State v University of the South Pacific Student Appeals Committee, ex parte Mototabua [2014] FJHC 876; Judicial Review3.2014 (28 November 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Judicial Review No. 3 of 2014

IN THE MATTER
of an application by ELIKI MOTOTABUA for a Judicial Review under Order 53 of the High Court Rules 1988

AND

IN THE MATTER
of the decision by the University of the South Pacific Student Discipline Appeals Committee dated 12th February 2014

BETWEEN:

THE STATE

AND :

UNIVERSITY OF THE SOUTH PACIFIC STUDENT APPEALS COMMITTEE
of USP Laucala Campus, Suva
First Respondent

AND:

UNIVERSITY OF THE SOUTH PACIFIC STUDENT DISCIPLINE COMMITTEE
Second Respondent

Ex-Parte :
ELIKI MOTOTABUA of Veinuqa Village, Tailevu, Law Student

Appearance : Applicant in Person
Mr Jon Apted of Munro Leys Solicitors
Ms T Sharma for the Attorney General

Date of Judgment : 28th November 2014

JUDGMENT

[1] The Applicant filed Notice of Motion for judicial review and the Affidavit dated 7 March 2014. The Applicant sought leave to apply for judicial review.

[2] The First and Second Respondents filed Notice of Opposition on 24 March 2014 and the following issues were raised:

(i) The Application for Leave does not comply with Order 53 Rule 3(2) of the High Court Rules 1988 and the Respondents are unable to defend themselves fairly;

(ii) The Application and Affidavit in Support do not disclose even a prima facie case for the Leave;

(iii) In the alternative, the court is without jurisdiction as any dispute between a student and the university is within exclusive jurisdiction of the visitor of the university;

(iv) Respondents had opposed any order that the grant of leave to apply for judicial review should operate as a stay proceedings and sought the following orders:

(a) the Application for Leave to issue Judicial review be dismissed;

(b) costs.

[3] The Applicant was a Law Student of the University of the South Pacific (USP) who sought redress from this court appeared in person. When the matter was taken up for hearing on 26 March 2014, Mr Apted counsel for the Respondent stated that the Application for Leave was not in conformity with Order 53 of the High Court Rules and the Applicant filed amended notice of motion dated 16 April 2014 including the word "Certiorari".

[4] The Respondents filed its Affidavit sworn by Lily Vesikula dated 5 May 2014 and the Applicant filed reply to Notice of Opposition on 16 May 2014 and Supplementary Affidavit was filed by the Respondents on 21 July 2014.

[5] When the matter was taken up on 28 July 2014 Mr Apted counsel for the Respondent submitted, that the Applicant by his reply to the Notice of Opposition stated he relies on Constitutional Rights under Section 14(2) (o) of the Constitution and the Section 44(8) of the Constitution. Mr Apted stated the court cannot hear the application until the Notice being given to the Attorney General. Accordingly, the Attorney General was noticed and Ms Fong of the AG's Department intervened in the action.

[6] When the matter was taken up for hearing, the Applicant appeared in person and stated:

6.1 He is relying on the Motion and Affidavit.

6.2 He was not informed when he could appeal to the visitor. His representation was made to the disciplinary committee and referred to EM7 annexed to his Affidavit which is addressed to the Dean of Law of the University of the South Pacific. However, I note after EM7, there were two decisions made by the USP Student's Disciplinary Committee dated 11 November 2013 and Students' Disciplinary Appeal Committee dated 12 February 2014.

6.3 The Applicant stated that he entered USP in 2011 and now he is being prevented from studying as an internal student and the decision by the Discipline Appeal Committee was wrong and he was ordered to $100 as a fine.

[7] Mr Apted Counsel for the Respondent made submissions and tendered the written submissions and stated:

7.1 Parties were heard and then made the decision, and there was no breach of natural justice.

7.2 EM3, the decision by Disciplinary Committee can be considered by the Vice Chancellor.

7.3 The Applicant was charged and he was found guilty of two counts in 2013 by the Respondents. The Applicant was fined and required him to attend counseling and to apologize to the Head of Law School.

7.4 The Second Respondent's decision was that an exclusion of USP Laucala Campus imposed by the Vice Chancellor to continue and could be reconsidered by the Vice Chancellor.

7.5 The Applicant appealed to the 1 Respondent on 12 February 2014 (EM1) and the appeal was disallowed.

7.6 The Respondent's counsel stated subsequent to the Notice of Opposition (as stated in paragraph 2) of this Judgment, the Applicant filed amended motion on 17 April 2014 to quash the decision of the Respondents dated 12 February 2014, however, this decision was made only by the First Respondent.

