IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 3 OF 2008

BETWEEN

THE STATE

V

PUBLIC SERVICE COMMISSION
1st Respondent

DIRECTOR OF PUBLIC PROSECUTIONS
2nd Respondent

ATTORNEY GENERAL OF FIJI
3rd Respondent

EX-PARTE: KEVUELI TUNIDAU
Applicant

Appearances: Mr.Tunidau in person
Mr Green for the Respondents

Date of Hearing: 5 May 2008
Date of Judgment: 16 May 2008

Datt J

JUDGMENT

[1] The applicant, Kevueli Tunidau, a former Assistant Director of Public Prosecutions was employed by the Public Service Commission; he seeks leave to apply for Judicial Review under Order 53 Rule 3 of the High Court Rules after having resigned from the Commission.

[2] The applicant seeks the following relief for:-

[1] AN ORDER of certiorari to remove the decision of the Public Service Commission by a letter dated 6 February 2008.

[2] FOR AN ORDER under Order 53 rule 3(8) of the High Court Rules that if the leave is granted it should operate as a stay of the decision of the Public Service Commission by the letter dated 6 February 2008, in particular the prosecution and adjudicate of the disciplinary charges against the applicant scheduled for Thursday 3 April, 2008, until the final determination of the applicant’s application for an order if Certiorari and other relief to be filed herein.

[3] AND/OR FOR A DECLARATION that the decision of the Public Service Commission by letter dated 6 February 2008 not to make a determination or confirmation on the effect of PSC Circular No 17/2005 upon disciplinary charges laid against the applicant is a breach of the applicant’s right to a fair trial under section 29(1) of the Constitution of the Republic of Fiji Islands 1997.

[4] AND/OR FOR A DECLARATION that the decision of the Public Service Commission by letter dated 6 February 2008 to deny access to and/or disclosure of material evidence and statement to the applicant upon request and/or to adduce and challenge such evidence is a breach of the applicant’s rights as a charged person under section 28 of the said Constitution, and or the duty of candour.

[5] AND/OR FOR A DECLARATION that the decision by the Public Service Commission by letter dated 6 February 2008 to hold and/or infer that the applicant as its employee and therefore not entitled to cost, is unlawful and irrational.

[6] AND/OR FOR A DECLARATION that the decision by the Public Service Commission by letter dated 6 February 2008 to continue to reject the applicant’s resignation made on 21 May 2007 is unlawful and/or ultra vires.

[7] AND/OR FOR A DECLARATION that the decision of the Public Service Commission by letter to prosecute and to adjudicate the disciplinary charges against the applicant on 3 April,2008 is procedural impropriety and breach of rules of natural justice.

[8] AND/OR FOR AN ORDER under Order 53 Rule 8 of the High Court Rules 1988 directing the respondents to make and serve on the applicant a list of documents which are and have been in its possession custody or power relating to any matter in question in these proceedings and to file an affidavit verifying such list and to serve a copy thereof on the applicant.

[9] AND or FOR AN ORDER for costs and damages

[10] AND for such further or other orders as this Honourable Court deems fit.

The applicant seeks relief on the following grounds

[3] The grounds are based on the contents of letter dated 6 February, 2008 issued by the Public Service Commission [PSC] to the applicant in relation to the hearing of disciplinary charges against him, viz,

[a] The applicant claimed that the Commission failed to make a determination or confirmation on the effect of the PSC Circular No 17 of 2005 upon disciplinary charges laid against him is a breach of his right to a fair trial under section 29(1) of the Constitution of the Republic of Fiji Islands 1997.

[b] That the PSC denied the applicant the right to access to and the disclosure of the documentary evidence and statements he had made several written requests for, breached section 28 of the Constitution and/or the duty of candour.

[c] The decision of the PSC is unlawful and irrational when holding or inferring that the applicant is its employee and therefore not entitled to costs.

[d] Whether the continued rejection by the PSC to accept the applicant’s resignation is unlawful and/or ultra vires.

[e] Whether the decision of the PSC to decide to finalise the hearing of the charge against the applicant for hearing on 3 April, 2008 amounts to a procedural impropriety and breach of the rules of natural justice.

[4] Grounds of Opposition 

1. That the applicant does not have an arguable case.

2. That the applicant has not exhausted all remedies before seeking leave to proceed to file an application for judicial review at the High Court of Fiji.

3. The application is pre-mature, since the Public Service Commission has not made any decision pertaining to the applicant’s disciplinary charge.

4. That the applicant had applied for judicial review on previous occasion on same facts and same issues. The court should take judicial notice of this fact and dismiss the application.

