State v Rabukawaqa [2001] FJLawRp 69; [2001] 1 FLR 270 (13 August 2001)

STATE v EMI RABUKAWAQA & ATTORNEY-GENERAL
ex-parte Fiji National Democratic Party

High Court Judicial Review Jurisdiction

7 May, 13 August, 2001

HBJ 9/01S

Judicial review – what decision is being impugned – whether the Applicant has locus standi to bring action – whether Applicant has sufficient interest or is a mere 'busybody'- whether in the circumstances, leave for judicial review ought to be issued – High Court Rules O.53 rr.3(1), 3(2)(a)(i) & 3(5)

The Applicant, a secretary of the Fiji National Democratic Party purported to represent a licenced teacher with Ministry of Education, all licence teachers and 2001 LTC interview teachers reserves, but failed to articulate what decision was being impugned, how it affected the party, or whether the secretary or the political party had any mandate or authority from the person or group the party purported to represent. The Respondent challenged the Applicant's locus standi to apply for review. The Court could find no decision impugned, and had difficulty deciding whether the application was within time or out of time. The Court found the application misconceived without any arguable case for leave to be granted. There was nothing to prevent the Applicant from presenting the application again in a proper legal manner in accordance with the provisions of O.53 High Court Rules if he still had a grievance on the matter.

Held–(1) The application for leave for Judicial Review can be refused where it is difficult to ascertain when, if any, decision was made by the Respondent, and it cannot be said whether the application is within time or not as required by the Rules.

(2) The question of 'sufficient interest' depends on the nature of the Applicant's duties under its party constitution and also by consideration of the particular subject matter of the application itself. The Applicant is a mere 'busybody' when it does not show how the decision impugned (if any) affects the party and also does not give any evidence of a mandate to institute this action on behalf of 'affected persons'.

Leave for Judicial Review refused.

Cases referred in Judgment

Australia Broadcasting Tribunal v Bond and Ors [1990] HCA 33; 94 ALR 11
Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; (1982) AC 617

Applicant in person
Janmai J. Udit for the Respondent

13 August, 2001

JUDGMENT

Pathik, J

The Applicant applies for leave for judicial review under Order 53 r3(1) of The High Court Rules 1988 which provides that: 'no application for judicial review shall be made unless leave of the Court has been obtained'.

The application is opposed by the Respondents on the following grounds:

THE Applicant has no arguable case on the grounds that:

(i) it does not specifically identify the decision it is purportedly impugning;

(ii) it fails to disclose any procedural irregularity in the processing and subsequent intake of students at Lautoka Teachers College and how it in any way deviates from the established practice and policies; and

(iii) it has no cause of action for which a relief may be granted by way of judicial review.

This misconceived application is detrimental to the good administration and the practice and policies of the Ministry of Education as to the intake of students at the Lautoka Teachers College and also the appointment of persons to be Licensed Teachers for a specified period from time to time.

In the Statement filed pursuant to Order 53 Rule 3(2) the Applicant, which is The Fiji National Democratic Party through its Secretary as Registered Officer Mr. Atunaisa Lacabuka Rasoki No. 2 (hereafter referred to as the 'Applicant'), purports to represent "Mr. Taitusi Lacabuka, a licenced teacher with Ministry of Education, all licence teachers and 2001 LTC interview teachers reserves as complainants".

The Respondents are shown as "Mrs. Emi Rabukawaqa (Permanent Secretary for Education), Senior Careers Officer and Attorney-General" (hereafter collectively referred to as Respondent).

As ordered both parties filed written submissions and I have given them due consideration.

Consideration of the application

I must state at the outset that, because the Applicant is in person and has no legal representation, it has not been easy to grasp what it is being urged upon the Court to consider. I was considering dismissing it out of hand but because the Respondent has highlighted certain aspects of the application in opposition I decided to do the best I can.

