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State v Secretary of the Public Service Commission, Ex parte Nabuka [1994] FJHC 79; Hbj0008.1994 (12 July 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW N0. HBJ0008 OF 1994

THE STATE

v.

THE SECRETARY, PUBLIC SERVICE COMMISSION
and
THE PERMANENT SECRETARY FOR EDUCATION

EX PARTE: JOELI NABUKA

I. Fa for the Applicant
W. Rigamoto for the Respondents

DECISION

This is an Application for an Order for a stay of proceedings pursuant to RHC O.53 r.8(a) made after leave to apply for Judicial Review had, by consent, been granted.

In October 1993 the Applicant was charged with six disciplinary offences contrary to Regulations 36(a) and 36(t) of the Public Service Commission (Constitution) Regulations 1990. The gist of the allegations against the Applicant was that while he was employed by the Ministry of Education as the Principal of the Lelean Memorial School at Davuilevu in Nausori he dishonestly obtained a total of $360 remission of school fees payable on behalf of his children who were attending the school as pupils.

On 23 March 1994 the Applicant was found Guilty of the offences with which he was charged and was disciplined. He was downgraded three levels from TE01 to TE04 and was fined $400. It is the procedures followed by the Respondents prior to the finding of guilt and the disciplining of the Applicant which are the subject matter of the Review.

After obtaining leave to apply for Judicial Review Counsel for the Applicant advised me that he was also seeking a stay of the decision to downgrade the Applicant and fine him. Since there was no application for a stay in the papers before me I gave leave to the Applicant to amend the Form 32 Notice and to file a further affidavit in support. In this affidavit the Applicant, who describes the admittedly false applications for remission as a "very minor issue" and a "very simple administrative error" outlines the financial and psychological hardships which the demotion have caused him and his family.

In answer, the 2nd Respondent deposed that were a stay to be granted then the Respondents would have great difficulty in finding a suitable placement for the Applicant and that there would be no guarantee that he would be acceptable to the schools to which he might be appointed. The 2nd Respondent also avers that a stay would adversely affect the proper administration of education and the student population now midway through their academic year. The 2nd Respondent points out that should the Applicants succeed in due course in his action then the salary lost by him will be recovered.

Counsel confined their arguments to the power of the Court to grant a stay of the implementation of a decision already taken as opposed to a stay of pending proceedings. Mr. Fa relied on R. v. Secretary of State for Education and Science Ex parte Avon County Council [1991] 1 All ER 282 for the proposition that a stay could be granted while Mr. Rigamoto relied on Minister of Foreign Affairs Trade and Industry v. Vehicles and Supplies Limited [1991] 4 All ER 65 for the proposition that there was no scope for staying an executive decision already taken. That the views of the English Court of Appeal and the Privy Council do not appear to coincide on this point is acknowledged by all the leading texts on the subject. Which approach will be followed in Fiji has not yet, so far as I am aware, been decided. For the purposes of this decision I will however assume that this Court has power to order a stay of the implementation of an executive decision already taken and I will then consider whether in the circumstances before me it would be right for me to order the stay sought.

While a stay is a different legal remedy from an injunction, the consequences of granting a stay are frequently similar to the consequences of granting an injunction. In my view therefore it is not inappropriate to bear in mind the well known principles governing the granting of injunctions when considering whether to grant a stay.

In this case leave having been granted, albeit by consent, it must be assumed that the Applicant has a good arguable case. Where however does the balance of convenience or justice lie? In my view it lies with preserving the status quo, in other words I do not think that the Applicant should be reinstated to his former position or to a similar position pending the hearing of the action.

I accept that the Applicant and his family have suffered some distress as a result of what has occurred but such distress and embarrassment were always bound to follow the discovery that the Applicant had, as he has not denied, made dishonest claims for remission of fees. In my opinion the objections raised by the 2nd Respondent to the granting of a stay, already referred to above, have considerable force and are well taken. Furthermore, there is no reason why the action proper should not be heard and disposed of within the next few weeks. If the Applicant is successful then presumably he will be reinstated. On the other hand should the Applicant fail then presumably he would have to be removed again after I had ordered his temporary instatement. I do not think such chopping and changing is conducive to good educational administration.

To my mind the answer therefore is clear. The action must speedily be disposed of but to order a stay at this stage would not be just. The Application fails and is dismissed.

M.D. SCOTT
JUDGE

12 July, 1994

HBJ0008.94S