5. There is no decision on which the applicant is capable of mounting a claim for judicial review.

[5] Respondent’s Objection - Leave application under Order 53

1. On the question of granting leave, the respondent submitted that under Order 53 rule 3, the application for judicial review shall be made unless the leave of the Court has been obtained in accordance with the rule.

2. The respondent submitted that the applicant should have appealed the decision of the Public Service Commission to the Public Service Appeals Board as provided in the Public Service Act. 

3. The respondent submitted that it is premature for the applicant to invoke judicial review proceedings when he has not complied with the statutory provisions to appeal to the Appeals Board.

4. The respondent submitted that based on matters outlined above, the applicant’s application for leave to seek judicial review should be refused.

Facts

[6] The applicant was employed by the Public Service commission since 1983 in several different positions, but his application for review relates to his last position as the Assistant Director of Public Prosecutions with the Commission.

[7] In 2007, Mr. Josaia Naigulevu, the head of department as well as the Director of Public Prosecutions (DPP) alleged that the applicant breached the Code of Conduct provided in the Public Service Act or the Regulations, made under the Act. The applicant was advised of the breaches and was requested by the DPP to provide explanations for the alleged misconduct. 

[8] It is further claimed by the applicant that the DPP suspended him first on full pay and thereafter without pay. He claimed that no charges were laid against him for more than 10 months, from the date he was first suspended with pay. He also claimed that this breached the provisions contained in the Public Service Circular 17/2005. 

[9] The Commission laid charges against the applicant, and listed the matter for hearing three times, but the applicant did not attend. It is not known what exactly occurred at the disciplinary hearing, however, counsel for the Respondent informed the court that the matter was dismissed.

[10] As a result of correspondence by the applicant, the Commission replied on certain procedural matters related to administrative matters which related to the hearing of the charge. This letter is dated 6 February, 2008, which is subject to the analysis in this application, whether the contents of the letter forms a basis on which the applicant can rely as a decision to seek leave to proceed for judicial review.

Affidavit Evidence 

[11] The applicant in his affidavit sworn on 13 March, 2007 stated that on 27 July 2006, paragraph 8, the second-named respondent suspended the applicant from his duties for making comments to the media. 

[12] The applicant’s evidence is that he made comments in the media in July, 2006, concerning the DPP at that time he was employed by the Commission and was subject to the disciplinary provisions contained in the Public Service Act 1999 and the Regulations made under that Act.

"The letter from the second respondent stated that the suspension was made under Section 23(1) of the Public Service Act 2006, and under Legal Notice 92/2002, which the second defendant claimed gave him the authority to suspend the applicant". 

[13] By the letter dated 1 May 2007, the applicant advised the Public Service Commission that he denied all the charges, and further questioned whether the charges could be made 10 months after the date of suspension, having regard to the provisions contained in the Public Service Circular 17/2005. This suggests that the applicant was aware of the contents of Circular 17/2005 on 1 May 2007.

[14] On 21 May 2007 the applicant submitted his resignation to the Public Service Commission while he remained suspended from work on full pay.

DPP Laying Charges Against the Applicant

[15] By letter dated 18 April, 2007, the Commission provided the applicant with a notice of charges and provided particulars of each of the charge. The charges were brought under Section 6(4) and Section 7 of the Public Service Act 1999. In the same letter, the applicant was advised that as from that date, he was suspended without pay.

[16] On 23 May 2007, the Commission advised the applicant that the charges against him was listed for hearing on 7 June, 2007. At this time, he claimed that there was no mention of his letter of resignation from the Commission which he sent on 21 May 2007.

[17] By letter dated 6 June, 2007 the applicant advised the Commission that the nominated date of hearing was unsuitable since he was engaged in his business and was unable to attend hearing. He again made reference to his previous communication to the Commission, in which he claimed he drew attention to PSC Circular No 17/2005, and also requested disclosure of the Commission’s evidence. He also sought particulars of procedures which the Commission would apply at the hearing of the charges against him.

Resignation by the Applicant 

[18] On 21 May 2007 the applicant submitted his resignation to the Commission as per the letter of the same date. On 8 June, 2007, the Commission accepted the applicant’s resignation unconditionally with effect form 21 May 2007. This letter also stated that the applicant will be compensated for the balance of the annual and long service leave.

[19] By letter dated 19 June 2007 the Commission stated that it would only consider the applicant’s resignation submitted on 21 May 2007, under Legal Notice 92/2002, if the applicant withdrew his judicial review application.

[20] By letter dated 23 July, 2007 the Commission rescinded the acceptance of the applicant’s resignation it had earlier accepted dating back to 21 May 2007.The applicant claimed that he was entitled to know the reasons for the Commissions not to accept his resignation when it was accepted by the Commission on 8 June, 2007. 

