicial review is often as much a matter of feel, as deciding whether any particular criteria are met. There are some cases that fall at or near the boundary where the court rather than saying the claim is not amenable to judicial review has expressed a reluctance to intervene in the absence of every exceptional circumstances: ... R. v. British Broadcasting Corporation; Ex parte Lavell [1983] 1 All ER 24
5.21 He asked: ‘What are the crucial factors in the present case?’ He then turned to Leech v. Deputy Governor of Parkhurst Prison [1988] UKHL 16; [1988] AC 533 where it was said that the susceptibility of a decision ‘to the supervision of the courts must depend, in the ultimate analysis, upon the nature and consequences of the decision and not upon the personality or individual circumstances of the person called on to make the decision’. This, said Scott Baker, LJ, was ‘a particularly important matter to keep in mind’ in Mr Tucker’s case.
5.22 Looking at the determination in the court below, Scott Baker, LJ said the conclusion that the decision in question was susceptible to judicial review appeared to be based on grounds that:
5.23 Accepting there was no dispute that the NCS was a public body and Mr Tucker had no private law remedy, he said that these ‘as a starting point might suggest that the court does have jurisdiction to intervene’. However, it was necessary ‘to look further and focus on what the Deputy Director General ‘Was doing’ when he made the impugned decision.
5.24 Scott Baker, LJ distinguished Mr Tucker’s case from R. East Berkshire Health Authority; Ex parte Walsh [1984] EWCA Civ 6; [1985] 1 QB 152 where, as noted, the refusal of judicial review was explicitly upon the basis that Mr Walsh had a private law remedy through the industrial arena. Mr Tucker’s case, he said, was ‘not about dismissal’. The decision did not affect his status as a Detective Inspector. Three factors were relevant:
5.25 The third criterion he considered as not met, for in sending Mr Tucker back to his home force the Deputy Director General was not performing a public duty owed to Mr Tucker. This was based upon the proposition that the decision taken in relation to Mr Tucker was ‘specific to him’.[10]
5.26 At this point Scott Baker, LJ characterises the decision as ‘operational’ and taken ‘because it was decided ... [Mr Tucker] fell short of the particular requirements ... necessary to work in NCS’ and ‘had nothing to do with his private life ...:’: at para [25] He turned then to three features which, taken together, he concluded ‘put it out with the public law jurisdiction’:
5.27 As to the ‘nature of the relationship’, he then said:
A police officer is in a different position from other employees. On becoming an officer he forfeits certain advantages, for example the right to strike or bring proceedings for unfair dismissal. He is subject to the discipline of his force and has by and large to go where and do what he is told. On the other hand he gains certain advantages for example the right to remain in service, health permitting, and to ill health and injury pensions. Dismissal or other disciplinary punishment is governed by statutory procedures that are amenable to judicial review in the event of any breach of public law principles, such as fairness.
When a police officer is seconded to the NCS he remains an officer. No new office is created; he retains his existing rights and obligations. His secondment is temporary and he automatically ceases to be a member of NCS at the end of his period of temporary service ... [D]isciplinary procedures are a matter for his home force. He is in a sense on loan to the NCS: at paras [27]-[28]
5.28 As to the ‘conditions of service’, Scott Baker, LJ observed that there was ‘nothing compulsory’ about Mr Tucker’s secondment. He had applied for it and was accepted:
Crucially, it was an express condition that exceptionally, the Director General could terminate his secondment without notice ... That apart, the secondment was terminable on one month’s notice either way. On any view the Director General was entitled to terminate the secondment on one month’s notice for good reason, bad reason or no reason at all. Thus, putting it at its highest [Mr Tucker’s] complaint can only relate to the summary nature of the termination: at para [29]
5.29 The NCS, he said, ‘was in any event, exercising a power to which [Mr Tucker] had signed up. Also, the decision involved no change in [Mr Tucker]’s status as a police officer, no financial loss to him and no disciplinary allegation against him’:
Neither party on the termination of a secondment on a month’s notice or summarily by the [NCSA] is required by the conditions to give reasons. This seems to be to be entirely understandable in the light of the nature of the work undertaken by the NCS: at para [31]
5.30 As to the ‘nature of the decision’, it was at this point that Scott Baker, LJ made the statement as to ‘nuts and bolts’ and ‘operational decision’ quoted earlier. It is as well at this point to return to that statement, for it can now be seen in context, as it must be seen:
It seems to me that this was an entirely operational decision similar to the kinds of decision that are made with officers up and down the country every day of the week. Examples are transferring officers from uniform to CID or from traffic to other duties. These, to my mind, are run of the mill management decisions involving deployment of staff or running the force. They are decisions that relate to the individual officer personally and have no public element. They are, if you like, the nuts and bolts of operating a police force, bit it the NCS or any other. It is, in my judgment, quite inappropriate for the courts to exercise any supervisory jurisdiction over police operational decisions of this kind. There is, quite simply, no public law element to them ...: at para [32], per Scott Baker, LJ
5.31 This case does not, as I have said, assist the Respondents. Just as the Fiji Public Service and Ministry of Education are not to be equated with the Queensland Correctional Service in making decisions about transfer of inmates in circumstances requiring the utmost security and duty of care to their employees, nor are the Fiji Public Service and the Ministry of Education to be equated with the NCS – a police service involved in serious crime and undercover operations. Ms Nair was not on secondment in these circumstances, or any circumstances at all. Ms Nair had not ‘signed up’ for secondment. Nor had she ‘signed up’ for termination on a month’s notice or summary dismissal. She had not ‘signed up’ for a situation where no reasons had to be given for a return to a position from which she had been seconded.
5.32 The decision in Tucker’s case cannot be employed to deny Ms Nair judicial review. It is particular to its own facts. It is peculiar to its own circumstances. It simply affirms police officers and particularly those on secondment and working in high risk security positions, including undercover operations, as in a category special to those working conditions and contractual arrangements.
5.33 Nor can Tucker’s case be employed to quarantine a realm of ‘operational’ or ‘management’ decisions from judicial review. Scott Baker, LJ was both clear and explicit as to the method by which the decision to transfer Mr Tucker from the NCS back to the Derbyshire Constabulary should be denied judicial review.
5.34 The characterisation of Mr Tucker’s transfer as ‘operational’ was not the basis upon which the English Court of Appeal determined that the decision was not amenable to judicial review.
5.35 There were three criteria upon which Scott Baker, LJ relied and by reference to which the English Court of Appeal decision was couched. It was not by reference alone to an ‘operational’ or ‘management’ criterion that Mr Tucker was denied judicial review. Rather, it was by reference to:
5.36 Each of these featured centrally in the decision to deny judicial review. One of them alone is not, in my opinion, sufficient. None of them, in any event applies to the circumstances and facts of the decision presently in question.
