State v Land Transport Authority, ex parte Tamani [2001] FJLawRp 83; [2001] 1 FLR 321 (29 September 2001)

STATE v LAND TRANSPORT AUTHORITY ex parte: Inia Tamani

High Court Judicial Review Jurisdiction

29 June, 10 October 2000, 6 February, 29 September 2001

HBJ 0008/00S

Judicial Review - test for bias – whether justice seen to be done – when objection to constitution of tribunal should be made – waiver of right to object – Fiji Law Reform Commission Act; Section 5(1), 6; Land Transport Act 1998

Interpretation - effect of publication of Act – whether appointment can be made under Act not yet in force – Interpretation Act ss4, 24

The Applicant was the former Controller of Road Transport. He challenged by judicial review a decision of the Land Transport Authority in appointing the interested party to the post of CEO. He alleged bias on the part of the Authority in appointing the office-holder, that the interested party was a personal acquaintance of two members of the board, that his son is married to the daughter of another member of the board, and that the decision was based on irrelevant facts as the Authority did not carry out an objective assessment of the interested party's suitability. The Applicant also claimed that the appointment of the CEO was null and void in light of the fact that the governing legislation had not come into force at the date of appointment. The Court rejected the latter submission in light of section 24 of the Interpretation Act. The Court found that the Applicant had not pointed to any evidence of bias, but used the phrase "it seems".

Held–(1) There is no bias where Applicant is unable to point to any improper or dishonest act on the part of the tribunal, or where a member of the Authority declared his relationship to the Applicant through marriage or where the Applicant has previously served in an office together with the interested party in another capacity. Using the phrase "it seems" amounts to mere speculation and not evidence of bias, and does not give rise in the mind of a disinterested spectator, knowing the facts, that there was any likelihood or danger of bias against him by the Authority.

(2) The Applicant must be deemed to have waived his right of objection to the membership of the tribunal by failing to object as soon as he knew the facts entitling him to the objection.

(3) Section 24 of the Interpretation Act allows for appointments to be made under an Act upon publication even though the Act has not come into force as yet. The appointment of both the Authority and its CEO are therefore validated.

Obiter dictum – there should no longer be a need for the Court to grant leave to apply for judicial review. JR must be as expeditious as possible so that parties will know their rights as early as possible and so that the country's administrators and government should know where they stand – in the interests of good government.

Cases referred to in Judgment

R v Minister for Town and Country Planning – Ex Parte: Montague Burton Limited & Ors (1951) 1 KB 1
Rex v Sussex, Ex Parte McCarthy [1923] EWHC KB 1; (1924) 1 KB 256
Metropolitan Properties Co (F.G.C) Ltd v Lannon and Ors (1969) 1 KB 577
R v Secretary of State, Ex Parte: Kirkstall Valley (1996) 3 All ER 304

Usaia Ratuvili for the Applicant
William Callanchini for the Respondents
Ganga Prasad Shankar for the Interested Party

29 September, 2001

JUDGMENT

Byrne, J

On the 29th of June 2000 I granted the Applicant leave to apply for Judicial Review of the decision of the First Respondent (hereinafter 'Land Transport Authority') of the 28th of October 1999 not to appoint the Applicant as Chief Executive of the Authority which instead appointed the Interested Party Manunivavalagi Korovulavula. The actual decision appointing Mr. Korovulavula was made on the 6th of August 1999 but the Applicant was not notified of this until the 28th of October 1999.

The Applicant is a civil servant who has been employed as such for approximately 32 years and has held various positions mainly in the Department of Road Transport culminating in his being appointed Controller of Road Transport on the 1st of July 1994. He claims that as Controller he was responsible for enactment of the Transport Act, Computerization of Driver and Motor Vehicle Licence Records, Training of Staff for the new organization envisaged for the Department and improvement of administrative policies and systems as well as office equipment and procedures.

During 1999, the Land Transport Authority invited applications for the position of Chief Executive in January and then in July. It appears that an expatriate person was successful in obtaining the position of Chief Executive in January 1999 but prior to his arrival in Fiji a new government under Mr. Mahendra Chaudhary came into power. The Public Service Commission revoked the 'provisional' appointment of the successful Applicant making it clear to the Land Transport Authority that under the policy of the new government the new appointee was to be a local person.

Prior to his appointment as Chief Executive Mr. Korovulavula was a Senator and served in the Senate with two members of the Land Transport Authority, Robert Dods, the Chairman and Ratu Nacanieli Uluiviti until the 8th of March 1999.

Another member of the Authority, Archie Seeto is related to Mr. Korovulavula through the marriage of his daughter to Mr. Korovulavula's son.