Justiciable issue

(i) Decision

What the decision is, if any, that is impugned has not been spelt out and it is difficult to ascertain it from the written material before me. Under Or 53 r.3(2)(a)(i) it is provided (inter alia) that:

(2) An application for leave must be made upon filing in the Registry:

(a) a notice in Form 32 in the Appendix hereunder containing a statement of:

(i) the particulars of the judgment order, decision or other proceeding in respect of which judicial review is being sought;

The need to state the decision is stated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All E.R 935 at 949 thus:

"The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the "decision-maker" or else a refusal by him to make a decision. To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than to decision-maker, although it may affect him too.

The following statements from the judgment of Mason CJ in Australia Broadcasting Tribunal v Bond and Others [1990] HCA 33; 94 ALR 11 at 23 is pertinent on the subject of reviewable "decision":

"... a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accordingly be described as a decision under an enactment".

Because the Applicant's manner of expressing its view appear to be so 'jumbled up' to me, with all due respect, it is difficult to ascertain when, if any, decision was made by the Respondent. Therefore it cannot be said whether the application is within time or not as required by the Rules.

The application for leave can be refused on this aspect alone.

Locus Standi

The next question is: has the Applicant the locus standi to apply for judicial review against the Respondent?

Under Or.53 r.3(5) it is laid down that: "the Court shall not grant leave unless it considers that the Applicant has a sufficient interest in the matter to which the application relates".

Judicial review actions are concerned with public law questions and it is clear that they may only be taken by those with a 'sufficient interest' in the outcome of the proceedings. The question therefore is whether the Applicant has 'sufficient interest' as required.

The question of 'sufficient interest' depends, inter alia, on the nature of its (Party's) duties under its constitution which created it and also by consideration of the particular subject matter of the application itself.

On this aspect the Respondent has raised a valid point. The Applicant says that it brings this action on behalf of the party (the FNDP) and on behalf of one Taitusi Rasoki Lacabuka the person alleged to be affected by the Respondent's alleged decision. The Applicant does not say how the so called decision of the Respondent adversely affects it (the Party).

Also, neither the Secretary nor the political party show that there is any mandate from the person or group of persons the Party purports to represent. There is no evidence of support or approval given to the Applicant by the affected individual Taitusi Rasoki or even all those who were unsuccessful in their applications for entry into Lautoka Teachers' College ('LTC') to take this "representative" action.

I agree with the Respondent that the Applicant is a mere 'busybody' when, inter alia, it does not show how the so called decision affects the party and also does not give any evidence of a mandate to institute this action on behalf of the so called 'affected persons'.

In this application for leave, locus standi was raised as a preliminary issue. In considering this aspect I have borne in mind what was held by the House of Lords in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; (1982) AC 617 at 618 where it is stated:

"whilst there might be single cases where it was appropriate at the earliest stage to find that the Applicant for judicial review had no interest at all, or no sufficient interest to support his application and therefore it was correct at the threshold to refuse leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications".

In the light of these principles I find that the Applicant has no locus standi to bring these proceedings.

Leave

On 'leave' it is stated by Lord Diplock in IRC (supra) at 642-643 that:

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

Lord Diplock goes on to say (at 643-644) that:

"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".

In this case, as already stated, the Applicant has not specifically identified the decision that is being challenged except to say that it generally challenges the Respondent's decision.

To conclude, on the affidavit evidence before me, I find that the application is misconceived and very badly presented. There does not appear to be any arguable case for leave to be granted to proceed to judicial review; but most important thing of all is that the Respondent has no locus standi to bring this action for the reasons given hereabove.

In this case it is like looking for a needle in a haystack in the matter of two important elements, namely, 'decision' and 'locus standi' to enable the Applicant to get its application off the ground. Should the Applicant still have a grievance on the matter then there is nothing to prevent it from presenting it again but in a proper legal manner in accordance with the provisions of Order 53.

For these reasons the application for leave is refused with costs to the Respondent in the sum of $150.00 to be paid within 7 days.

Application refused.

Marie Chan