5.37 (b) Fiji – Cases for Consideration: In addition to the cases referred to by the Respondents, I have had regard also to State v. Public Service Commission; Ex parte Oveti Laladidi [1995] FJHC 127; Hbj0017j.1992s (19 July 1995); State v. Decision of Public Service Commission & Attorney General; Ex parte Alefina Vuki (Civil Action No. HBJ 0046 of 1999, 9 July 2000); Sevita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No. 1) (Judicial Review HBJ No. 02 of 2008, 11 February 2008); Rejendra Prasad v. Divisional Engineer Northern and Ministry for Transport, Works and Energy (Judicial Review No. HBJ03 of 2007, 17 July 2008); Bijay v. Permanent Secretary for Education, Women & Culture [1997] FJHC 134; Hbj0005j.1997s (12 September 1997).
5.38 (i) General Principles
As a general matter, it is useful to refer first to Bijay v. Permanent Secretary, for there the Court set out, referring with approval to a number of authorities, including Chief Constable of the North Wales Police v. Evans [1982] UKHL 10; (1982) 1 WLR 1155; Annetts v. McCann (1990) 170 CLR 596: Birss v. Secretary for Justice [1984] NZCA 24; (1984) 1 NZLR 513; Pearlberg v. Varty (1972) 1 WLR 534; and Bourke v. State Services Commission (1975) 1 NZLR 633, the principles founding judicial review in this country. Each of these cases recognises the scope of judicial review and the progressive nature of the law and its development in this jurisdiction over time.
5.39 In Bijay v. Permanent Secretary, His Lordship adverted to the words of Lord Hailsham in Pearlberg v. Varty (1972) 1 WLR 534:
The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generally, and your Lordships’ House in particular, have, I think rightly, advanced the frontiers considerably ...
5.40 His Lordship in Bijay v. Permanent Secretary observed it to be:
... pertinent to bear in mind by all those who have cast upon them the duty to make decisions the following words of Lord Hailsham in Chief Constable of the North Wales Police v. Evans [1982] UKHL 10; (1982) 1 WLR 1155 ... on the purpose of the remedy by way of judicial review under Order 53:
This remedy, vastly increased in extent, and rendered, over along period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial and, as would originally have been thought when I first practiced at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner: at 1160 (Emphasis in Bija v. Permanent Secretary, at 5)
5.41 Against this backdrop, I turn to consider the cases relied upon.
5.42 (ii) Ministry/Public Service Commission Transfer Cases
In State v. Permanent Secretary for Education and Attorney General of Fiji; Ex parte Mohini Devi (Judicial Review Action No. HBJ 07 of 2008, 19 February 2008) the Court considered two requirements must be satisfied for the grant of leave for judicial review:
5.43 Leave was refused where the Applicant was transferred from one school to another in circumstances were it was alleged that she was in an ‘untoward liaison with the principal’ (a ‘rumour’ upon which the transfer was based, and which she denied): at 1, 3
5.44 There were two bases for the refusal. First, it was held that the transfer was an operational/managerial internal matter and hence unreviewable, by reference to State v. Fiji Islands Revenue & Customs Authority; Ex parte Barbara Malimali (HVBJ 2 of 2003); State v. Public Service Commission; Ex parte Damodaran Nair ((HBJ 14 of 2003L); and Usmal Nisha Dean v. Chief Executive Officer for Ministry of Education and Attorney General of Fiji (HBJ 4 of 2004, 14 May 2004). Secondly, there was a more suitable alternative remedy:
The crux of the matter according to the applicant is that she was not guilty of any untoward liaison with the principal. That type of fact finding exercise is more suitable for hearing before the Public Service Appeals Board rather than having it dealt with by judicial review which deals more with process of fair hearing. The applicant therefore should exhaust her alternative remedies: at 3
5.45 The Applicant not having gone to the alternative school in accordance with her first transfer, she was transferred to another school, and once more sought judicial review: Mohini Devi v. Permanent Secretary for Education and Attorney General of the Republic of the Fiji Islands (Judicial Review No. HBJ 18D of 2008S, 20 June 2008)
5.46 She was again refused leave. The conclusion was that the decisions to transfer to both schools ‘were in the Court’s view, not coloured by the allegations. They were made independent of them’: at 3 The Court said that an opportunity to be heard could be expected only:
... if the decision to transfer directly resulted from the Respondent’s finding against her of the allegations. There being no such finding, there can be no expectation’: at 3
5.47 In any event, she had been given an opportunity to be heard on the transfer itself through the ‘Notification to Transfer’ letter, the procedure being in accordance with the requirements of the Public Service Commission Regulations:
The Applicant is given 28 days to respond but the final decision remains with the Respondent. In the circumstances of a managerial decision – transfer, which the Court concludes is the case in this instance, the Respondent need not explain the reason for its decision: at 3-4
5.48 In refusing leave, the Court relied upon the ‘general proposition of law on judicial review that operational or management
decisions of public or statutory bodies are not susceptible to the court’s intervention by way of judicial review’: at
3
5.49 The Applicant also said that albeit not having exhausted alternative remedies the Court in its discretion could allow judicial
review to proceed ‘as it is more advantageous to the Applicant allowing immediate restraint on the Respondent, while the substantive
matter is argued’. The Court said:
While the Court would have given serious consideration to the argument, it is of secondary importance for the purpose of this application, given the finding that there is no arguable case to go forward.
In the final [analysis], the court finds that the decision to transfer the Applicant ... falls under the category of managerial or operational decision of the Ministry and is not susceptible to judicial review: at 4
5.50 The difficulty faced by this Court in respect of these decisions is that there are two earlier decisions I must take into account. In State v. Decision of the Public Service Commission & Attorney-General; Ex parte Alefina Vuki (Civil Action No. HBJ 0046 of 1999, 6 July 2000) the Public Service Commission ‘purported to transfer the Applicant from the Ministry of Foreign Affairs and Trade to the Public Service Commission’:
The representations made by the Applicant to the Chairman Public Service Commission [under Regulation 13 of the Public Service Regulations] ... are made in the belief that the real reason for the transfer was that the Applicant was conducting an illicit relationship with her former Permanent Secretary. She denied these allegations, and said that she was entitled to be heard before a transfer was effected on this erroneous basis.
...
For the purpose of the application, it is clear ... that the Applicant thought and still thinks that the real reason for her transfer was an unsubstantiated and false rumour that she was involved in a sexual relationship with the Permanent Secretary: at 3, 4
5.51 The Court held that the Applicant had sufficient standing, then looked at the substance of the application. The Court said that the ‘real reason’ for the transfer needed to be taken into account. The Applicant believed it was the allegation of an intimate relationship with a work superior. Counsel for the Respondent conceded that an illicit relationship ‘per se is not a ground for discipline’ and in making that concession suggested that the alleged affair ‘was irrelevant to the transfer’: at 6
5.52 The Court then listed a number of matters in the Affidavit material which raised questions providing the Applicant with an arguable case, and granted leave.