Hearing at the Commission:

[21] By a letter dated 23 May 2007 the Commission advised the applicant, that his application was listed for hearing on 7 June, 2007. This date was unsuitable to the applicant.

[22] On 23 May 2007, the DPP advised the applicant that the documents requested for were being forwarded to him under separate cover and provided clarification concerning the procedures at the disciplinary hearing.

[23] By letter dated 11 January 2008, the Commission advised the applicant that the disciplinary charges against him would be heard by the Commission on 5 February 2008.

[24] By letter dated 28 January 2008, the applicant advised the Commission that the proposed hearing date was unsuitable and projected his suitable dates, and also questioned about the outstanding matters referred to in the applicant’s letter dated 1 May 2008, to the Commission.

[25] By letter dated 6 February 2008, the Commission advised the applicant on matters canvassed in his letter of 1 May 2008, and further notified that the disciplinary charges against him were to be heard by the Commission at 8.30am on 3 April, 2008. The Commission also put the applicant on notice that if he did not attend on that day the matter would proceed in his absence.

[26] The applicant relied on the contents of this letter and claims that the contents therein amounts a decision, which became the basis of the applicant’s case for this application for leave to file the application for judicial review.

[27] In paragraph 23 of his affidavit, he claims that "the first respondent had made a decision 

[a] not to determine the validity of its own PSC Circular No 17/2005 on the timeline.

[b] Not to make a disclosure of important document sought for the defence of the disciplinary charges against the applicant, and 

[c] Not to provide witness statement as requested. The decision breached the applicant’s Constitutional right as a person charged with an offence and of great prejudice to the defence of my case".

[28] The applicant in paragraphs, 24 to 31 of his affidavit sworn on 12 March 2008, refers to various matters and claims that the Commission had made a decision not to determine the validity of its Circular No 17 of 2005, and other matters referred to in paragraph 23, and 24, amounts to a decision. The applicant claims that he relies on this decision to seek leave for judicial review. 

[29] Finally, the applicant submits that he did not appear at the disciplinary hearing on 3 April, 2008, but instructed Mr Iqbal Khan, his Counsel to appear on his behalf. Mr. I.Khan did not appear and the matter was struck out.

Applicant’s Submission

[30] At the hearing of the leave application on 5 April, 2008, Mr. Tunidau appeared in person. Mr Green appeared for the Commission. Mr. Tunidau argued his case and made written and oral submissions. He submitted as follows:-

(a) That he had interest in the matter so it gave him the standing to seek leave in this matter to seek review, for the reason why the Commission failed to provide him with answers to some of his letters.

(b) He further submitted that he has an arguable case based on the letter of 6 February, 2008. He submitted that the letter contains a ‘decision’ by the Commission which affects his rights since the Commission failed to provide him with all the particulars he was seeking including costs. He claimed that the letter is independent and has decisions reached in it which is subject to this application.

(c) He claimed that the Commission’s refusal to provide particulars of the procedures of the hearing of the disciplinary charges, contained in its letter of 6 February 2008, are irrational and denial of procedural fairness to the applicant. 

(d) He argued that he had legitimate expectations that the Commission will provide the documents, that he has served the Public Service for many years and had expected that he will be treated fairly. He submitted that the Commission is holding his holiday and long service pay and has to date failed to answer whether it will be paid or not.

Respondent’s Submission

[31] The Respondent submitted that he relied on the Notice of Opposition dated 4 April, 2008, as follows:-

(a) That the applicant did not have an arguable case for leave to seek judicial review.

(b) That, after the hearing by the Commission, if the applicant was still dissatisfied, he was entitled to appeal to the Public Service Board under Section 25 of the Public Service Act 1999, but the applicant failed to take advantage of the appeal procedures.

(c) He further claimed that there is no decision made by the Commission which affected him for which he could seek leave to proceed for judicial review.

(d) The Counsel for the Respondents withdrew the two grounds which he had submitted in his written submissions, namely that the application was out of time, and further that the claim was the same as the claim filed for judicial review when the court was directed to take judicial notice of the decision based on the same facts. It was agreed that the judicial review sought by the applicant in case No HBJ 27 of 2006 has no relevance to the disciplinary hearing and the letter referred to by the applicant was within the 3 month period as provided in Order 53 of the High Court Rules.

Consideration of Evidence

[32] The matters for consideration are: whether there is a decision, whether there is a claim which the court is able to enforce, having regard to the present circumstances, that the applicant has resigned from his former employment, consideration of how any orders may be enforced against the Commission, and whether the applicant’s claim should be struck out on the basis that the applicant failed to seek review as provided in the Public Service Act 1999.

