State v University of the South Pacific, ex parte Burness [1997] FijiLawRp 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 (Suva HC Judicial Review 7/94)

Muma v. University of the South Pacific (FCA 52/91; FCA Reps 95/164)

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

Patel v. University 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  [1989] 2 All ER 843

Re Wislang’s Application  [1984] NI 63

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

Thomas v. University of Bradford  [1987] 1 All ER 834
 
Motion for Judicial Review.
 
H. Lateef for the Applicant
F.G. Keil for the Respondent
 
Scott J:
 
The Applicant, pursuant to leave granted by consent, moves for Judicial Review of a decision of the Staff Review Committee of the Respondent University (the USP) reached on a date unknown to me but communicated to the Applicant on about 14 February 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 affidavits were filed:
 

(i)         Applicant, in support filed 14 May 1996;

 

(ii)        Applicant, second affidavit in support, filed 3 September 1996;

 

(iii)       Sarojini Devi Pillay, Registrar USP, in opposition filed 21 November 1996;

 

(iv)       Applicant, in answer, filed 28 November 1996
 
Both counsel also filed helpful and comprehensive written submissions on 3 January 1997 (Applicant) and 15 January 1997 (Respondent).
 
On 9 December 1976 the Applicant was appointed under a 3 year contract as the USP Buildings and Estates Manager (Pillay affidavit Exhibit A1). The general terms of service were set out in a leaflet (Pillay affidavit 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 Council of the USP 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 powers conferred on the University by .. [the] Charter.” Under Section 4(a) of the Charter the USP has power:
 

“to institute ... offices of any kind whether academic or not ... to appoint persons to and to remove them from such offices and to prescribe their conditions of service.”
 
During the course of the years 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 approved the following provision which was still in force when the Applicant was notified of his forthcoming retirement:
 

“the University has no mandatory retiring age. Employment beyond the age of sixty years shall be at the option of the University and shall be conditional upon the provision annually of a medical report satisfactory to the University on the health of the member and his/her fitness to continue in the employ of the University.”
 
Members of the University such as the Applicant were required to complete an Annual Staff Review Form similar to the annual confidential report completed in the Civil Service. On 17 October 1994 the Registrar, Ms Sarojini 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 1995 (Pillay 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 1995 (Pillay affidavit Exhibit A34) Ms Pillay noted in the Applicant’s Annual Report that she would be proposing to the Staff Review Committee (a Committee of the Council apparently established under Section 15 (3) of 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 Ms Pillay wrote to the Applicant as follows:
 

“I write to advise you that the Staff Review Committee at its last meeting noted that you will reach the age of 60 in August 1996.

 

The Committee has decided that you continue to be employed until the end of 1996 and that your services with the University should come to an end then. Your last day of service will, therefore, be 31 December 1996".
 
It is this decision of the Committee which the Applicant seeks to have quashed.
 
As I see it, the first question which calls for consideration is the nature of the Court’s jurisdiction. Two recent decisions of our own Courts in Fiji are especially instructive. The first is Muma v University of the South Pacific FCA 52/91; FCA Reps. 95/164 and the second is Dewa v University of the South Pacific (Suva HC Judicial Review 7/94).
 
Muma is authority for the following two propositions. First, that the effect of Section 27 of Charter of the USP is that at all material times the President of Fiji was 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.
 
This second proposition calls for closer examination. In arriving at the conclusion their Lordships in Muma’s case referring toPatel v University of Bradford  [1978] 3 WLR 1488; [1978] 3 All ER 841; affirmed  [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  [1966] 2 QB 237 said at page 1494 B-C:
 

“the question is not merely one of refusing discretionary remedies or requiring alternate forms of relief to be pursued first but is truly a matter of jurisdiction.”
 
It is unfortunate 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 Thomas v University of Bradford  [1987] 1 All ER 834 and the second is R vUniversity of London Visitor ex-parte Vijayatunga  [1989] 2 All ER 843. Examination of these two authorities reveals that the attitude of the Courts in England has changed. Whereas Megarry V-C held the view that the Courts have no jurisdiction at allover matters within the jurisdiction of the Visitor the more recent view is, as pointed out by Pathik J in Dewa’s case, that while the Court has no appellate jurisdiction it does have a supervisory jurisdiction. This means that a person having a complaint about a decision of the Visitor may not appeal against that decision but may seek to have it judicially reviewed.
 
The next question to be answered is what is the consequence of failing to take the preliminary step of complaining to the Visitor before approaching the Court?
 
In Muma’s case the Fiji Court of Appeal held that as the complainant had not first taken his complaint to the Visitor his complaint was not justiciable. This conclusion depends on acceptance of the principle that the jurisdiction of the Visitor is exclusive and that principle has been accepted in England, as pointed out by Lord Griffiths in Thomas’s case on page 839 (e), since the 17th century.
 
In New Zealand a different view has been adopted. In 1984 the New Zealand Court of Appeal in Norrie v Senate of University of Auckland  [1984] 1 NZLR 129 held that the jurisdiction of the Visitor was not exclusive and therefore the Court retained the power to adjudicate over matters within the Visitor’s jurisdiction whether or not the Visitor’s jurisdiction had first been resorted 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.
 
In Dewa’s case Pathik J judicially reviewed a decision of the same Staff Review Committee of the USP notwithstanding that the Applicant had not first appealed to the Visitor but as Pathik J made clear the decision in Muma was not delivered until after Dr. Dewa had filed for Judicial Review.
 
The position in Fiji is now governed by Muma and I find it to be as follows. A member of a University having a dispute with the University falling within the jurisdiction of the Visitor should first take his grievances to the Visitor. A decision of the Visitor is reviewable 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 which 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 was. In his submissions on issue 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 Thomas at pages 843 & 844 I hold that notwithstanding that the Applicant’s central complaints are those set out on page 5 of Mr. Lateef’s written submission and that these complaints involve consideration of 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 really the end of the matter I offer three further observations on the merits of this application. First, as appears from the Charter, the University has full power and authority to lay down the terms and conditions of the 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’s 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 numbers involved it is obvious that the sooner the Council moves for the appointment of a Visitor under Section 27 of the Charter the better. Following the decision inMuma it is clear that in the absence 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 Judicial Review dismissed.)