5.53 In State v. Public Service Commission; Ex parte Laladidi [1995] FJHC 127; Hbj0017j.1992s (19 July 1995), to which the Court in Ex parte Alefina Vuki referred, judicial review was granted where an Assistant Commissioner of Prisons was downgraded, transferred, and issued a final warning. Allegations of an illicit relationship with a prisoner and ‘association with a female subordinate officer to the extent that it has become a talking point to the subordinate officers’ appeared to be at the heart of these three measures. The Applicant denied extra marital affairs saying that even if it were true, ‘any such alleged affair occurred after official hours and cannot constitute improper conduct’: at 5 Eventually a disciplinary charge was laid against the Applicant as to an alleged extramarital affair and engagement ‘in immoral conduct’ thereby. The Court said that rarely if ever would immoral conduct as alleged constitute improper conduct within the meaning of the Public Service Regulations, and it would be ‘a bad day for the law and our society’ if employers, public or private, were alleged ‘to be the judge or arbitrator of morals of ... employees’: at 6
5.54 Judicial review was granted, mandamus was issued for the Applicant’s reinstatement to his substantive former post of Assistant Commissioner of Prisons; his downgrading, transfer and loss of salary were declared unlawful, null and void, and he was awarded costs: at 7
5.55 These cases appear to be on all fours with the two earlier cited cases, albeit with different outcomes. In the latter case, the evidence of ‘illicit relationship’ taken into account in the transfer, etc decision was substantial, whilst it was less in the other three cases – even to the extent that in one the Court dismissed it. However, the Applicant in each case put a basis for irrelevant considerations influencing the transfer decision.
5.56 I therefore put these cases to one side and say no more. Judicial comity – relied upon by the Court in Dean v. Ministry of Education [2004] FJHC 418; HBJ0004.2004L (14 May 2004), at 4, in following State v. Fiji Islands Revenue & Customs Authority and Silipa Tagicaki Kubuabolan; Ex parte Barbara Malimali [2003] FJHC 100 (9 April 2003)(HVBJ 2 of 2003)[11] does not assist here.
5.57 Dean v. Ministry of Education was another transfer case. There, Ms Dean was transferred after having undergone two major operations leading to a deterioration in her health, causing her absence from school in excess of her leave limit. The medical board, to which she was referred by the Ministry, recommended that amongst other mattes she was fit to continue as a teacher and she be transferred to another school with, effectively, medical supervision. Her existing terms and conditions were maintained, but her position was Assistant Teacher ED8A. Previously she had been Assistant Head Teacher ED5B.
5.58 Referring to FIRCA; Ex parte Malimali – by reference to judicial comity the Court refused leave for judicial review. Nonetheless the case raises disability discrimination within the meaning of section 38 of the Constitution, albeit this was not considered. Section 38 says:
(1) Every person has the right to equality before the law.
(2) A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her:
(a) actual or supposed personal characteristics or circumstances, including ... disability; ...
accordingly, neither a law nor an administrative action taken under a law may directly or indirectly impose a disability or restriction on any person on a prohibited ground.
5.59 Ms Dean may have been able to contend that the decision to transfer her was based in her disability. The question then would have been whether in the same or similar circumstances a teacher without the disability would have been transferred and, albeit retaining salary level and conditions, be demoted in status. The subsidiary question would be whether measures were needed to be taken to maintain her in her existing position and, if so, whether those measures cast an unreasonable burden upon the Ministry.
5.60 This would elevate the application into the realm of the public, for there is a substantial public interest – generally, and as exemplified by section 38 of the Constitution – in ensuring that disability discrimination does not occur and, where it does, redress is available for those whom it disadvantages. The question then would be whether irrelevant considerations had been taken into account in the transfer decision, and whether procedural fairness had been extended to Ms Dean.
5.61 The decision was that judicial review did not lie. Should such a case arise in the future, the decision may be otherwise. Alternatively, an application may be denied leave on the basis of an alternative remedy through employment law. In any event, I am not persuaded that Dean stands for the proposition that there is an all-encompassing realm of ‘managerial’ and ‘operational’ decisions outside the purview of judicial review and into which transfer decisions within the public sector fall. The authorities, by referring to the need to focus on facts and circumstances of the particular case, show otherwise.
5.62 Similarly with State v. Fiji Islands Revenue and Customs Authority; Ex parte Krishna [2004] FJHC 407; HBJ0014.2003L (19 April 2004). There, Collective Agreements with the two major unions representing employees of FIRCA governed the applicant’s employment. The Court referred to the operational and/or managerial notion, relying upon FIRCA; Ex parte Malimali. Again, however, that dealt with a most specific fact situation.
5.63 The Court in FIRCA; Ex parte Krishna said amongst other matters:
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 in FIRCA; Ex parte Malimali with which I agree, is not amenable to judicial review: at 4
5.64 This squares with the Australian authorities in that they, too, recognise ‘administrative’ decisions will almost always – and very possibly always – be managerial (and even ‘operational’). Even for the Queensland Supreme Court, where some (albeit very few) prison administration decisions were classified as outside judicial review, those were not wholly beyond its purview – if bad faith were alleged.
5.65 Hence, the question is not answered by application of these terms, but by reference to the facts and circumstances. Administrative decisions which without question are amenable to judicial review will ‘relate clearly to the operation’ of the public body or executive government. In these cases the Court was not, in my opinion, intending to make a blanket exclusion of all decisions ‘relating clearly to the operation of’ public bodies and/or executive government from judicial review.
5.66 (iii) ‘Managerial’ and ‘Operational’ Decisions
Reliance for the ‘managerial’ and ‘operational’ dictum rests upon State v. Fiji Islands Revenue & Customs Authority and Silipa Tagicaki Kubuabolan; Ex parte Barbara Malimali [2003] FJHC 100 (9 April 2003). Just as each case must be looked at on its facts and circumstances, so too FIRCA; Ex parte Malimali.
5.67 In Sevita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No. 1) (Judicial Review HBJ No. 02 of 2008, 11 February 2008) I analysed FIRCA; Ex parte Malimali, looking explicitly at its facts and circumstances which cannot be equated with those of the present case: at paras [4.3]-[4.23]
5.68 I will not repeat that analysis here, save as to say that that was a situation where, it was said:
For the Applicant to succeed, she must show that the activity complained of is of a public nature. It would be difficult to convince this Court to agree to the proposition that the decision to appoint an Acting Manager Legal for a period of 3 months falls within this exception. The decision amounts to no more than a management holding action to allow the selection of the new Manager, Legal to be made. I cannot see how it can be elevated beyond that status to one of a ‘public nature’ and thence a ’public law issue’ which may be resolved by way of an application for judicial review: at 3
5.69 Not only was the position an acting one, for a short term. There was a Collective Agreement. There was a grievance procedure which the Court was ‘of the view [its] procedures and processes of referral and hearing to submissions on grievances at every stage, envisaged at the initial level of grievance at any rate, that all matters pertaining to an individual’s employment with FIRCA, could be addressed under [it]’. The Court said that Ms Malimali ‘had not exhausted all alternative remedies ... available to her’: at 4
5.70 The Court relied upon Tucker’s case in respect of ‘operational’ decisions. I have discussed Tucker’s case and its implications already. Apart from the fact that the employing body in both cases was the public sector, there is no similarity between the decision, its facts and circumstances and the decision the subject of the present application.
