Fiji Public Service Association v Public Service Commission [2009] FJSC 10; CBV0002.2009S (1 April 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0002 OF 2009S
CIVIL APPEAL NO. CBV0004 OF 2009S
(Court of Appeal No. ABU0003 of 2007S)

BETWEEN:

1. FIJI PUBLIC SERVICE ASSOCIATION
2. FIJIAN TEACHERS' ASSOCIATION
(Petitioners)

AND:

1. PUBLIC SERVICE COMMISSION
2. ATTORNEY GENERAL OF FIJI
(Respondents)

In Court: The Hon Justice Randall Powell, Judge of the Supreme Court

Hearing: Tuesday, 31^st March 2009, Suva

Counsel: Mr. Viren Kapadia] for the 1^st Petitioner
Mr. Joni Madraiwiwi] for the 2^nd Petitioner

Mr. Christopher Pryde] Mr. Sharvada Sharma] Ms. Mere Rakuita]

for the Respondents

Date of Ruling: Wednesday, 1^st April 2009, Suva

RULING

[1] Section 38(2) of the Constitution prohibits discrimination on specified grounds including age but section 38(7) excuses the discrimination if it is "reasonable and justifiable in a free and democratic society."

[2] The Fijian Teachers Association (FTA) and the Fiji Public Service Association (FPSA) challenged a decision of the Public Service Commission (PSC) to reduce the retirement age of public servants from 60 to 55, and on 20 December 2007 the High Court (Jitoko J) quashed the decision finding that section 38(2) of the Constitution was infringed and that the PSC had not established that it came within the section 38(7) exception.

[3] On 11 March 2009 the Court of Appeal, following a hearing on 21 November 2008, upheld an appeal by the PSC and the Attorney-General (the Court of Appeal decision).

[4] By amended petitions for special leave to appeal both filed 27 March 2009 the FTA and the FPSA seek leave to appeal to the Supreme Court. The FPSA by Notice of Motion filed 18 March 2009 also seeks a stay of the Court of Appeal decision pending the determination of the Supreme Court appeal.

[5] On 24 March 2009 the President of the Supreme Court granted an interim stay until 31 March 2009 and made directions for the filing of affidavits.

[6] The FTA filed an affidavit sworn by Maika Namudu on 25 March 2009, the FPSA filed an affidavit sworn by its General Secretary Rajeshwar Singh on 27 March 2009 and the PSC and the Attorney-General filed an affidavit sworn by Taina Tagicakibau on 30 March 2009. The FPSA then filed an affidavit in reply by Mr Singh also sworn on 30 March 2009.

Leave to Appeal to the Supreme Court

[7] Section 122 of the Constitution provides that an appeal may not be brought from a final judgment of the Court of Appeal unless:

(a) the Court of Appeal gives leave to appeal on a question certified by it to be of significant public importance or;

(b) the Supreme Court gives leave to appeal.

[8] Section 7(3) of the Supreme Court Act 1998 (the Act) provides that in relation to a civil matter the Supreme Court must not grant special leave to appeal unless the case raises.

(a) a far-reaching question of law;

(b) a matter of great general or public importance;

(c) a matter that is otherwise of substantial general interest to the administration of justice.

[9] Section 11 of the Act provides that a single judge of the Supreme Court may exercise any power vested in the Supreme Court not involving the decision of an appeal, though in civil matters any order made by a single judge may be varied, discharged or reversed by a Supreme Court constituted by 3 judges.

[10] The respondents contend that the Court of Appeal decision does not depend on contentious principles of law but on the application of established principles to the specific facts of the case.

[11] That may or may not be so, but the Court of Appeal decision clearly falls within section 7(3) (b) of the Act. It is not disputed that thousands of people will be directly affected by the Court of Appeal decision.

[12] Leave to appeal to the Supreme Court is granted to the FPSA and the FTA. I made this order on 31 March 2009 and reserved the question of a stay until 1 April 2009, extending the interim stay until then.

