Dullabh v Comptroller of Customs and Excise [2003] FJSC 15; CBV0001.2000S (24 October 2003)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
CIVIL APPEAL NO. CBV0001 OF 2000S
(Fiji Court of Appeal Civil Action No. ABU0011 of 1999S )

BETWEEN:

UTTAM LAL DULLABH
DURGA PRASAD
ROSHNI LATA
Appellants
(Original Appellants)

AND:

THE COMPTROLLER OF CUSTOMS
AND EXCISE
Respondent
(Original Respondent)

Coram: Hon Justice Robert French, Judge of Supreme Court
Rt Hon Justice Peter Blanchard, Judge of Supreme Court
Hon Justice Kenneth Handley, Judge of Supreme Court

Hearing: Wednesday 22 October 2003, Suva

Counsel: Mr. V. Kapadia for the Appellants
Mr. S. Banuve for the Respondent

Date of Reasons for Judgment: Friday, 24 October 2003

REASONS FOR JUDGMENT OF THE COURT

At the end of counsel for the petitioners’ oral submissions, the Court announced that the petition for special leave to appeal to the Supreme Court was dismissed. We now give our reasons for that decision.

The petitioners wished to act as customs clerks in relation to the entry or clearance of goods or baggage carried by aircraft or ships in terms of the Customs Act 1986. By s.149 of that Act a licensed customs agent is permitted to appoint a clerk to assist him in transacting his business, but only with the approval of the Comptroller, which may be withdrawn. Only approved customs clerks are permitted to sign certain declarations and other documentation required under that Act.

As a matter of administrative policy, those intending to become customs clerks are required to pass a Customs Agents Clerks Examination. The petitioners sat the examination on the 27 June 1998 and each obtained the necessary pass mark. But the Comptroller of Customs and Excise had concerns about those results and, before they were officially notified, he advised the petitioners by letter that he had decided to disregard the examination results. He said that his overriding concern was to uphold the integrity and impartiality of the examination. He directed that a fresh examination be held.

The petitioners, having obtained leave, brought a proceeding by way of motion for judicial review of the Comptroller’s decision. In a judgment delivered in the High Court at Suva on 25 February 1999, Fatiaki J (as he then was) ordered that writs of certiorari and mandamus be issued respectively quashing the Comptroller’s decision concerning the examination results and directing the release to each petitioner of the certificate for the examination on 27 June 1998. His Lordship took the view that the Comptroller had no statutory or other power to invalidate the entire result of an examination.

The Comptroller appealed to the Court of Appeal which, in a reserved judgment delivered on 20 January 2000, allowed the appeal and quashed the orders made in the High Court. The Court of Appeal agreed with the High Court that it was not possible to read into the Examinations Act (Cap. 262A) a power to disregard examination results of all candidates. To do so, it said, would go beyond completing or filling in an unforeseen gap in the provisions of the Act. Indeed, as appears from their Lordships’ judgment, the Examinations Act does not apply to the examination conducted by the Comptroller in connection with the appointment of customs clerks.

But the Court of Appeal held that, in order to preserve the integrity of an examination, the Comptroller, as the examining authority, nonetheless had an implicit power to disqualify a candidate who had cheated or engaged in any other improper practice. This ability arose by necessary implication from the duty of the Comptroller to promote the efficient operation of the Customs Act by ensuring that those concerned with its administration are properly qualified. The ability was recognised in the regulations authorising him to conduct examinations. In the absence of prescribed rules or procedure, the conduct of the examination was a matter for the Comptroller’s judgment.

The Court of Appeal then addressed whether the Comptroller had acted in accordance with the rules of natural justice or had made an unreasonable decision or acted contrary to the petitioners’ reasonable expectations. The Court said that whether the requirements of natural justice had been met by the procedure adopted in any given case must depend to a great extent on the facts and circumstances. There were no specified procedures or guidelines so the Comptroller’s decision whether to disregard the examination results could only be the result of an exercise of his own judgment. In these circumstances his decision must not be unreasonable or irrational in public law terms; there must not be Wednesbury unreasonableness. There was no challenge to the Comptroller’s good faith and the Court said that if there was material on which he could have reached his decision, it would not interfere unless the decision was unreasonable in that sense.

The Court then discussed three matters which had been of concern to the Comptroller. They were the pattern of marks obtained by the petitioners in the examination in question and earlier examinations which they had sat unsuccessfully; an allegation by the Senior Officer for Training in charge of the examination that he had been offered a sum of money by one of the petitioners for a pass; and suspicions about the conduct of another training officer in relation to the examination. The Court was satisfied that the accumulation of these matters provided grounds entitling the Comptroller to make a decision to disregard the results. In its view his decision to do so could not be regarded as so outrageous in its defiance of logic that no sensible person could have arrived at it. The element of fairness was satisfied by the opportunity given to the petitioners to sit the replacement examination without payment of a fee. The complaint that the legitimate expectations of the petitioners had been ignored could not be sustained because there could be no such expectation of a pass in an examination which the Comptroller responsibly concluded had been compromised.

The Court of Appeal accordingly allowed the appeal, set aside the orders made by the High Court and dismissed the motion for judicial review.

In this application for special leave the petitioners were required to show, in terms of s7(3) of the Supreme Court Act, that their appeal to this Court would raise a far reaching question of law, a matter of great general or public importance or a matter that was otherwise of substantial general interest to the administration of civil justice. The petitioners now accept that the Comptroller had an implied power to control and/or disregard the examination results for good cause. Their application for special leave is based entirely on the contention that the decision of the Comptroller should have been found to be unreasonable, or irrational within the terms of Lord Greene MR’s formulation in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223,230.

The examination is an administrative requirement of the Comptroller not governed by any legislative provision, although recognized by Regulation 129A of the Customs Regulations 1996 in so far as that Regulation authorizes the Comptroller to receive an application and a $22.00 fee from any person wishing to sit the examination. The Comptroller is not bound by the Act or the Regulations to grant an approval under s.149 merely because a person has passed the examination.

It was not suggested to us that there was any procedural unfairness in this case. All the petitioners contended was that the Court of Appeal erred in finding that Comptroller’s decision was one which a reasonable person in his position could have made.

An assessment of that kind does not give rise to any question of law, let alone a far reaching one. It cannot be suggested that there was no evidence on the basis of which the Court of Appeal could have come to its conclusion, which would have been an allegation of error of law: Edwards (Inspector of Taxes) v. Bairstow [1955] UKHL 3; [1956] AC 14. Nor can the matter properly be regarded as of great general or public importance or of substantial general interest to the administration of civil justice since the proposed ground of appeal is entirely related to the facts of the particular case. The Comptroller’s decision was based on the combination of items of suspicious information or material he had before him, as was the Court of Appeal’s conclusion that his decision was not unreasonable. The judgment of the Court of Appeal therefore does not, in the only respect which the petitioners wished to challenge it in this Court, have any wider implications.

We should mention one further matter. No written submission was advanced by the respondent concerning whether judicial review is actually available in respect of a decision of an administrative nature not dependent upon a legislative provision or upon prerogative. Nothing appears to have been said on this subject in the lower courts. We should not be taken to have expressed any view.

The petition for special leave was accordingly dismissed with costs.

Hon Justice Robert French
Judge of Supreme Court

Rt Hon Justice Peter Blanchard
Judge of Supreme Court

Hon Justice Kenneth Handley
Judge of Supreme Court

Solicitors:

Messrs . Sherani and Company, Suva for the Appellants
Office of the Attorney General, Suva for the Respondent