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Court of Appeal of Fiji |
IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI
CIVIL APPEAL NO. ABU0103 of 2005S
(High Court Civil Action No. HBJ 22 of 2004S)
BETWEEN:
KAMLESH PRAKASH
AND
PUBLIC SERVICE APPEALS BOARD
First Respondent
MINISTRY OF AGRICULTURE SUGAR AND RESETTLEMENT
Second Respondent
In Chambers: Hon. Justice Gordon Ward, President
Hearing: Monday,12 December 2005, Suva
Counsel: Mr Nagin for the Applicant
Mr Eroni for the First Respondent
Mr Sharma for the Second Respondent
Date of Ruling: Wednesday, 4 November 2005, Suva
RULING
"This application was an attempt to get the court to declare that the applicant ought to be appointed to the post on merits. That is not the realm of judicial review proceedings ..."
The application is strongly opposed by both respondents. In the affidavits filed, it is pointed out that the post was first advertised in November 2001. Following the judgment by Singh J in February 2005, it was decided to fill the post by the
sideways transfer of another officer in the department. He was substantively appointed in September 2005 and still holds the post. The respondent insist it is not in the public interest nor is it good administrative practice to continue to hold the post open pending appeal.
The matters the Court must bear in mind when considering applications to appeal out of time are well known. It must examine the reason for the delay, the length of delay, the degree of prejudice to the respondent if leave is granted and the likelihood of success of the appeal, in addition there is an overriding discretion vested in the Court to allow the application if the applicant satisfies it that, in all the circumstances, justice requires that he should be given the opportunity to pursue his appeal.
The reasons for the delay do not appear to be disputed. It is entirely due to the
default of the solicitors. The applicant himself is not to blame. Whether it is
sufficient is a matter for the court's discretion and will also depend on the other considerations. Mad it been viewed in isolation, the justice to the applicant would require the court to allow time.
However, the question of possible prejudice to the respondent may override the reasons for the delay and, in this case, there is a serious chance of prejudice. The respondent has had to wait for a very long time to fill this vacancy. Following the decision of the learned judge and after the time for appeal had passed, the respondents acted. Another officer was appointed and it is all too obviously highly prejudicial if that officer is now to await the appeal in order to know whether his position is in jeopardy. The respondents are entitled to look for finality in this matter and granting leave would seriously prejudice that.
Justice Gordon Ward
President
FIJI COURT OF APPEAL
Solicitors:
Messrs. Sherani and Company Suva for the Applicant
Eroni Veretawatini Lawyers, Nausori for the First Respondent
Office of the Attorney General Suva for the Second Respondent
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URL: http://www.paclii.org/fj/cases/FJCA/2005/88.html