[33] At the commencement of the hearing, the parties were informed that the leave application was to proceed on a clear understanding of the parties that I will only determine at the end of the hearing, whether the applicant has made out an arguable case in order that I could consider if leave should be granted to the applicant to file his application for judicial review.

[34] The applicant in this case has to establish on balance of probabilities, firstly, that there is a ‘decision’, which could be made subject to judicial review. In this case the applicant bases his claim on a letter sent to him by the Commission of 6 February, 2008. This letter is a reply to the applicant’s letter dated 28 January 2009. Can a reply to a letter, in the process providing particulars of matters relating to the substantive hearing, become a reviewable decision?

[35] I have examined the details of both letters, one sent to the Commission by the applicant dated 28 January 2008 and its reply from the Commission dated 6 February 2008, which the applicant claims is a decision upon which he relies to seek leave to file his application for judicial review.

[36] Unless the applicant is able to establish that there is a ‘decision’, he is unable to seek leave to file an application for judicial review. The purpose of granting leave to seek judicial review was explained by Lord Greene M.R. in Associated Provincial Pictures House Limited v Wednesbury Corporation (1948)1 K B (C A) 223 at 234 in the following terms:

"The power of the court to interfere in each case is not as an appellate authority to over ride a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."

[37] The courts have taken the view that unless there are matters of substance put in evidence for assessment, any misguided or trivial administrative errors should not be entertained to grant leave to seek judicial leave. The granting of leave to proceed with judicial review was explained by Lord Diplock, in Inland Revenue Commissioners, ex parte National Federation of Self Employment & Small Business Enterprises 1982 AC 617 at 642, in the following terms:

"The need for leave to start proceedings for remedies in public law is not new. It applied previously to applicants for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time to the Court being wasted by busybodies with misguided or trivial complaints or administrative error and to remove the uncertainty in which the public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it is actually pending even though misconceived."

[38] In granting leave to seek judicial review, the court is not exercising the appellate jurisdiction, but only enquiring whether the procedures applied by the arbitrator are just and equitable. However, if the applicant is unable to establish a prima facie or an arguable case, his application fails.

[39] In considering all of the evidences submitted by the applicant including his claim that he has been denied procedural fairness, or whether the Commission’s conduct in handling the matter during the process leading up to the trial could give rise to a claim for procedural fairness, or if there were errors of facts, or acts which gave rise to illegality or irrationality, I have concluded that the matters which the applicant sought replies from the Commission were matters related to ‘making of the decision’ and were not decision in itself.

[40] The applicant contends that a letter received from the Commission on 6 February, 2008 is a decision, and showed a degree of remorse that the Commission was not prepared to make a decision on the Circular 17 of 2005. In addition, the applicant felt that he was refused expenses to attend hearing, simply because it was his view that the Commissions would not agree to pay his expenses if he was still employed by the Commission. The applicant viewed this as one of the major denial of constitutional right under the Fiji Constitution.

Issue 1 - Is there a decision?

[41] Mark Aronson and Nichola Franklin, in ‘Review of Administrative Action’ 1987 edition, page 244 defines the meaning of "decision" in the following terms:

"There is no clear meaning of what is a decision. A philosophiser may confine the term to a mental process unaccompanied by the normal legal outward manifestations of a decision, such as an order, warrant, or an act. But the Administrative Decisions Judicial Review Act [Cth] is not interested in thought processes if they are unaccompanied by such outward manifestation. In a sense, therefore, the ‘decision’ refers to a process of decision and authoritative announcement of that decision". 

[42] Activities held to constitute "decisions" include the grant of extension of time to lodge an objection to a patent application, failing in examination candidate and refusing to supply him with a copy of his answers, a Magistrates’ finding in committal proceedings that the information has shown a prima facie case, a ruling that he would not terminate the proceedings, as explained by the Court in Lamb v Moss (1983) 49 ALR 533 at 557. In this case the Full Federal Court of Australia, recognised that one of the consequences of its expansive interpretations of the meaning of ‘decision’ was to place a greater responsibility upon the court to exercise its discretion to refuse relief wisely, with a view to avoid floods of applications which would best wait until a final decision has been taken. 

[43] Even if the conduct leading to making of a decision may not constitute a decision, the court explained that the second stage for consideration if whether the ‘engaged conduct’ for making of a decision still remains to be considered as a discretionary matter for the arbitrator to determine whether a decision has in fact been made. In the above case the court while dismissing the appeal stated that: 

"Once a jurisdiction of the Court is properly enlivened by a sufficient application under the Administrative Decisions (Judicial review) Act 1977, (Cth) there is an obligation on the court to entertain that application. However, the existence of that obligation is not inconsistent with the discretionary [my own emphasis] power which exists under the Act to refuse relief. It is the exercise of that discretion that the court will exercise control over the circumstances in which and the stage at which judicial review will be embarked upon and the court’s discretion is not limited to what is to occur when it comes to the question of whether to grant or to refuse the final relief". 