The Applicant alleges that the decision of the Land Transport Authority was based on irrelevant facts, as it did not carry out an objective assessment of Mr. Korovulavula's suitability for the position of Chief Executive. He gives three reasons why the appointment of Mr. Korovulavula should be quashed, and I quote them verbatim from Paragraph 27 of his affidavit of 20th December 1999:

"(a) it seems that such appointment was made substantially on the basis that Manunivavalagi Korovulavula was a personal acquaintance of, among other members of the Authority, Robert Dods (Chairman) and, Nacanieli Uluiviti;

(b) it seems that such appointment was made substantially on the basis that Manunivavalagi Korovulavula was related to Archie Seeto, a member of the Transport Authority, in that a son of Manunivavalagi Korovulavula is married to a daughter of Archie Seeto; and

(c) it seems that the decision of the Land Transport Authority was based on irrelevant facts, as it would appear that the Authority did not at all carry out an objective assessment of my own suitability for the position of Chief Executive."

Four Applicants including Mr. Tamani and Mr. Korovulavula were short-listed and interviewed by all seven members of the Land Transport Authority. The Applicant does not allege that the other four members had any prior connection either by marriage or serving in the Senate with Mr. Korovulavula.

Each of the Applicants was asked a number of questions relating to his suitability for the position and each Applicant was marked in accordance with a scale designed to determine suitability for the position.

In the allocation of marks Mr. Korovulavula scored the highest number and the Applicant the lowest. His marks were 60 below those of Mr. Korovulavula.

The Applicant argues two principal grounds on which he says he should be granted Judicial Review. The first is that the decision of the Authority in appointing Mr. Korovulavula as Chief Executive was illegal in that the Land Transport Authority did not have statutory power to make such decision. He alleges that the date on which the appointment of members of the Authority was made was the 30th of November 1998 and that for the Chief Executive, the 26th of October 1999. The Applicant says that on those two dates the relevant parts of the Act had not come into effect and did not come into effect until 6th December 1999.

I cannot accept this submission because it ignores what in my opinion is the clear effect of Section 24 of the Interpretation Act which is as follows:

"Where an Act is not to come into operation immediately on the publication thereof and confers powers to make any appointment, to make any subsidiary legislation, to prescribe forms or to do any other things for the purposes of the Act, such powers may, unless a contrary intention appears, be exercised at any time after the publication of the Act, but so, however, that any subsidiary legislation or any instrument made in exercise of such power shall not, unless a contrary intention appears in the Act or the contrary is necessary for bringing the Act into operation, come into operation until the Act comes into operation."

The reference in Section 24 to publication is to the act of publication required by Section 4 of the Interpretation Act Cap. 7 which states that an Enactment Act shall be published in the gazette, shall be a public Act and shall be judicially noticed.

The Land Transport Act 1998 was published by reference to its long title in the Fiji Islands Government Gazette No. 72 dated Friday 30th November 1998.

In R. v Minister for Town and Country Planning - Ex-parte: Montague Burton Limited & Others (1951) 1 KB 1 at page 6 Tucker L.J. made the following comments in relation to the corresponding section of the English Interpretation Act 1889:

"I think that it clearly gives power to take the necessary steps to set up the machinery for bringing the Act into operation as well as for doing such an act as appointing a day for the Act to come into operation ... so that the necessary machinery will function as soon as the new Act comes into operation and things shall not come to a standstill by reason of the repeal of the existing Act."

In my judgment the words in Section 24 mean simply the taking of such steps as would be required to enable the Act to operate effectively and this must include the appointment of both the Authority and its Chief Executive.

Bias

The Interested Party has given the Court a 73-page submission which canvasses all the issues in this case with commendable thoroughness but, perhaps I may be pardoned for saying, also a considerable degree of repetition particularly concerning the question of bias the law on which I consider is now well settled.

Where bias is alleged, to quote Lord Hewart C.J.'s oft-repeated saying in Rex v Sussex, Ex parte McCarthy [1923] EWHC KB 1; (1924) 1 KB 256, 259:

"It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

As Bernard Shaw said in 'Man and Superman', "The devil himself knoweth not the mind of man" so it is impossible to say whether, even unconsciously, the minds of certain members of a tribunal may be influenced because of some past association they have had. In this area therefore, the law must always proceed with great caution, or in the words of the Latin proverb, 'Festina Lente' - hasten slowly - so that as far as is reasonably possible justice is seen to be done in each case. To decide this the Courts ask themselves the question Lord Denning M.R. posed in Metropolitan Properties Co. (F.G.C.) Ltd. v Lannon and Others (1969) 1 KB 577 at p.599:

"In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit."

