State v University of the South Pacific, ex parte Burness [1997] FJLawRp 10; [1997] 43 FLR 17 (22 January 1997)

[1997] 43 FLR 17

HIGH COURT OF FIJI ISLANDS

THE STATE

v

UNIVERSITY OF THE SOUTH PACIFIC

ex-parte

DAVID FOWLER BURNESS

[HIGH COURT, 1997 (Scott J) 22 January]

Revisional Jurisdiction

University of the South Pacific- alleged unfair dismissal- jurisdiction of Visitor-whether decision of Staff Review Committee justiciable.- Charter of the University of the South Pacific (Cap. 266) Sections 4 (a) & 13.

The Applicant sought Judicial Review of a decision of the University’s Staff Review Committee to retire him. Dismissing the motion the High Court HELD: (i) that whether or not there was a right to terminate the Applicant’s employment was a matter for the University’s Visitor to decide and (ii) that the High Court will only review the correctness of a decision within the Visitors jurisdiction if it has first been the subject of a decision by the Visitor.

Cases cited:

Dewa v. University of the South Pacific (HC Judicial Review 7/9w 7/94)

Muma v. University e South Pacific (FCA 52/91; FCA R5/164)

)

Norrie v. Senate of Universiversity of Auckland [1984] 1 NZLR 129

Patel vversity of Bradford [1978] 3 WLR 1488; [1978] 3 All ER 841; [1979] 1WLR 1066; [1979] 2 All ER 582

R v. University of London Visitor ex parte Vijayatunga <989] 2 All ER 843

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Re Wislang’s Application [1984] NI 63

Thorne v. University of L [1966] 2 QB 237

Thomas v. University of Bradford [1987] 1 All ER 834

Motion for Judicial w.
H. f&#160the Appe Applicanlicant
F.G. Keil for the Respondent;
Scott J:

The Applicantsuanteave granted by consent, moves for Judicial RevieReview of a decision of the Staff Review Ciew Committee of the Respondent University USP)hed on a date unke unknown to me but communicated to the Applicant on about 14 February 199y 1996 (see Exhibit A to the Applicant’s supporting affidavit) the effect of which was that the Applicant’s employment with the University was terminated.

The following affidavirs were filed:

(i)&##160; n&#Applicant, in supposupport filed 14 May 1996;

(ii) &##160; < Applicant, second affi in t in suppoiled tembe6;

;

(iii) &1160 Saro Sarojini Devi Pevi Pillay, Registrar USP, in opposition filed 21 November 199>

;

iv) ټ&#Applicant, in answer, filed 28 November 1996
&#1r> Botr>Both couh counsel nsel also filed helpful and comprehensive writtbmisson 3 ry 1997 (Applicant) and 15 January 1997 (Respondent).

On 9>Once December mber mber 1976 the Applicant was appointed unde year contract as the USP BUSP Buildings and Estates Manager (Pillay affidavit Exhibit A1). The general terms of service were set out leaflet (Pillay affidavit avit Exhibit A3-17) signed by the Applicant (page 12) containing two provisions of especial relevance. The first (clause 5(2)) provided that at the end of the 3 year period the appointee could be offered permanent appointment. The second (clause 7 (2)) provided that unless his term of appointment was extended by specific resolution of the Council of the USP (see Charter of the University of the South Pacific - Laws of Fiji 1985 revised Edition - Cap 266 - Section 13) the appointee would be required to retire at the age of 60.

The Counc the USP is a is a very important body since it has by the Charter “general control over the conduct of the affairs of the University and may exercise on behalf of the University all powonferred on the University sity by .. [the] Charter.” Under Section 4(a) of the Charter the USP has power:

&#8o institute ... ... offices of any kind whether academic or not ... to appoint persons to and to remove them from such offices o prescribe their conditions of service.”

