State v Pharmacy and Poisons Board, ex parte Solanki [2012] FJHC 885; HBJ 8, 9, 10.2011 (24 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW: HBJ 8 OF 2011
JUDICIAL REVIEW: HBJ 9 OF 2011
JUDICIAL REVIEW: HBJ 10 OF 2011

THE STATE

V

PHARMACY and POISONS BOARD
Respondent

EX PARTE:

HELEN SOLANKI
WAISAKE RADRODRO
SHALENDRA SHARDHA NAND
Applicants

Mr H Nagin for the Applicants.
Ms L Vaurasi for the Respondent.

DECISION

On 4 November 2011 each of the above applicants filed an application for leave to apply for judicial review of the decisions taken by the Respondent whereby the Board purported to suspend the registration of each Applicant as a Pharmacist and in respect of the second and third Applicants purported to order the closure of their pharmacies.

The Respondent's decisions were set out in letters dated 9 September and 12 September 2011.

The applications were made pursuant to Order 53 Rule 3 (2) of the High Court Rules.

The first application was supported by an affidavit sworn by Helen Solanki on 21 October 2011. The second application was supported by an affidavit sworn by Waisake Radrodro on 1 November 2011. The third application was supported by an affidavit sworn by Shalendra Shardha Nand on 31 October 2011.

Accompanying each application was a notice in the form and containing the information required under Order 53 Rule 3 (2) (a).

Although Order 53 Rule 3 (3) (1) required copies of the applications for leave and the supporting affidavits to be served on all parties directly affected by the application, the Applicants commenced the proceedings by way of ex parte Notice of Motion.

Having read the filed documents, I considered that the applications for leave should be heard and determined inter partes. However, the Applicants initially appeared before me on 14 November 2011 ex parte due to non service of the papers on the Respondent. On 16 November 2011 the applications commenced inter partes. On that day orders were given for the filing of affidavit material and the hearing of the applications for leave was fixed for 13 December 2011. Stays were granted until that date.

The applications for leave were heard on 13 December 2011. Counsel presented extensive and helpful submissions.

The principles upon which leave is granted are well settled. The first matter to be considered is the sufficient interest test. Pursuant to Orders 53 Rule 3 (5) the Court shall not grant leave unless it considers that an applicant has a sufficient interest in the matter to which the application relates. On the material in each of the affidavits I am satisfied that each Applicant has a direct personal interest in the relief being sought to conclude that each Applicant has an interest sufficient to satisfy the requirement of Rule 3 (5).

The next factor to be considered, albeit in a limited sense, is the question of delay. Order 53 Rule 4 requires the Court to consider the question of delay at the leave stage. The extent of that inquiry was discussed by the Supreme Court in Public Service Commission –v- Brian Singh and Another (unreported civil appeal No.11 of 2008 delivered on 27 August 2010). At paragraph 14 (b) on page 7 the Court stated:

"Where there is an application for leave to issue judicial review where the relief sought is an order for certiorari and the application is made after three months has expired, in such a case the trial judge is allowed to consider whether there was delay and whether the grant of relief is justified. The rule does not allow him to consider delay if the application was filed within the 3 months period."

It is apparent from the affidavits that the applications were filed within three months of the date upon which each applicant was advised of the respective decisions. As a result it is not necessary to consider any further the issue of delay since each application seeks an order for certiorari.

The final matter to be considered is whether the applications raise an arguable case for granting relief. The nature of the test has been variously described in recent authorities. In R v Secretary of State for the Home Department ex parte Doorga [1990] C.O.D. 109 at page 110 Lord Donaldson M.R. indicated that leave should be refused where the applicant's position is "wholly unarguable." In R v Secretary of State for the Home Department ex parte Begum [1990] C.O.D. 107 at page 108 his Lordship stated that if there was no arguable case leave should be refused. The purpose of the test is to eliminate at an early stage applications that are either frivolous, vexations or hopeless. It is intended to ensure that an application is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further consideration. The judge has a discretion whether to grant leave and the manner in which that discretion is to be exercised was discussed by Lord Diplock in Inland Revenue Commissioners –v- National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1981] 2 All ER 93 at page 106:

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called on to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

Each Applicant seeks an order of certiorari to remove the Respondent's decisions into this Court and for the decisions to be quashed. In addition each applicant seeks a declaration that the Respondent (a) exceeded or failed to properly exercise its jurisdiction, (b) made errors of law, (c) acted unreasonably by abusing its discretion and acting irrationally and (d) acted in breach of each applicant's legitimate expectations.