[44] In the above case the court made reference to the following supportive cases, Director General of Social Services v Chaney (1980) 47 FLR 80, and distinguished from Director General of Social Services v Hangan (1982) and Riordan v Parole Board of Australian Capital Territory (1981) 34 ALR 322 but followed Huston v Costigan (1982) 45 ALR 559, and applied Ross & Heap v Costigan (1982) 59 ALR 184 where the question of discretion was considered.

[45] In the instant case, I have to consider whether the Commission’s letter of 6 February, 2008, sent by the Commission was in fact a decision when there was a substantive disciplinary charge listed for hearing before the Public Service Commission?

[46] It is to be noted from the applicant’s letter dated 1 May 2007, that he was fully aware of the contents of the PSC Circular number 17 of 2005, as early as 1 May 2007, as per his letter of the same date, which the applicant referred to the Commission. In this letter he gave a vivid description of the contents of the Circular and stated that: 

"The Circular directed at paragraph 1.0 a time line of (3) months … to complete and finalise all disciplinary proceedings from the date charges are laid and or suspension i.e. effected to the time the Commission finally makes its decision."

[47] In practical terms, almost everything one does have some reflection of a decision; however, it is upon a pleader to articulately extract the practical effect of the basis of the decision. It cannot be argued that every decision is appealable to the Court or the arbitrator. In Alcoa of Australia Limited v Button (1984) 55 A.L.R 101, Woodward J, after looking in vain for a legal as opposed to a practical effect of a Ministerial declaration, held that there was no ‘decision’. In this case the Minister had declared by formal notice in Gazette that import duty would not be refunded to importers of fuel oil used in the local manufacturer, of goods later exported. 

[48] In considering the distinction between the conduct leading to making of a decision and the decision itself, McGregor J in Robert v Garrett (1981) 40 A.L.R. 311, at 324, explained that a tribunal’s interim ruling rejecting a challenge to its jurisdiction was neither a ‘decision’ nor a ‘conduct’ leading to making of a decision. There are two different process in making a decision. Firstly, there may be discussion about a subject matter, between the parties, which may take several different forms of seeking questions and answers. At the end of the negotiations, there may be a final and binding agreement, which materialises into a decision. 

[49] The court has discretionary power to determine at what point the conduct leading to making of the decision materialises into a decision. It is therefore, a distinction between a decision and the conduct leading to making of a decision, which must be determined in this case.

[50] Before I can make a determination whether the contents of the letter is a decision or merely conduct leading to making of a decision, I must examine the contents of both letters. 

The applicant’s letter dated 28 January 2008 to the PSC.

[51] In this document, the applicant seeks from the Commission the following particulars:-

(a) The applicant suggests that the hearing date of 5 February 2008 is not suitable to him, because he is busy elsewhere. He suggests that his earliest available date is 24 March 2008. 

(b) The applicant in paragraph 3 stated that if the Commission was unable to confirm the date suggested by him, he would take another appointment for the nominated date.

(c) Further the applicant accused the Commission in terms, "I draw attention to the issue of the breach of PSC Circular No 17/2005, and claimed that the Commission failed in initiating disciplinary proceedings against the applicant out of time limits provided in that circular. The applicant was entitles to argue his case and could have raised this question at the disciplinary hearing. However, the Commission had discretion either to consider the contents of the Circular during the making of the decision, or it could determine its validity at the time the applicant’s case was heard. 

(d) In paragraph 5 the applicant again questions the validity of the PSC circular No 17/2005, prior to the hearing, requesting the Commission to consider the contents of this documents and make a decision on it, before the hearing of his disciplinary charges. During the oral submission by the applicant, I had gathered that that the applicant was most distressed because the Commission did not advise him of his procedural rights in an administrative decision making process. The applicant ought to have known that he had the right to issue subpoena for the production of any document at the hearing, calling the witnesses, and had the right to argue the validity of the Circular 17 of 2005 before the hearing. But the applicant failed to appear at the Commission hearing. In addition, the applicant ought to have known that after the Commission hearing, if he was still dissatisfied; he was entitled to appeal to the Appeals Board under section 25 of the Public Service Act 1999. He also missed his opportunity to argue his case by failing to appear at the disciplinary hearing. 