Stay

[13] The overriding principle of any stay application is that of upholding the interests of justice in the particular circumstances. The principal ground for the application in the current proceedings is that unless a stay is granted the appeal may be rendered nugatory for those public servants who have already reached the age of 55.

[14] The earliest that an appeal to the Supreme Court could be heard and determined is June this year and, absent a stay, the persons in this category could be dismissed in the meantime. The respondents say that they could "always rejoin the civil service...... and get compensation for any loss that they may suffer." In my view that is very problematical. It seems unlikely that they would be re-employed, at least not in the same position, and loss of employment cannot always be compensated by the payment of money.

[15] The respondents say that a stay would deprive the government of critically needed capital and national development programs because 82% of the annual budget is used up in providing salaries and allowances and operational expenditure for Fiji's 35,000 public servants. Moreover there are thousands of unemployed young graduates whose only real prospect of employment is in the public service.

[16] These are powerful arguments but against that I note that this situation has pertained since the High Court decision on 20 December 2007 through to the Court of Appeal hearing on 21 November 2008 and until delivery of its judgment on 11 March 2009.

[17] The respondents counter this by saying that the financial situation has become more critical since the Global Financial Crisis and that the effect of the decision of Jitoko J has had particular impact since 1 January 2009.

[18] The Court has to perform a difficult balancing act but with the co-operation of the parties a special sitting of the Supreme Court ought to be able to hear this matter in June this year and deliver a judgment very shortly thereafter. Taking this and the matters in the preceding 5 paragraphs into account, in my judgment the balance tips in favour of the petitioners.

[19] A consideration highly relevant to the granting of a stay is whether there are arguable grounds of appeal. In order to justify a stay of execution an applicant must be able to point to circumstances that warrant a departure from the general rule that the judgment below should be presumed to be correct and liable to be enforced.

[20] The affidavits and counsel today have sought to canvas in some detail the merits of the Court of Appeal decision, but it is not part of my function to form any opinion, preliminary or otherwise, as to the likely outcome of an appeal to the Supreme Court.

[21] "Arguable" doesn't mean a winning argument. It is not a particularly high hurdle for an applicant for a stay to jump.

[22] There is an apparent internal inconsistency between what is said in paragraphs 1 and 32 of Bruce JA's judgment but Bruce JA appears to have decided that the decision of the PSC infringed section 38(2) of the Constitution but that the infringement was excused by section 38(7) whereas the majority (Khan & Byrne JJA) held that section 38(2) was not infringed and that section 38(7) did not come into play. Only Jitoko J fully considered the effect of s. 38(7).

[23] There is a duplication or near duplication of twenty two paragraphs of the judgments of Khan & Bruce JJA. The paragraphs seem to properly belong to the judgment of Khan JA. Their adoption by Bruce JA may not make for felicitous reading but otherwise this matter doesn't seem to be relevant.

[24] It seems to me that there are arguable grounds of appeal because, simply put, it appears that at least two of the four judges who have considered this matter (Jitoko J and Bruce JA) were (in Jitoko J's case) or may have been (in Bruce JA's case) of the opinion that section 38(2) of the Constitution was infringed. In light of that fact alone I find that the appeal is arguable.

[25] The appeal being arguable and because there is a risk of irremediable consequences for FPSA's members if a stay is not granted, the decision of the Court of Appeal must be stayed until further order of the Supreme Court.

[26] The orders of the Court are:

1. Leave is granted to the FTA and FPSA to appeal to the Supreme Court

2. The decision of the Court of Appeal is stayed until the decision of the Supreme Court or further order.

3. Costs of the Motions to be costs in the Supreme Court cause.

The Hon. Justice Randall Powell
Judge of the Supreme Court

Solicitors:
Sherani and Company, Suva for the 1^st Petitioner
Howards Lawyers, Suva for the 2^nd Petitioner
Office of the Attorney General's Chambers, Suva for the Respondents