During turse of the yeae yearsyears following the Applicant’s appointment the provisions governing retirement were changed from time to time. On 19 October 1992 at its 35th meeting the Council aed the following provision sion which was still in force when the Applicant was notified of his forthcoming retirement:

#8220;the University haty has no mandatory retiring age. Employment beyond the age of sixty years shall be at the option of the rsity and shall be conditional upon the provision annually of a medical report satisfactoryctory to the University on the health of the member and his/her fitness to continue in the employ of the University.”

Ms of the University suty such as the Applicant were required to complete an Annual Staff Review Form similar to the annual confidential report completed in the Service. On 17 October 1994 the Registrar, Ms Sarojini Pili Pillay noted in the Applicant’s report that there had been numerous complaints about matters falling within his area of responsibility. The Applicant in his response noted “comments under clause 16 are noted and accepted”.

On 5 March (Pillay affi affidavit Exhibit A30) the Applicant was warned in writing that the performance of his duties was not satisfactory and that improvement was looked for.

On 10 October (Pilffidaffidavit Exhibit ibit A34) Ms Pillay noted in the Applicant’s Annual Report that she would be proposing to the Staff w Committee (a Committee of the Council apparently established under Section 15 (3) of the the Charter) that the Applicant “be retired from the University at the end of 1996”. The Applicant whose 60th birthday was in August 1996 responded that he was not aware that the University had “established 60 years of age as the retiring age”.

On 14 February llay wroy wrote to the Applicant as follows:

“te to advisedvise you that the Staff Review Committee at itt meeting noted that you will reach the age of 60 in August 1996.

The >The Committee has decided that you contin be employed until the end end of 1996 and that your services with the University should come to an end then. Your last day of servill, therefore, be 31 December 1996".

It is this this dec of n of the Committee which the Applicant seeks to have quashed.

As I see it, the firsttquestion which calls for consideration is the nature of the Court’s jurisdiction. Twent decisions of our own Cown Courts in Fiji are especially instructive. The first is Muma v Unive of the Sout South Pacific F/91; FCA Reps. 95/164 and and the second is Dewa v Universitthe Sout South Pacific (Suvaudicial Revi94).<160;<160;
Muma is authority for the followollowing two propositions. First, that that the effect of Section 27 of Charter o USP at at all materiaterial times the President of Fiji was thes the USP Visitor and secondly that the jurisdiction of the Visitor over disputes concerning the application or interpretation of the internal laws of the University namely its statutes, ordinances and regulations is exclusive.
Muma’s&#16e rese referring toPatel v University of Bradford [1978] 3 WLR 1488; [1978] 3 All ER 841; affirmed&#16href="http://www.paclii.org.vu/cgi-bin/LawCite?cit=%5b1979%1979%5d%201%20WLR%201066" title="View LawCite Record">[1979] 1 WLR 1066; [1979] 2 All ER 582, described a complaint which should have been referred to the Visitor but which was not as being “not justiciable”. It appears likely that these words have their origin in the words of Megarry V-C who, adopting the same approach as Diplock L.J. inThorne v Univeristy of London<160;[1966] 2 QB 237 said at page 1494 B-C:#160;#160;

“thstion is not merely one of e of refusing discretionary remedies or requiring alternate forms of relief to be pursued first but is trumatter of jurisdiction.”

It is unfortunartunate that the FCA did not have its attention drawn to two more recent decisions which have put the problem into a slightly different perspective. The first is Thoma160;University of B of Brad/u> [1987ll ER/a> and the second is R vUnivy sity of London ndon Visitor Vijayaijayatungaat allover over matters within the jurisdiction of the Visitor the more recent view is, as pointed out by Pathik J in Dewa’s case, that the Court has nhas no appellate jurisdiction it does a supervisory jurisdiction.tion. This means that a person having a complaint about a decision of the Visitor may not appeal against tecisit may seek to havo have it e it judicially reviewed.

The question to be answ answered is what is the consequence of failing to take the preliminary step of complaining to the Visitor before approaching the Court?

In Muma’ caseFije Court ourt of Appe Appeal held that as the complainant had not first taken his complaint to the Visitor his complaint ot juable. conclusion depends on acceptance of the principle that the jurisdictioiction of n of the Vthe Visitor is exclusive and that principle has been accepted in England, as pointed out by Lord Griffiths in Thomas’s&#ase case on page 839 (e), since the 17th century.