(e) Matters referred to in paragraph 6, 7, 8 and 9, are considered to be matters directly relating to issue of subpoenas to witnesses to appear on the applicant’s behalf at the hearing of disciplinary charge and could not be considered as a decision, but a conduct leading to making of a decision.

Now I turn to the letter from Commission dated 6 February, 2008

[52] In this letter, I am directing my mind to consider whether any part or the whole of the letter contains an appealable decision, which could be made subject to review by the Commission or the court. The Commission’s reply dated 6 February 2008 contains several different issues and is in a form of answers to the applicant’s questions.

[53] In considering the particulars contained in this letter, I am required to analyse if the contents of the letter is related to ‘conduct leading to making of a decision’, or if, at any stage, during the conduct leading to making of a decision, it has crystallised into a final decision per se.

[54] In considering the substance of this letter, I find as follows:-

(a)  The Commission’s letter refers to the applicant’s letter of the 28 January 2008. It is clearly intended to provide a reply to the applicant’s letter dated 28 February 2008, therefore, primarily providing particulars to the applicant. It is my view that the details contained in this paragraph are clearly mattes leading to making of a decision but the contents of the letter has not crystallised in a final decision. Matters particularised in this paragraph is clearly informative and not a decision.

(b) The letter refers to the applicant’s earlier letters, in which he has requested the Commission to provide him a determination on the validity of Circular No 17 of 2005, while the substantive action was listed for hearing. This in my view is not a decision which can be reviewed by either the Commission or the court.

(c) The next matter in this paragraph considers the applicant’s reply when he advised the Commission that the hearing date 5 February 2008 was unsuitable to him. The applicant further advised the Commission that he wished to revert back to 1 February 2008 for the hearing of his disciplinary charges. This is no substance in this paragraph upon which the applicant could claim a review, as it is not a decision.

(d)  In the next paragraph the Commission advised the applicant the procedures at the hearing. It appears that the applicant, though a solicitor of several years of standing, if still unaware of the procedures at the hearing, ought to have consulted his legal representatives, or alternatively appeared at the hearing when he would have been fully informed of his rights to call witnesses and cross examine the Commissions’ witnesses. I am satisfied that the materials contained in this paragraph do not amount to a decision or contain an appealable decision.

(e) The next matter for consideration in this letter is the applicant’s demand that the Commission to payment his expenses to attend the disciplinary hearing. In my view this is clearly not an appealable decision. The applicant should have been aware, that costs and expenses follow event. He denied his right to seek cost, by failing to appear at the disciplinary hearing.

(f) The applicant gave his resignation, on 21 May 2007 which was accepted by the Commission on the 8 June, 2007, effective from the above date. Thereafter, the applicant did not seek reinstatement, the Commission’s rejection of the resignation after having accepted it, cannot be later bilaterally revoked. The revocation has no legal effect and the resignation remain effective from the date the applicant claimed to have resigned.

[55] My conclusion is that even though it was not the Commission’s duty to advise the applicant how he was to plead his case, I find that the Commission should have at least responded to provide the applicant information and direction, how he would be able to seek production of documents and call his witnesses by issuing subpoenas. I find that the Commission’s failure to provide the applicant information sought in his letter, does not amount to breach of procedural impropriety or denial of natural justice to the applicant under the Fiji Constitution. I regard that, on balance, the Commission ought to have advised the applicant at least a reply that the Circular the applicant was seeking could be obtained on a subpoena to produce documents. I consider that it was an ‘administrative error’ on part of the Commission, which has adequately been explained by Lord Diplock, in Inland Revenue Commissioners, ex parte National Federation of Self Employment & Small Business Enterprises 1982 AC 617 at 642, referred to above.

[56] After having considered all the aspect of both letters, I have come to the conclusion that the document of 6 February, 2008, is not a decision upon which the applicant can rely in seeking leave to file his substantive application for judicial review. 

Issue 2 - Is there an arguable case?

[57] If the applicant had an arguable case arising from letter of 6 February 2008, then he has failed to seek proper review of the ‘decision’ by the Commission. He should have firstly, referred the decision for hearing by the Public Service Commission, thereafter, he had the right to appeal to the Public Service Appeals Board under section 25 of the Public Service Act 1999. Unless the applicant is able to establish that he has arguable case, his leave application cannot succeed.