7.7 I agree with the Respondents' counsel on the following:

(a) The Applicant sought leave for judicial review of the decision of the 1 Respondent dated 12 February 2014 and claimed to stay the decisions of the both Respondents which is fundamentally incorrect;

(b) Considering the Affidavits filed by the Respondents sworn by Lily Vesikula sworn on 5 May 2014 and 18 July 2014 it is evident that there was an alternative remedy or to appeal to the University's Visitor. In such circumstance, the Applicant cannot seek Judicial Review.

[8] The Applicant had not established an arguable case which is fundamental for leave sought by his motion and affidavit and as such I conclude Leave cannot be granted since the grounds urged are without any basis and not substantiated. The Respondent's have given fair hearing and the decision was made. This court cannot consider the Applicant's application on the basis of an appeal. I quote the following paragraph of Treatise of Administrative Law by Prof. H.W.R. Wade (12 edition) at page 34 and 35:

"Judicial Review is radically different from the system of appeals. When hearing an appeal the court is concerned with the merits of the decision of an appeal under appeal....but in judicial review the court is concerned with its legality. On appeal the question is right or wrong. On review the question is lawful and unlawful?.....judicial review is a fundamentally different operation. Instead of substituting its own decision for that of some other body, as happens when an appeal is allowed. The court on review is concerned only with the question whether the act or order under attack should be allowed to stand or not."

[9] In a Judicial Review Application this court has to consider as to whether the decision making process was correct not the decision. There is no allegation with regard to the process except for the claim of bias. However, I cannot find any evidence in the proceedings on the allegation of bias. It is well established principle in a Judicial Review application it is not to challenge the decision, only to see whether there was a fundamental errors made in the process of arriving at the decision. This application constitutes an appeal against the decision which cannot be entertained by this court.

[10] Further, I conclude that the Applicant had not pursued the option of alternative remedy to appeal to the Visitor. As such this court cannot consider the application for Judicial Review.

[11] The Respondents' counsel cited the case of State v. University of the South Pacific, Ex parte Burnes [1997] FJHC; 12 [1997] 43 FLR 17 Scott J had summarized the law in previous cases and stated:

"...........................A member of a University having a dispute with the University falling with the jurisdiction of the Visitor should first take his grievances to the Visitor. A decision of the Visitor is reviewable but not appealable. If he does not first take his grievances to the Visitor then court will not entertain his motion for review."

In the circumstance I agree that this court can only review the decision of the Visitor and the Applicant's application cannot be entertained.

[12] The Applicant also relied on Constitutional Right to an education in pursuant to Section 31 of the Constitution:

Section 31

"Right to education

31. – (1) Every person has the right to –

(a) early childhood education;

(b) primary and secondary education; and

(c) further education.

(2) The State must take reasonable measures within its available resources to achieve the progressive realization of the right –

(a) to free early childhood, primary, secondary and further education; and

(b) to education for persons who were unable to complete their primary and secondary education.

(3) Conversational contemporary iTaukei and Fiji Hindi languages shall be taught as compulsory subjects in all primary schools.

(4) The State may direct any educational institution to teach subjects pertaining to health, civic education and issues of national interest, and any educational institution must comply with any such directions made by the State.

(5) In applying any right under this section, if the State claims that it does not have the resources to implement the right, it is the responsibility of the State to show that the resources are not available."

This obligation by the Government is to take necessary measures to provide and ensure the people of Fiji to receive formal education.

[13] As submitted by Mr Apted in terms of Section 6 of Chapter 2 of the Constitution, I agree that the University is established by Order of the Council. The definition of public office is stated in Section 163(h) of the Constitution which states:

"163: (a) an office created by, or continued in existence under, this Constitution;

(b) an office in respect of which this Constitution makes provision;

(c) an office of a member of a commission;

(d) an office in a State service;

(e) an office of Judge;

(f) an office of Magistrate or an office in a court created by written law;

(g) an office in, or as a member of, a statutory authority; or

(h) an office established by written law."

"An Office established by written law" is defined in the said Section.

"An Act, Decree, Promulgation and subordinate law made under those Acts, Decrees, or Promulgations"

Act is defined as "An Act of Parliament, a Decree or Promulgation."

The Bill of Rights binds the Government and the persons performing public functions holding the public office. The University of the South Pacific by Order of Council does not fall within the definitions under the Constitution as a part of government or holding public office and I conclude the Applicant is not entitled for redress under Section 31 of the Constitution in this matter.

Accordingly, I make the following Orders:

(a) Application for Leave for Judicial Review dismissed;

(b) No order made as to costs.

Delivered at Suva this 28th Day of November, 2014.

....................................

C. KOTIGALAGE

JUDGE