5.71 Nor am I persuaded that the cases that have followed FIRCA; Ex parte Malimali have the impact sought by the Respondents. The authorities illustrate well the principle restated here as to facts and circumstances and the importance of not generalising.
5.72 Nair v. Public Service Commission [2001] FJHC 163; Hbc0359d.200s (28 May 2001) confirms scope remains for judicial review in management and ‘operational’ decisions involving public servants and public sector workers.
5.73 There, the Court held that the claim should have been brought by way of judicial review, where the applicant had refused to move in accordance with a transfer decision and was dismissed by reason of her refusal. The Statement of Claim under the provisions of Order 18, rule 18(1) of the High Court Rules 1998 was struck out for that very reason, the Court saying:
As I see it an employee’s rights in respect of transfer depend either on contract, if the employee is privately employed or on Regulation, if the employee is a public servant. In this case the Plaintiff was a public servant whose position was protected by regulation 19. Regulations 19(3) and 19(4) provide an appeal mechanism where a public servant objects to a proposed transfer. Although paragraph 14 of the Plaintiff’s Statement of Claim refer to a ‘formal’ notification of objection to the PSC no evidence of such a notification was placed before me and there is no reference to it in the correspondence exhibited ... It will also be noted that there is nothing to suggest that the Plaintiff at any time took advantage of the grievance procedure set out in the Public Service (Personal Grievance Procedure) Regulations 1990.
Although mindful of the fact that the Plaintiff is not seeking re-instatement and that accordingly this action would be unlikely to be detrimental to good administration, I am satisfied that the Plaintiff’s complaint should have been brought by way of judicial review seeking certiorari in addition to her claim for damages ...: at 3
5.74 It would indeed be lamentable if public servants were to be trapped between the decision in Nair v. Public Service Commission and the scope attributed to FIRCA; Ex parte Malimali by the Respondents. In such a circumstance, they would be left without redress or denied a remedy.
5.75 This may follow for persons in the position of Mr Tucker in Tucker’s case and for Mr Bartz in two of his cases: Bartz v. Qld Corrective Services Commission [1999] QSC 237 (4 October 1999); Bartz v. Department of Corrective Services [2001] QSC 392 (12 October 2001)
5.76 I am not persuaded it should follow for Ms Nair on the facts and circumstances here presented.
6. Grievance Procedure Not Followed
The Respondents say first that as there is no right of appeal in respect of a transfer within a district (as opposed to transfer from one district to another), Ms Nair’s transfer is operational or managerial and hence not subject to judicial review. Secondly, say the Respondents, there is, nonetheless, a grievance procedure which does apply to Ms Nair, and as she has not followed it she should be denied judicial review. Her path, say the Respondents, is through the Public Service Commission’s grievance procedure, not through this Court.
6.1 Citing The State v. The Ministry of Labour & Industrial Relations and Attorney General of Fiji; Ex parte Fiji Mineworkers Union (High Court Jud. Rev. No. 1 of 1998S), the ‘cardinal principle of administrative law’ was reiterated by the Court of Appeal in Public Service Association v. Kotobalavu [2004] FJCA 51; ABU0031.2004S (11 November 2004), namely that ‘save in exceptional circumstances’, judicial review is not available where an applicant ‘has failed to exhaust a suitable alternative remedy that is available’: at 16
6.2 Here, the Respondents rely upon section 28(1)(2)(3) of the Public Service Act 1999:
(1) A chief executive must put in place, in his or her Ministry or department, appropriate procedures for employees to seek review of action that they consider adversely affects their employment.
(2) The procedures referred to in subregulation (1) must establish an appropriate balance between the needs of the employee for fair review, and the needs of the Minister or department in achieving results and managing performance.
(3) If a Ministry includes a department –
(a) The head of department need not put in place procedures under this regulation for the department if the Secretary of the Ministry has put in place procedures that cover the department.
6.3 The Respondents say that the grievance procedure Ms Nair should have followed, and should be required to follow rather than judicial review, is:
... to firstly raise the grievance with the Principal of the school. The Principal will then rise the grievance with the Director Secondary at the Ministry of Education. The Director Secondary will then forward the grievance to the Deputy Secretary (Primary Secondary Education). The Deputy Secretary will then finally forward the grievance to the Permanent Secretary for determination.
The Applicant in this case did not follow the internal procedure for grievances but rather wrote directly to the Permanent Secretary for Education (per Annexure SN1 of the Applicant's Affidavit filed on 24 January 2008). Following this letter, she then applied for judicial review ...: Respondents’ Written Submissions, paras 20, 21
6.4 For it to have a place in the Court’s consideration, a grievance procedure must be one that is published, made known to the relevant employee group (in this case, teachers), and able to be followed ‘without fear or favour’ by all employees/members of the group and the particular employee/teacher – in other words, here, Ms Nair.
6.5 For the grievance procedure to be made known to all employees, including Ms Nair, it is fair to expect it is reduced to writing and circulated widely amongst all employees (as well as being available on the Internet, through the Ministry’s Website). A copy of it should have been made available to the Court together with the Website address and location. Without a copy, it is difficult for the Court to accept that Ms Nair should have followed an established procedure made known to her along with all other teachers.
6.6 Apart from this, some may consider it a trifle disingenuous for the Respondents to complain that in her writing to the Permanent Secretary for Education, namely by her letter of 3 December 2007 (and/or solicitor’s letter), Ms Nair did not follow the grievance procedure.
6.7 Ms Nair’s letter of 3 December 2007 was a response to the Ministry of Education’s ‘Notification to Transfer’ (‘Notification’) dated 29 November 2007 – addressed and provided to Ms Nair at Rishikul. That Notification is signed ‘for Permanent Secretary for Education’. Therefore, it seems fair enough that Ms Nair responded by sending her letter to the Permanent Secretary for Education. To send a letter of response to the person in whose name the Notification is sent, and whose title is at the foot of the Notification, does not appear unorthodox to this Court.