[58] The basis of establishing an arguable case refers to the facts which, if considered on their own may not be capable to supporting an arguable case, however, when several other surrounding facts are examined in totality, the applicant may establish an arguable case. In this case the applicant relies on various matters contained in the aforementioned letter which he claims contains an ‘arguable case’. The consideration of arguable case was explained by the court in Fiji Pilots Association v Permanent Secretary for Labour & Industrial Relation Civil Appeal No ABU 0059U of 1997, in the following terms: 

"The basic principle is that the Judge is only required to be satisfied that the material available discloses what might, on further consideration, turn out to me an arguable case in favour of granting relief. If it does, he or she should grant the application – per Lord Diplock in Inland Revenue Commissioners v National Federation of Self Employed [1982] AC 617 at 644." 

[59] The applicant submits that it is not necessary to show an arguable case when seeking leave to proceed to judicial review. In support of his claim he referred to R v Director of Immigration, ex parte Ho Ming Sai (1993)3 HKPLR 157 where the court explained that the applicant only need to show that the materials before the court which might on further consideration demonstrate an arguable case for the grant of leave to proceed to judicial review.

[60] The respondent submitted consideration of principles in National Farmers Union v Sugar Industry Tribunal & Others - C.A 8/1990, [7 June 1990], to be considered, where the court held that if it is satisfied that the materials placed before the court may turn out to be an arguable case in favour of granting leave, if it does, he or she should grant leave.

[61] Further consideration for granting leave to proceed to judicial review was explained by Lord Donaldson MR in R v Legal Aid Board; ex parte Hughes (1992) 24 HLR 698, he said,

"Lord Diplock may well have been right in 1981 to have said [what he did] ... However, things have moved on since then. This was an ex-parte application .In such a case leave is or should now only be granted if prima facie case there is already arguable case for granting the relief claimed. This is not necessarily to be determined on a ‘quick perusal of materials’ although clearly any in-depth examination is appropriate"

[62] After examining the letter of 6 February, 2008, and all other matters submitted, written and oral submission by both parties, I find that there is no decision, or an arguable case made out, in the letter under consideration upon which the applicant can rely to seek leave for judicial review. 

Issue 3 - The Last Resort for Judicial Review

[63] The applicant seeks leave to proceed to file application for judicial review pursuant to Order 53 rule 3(8) and also under Order 53 rule 8. In considering his application I have considered the provisions contained in both the Orders referred to herein.

[64] The applicant in the instant case was an employee of the Public Service Commission and was entitled to seek a review of the decision of the Director of the Public Prosecution Office, [The DPP] at the time when he was charged by the DPP.

[65] If the applicant was dissatisfied with the decision of the Commission, then he had the statutory right to appeal to the Public Service Appeals Board under Section 25 of the Public Service Act 1999. Only after having exhausted his right to review, the applicant would have been entitled to seek leave of the Court to proceed with his application for judicial review. This procedure of exhausting existing rights was explained by the court in R(Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 was explained by Laws L J in the following terms:

"Familiar rule of discretion, namely that judicial review is a legal recourse of last resort and a claimant must exhaust any proper alternative remedy open to him before the judicial review court will consider the case".

[66] The above principles have constantly been applied, for example in R v Hammersmith & Fulham Borough Commissioners Ex Parte Burkett [2002] Lord Steyn remarked as follows:

"The established principle that judicial review is a remedy of last resort."

[67] Furthermore, courts in Fiji have applied the same principles as in Tony Udesh Bidesi Judicial Review No HBJ0020 of 1997, where Scott J, stated that "it is clear that His Lordship based his judgment mainly on the requirements of an applicant to first exhaust other remedies available to him. 

[68] It has been a common sense approach in dealing with applications for judicial review particularly where there is statutory provision for an applicant to seek review, that avenue must first be exhausted before making an application for judicial review as explained by Connors J in Amrit Lal v The Senior Education Officer, Nadroga & Navosa & Others HBJ 001 of 2005.

[69] I find that, since the applicant has failed to seek review of his complaint with the Commission, concerning the contents of letter dated 6 February 2008, I find that the applicant failed to seek remedies which were available to him, his application fails.

Issue 4 - Procedural Fairness and Denial of Natural Justice

[70] The applicant claimed that he has been denied procedural fairness and natural justice during the process of making of the final hearing by the Commission. In his affidavit sworn on 12 March 2008, the applicant at paragraph 5 (f) states, ‘That the decision of the first named Respondent by letter dated 6 February 2008 to finalise the hearing date to 3rd April, 2008 and to make a deliberation without addressing the issue raised by the applicant in several letters commencing 1 May 2007, is procedurally improper and in breach of principles of natural justice’. 

[71] Fairness is defined as nothing startling about the term itself, it has been used to capture the essence of principles of natural justice from the time of development of common law in the United Kingdom. Lord Parker in Re H K an infant (1967) 2 Q B 617, at 630 said: 

"That is not as I see it a question of acting or being required to act judicially but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not only impartiality nor bringing one’s mind to bear on problem, but acting fairly and to the limited extent, that the circumstances of any particular case allow, and within the legislative framework under which administrator is working, only to that limited extent do the so called rules of natural justice apply, which in a case such as this is merely a duty to act fairly".

