State v Public Service Commission [2011] FJHC 743; HBJ06.2011 (18 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW HBJ NO: 6 OF 2011

BETWEEN:

THE STATE

AND:

PUBLIC SERVICE COMMISSION
Respondents

Ex Parte:

ANA LAQERE
Applicant

AND:

FIJI PUBLIC SERVICE ASSOCIATION
Interested Party

Applicant in Person.
Ms S Daunavuna for the Respondent

DECISION

The applicant has applied for leave to apply for judicial review of the Respondent's decision dated 17 June 2011 declining to re-instate the applicant's salary after the lapse of three months of her suspension from employment. The application for leave was dated 20 June and filed on 22 June 2011. Accompanying the application was a Notice in the prescribed form and an affidavit sworn by the applicant on 20 June 2011 verifying the facts in accordance with Order 53 Rule 3 (2) of the High Court Rules.

Although the application purported to be made ex parte, the documents were served on the Respondent who filed a Notice of Opposition on 30 June 2011.

When the application was called for mention inter partes on 1 July 2011 I indicated that the application may be caught by Decree No. 14 of 2010. That issue clearly needed to be resolved as a preliminary matter before the application for leave could proceed.

The hearing of the preliminary issue was set down for 26 September 2011. The applicant relied on written submissions which she handed to the Court. Counsel for the Respondent summarised written submissions which were also handed to the Court.

It is necessary to make two preliminary observations. First, when a hearing for leave is ordered by the Court, the application is to be heard and determined inter partes. (see Order 53 Rule 3 (3) ).

Secondly, at the commencement of the hearing of the preliminary issue, Mr D Nair entered an appearance for the Interested Party, Fiji Public Service Association. I raised with Mr Nair the question of his standing to appear. He did not dispute that the Association was a registered trade union under the Employment Relations Promulgation 2007 (the Promulgation). Pursuant to section 144 of the Promulgation registration of a trade union renders it a body corporate by the name under which it is registered and may sue and be sued.

Order 5 Rule 6 (2) state:

"Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any such proceedings otherwise than by a barrister and solicitor."

I have no doubt whatsoever that an application for leave to apply for judicial review made under Order 53 Rule 3 constitutes proceedings for the purposes of Order 5 Rule 6. Although not defined in Order 1 Rule 2, the word is defined in the Shorter Oxford English Dictionary as having a meaning which includes the institution or carrying on of an action at law; a legal action or process; any step taken in a cause by either party.

In Engineers' and Managers' Association –v- Advisory, Conciliation and Arbitration Service and Another (No.1) [1979] 3 All ER 223 Lord Denning MR at page 224 said:

"If the trade union had been a body corporate then under RSC Order 5 Rule 6 (2) _ _ _ it could not appear or carry on proceedings except through a solicitor."

Applying the obiter comments of Lord Denning MR (supra) Pathik J in State v Arbitration Tribunal ex parte PAFCO Employees' Union (unreported JR No.20 of 2002 delivered 6 August 2003) held that the union as a body corporate has to carry on the proceedings by a barrister or solicitor. The General Secretary of that Union was not permitted to conduct the hearing of the judicial review in open court.

I am satisfied that the Rule in question applies equally to an application for leave to apply for judicial review being proceedings that are usually regarded as "Chambers business".

If these proceedings had been proceedings brought in the Employment Relations Court established under section 219 of the Promulgation and if the proceedings had come within that court's jurisdiction under section 220 of the Promulgation then Mr Nair may have appeared pursuant to section 229 of the Promulgation. However this is an application for judicial review under Order 53 of the High Court Rules and is therefore subject to the restriction imposed by Order 5 Rule 6.

I had indicated to Mr Nair that he could continue to assist the Applicant as a "McKenzie friend".

The preliminary issue before the Court is whether the Court's jurisdiction to hear and determine the application for judicial review has been "ousted" by the provisions of the Administration of Justice (Amendment) (No.3) Decree 2010 (Decree No.14 of 2010).

That issue falls to be determined by the Court as result of guidelines established by the Honourable Chief Justice in his Minute dated 6 October 2010 addressed to all Civil Division Judges and Masters. The guidelines state:

"When the question of whether a case falls within a category where the Chief Registrar may consider termination under one or other Decree, it may be wise to follow the following procedure:

1. If the parties to the litigation agree that the case does come within the relevant Decree, the judge can make the necessary order to refer it to the Chief Registrar for her consideration.

2. If the parties do not so agree, the judge should ask for submissions and have the issue argued, then rule. This way the litigants have the opportunity of a hearing to argue that it does or does not come within the respective Decree."