6.8 The Notification (Annexure ‘SN1’ Affidavit 22 January 2008) does contain, after notifying Ms Nair of 28 days notice of her transfer from Rishikul to MGMHS, advising of her need to raise any views or concerns ‘before the expiry date’ of 28 days, and setting out what will happen ‘after considering your views’, the following paragraphs:
You are required to fill in the return response form below and send it the fastest way possible through fax, email etc. This is to allow for your transfer letters to be printed and sent to you before the holiday and transfer process to proceed.
Fax : Director Secondary Education, 3312120 or email josefo.vofu@govnet.gov.fj or Fast Post to Director Secondary Education, Ministry of Education, Merela House, Private Mail Bag,, Government Buildings, Suva.
6.9 This does not counter Ms Nair’s responding by sending her letter to the Permanent Secretary as unremarkable – indeed, proper. In any event, Ms Nair did not at that stage know that she was expected (as the Respondents now appear to assert) to be lodging a grievance and following a grievance procedure. It was perfectly proper for her to take the Notification at face value and follow the procedure outlined in it, rather than to convert to a grievance process.
6.10 It may have been odd for Ms Nair to send her 3 December 2007 (Annexure SN1) to the Rishikul Principal, as is now suggested by the Respondents she should have done, to accord with the grievance process.
6.11 The Court is not persuaded that the ‘failure to follow the grievance procedure’ contention has force. It does not counter Ms Nair’s application for judicial review.
6.12 The grievance procedure has flaws in itself, in addition to the foregoing. As is evident from Ms Nair’s case before this Court, Ms Nair had concerns about the Rishikul Principal. It is not precisely clear what these concerns were, for the information before the Court is limited. However, to suggest in the circumstances that Ms Nair should have followed a grievance procedure taking on a route via the Principal in respect of whose professional approach she appears to have raised as an issue in the investigation conducted in November 2007 into the Principal’s performance, and earlier with Mr Hewson of the Ministry (in or about July 2007 – see chronology) is unpersuasive.
6.13 In Gray v. Pettman and State of Victoria [1999] VCAT 33 the flaws in a grievance procedure where the first recourse is to the school Principal were starkly evident. Ms Gray’s complaint was of Mr Pettman’s sexually harassing conduct. She could not complain to the Principal, for it was he in relation to whom her complaint lay. The Grievance Procedural Manual was held in the Principal’s office – a stumbling block to her addressing the matter through the Department of Education’s processes.
6.14 The problem for Ms Nair was not that confronting Ms Gray. However, the grievance procedure route set by their respective public sector employers – in both cases the Education Department/Ministry – created identical difficulties. Just as in Lord Denning, MR’s words a right to be heard must be a meaningful right to be heard, or it is no right to be heard at all – a grievance procedure must provide a properly accessible mechanism or route for the party with the grievance; otherwise, it is no grievance procedure at all.
6.15 In State v. Small Claims Tribunal; Ex parte Fiji Electricity Authority (Judicial Review No HBJ 48 of 2003) the words of Sir John Donaldson, MR in R. v. Secretary for the Home Department; Ex parte Swati [1986] 1 WLR 477 were echoed:
Where Parliament provides an appeal procedure, judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided: at 485, at 3
6.16 Ms Nair may not have concluded until having confirmed to her by the handwritten comment on the Memorandum handed to her on 22 January 2007 that her views expressed to the Rishikul investigation had a part to play in the transfer (on this, see later). However, before that time she was aware she had raised concerns about the Principal’s performance with the investigation and earlier, as noted, with Mr Hewson. Hence, a concern before 22 January 2008 to address a grievance as to her transfer or proposed transfer, through the Principal would be indicated. To require Ms Nair to go through the Principal in the circumstances is not to provide her with a viable grievance mechanism. Her case is distinguishable, per Donaldson, MR.
6.17 By making the grievance procedure route through the Principal, the Ministry’s procedure does not encompass situations where the Principal is a part of the teacher or employee’s grievance, or where at least the Principal may not be, for cogent and explicable reasons, the ‘first port of call’ whom the party with the grievance wishes to approach.
6.18 The Respondents aver it is ‘well settled that Judicial Review brought under the provisions of RHC Order 53 is not, save in the most exceptional circumstances available where an alternative remedy exists’: Tony Udesh Bidesi (Judicial Review No. 20 of 1977),[12] citing Harley Development Incorporation v. CLR [1996] 1 WLR 727
6.19 This cannot deny Ms Nair a remedy through judicial review. First (and as to the grievance procedure generally) Ms Nair did follow the ‘alternative remedy’ – she responded in accordance with the Notification, and Regulation 13. It was only when that procedure did not appear to her to be operating as it ought – because she received no acknowledgement or response to her letter of 3 December 2007 – that she sought judicial review. As an intermediate step, she had her solicitors follow up her 3 December 2007 letter without, again, receiving a response to it. Hence, it was not Ms Nair who failed to utilise the ‘alterative’ procedure. It was the alternative procedure that failed Ms Nair.
6.20 Secondly, to return to the grievance procedure as outlined by the Respondents, which was:
... to firstly raise the grievance with the Principal of the school. The Principal will then rise the grievance with the Director Secondary at the Ministry of Education. The Director Secondary will then forward the grievance to the Deputy Secretary (Primary Secondary Education). The Deputy Secretary will then finally forward the grievance to the Permanent Secretary for determination: Written Submissions, para 20
6.21 Leaving to one side the Principal, it would remain unsurprising for Ms Nair to have concerns about the utility of following the grievance procedure. Her application for judicial review has at its core the proposition that the proposed transfer is a consequence of her having raised views in the Rishikul investigation.
6.22 The grievance procedure states that having gone to the Principal, next is the Director Secondary at the Ministry of Education. Yet this, too, presents difficulty for Ms Nair.
6.23 In her Affidavit in Support she says that on 22 January 2008 the Divisional Educational Officer – Central visited her at Rishikul and ‘this time he handed me a Minute written by one Mr Buwawa, the Deputy Secretary for Education to the Director Secondary Education’. Ms Nair attaches a copy of the Minute as Annexure ‘SN5’:
The Minute sought a response by the 14th of January 2008 from the Director Secondary and also had other written notes on it presumably made by officers who handled my case.
Upon closely perusing the Minute, I was able to make out the following comments made by the Director Secondary on the 17th of January 2008, in particular point 5 which states: ‘Investigations on the allegations on the Principal concluded that only the Vice Principal of the School is against the Principal hence the need to throw her out as not to disturb the Principal’s organisation in the school.' When I saw this notation my fears that my transfer was not professionally based was confirmed, furthermore I wish to state that certain allegations had been made against the Principal by other staff and some parents and I only responded to questions asked during the investigation.