The grounds upon which the relief is sought were set out in some detail in each of the notices required under Order 53 Rule 3 filed by the Applicants.

The decision that is challenged by the first Applicant is contained in a letter dated 9 September 2011 addressed to the first Applicant from the Respondent. For the purposes of the present application the last two paragraphs are relevant:

"The Board requires you to submit financial evidence that you own the above Pharmacies with immediate effect, and justify to the Board, why your name should not be removed from the Register of Pharmacists for misleading the Board.

In the interim your Registration as a Pharmacist in Fiji is suspended under section 34 (2) of the Pharmacy and Poisons Act Cap 115."

The second Applicant received a similar letter dated 12 September 2011. The last two paragraphs were in the same terms as the last two paragraphs of the letter to the first Applicant.

Furthermore, in a letter dated 9 September 2011 the second Applicant was notified that:

"_ _ _ you are to cease operation of these (Wyse Pharmacy at Valelevu and Nakasi) Pharmacies as it is deemed to be operating illegally and provide written explanation as to why you have entered into such illegal arrangements _ _ _

You're hereby given 4 weeks' notice to make arrangements to sell the Pharmacies or close down whatever is practically possible as the Pharmacies are deemed to be operating illegally."

Although for slightly different reasons, the third Applicant received two letters both dated 9 September 2011 to the same effect. The first letter was a closure notice in respect of the third Applicant's Pharmacy at Flagstaff and the second letter was a suspension letter issued under section 34 (2) of the Act.

Each Applicant claims that the Respondent exceeded and/or did not properly exercise its jurisdiction under section 34 (2) of the Act which states:

"(2) Pending the hearing of a charge against any person the Board may suspend the registration of that person who shall thereupon cease to practice."

The Applicants submit that the words "pending the hearing of a charge" mean that the jurisdiction to suspend that is given to the Board is only exercisable after a person has been charged. No doubt the reference to a charge is a reference, in this case, to a charge under section 33 (l) (e) (ii) that a person's is charged with improper conduct rendering him unfit to be allowed to continue to practise as a pharmacist.

The Applicants submit that as no charge had been served the jurisdiction to suspend did not arise. They say that all that the Board has done is to put an allegation or allegations to each of them and that they have been given an opportunity to respond. That does not constitute a charge and there is no hearing pending. In my judgment such a submission constitutes an arguable case and certainly could not be described as frivolous vexations or hopeless.

The applicants also claim that they were each denied natural justice in the sense that they were not afforded procedural fairness. It is submitted that the decision to suspend each of the applicants had been made without giving each applicant the opportunity to be heard. In support of that argument the Applicants rely on the Court of Appeal decision in Deo Dutt Sharma –v- Fiji Medical Association (No.2) (1986) 32 F.L.R 73. There is no doubt that where a penalty of suspension is being contemplated by a disciplinary tribunal, the person thus affected, should certainly be given the opportunity to be heard. It is arguable that a person facing administrative suspension should be given a hearing where such suspension will have the effect of depriving a self-employed person from continuing to earn his or her livelihood.

In the context of this case there is a distinction between cases arising under regulations 23 of the Public Service (General) Regulations 1999 and section 34 (2) of the Act.

I am also satisfied that the claims by the Applicants that the Respondent took into account irrelevant material and failed to consider relevant material are arguable. It is arguable that the Board has acted unreasonably in reaching its decision to suspend the Applicants. The claims raised by each Applicant in their leave applications and in their notices under Order 53 Rule 3 are arguable.

I am also satisfied that the second and third applicants have an arguable case in respect of the Respondent's decisions to order closure of their respective pharmacies. That conclusion is reached on the basis of jurisdiction, denial of natural justice and that the decisions were unreasonable.

For all of the above reasons, leave to apply for judicial review is granted to each Applicant. The decisions of the Respondent are stayed pending the determination of the substantive applications. The Applicants are to proceed by way of Motion in accordance with Order 53.

Costs of the leave applications are to be costs in the substantive applications.

W D Calanchini
Judge

24 February 2012
At Suva