Section 2 of Decree No. 14 of 2010 amended the Administration of Justice Decree 2009 by adding a new section 23B which so far as is relevant to these proceedings provided:

"(1) No court _ _ _ shall have the jurisdiction to accept, hear, determine or in any other way entertain any challenges _ _ _ (including any application for judicial review) by any person _ _ _ or to entertain or grant any remedy to any person _ _ _ in relation to the validity, legality or propriety of any action, decision or order of _ _ _ the Public Service Commission _ _ _ to:

(i) _ _ _; or

(ii) alter or amend the terms and conditions of employment of any person in any public office or public service, including any changes effected _ _ _ through any other directive issued by _ _ _ the Public Service Commission; or

(iii) any changes to terms of services including the remuneration of any person in public office or public service _ _ _;

(2) Any action, proceeding _ _ _ in any court _ _ _ which purports to or purported to challenge any action, decision _ _ _ of the Public Service Commission as it relates to actions, decisions or orders as referred to in sub-section (1) shall wholly terminate upon the commencement of this Decree, _ _ _, and a certificate to that effect shall be issued by the Chief Registrar _ _ _.

(3) A certificate issued under sub-section (2) is _ _ _ conclusive of the matters stated in the certificate

(4) A decision of the Chief Registrar _ _ _ to issue a certificate under sub-section (2) is not subject to challenge in any court _ _ _ ".

The Decree added two further sections in the form of section 23C and 23D which state:

"23C. This Decree shall not affect any subsisting employment benefits such as salary, leave and like benefits of any individual in relation to their employment _ _ _ by the Public Service Commission _ _ _.

23D. The amendment made by section 23B has effect as from the commencement of the Administration of Justice Decree 2009."

In order to determine whether the Court's jurisdiction to hear and determine the application for judicial review has been ousted by the Decree it is necessary to first consider the decision that is the subject matter of the application. The decision under challenge is the decision taken by the Respondent which is set out in its letter dated 17 June 2011 addressed to the Interested Party. So far as is relevant that letter stated:

"Payment of a Quantum of Salary Whilst on Suspension.

Your letter dated 26/5/11 and 03/06/11 on the above subject refers.

This is to advise that the Commission has declined the request for the payment of 50% quantum of salary for the following officers:

1. Ana Laqere, EDP.53891, Accounts Officer

2 - 7 ."

The Applicant had been suspended without pay with effect from 12 October 2010 until the conclusion of the disciplinary proceedings by the Public Service Commission in accordance with Regulation 23 (2). The suspension followed an investigation into certain aspects of the Applicant's work performance as an Accounts Officer within the Office of the Divisional Engineer Central Eastern. This information was conveyed to the Applicant by way of memorandum dated 12 October 2010.

Regulation 23 of the Public Service Regulations 1999 provides:

"(1) The Commission may suspend from duty if the Commission believes that:-

(a) the employee has breached the Public Service Code of Conduct; and

(b) the proper management of the employee's Ministry or department may be prejudiced if the employee is not suspended.

(2) _ _ _

(3) An employee suspended from duty under sub regulation (1) is not entitled to remuneration for the period of suspension.

(4) The Commission may decide that an employee who is suspended from duty is entitled to all or part of the remuneration payable for all or part of the period of suspension."

The issue is whether the decision taken by the Respondent is caught by section 23B of the Decree or does the decision relate to a subsisting employment benefit under section 23C.

The word subsisting when given its plain and ordinary meaning (in the Shorter Oxford English Dictionary) refers to an employment benefit that exists as a reality. The Applicant has been suspended and a legal consequence of that suspension is that the applicant is suspended without pay. Therefore at the time that the applicant applied for restoration of part of her pay, the decision taken by the Respondent did not relate to an employment benefit that existed as a reality. The decision did not relate to a subsisting employment benefit. The Applicant was not receiving her pay and nor did she have any right to receive her pay unless and until the Respondent had exercised the discretion granted by the Regulations.

Furthermore the decision taken by the Respondent cannot be considered in isolation. The Applicant in my judgment quite rightly indicated that there was no challenge to the decision to suspend the Applicant. I say quite rightly because, in my judgment such a challenge would be caught by section 23B. Any subsequent decision taken by the Respondent that arises as a consequence of suspension is sufficiently connected to the decision to suspend so as to be considered as part of that decision and also cannot be challenged.

As a result I have concluded that the Applicant's challenge is caught by section 23B. I therefore order that the file be referred to the Chief Registrar to be processed in accordance with the provisions of Decree No.14 of 2010.

W D Calanchini
Judge

18 November 2011
At Suva