In the years since Lord Denning said that there have been numerous cases in the reports both of judgments at first instance and on appeal to the highest courts in England, Australia and New Zealand virtually all endorsing this test. Some times a distinction has been drawn between administrative and judicial or quasi-judicial tribunals, the question of fairness or natural justice being said not to apply to the former type of tribunal but only to the latter two.

In R. v Secretary of State, Ex-parte: Kirkstall Valley (1996) 3 All ER 304 at 321 Sedley J. said that the principle could now be stated as this:

"That the decision of a body, albeit composed of disinterested individuals, will be struck down if its outcome has been predetermined whether by the adoption of an inflexible policy or by the effective surrender of the body's independent judgment."

I take this statement to be the law in Fiji and applying it to the facts of this case in my judgment the Applicant has failed to prove any likelihood of bias by the members of the tribunal which appointed Mr. Korovulavula. Earlier on page 2 I stated three reasons given by the Applicant for seeking Judicial Review of the decision not to appoint him.

It must be obvious that the Applicant does not give any evidence of bias by the Land Transport Authority but uses the phrase 'it seems'. In my view this is mere speculation and could not give rise in the mind of the disinterested spectator, knowing the facts, that there was any likelihood or danger of bias against him by the Authority.

The Applicant is unable to point to any improper or dishonest act on the part of Mr. Archie Seeto who announced his relationship by marriage with Mr. Korovulavula before the Applicant was interviewed. In my judgment that of itself was not sufficient to require Mr. Seeto to disqualify himself. If the Applicant had thought it did then he should have objected to it at the time and not until after the Authority had given its decision. Likewise the mere fact that the two Senators were in the Fiji Senate about the same time could not possibly in my view be enough to show the real likelihood of bias by them in favour of Mr. Korovulavula.

In Wade on Administrative Law, 6th Edition, p.482 the author says:

"The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. The Court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisers know of the disqualification they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged."

I consider that the Applicant here must be deemed to have waived his right of objection to the membership of the tribunal but even if I am wrong in this, the fact remains that the members were unanimous in reaching their decision that the Applicant should not be appointed.

Any body having to determine the suitability of a particular person for appointment for a position is entitled to assess the ability of the persons being interviewed to effectively communicate orally through the interview process and attach as much weight as it considers appropriate in comparison with an interviewee's ability to communicating effectively in writing through an assessment of the written applications. I am therefore of the opinion that the Applicant has failed to show any bias real or apparent by the Authority in appointing Mr. Korovulavula so that for this reason and the other I have given at the beginning of this judgment I dismiss the application for Judicial Review. There will be no order for costs.

This case provides yet another illustration of the view I have expressed frequently during at least the last six years that applications for leave to apply for Judicial Review in Fiji should no longer be necessary. I am aware that two other Judges of this Court do not share my view but I am also aware that Mr. Justice Ian Thompson of the Court of Appeal does share it and has delivered a paper supporting my view. Put simply, I consider leave applications should be no longer necessary to enable the Court to address the substance of an application for Judicial Review at the very beginning. It is vital, as has been said time and again, that Judicial Review must be as expeditious as possible so that parties will know their rights as early as possible and so that the country's administrators and government should know where they stand as early as possible where a decision of a tribunal or other authority has been questioned. This is in the interest of good government.

I am surprised that the Fiji Law Reform Commission has not been more active in this area. Under Section 5(1) of the Fiji Law Reform Act Cap. 26 sub-paragraph (f) one of the functions of the Commission is "the adoption of new or more effective and economical methods for the administration of the law and the dispensation of justice; and (g) generally the simplification, improvement and modernisation of the law, and, subject to section 6, the Commission may in these respects act of its own volition".

If the Law Reform Commission is not prepared to act in this regard then I earnestly suggest that the new Attorney-General with his considerable experience may see fit to introduce legislation in the new Parliament to amend the law as I have suggested. It seems to me that this is one area of the law in which Fiji has almost slavishly followed the English practice without regard to the longer time applications for review take here compared with those in England where speedy hearings are the rule almost invariably. Australia had no qualms about abolishing Judicial Review nearly twenty years ago. In my respectful opinion the time is more than ripe for Fiji to at least take this very necessary step.

Short of creating administrative tribunals such as exist now in Australia and appreciating the expense which this would involve I suggest at least as a first step that it may be feasible to allow the Permanent Arbitrator to deal with applications. This would relieve the High Court of a considerable portion of its workload so that more time could be given by Judges to the hearing of other cases. My preference is however simply to abolish applications for leave. I am confident the results would be beneficial.

Application for judicial review dismissed.

Mereseini Rakuita Vuniwaqa