I believe I was penalised for speaking out against the Principal during the investigation by being transferred and this is not only unreasonable but also very unfair: Affidavit in Support, paras 12-16
6.24 For a grievance process to be effective, and for an employee to be required to follow it on the pain of being denied judicial review, it the employee cannot be obliged to comply in the circumstances as existing here. The Respondents say Ms Nair is mistaken in her belief that she is being victimised by the Ministry, the transfer’s being a direct consequence of her participation in the Rishikul investigation. For the purposes of the alternative remedy argument, it is irrelevant that she is or is not mistaken.
6.25 To aver that she has bypassed an effective and appropriate grievance procedure that requires her not only to go through the Principal (with the problems adverted to earlier), but then have her grievance go to the Director Secondary - the very officer making or reading the ‘throwing her out’ comment vis-à-vis the Principal’s position is unsustainable.
7. Characterisation of ‘Victimisation’ as ‘Disciplinary Offence’
Ms Nair says she has been subjected to victimisation. She founds this contention in the facts as she asserts them, namely that:
(a) she was subject to a decision to transfer her from Rishikul to MGMHS; and
(b) that transfer decision was based in or influenced by her expressing her views in the Rishikul investigation in November 2007; and/or
(c) it was based in or influenced by her expressing her views about the Principal of Rishikul to Mr Hewson of the Ministry some time in June/July 2007.
7.1 In a sense, it may be said that Ms Nair’s view is that she is being disciplined for having ‘spoken out’ in the course of the Rishikul investigation.
7.2 If Ms Nair were being disciplined, she would have recourse to the Public Service Act 1999 appeal provisions: a right of appeal under section 25(1)(b) encompasses ‘the taking of discipline action against the appellant’. The employee (the appellant) may appeal to the Appeal Board in that event.
7.3 However, the Ministry has not characterised Ms Nair’s ‘speaking out’ as a disciplinary offence – at least in the formal sense. Ms Nair believes she has effectively been ‘disciplined’ through the transfer process, but the Ministry says that her ‘speaking out’ had nothing to do with the transfer.
7.4 Hence, it is not possible for Ms Nair to launch appeal action under section 25 ‘for disciplinary action’. Without any formal proceeding, this is impossible. Hence, in regard to the contention of victimisation, Ms Nair does not have any appeal rights. She has no alternative remedy. Her recourse is through judicial review.
8. Legitimate Expectations – Regulation 13
The Public Service (General) Regulations 1999 say that ‘transfer’ does not include ‘the movement of an employee between positions in the same Ministry or department unless the movement requires the employee to change his or her residence from one station to another’: s. 2
8.1 Division 3 deals with transfers. Regulation 13 says:
The Commission may transfer an employee without the employee’s agreement only if the Commission has –
8.2 On the face of Regulation 13, Ms Nair’s ‘transfer’ is not one that comes within it. It does not require her change of residence from one station to another; it is a movement ‘between positions in the same Ministry or department’. However, Ms Nair was served with the Notification which is a Notification under Regulation 13, or a Notification which follows the steps set out in Regulation 13. Hence, it is irrelevant that Regulation 13 does not ‘cover’ Ms Nair by its terms. The Ministry, by sending her the Notification, engendered in her a legitimate expectation (or reasonable expectation) that the process of Regulation 13 or, in any event, that set out in the Notification (which mirrors Regulation 13) would be followed.
8.3 Ms Nair complied with the Notification. She followed the process. Consistent with authority – for example Minister of State for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 278; Attorney-General of Hong Kong and Ng Yuen Shui [1983] UKPC 2; [1983] 2 WLR 735 (Privy Council, Appeal from the Court of Appeal of Hong Kong, 21 February 1983), if her expectations were not met, judicial review applies.
8.4 Ms Nair basis her application in this regard on the fact that:
8.5 Hence, she says, she did not gain the benefit of Regulation 13 – it was not complied with by the Respondents. This denied her legitimate expectations, giving her the ground of review.
8.6 On the other hand, for the Respondents it is said that (albeit Regulation 13 does not apply):
... the transfer of [Ms Nair] was done in accordance with Public Service Commission Regulation 1999 concerning transfers. [Ms Nair] was given 28 days written notice of the transfer, she was given an opportunity to state her views, and upon consideration of her views the respondent stilled decide that she be transferred and as such, the transfer was effected. It was decided that the transfer be effected as she was being transferred within the same district the schools concerned were a few kilometers apart and the transfer was in line with the PSC Circular [Annexure ‘A’]. In any event the PSC Regulations is silent on the written response from the Respondent hence a written response to [Ms Nair]’s letter of 3 December 2007 was not done: Affidavit in Reply, 25 March 2008, para 13
8.7 The Respondents add that Ms Nair had the option of ‘following the appeals procedure outlined in the Public Service Commission Regulations’ and this would have required the Respondents to provide a written response to her. As she did not appeal the decision ‘as per the appeals procedure under the Public Service Commission Regulations, the Respondent was not obliged to provide an answer to [her] objection letter’: Affidavit in Reply, para 14
8.8 Apart from the fact that the Public Service Commission Regulations do not provide an avenue of appeal for Ms Nair in respect of ‘transfer’ because they apply only to transfer from one district to another: s. 25(1)(c),[13] it is not enough to provide an avenue for registering concerns about a transfer (as per Regulation 13), or the holding out by the Respondents that Regulation 13 or its process applied, because Ms Nair was sent the Notification. The avenue has to be ‘real’. It cannot simply be a matter of rote, or a pretence at a process, or a holding out of a process that the presumptive transferee’s concerns will be taken into account, when they are not, or will not, be. If there is no response – written or not – then the presumptive transferee may well feel aggrieved. S/he may well be concerned that the matters raised in response to the Notification will not have any effect, and will not even be taken into account. At least a written response (or any response) acknowledges receipt and projects a possibility that the presumptive transferee’s concerns may be heard.
8.9 To comply with the requirement of procedural fairness, a ‘right to be heard’ must be real. That it is real can be signified in a number of ways. A written response is not the only way, or a necessary way. However, its absence can lead to an inference that concerns raised by the presumptive transferee will not be, or have not been, taken into account.
8.10 The Notification itself raises concerns as to whether the holding out of a ‘right to be heard’ is real rather than perfunctory or a matter of rote, an ‘invitation’ put forward because Regulation 13 requires it. After stating that the Notification is to advise the recipient that/she he is given 28 days notice of their position, with effect from a stipulated date, the Notification continues:
You are hereby informed that should you have any views or concerns regarding the transfer you may raise this before the expiry date.
If you do not respond with 28 days, it will be assumed that you have accepted the transfer.
After considering your views and concerns, if the Ministry is of the opinion that you should still be transferred then your transfer will be effected accordingly.
