State v Secretary, Public Service Appeals Board, Ex Parte Jiko [2008] FJHC 369; HBJ 19.2008 (11 July 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBJ 19 of 2008

IN THE MATTER of an Application by LAIAKINI JIKO
for leave to Apply for Judicial review under Order 53
of the High Court Rules of Fiji 1988

AND

IN THE MATTER of the decision of the Public Service Appeals Board
dated 31^st January 2008 and the decision of the Public Service
Commission dated 25^th May 2006 respectively

BETWEEN:

THE STATE

AND:

THE SECRETARY, PUBLIC SERVICE APPEALS BOARD
(First Respondent)

AND:

THE SECRETARY, PUBLIC SERVICE COMMISSION
(Second Respondent)

EX PARTE

LAIAKINI JIKO
(Applicant)

Coram: Hackie, J

Date of Hearing: 1 July 2008

Appearances: Mr A. Qetaki for Applicant
Mr E. Veretawatini for the First Respondent
Mr K. Singh for the Second Respondent

Date of Decision: 11 July 2008

DECISION

THE APPLICATION AND AFFIDAVITS IN SUPPORT

[1] This is an application by LAIAKINI JlKO ("the Applicant") filed on 29 April 2008 in the High Court at Suva, seeking:

1. That Leave be granted to apply for Judicial Review pursuant to Order 53 Rule 3(2) of the High Court Rules in respect of a decision of the First Respondent (the Public Service Appeals Board) dated 31 January 2008 disallowing the Appeal of the Applicant against the Second Respondent (the Public Service Commission) in relation to the Applicant's dismissal from the post of Conservator of Forests and forfeiture of the Applicant's privileges and other entitlements; and

2. An Order of Certiorari to remove the said decision unto the High Court of Fiji; and

3. A Declaration that the decision of the First and Second Respondents dated 31 January 2008 and 25 May 2006 respectively, are unfair, null, void and of no effect; and

4. A Declaration that the Applicant is entitled to be reinstated to the position of Conservator of Forests and to his salary and other privileges from the date his appointment was dismissed until his reinstatement; and

5. An Order that the Applicant be forthwith reinstated to his former position of Conservator of Forests; and

6. An Order for costs and damages.

[2] The Grounds of upon which the Applicant is seeking relief were also filed on 29 April 2008 and set out as follows:

"1. The First Respondent and the Second Respondent acted in breach of natural justice.

2. The First Respondent and the Second Respondent in arriving at their decisions in finding the Applicant guilty in relation to Charges 15, 16 and 17 (the Fish Pond related charges) failed to take account of relevant considerations and or asked the wrong questions or applied the wrong criteria or addressed itself on irrelevant considerations.

3. The First Respondent in disallowing the Applicant's appeal, and the Second Respondent in terminating the Applicant's employment, acted arbitrarily and unreasonably vis-à-vis the facts and evidence.

4. The penalty was harsh, unreasonable and unfair, standing on its own, and also having regard to two other recent similar cases, namely the case of one MOSESE NAILUMU the former Director of Roads and PITA WISE, Deputy Secretary for Fisheries and Forests."

[3] The Applicant also filed on 29 April and 3^rd June 2008 two Affidavits in support deposing in summary as follows:

(a) That the Applicant was suspended as from 1 August 2005 and served with 17 disciplinary charges on 25 November 2005;

(b) That the Applicant attended with his Solicitor on 2 February 2006 before the Public Service Commission Tribunal for a disciplinary hearing which continued on 6 February, 21 March and 11 May 2006;

(c) That on 11 May 2006, the Public Service Commission found the Applicant guilty of 11 charges and not guilty of six charges following which the Applicant's employment as terminated as from 25 May 2006;

(d) That the 10 months it took to deal with his matter was in breach of the PSC's own guidelines and, in particular, "PSC Circular No. 17 of 2005 dated 31.03.05 that requires a timeline if 3 months to complete and finalize [sic] all disciplinary proceedings" from initial suspension to a final decision;

(e) That the Applicant appealed to the Public Service Appeal Board who, on 31 January 2008, disallowed the appeal finding that the Applicant failed to declare an interest in the construction of fish ponds for the benefit of his mataqali (clan) on land jointly owned by the Applicant with his wife;

(f) That the Applicant disputes this finding saying that he did declare his interest in a handwritten statement dated 21 February 2003 which the Public Service Appeal Board did not take into account;

(g) That the Applicant alleges that he was treated inconsistently compared with two other employees who faced similar charges, one had his charges were withdrawn and the other was found guilty, transferred and subsequently given a redundancy package.

NOTICE OF OPPOSITION AND AFFIDAVITS IN SUPPORT

[4] Both Respondents each filed a Notice of Opposition.

[5] The Grounds of Opposition of the First Respondent (the Public Service Appeal Board "PSAB") were filed on 26 May 2008 and set out as follows:

"1. That the applicant is seeking for a stay order to review the decision of the Public Service Appeal Board ... in disallowing the appeal of the applicant dated 31^st day of January 2008.