[72] In Padfield v Minister of Agriculture [1968] A.C. 997, the court held that in most cases in which the court has granted judicial review on grounds of ‘unfairness’ amounting to abuse of power there has been some proven element of improper motives .

[73] There is no evidence submitted by the applicant establishing the circumstances in which he has been denied procedural fairness or natural justice. He did not attend hearing of the disciplinary changes, there was no hearing which affected him, the charges were, I am told dismissed. The applicant failed to exemplify his complaint, the court is unable to make a finding on such hypothetical assertions. The Fiji Court of Appeal in Ali v Attorney General [1999] FJCA 6, ABU0064e.98e [5 February 1999] held that:

"The first ground cannot, in my view, succeed as the issue to which it relates was not put in issue by the applicant for judicial review as it was framed; because it was not a issue, no evidence relevant was presented."

[74] After considering all the materials put before the court, including oral and written submissions, I do not find that there is any evidence to support the applicant’s claim that by the Commission’s refusal in a subsequent letter not to accept the applicant’s resignation amounts to denial of natural justice or procedural fairness. I found that the Commission made an administrative error.

[75] In further assessing whether the applicant was denied procedural fairness during the period leading up to the making of the decision, I have directed my mind to the decision in Kanda v Government of Malaya [1962] A C 322, 327, and further to the ratio arising from Nainima v Attorney General of Fiji [2000] FJCA 1, ABU0070.97S [1 December 2000], and note that the principles referred to in the above cases are inapplicable in the instant case, because the applicant failed by his own conduct to appear at the hearing which was arranged for the third time. He therefore, cannot complain that he was denied of natural justice either during the making of the decision, or at the hearing.

Issue 5 - Are any orders enforceable?

[76] The applicant in his affidavit sworn submitted his resignation to the PSC as per his letter dated 21 May 2007.The resignation was accepted by the PSC as per its letter dated 8 June, 2007. I find extremely intriguing the letter of 19 June, 2007, wherein the Director of Public Prosecution stated that the acceptance of resignation was subject to the applicant withdrawing his application before the High Court. This letter is not only improper suggestion to seek a compromise the applicant’s rights, but has no relevance to the making of the decision, since the Commission had previously accepted the applicant’s resignation, that was the end of the contractual agreement between the parties. In effect the applicant after 21 May 2007 has no standing to seek leave to file judicial review against the Commission.

[77] The applicant has resigned from the Commission and has his own private practice. Any orders made would not affect him or the Commission. This application therefore is premature, and is abuse of process.

[78] If the applicant is unable to establish any existing right with the respondent, he, therefore cannot enforce any orders against the respondents, therefore, the court must decline the application, as held in The State & Mr Justice J.Connors & Attorney General of Fiji ex parte Sayed Mukhtar Shah JR No HBJ 47 of 2007, and Yabaki v The President of the Fiji Islands 2003 ABU 0061 The court explained how a decision becomes a moot point, or an academic exercise, when there is no enforceable remedy after event:

"The declaration sought would not constitute a final and binding decision on any issue. The declarations sought would not enunciate or enforce any right. Nor do the declarations seek the enforcement of any duty. The relevant events occurred in mid 2001.The appellants do not now seek orders restraining the acts of which they complain to restoring the previous state of affairs. In this appeal the appellants do no more than seek an expression of the Court’s view on what is an academic question in relation to which the appellant’s have no special connection."

Conclusion

[79] After having examined the applicant’s claim I have come to the following conclusion:

1. I find there is no "decision" made in letter dated 6 February, 2008, upon which the applicant can seek leave for judicial review.

2. I find that the content of the aforesaid letter is a reply and its conduct leading to making of a decision does not give rise to an arguable case.

3. I find that the applicant failed to exhaust all remedies stipulated under the Public Service Act 1999, he had the right to appeal to the Appeals Board under Section 25 of the Public Service Act 1999, but he failed to do so, accordingly, he is not entitled to leave under Order 53 of the High Court Rules. 

4. I also find that the orders, if granted, could not be enforced, since the applicant is no longer employed by the Commission, hence the application is abuse of process.

Order

1 The application for leave is refused. Application is dismissed.

2 I do not make any orders for costs against the applicant for the reasons that the respondents have failed to account to the applicant all his outstanding holiday and long service payments, which I hereby order it to be paid to the applicant within 28 days from today.

C. Datt
JUDGE
At Lautoka

16 May 2008