You are required to fill in the return response form below and send it the fastest way possible through fax, email etc. This is to allow for your transfer letters to be printed and sent to you before the holiday and transfer process to proceed ...: Annexure ‘SN1’ to the Affidavit in Support, 22 January 2008 (Emphasis added)
8.11 A fair-minded reader, upon reading the last quoted paragraph, might form a view that the invitation for a response setting out views and concerns is not intended to be taken seriously: that is, there is a statement that ‘your views and concerns’ will be considered, but the Notification goes on to say ‘send the acknowledgement slip the fastest way possible’ to ‘allow for your transfer letters to be printed and sent to you before the holiday and transfer process to proceed’.
8.12 Even though the explanation can be that because the reference is to the ‘return form’ at the bottom of the Notification, upon which the presumptive transferee circles ‘agree’ or ‘disagree’ with the Notification of transfer, the tenor of the Notification still does not provide confidence that the process is more than a nod in the direction of a right to be heard. This is particularly so when taking into account the lack of any acknowledgement or response to Ms Nair’s letter, much less an indication of how her concerns were dealt with.
8.13 It also may be of concern that the Notification says:
After considering your views and concerns, if the Ministry is of the opinion that you should still be transferred then your transfer will be effected accordingly.
8.14 It provides no indication of what will happen where:
After considering your views and concerns, if the Ministry is of the opinion that you should not be transferred ...
8.15 Perhaps the assumption is that the party receiving the Notification will simply assume that, her or his views and concerns having been considered and the Ministry being of the opinion that s/he should not be transferred, then s/he will remain in situ. Hence, it need not be said.
8.16 Yet why does the Notification not say so? If both possibilities are open – views and concerns being considered and the Ministry remaining of the opinion for transfer, and views and concerns being considered and the Ministry reversing its opinion – should they not be stated, if each and either is a real possibility?
8.17 The Respondents have said Ms Nair’s letter of 3 December 2007 was taken into account. Yet there is nothing provided beyond this statement to confirm the actuality of this ‘taking into account’.
8.18 A right to be heard does not occur simply by satisfaction expressed by one party as to that right having been exercised. The party seeking the right to be heard must be satisfied, too. This does not mean that that party can deny in fanciful circumstances that the right was not extended effectively, or was not real. However, it does mean that reasonable apprehensions must be given due weight.
8.19 Ms Nair’s legitimate expectations have not been met, and her right to be heard as to her transfer, accrued by reason of the holding out (by the sending to her of the Notification) that her concerns would be given due regard, has not been complied with.
8.20 Had written reasons been provided, then the Respondents would have been able to answer Ms Nair’s concerns as to the taking into account of irrelevant considerations – her views expressed in the Rishikul investigation and/or previously to Mr Hewson; and the apprehension of bias arising by reason of the note on the Memorandum as to her expression of those views.
8.21 In their absence, Ms Nair’s apprehension of bias and concern as to the taking into account of irrelevant considerations remain. Possibly, they are exacerbated for silence implies an inability to provide reasons free from the role of the Rishikul investigation.
9. Irrelevant Considerations - Victimisation
The Respondents say that Ms Nair’s views as expressed in the Rishikul Inquiry were not taken into account in the transfer decision. This, it is said, is clear from the timing and the matters that were taken into account. These are listed in the Affidavit in Reply of 20 February 2008:
9.2 If the ‘operational’ and ‘managerial’ vs administrative dichotomy were to be accepted, then on the authority of the Bartz cases in the face of ‘bad faith’, the decision to transfer Ms Nair would be open review. Ms Nair’s apprehension of victimisation is an apprehension of ‘bad faith’ decision-making.
9.3 Alternatively, if there were any foundation for the proposition that Ms Nair was being victimised through the transfer decision, this would bring it into the realm of the public – for undoubtedly there is a public interest in not having public sector or executive government decision-making associated with or a part of victimisation or being or constituting conduct that qualifies as victimisation. There is a public interest in ensuring that public servants are not subjected to decisions based in victimisation or which are or constitute victimisation.
9.4 A third way of looking at the matter is to say that if there is material upon which a contention can be founded that the transfer decision was influenced by or based in reasons that constitute victimisation, the decision comes within the realm of the extraordinary or exceptional circumstances, and out of the ‘run-of-the-mill’. It again propels it into judicial review.
9.6 A factor that could support the Respondent’s position is that Ms Nair alone was not the subject of a transfer Notification. Five others were similarly affected. However, in a large organisation it is more likely than not to be the case that more than one teacher will be subject to transfer at the end of the school year and prior to the commencement of the next. Thus, the fact that a number greater than just Ms Nair can be listed is not conclusive. Neither is the fact that a rationale can be found for the transfer, including the Public Service Circular and the need to accommodate the need for a substitute Vice Principal at MGMHS due to the ‘spouse’ rule. Again, it could support the Respondent’s position that Ms Nair was not subject to victimisation or her transfer was not linked to the Rishikul investigation. On the other hand, it may not.
9.7 The problem for the Respondents is twofold.
9.8 First there is the issue of ‘best evidence’ or ‘evidence from source’ as to who made the decision and when, how and why it was made – all of which, if provided to the Court or to Ms Nair, may have settled the controversy conclusively. As it is not here, and Ms Nair does not have it, such conclusiveness is not possible at least by that means.
9.9 The second lies in the comment made on the Memorandum to which Ms Nair refers. The problem is not overcome by saying that the decision to transfer Ms Nair was made on 5 November 2007, hence predating the Rishikul investigation. This is because:
9.10 The Memorandum raises further concerns about the timing of the transfer decision and can give further support to Ms Nair’s apprehensions as to the reason for it. First there is the typed paragraph which says:
Grateful if a response is forwarded from you office by 4.00 pm on Monday, 14 January 2008. Please also include in your response the arrangements for her replacement at Rishikul Sanatan College. (Emphasis added)
9.11 This gives a flavour of the ‘arrangements for [Ms Nair’s] replacement ...’ being a contemporary matter, rather than one which to match the Respondents’ position must have or should have taken place quite some time before – back in November 2007, some two months earlier.
9.12 That the decision to transfer Ms Nair was more contemporary than the Respondents assert appears to have further support in the other handwritten notes on the Memorandum or Minute:
1. Humble apology for the belated reply.
2. The officer cannot appeal because transfer is within the district.
3. The confirmed AP of MGM is the wife of the new MGM Principal who was earmarked to be Actg. Vice Principal.
4. Mr Chranji Lal has been transferred from TVET to be VP of Rishikul. He is a confirmed ED2A equivalent to the VP level of the school, Rishikul ..