2. That the applicant's affidavit in support of the application failed to identify any procedural impropriety to the process leading to the decision of the Board, Section 26 of the Public Service Act, 1999 spelt out the procedures of appeal hearing and the Board is bounded by the Act to reach a decision, whether to allow or disallow an appeal and further to that in this case, the appeal is accordingly disallowed. The board did not breach the Act stated herein to account to any procedural impropriety that warrants a review of the decision of the Board."

[6] The Grounds of Opposition of the Second Respondent (the Public Service Commission "PSC") were filed on 23 May 2008 and set out as follows:

"1. The application is made out of time and in breach of Order 53 rule 4.

2. The Application for leave presents no arguable case.

3. The Applicant in his application predominantly raises questions on the merit in the disciplinary and appeal proceedings.

4. The Second Respondent reserves their right to adduce more grounds of opposition on the hearing of the application for leave."

[7] The Affidavit in support by JOSESE BISA of the PSAB sworn on 22 May 2008 emphasised (amongst other matters):

(a) That the Board did take into consideration relevant matters that ought to be considered; and

(b) That allegations as to inconsistently of penalties was raised before the Board, however, it "considered this as [a] new matter" and "should have been raised in the Disciplinary hearing".

[8] The Affidavit in support by VINCENT RAJALINGAM of the PSC declared on 18 June 2008 also emphasised (amongst other matters) that the "PSC Circular provides a mere guideline with some flexibility ... and as such it is not a mandatory guideline" to have finalised matters within three months.

HEARING OF APPLICATION FOR LEAVE

[9] The matter was listed on an inter-partes basis on 1 July 2008 to hear from the respective parties as to whether they wished to add anything further in relation to their submissions.

[11] The Applicant's Counsel relied upon his written submissions highlighting that the main thrust of the case was:

(a) That there were two similar cases who were treated differently to the Applicant;

(b) That there had been a delay in processing the case; and

(c) That the Appeals Board had the power (which they declined to exercise) pursuant to section 26(3) "to summon witness and to obtain evidence as are conferred upon the commissioners of a Commission of Inquiry" and, if they had done so, they would have considered an alleged handwritten letter sent by the Applicant wherein he declared his interest.

[12] The First Respondent relied upon the extensive affidavit filed as well as making some brief submissions emphasising:

(a) That as there was no response to the handwritten letter it was not considered (presumably doubting whether it ever reached the PSC); and

(b) That the principle carried out by the PSC was that the Applicant failed to declare any interest (as the alleged handwritten letter was not received).

[13] The Second Respondent spoke to his written submissions highlighting:

(a) That judicial Review should not be brought to challenge the merits of the case;

(b) The Applicant is challenging not the how the decision was made but that it was harsh, excessive and unfair particularly as to how two other similar cases were dealt with in a different manner;

(c) That the Applicant was legally represented at the initial hearing before the PSC.

[14] The matter was then adjourned with all parties advised that judgment would be on notice.

THE LAW

[14] There is particular force in the argument that the Applicant is seeking leave of the Court to review "the merits of the decision" rather than "the process" as to how the decision was arrived at. In that regard, the Court notes:

(a) That the Applicant was legally represented at both hearings;

(b) That the fact that an alleged handwritten letter was not considered in both hearings (on the basis that if it had been received it would have been formally acknowledged) was about the merits of the decision rather than the process;

(c) That the fact that it has been submitted that different penalties were applied to two other "similar" cases is a clear example of the Applicant arguing about the merits of the decision rather than the process.

[15] In this regard, the decision of the Full Court of Appeal in Commissioner of Police v Singh [1998] FJCA 36 (Civil Appeal No: Abu0046u.96s, 23 September 1998, Casey, Savage and Dillon JJA) at page 2 (PacLII: http://www.paclii.org/fj/cases/FJCA/1998/36.html) is on point:

"... Judicial review is not concerned with the merits or otherwise of the decision under review but whether the decision was made in accordance with law. Speaking generally it may be said that on an application for judicial review the court is not concerned with whether the decision is right or wrong; that can only arise where the decision is one that is so unreasonable that no reasonable person acting in accordance with the requirements of the law could have made it. Associated Provincial Picture Houses Ltd. v. Wednesbury Corp [1947] EWCA Civ 1; (1948) 1 KB 223 at 230.

The learned trial judge's citation from Chief Constable of the North Wales Police v. Evans [1982] UKHL 10; (1982) 3 A.E.R. 141 at 155 is apt:

'Judicial Review, as the words imply, is not an appeal from a decision but a review of the manner in which the decision was made.'"

[16] I can only concur with the above reasoning and refuse the application.

[17] Accordingly, the Orders of this Court are as follows:

1. That the Application for Leave to be granted to apply for Judicial Review is refused.

2. That the Applicant pay the costs of $600 each to the First and Second Respondents within 28 days.

Thomas V. Hickie
JUDGE

Solicitors:
Alipate Qetaki Esquire, Nausori, for the Appellant
Eroni Veretawatini Lawyers, Nausori for the 1^st Respondent
Attorney General's Chambers, Suva for the 2^nd Respondent