In Newand a different vent view has been adopted. In 1984 the New Zealand Court of Appeal in&#160orrie v Senate of University of Auckland [1984] 1 NZLR 129 held that the diction of thof the Visitor was not exclusive and thereforeCourt retained the power toer to adjudicate over matters within the Visitor’s jurisdiction whether or not the Visitor’s jiction had first been resorresorted to. Two important points were however made clear. First, the jurisdiction being exercised by the Court was supervisory and second, absent allegations of flagrant unfairness or pure questions of law the Courts would be unwilling to grant discretionary remedies in university disputes by way of Judicial Review or otherwise if the applicant had not first resorted to his domestic remedy i.e. the Visitor.

I0;Dewa’s& case k J judicially revieweviewed a decision of the same Staff Review Committee of the USP notwithstanding that the Applicant had not first appealed to the Visiut asik J made clear tear the decision in Muma #160;was not deed until aftl after Dr. Dewa had filed for Judicial Review.

The position in Fiji is now governed by Muma andnd it to be as follows. ows. A member of a Univerhavinispute with the Uthe Univerniversity falling within the jurisdiction of the Visitor should first take his grievances to the Visitor. A dec of tsitor is reviewabiewable bule but not appealable. If he does not first take his grievance to the Visitor then the Courts will not entertain his motion for review.

The next question whivi obviously arises is whether the USP’s decision to retire the Applicant was a decision within the jurisdiction (and therefore the exclusive jurisdiction) of the Visitor. In my view it In his submissions on issueissue one on page 7 of his written submissions Mr. Lateef suggested that issues of promotion, demotion, reviewing of contracts and retiring of staff do not fall within the exclusive jurisdiction of the Visitor. With respect I disagree. Adopting the reasoning of Kelly L.J. inRe Wislang’s Application [1984] NI 63 cited in Th/u> aes 843 843 844 I hold thld that notwithstanding that the Applicant’s217;s central complaints are those set out on page 5 of Mr. Lateef’sten ssion hat these complaints involve consideratderation oion of thef the USP’s right to terminate the Applicant’s employment the matter was nevertheless of an internal domestic character touching upon the interpretation or execution of the private rules and regulations of the USP and was accordingly within the Visitor’s exclusive jurisdiction.

Although that is reahe the end of the matter I offer three further observations on the merits of this application. First, as appears from the Charthe University has full power and authority to lay down the terms and conditions of the cont contracts of its employees. The Applicant suggests that it was incumbent upon the University to seek his consent before the terms of his employment were varied. I disagree. Secondly, at no time between 1976 and 1996 was there a provision in the Applicant’s contract of employment that enabled him to continue in employment with the University after the age of 60 without the University’s consent. Without that consent, however it was termed, his period of employment simply expired through effluxion of time. Looked at this way there can be no question of the Staff Review Committee lacking jurisdiction to terminate his period of employment. Thirdly, it cannot be doubted that the Applicant was fully aware that there were numerous complaints about the way he discharged his duties and that improvement was looked for. While it is generally better for a Board considering termination of employment to allow oral representations to be made to it I am not satisfied that the Applicant has shown that he was treated with any degree of unfairness.

As has been observed the Visitorial jurisdiction is an ancient one. Although once thought to be an “unwelcome survivor from the past” it is now seen within its proper limits to be wholly beneficial. Some of the benefits were set out by Megarry V-C inPatel’s case and referred to with approval by Cooke J in Norrie&#8217> case.case. I am informed by Counsel that the USP has 304 academic staff, 674 administrative and support staff and 9,381 students. With such large nu invoit isous thas that the sooner the Council moves for thor the appointment of a Visitor under Sect Section 27 of the Charter the better. Following the decision inMuma it is clear that in the ae ence of such a body first resorted to, redress for grievances cannot be had from the Courts.

The motion for Judicial Review fails and is dismissed.

(Motion for Jal Review dismissed.)