9.13 Item 3. is a reference to the matter raised in the Affidavit in Response of 25 March 2008. It may also explain the lack of precision as to dates in the Affidavit when reference is made to the circumstances surrounding the decision to transfer Ms Nair. The relevant paragraph reads:
THAT the decision to transfer [Ms Nair] to Mahatma Gandhi Memorial School was the result of a decision made on 16 March 2007 to transfer one Abhay Prasad from Saraswati College to act as the Principal of Mahatma Gandhi Memorial School. Upon this transfer of Abhay Prasad to Mahatma Gandhi Memorial School, it was found that one Satwati Prasad who was the Acting Vice Principal at Mahatma Gandhi Memorial School is the wife of the said Abhay Prasad. As the Ministry of Education discourages spouses to hold positions of Principal and Vice Principal within one school, it was decided that Satwati Prasad be transferred to another school. This created a vacancy in the post of Vice Principal at Mahatma Gandhi Memorial School and as [Ms Nair] is confirmed as a Vice Principal in the ED2A Grade, ideally she was chosen to be transferred from Rishikul Sanatan College to Mahatma Gandhi Memorial School as the Vice Principal of the latter school: para 7, Affidavit in Reply, 25 March 2008
9.14 The handwritten note gives a flavour of a decision made that Ms Nair should be transferred, then a search for a suitable placement, and the solution being found in respect of the spouse problem arising at MGMHS. The Affidavit provides a far more measured version. As it has been made contemporaneously with the processes going on in the Ministry in regard to Ms Nair’s transfer, the flavour of the handwritten note is more likely to be reflective of the process occurring.
9.15 The Memorandum or Minute may also raise legitimate concerns on Ms Nair’s part as to the fairness of the procedure or otherwise, in that it refers to a ‘written response’:
Her written appeal, dated 3rd December 2007 was also marked to your office and I am still awaiting a written response from Secondary: Annexure ‘SN5’, Affidavit in Support
9.16 Hence, at least as at 11 January 2008 the expectation was that a ‘written response’ was to be provided to Ms Nair. It never arrived. Ms Nair asks why. The Respondents now say they were and are not obliged to provide one. An objective observer may be wont to wonder why a written response was unable to be produced and whether this provides support to the proposition that Ms Nair’s concerns as to the Rishikul investigation are warranted.
9.17 Further, this lends itself to engendering in Ms Nair, even if she did not have it previously, a legitimate expectation that she should and would receive written reasons. The Memorandum or Minute indicates an expectation on the part of the A/DSPS that he would be provided with a written response that was, in fact, a written response for Ms Nair. Hence, that she would hold such an expectation upon reading the Memorandum or Minute provided to her by a Ministry official, follows.
9.18 Upon that basis, Ms Nair is entitled to a written response.
10. Apprehension of Bias
For Ms Nair, it is said that the Court must address itself to the question of bias – whether an informed observe ‘would reasonably apprehend bias or consider that there was a real chance of bias in the circumstances’: Written Submissions, p. 6
10.1 Lachan Bros Ltd v. Sunbeam Transport Co Ltd (Civil Appeal Nos 45, 51, 57 and 61 of 1983) is referred to, in formulating the test as:
... would the circumstances cause a reasonable on-looker to think there was a real likelihood of bias ... This requires the matter to be looked at from the objective standpoint of a detached on-looker and not from the subjective and dangerous viewpoint of a person directly affected by the decision: Written Submissions, p. 6
10.2 Adding to the unsettling nature of the facts and circumstances surrounding the decision to transfer is the lack of any clarity from the Respondents as to precisely who made the decision, how it was made, precisely when it was made (as noted, the nomination of 5 November 2007 is not confirmed by any contemporaneous documentation or by ‘best evidence’ – the person who made the decision him/herself providing evidence as to the date, the process and the basis for the decision).
10.3 In all the circumstances, whether or not the Respondents say the decision was made on 5 November so predating the 8 December 2007 Rishikul investigation, the detached on-looker could not in my opinion pass by with equanimity the comment written on the Memorandum:
Investigations on the allegations on the Principal concluded that only the Vice Principal of the School is against the Principal hence the need to throw her out as not to disturb the Principal’s organisation in the school: Note, Ministry Memorandum, 17 January 2008
11. Conclusion
Counsels’ submissions and provision of authorities has been of considerable assistance to the Court. The Court finds as follows:
DECLARATION AND ORDERS
Jocelynne A. Scutt
Judge
Suva
14 August 2008
[1] Copy provided to the Court and Counsel for Ms Nair after hearing.
[2] This chronology draws upon Ms Nair’s Affidavit in Support filed 24 January 2008 and Affidavit in Response filed 27 March 2008,
in respect of the dates relied upon by Ms Nair. For those relied upon by the Respondents, it draws upon Affidavit in Reply filed
25 March 2008.
[3] Copy provided to the Court and Counsel for Ms Nair after hearing.
[4] Aronson, Dyer and Groves on Judicial Review of Administrative Action, Thomson Regulatory/Law Book, Sydney, 3rd Edn, 2004, pp. 87-88.
[5] Aronson, Dyer and Groves on Judicial Review of Administrative Action, pp. 68-69. On employment, citing Hamblin v. Duffy [1981] FCA 38; (1981) 34 ALR 333 (promotion); Sellars v. Woods [1938] ArgusLawRp 108; (1982) 45 ALR 113 (transfer); Burns v. Australian National University (1982) ALR 707 (dismissal).
[6] Aronson, Dyer and Groves on Judicial Review of Administrative Action, p. 67.
[7] There may be reason for pause at this assertion (and here see Aronson, Dyer and Groves on Judicial Review of Administrative Action, p. 67) however, for the purposes of the present analysis I set out the Bartz decisions as they stand – affirming as they do the firm qualification of ‘bad faith’ providing a basis for judicial
review even where the Court, as here, has said Mr Bartz had ‘no interest ..., etc’.
[8] There is no Australian High Court support for the Queensland position if seen as distinguishing ‘administrative’ from
operational or managerial and hence not subject to judicial review. See also the strong reservations expressed in Aronson, Dyer and Groves on Judicial Review of Administrative Action, p. 67.
[9] The expression ‘legitimate expectation’ was first used in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, at 170 ‘to indicate that an interest less than a right may nevertheless warrant the protection of the rules of natural justice
or, as it is now more commonly called, procedural fairness’: Haoucher v. Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 (7 June 1999), per Dawson, J. at para [12]
[10] This part of the decision raises issues that in the present context do not need to be addressed.
[11] FIRCA; Ex parte Malimali is listed in paclii under the heading State v. Fiji Islands Revenue & Customs Authority; Ex parte Tagickai [2003] FJHC 100 – that is, naming the Interested party as the applicant, under her middle name – her full name being Silipa Tagicaki
Kubuabola: http://www.paclii.org/fj/cases/FJHC/2003/100.htm (accessed 9 February 2008). The heading itself is correct; however
the listing can lead to difficulty in locating the case.
[12] This case involved an application for leave for judicial review in respect of a Magistrate’s Court decision: In re Tony Udesh Bidesi [1997] FJHC 184; Hbj0020d.1997 (25 November 1997).
[13] On the question of disciplinary action: s. 25(1)(b) see later.
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URL: http://www.paclii.org/fj/cases/FJHC/2008/173.html