| Fiji Islands - Housing Employees Association v The Housing Authority - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 13 OF 1997
BETWEEN:
nter>HOUSING EMPLOYEES ASSOCIATION
Applicant
AND:
THE HOUSING AUTHORITY
Respondent
Mr. J.K. Maharaj for the Applicant
Mr. R. Naidu for the ndent
JUDGMENT
This is an application by the Applicant for Judicial Review of the decision of the Housing Authority (the "Authority") of 3 June 1997 which was conveyed to the Applicant and which is in the following terms:
"Housing Authority
Our Ref: 1/5/10
03 June 1997
The Secretary
Housing Authority Union
Valelevu
NASINU
Dear Sir
re: Redundancy Negotiation
I refer to our discussions pursuant to Article 10 of the agreement wherein you were advised of the reasons for redundancy and your
subsequent rejection of those reasons.
In the circumstances, the Authority proposes to take the following action:-
(a) to offer a package equivalent to 3 months salary ex gratia; plus 1 week per year of service to each employee as stipulated in
Article 10 of the Union agreement;
(b) to invoke Article 10 in the agreement and pay the agreed package of 1 week per year of service to any employee who refuses to
accept option (a)
In terms of Article 10(3) the Authority will consider the positions of each employee individually as it considers appropriate in each
case.
Your letter of 28th May 1997 has also been considered before reaching the decision made herein.
It is unfortunate that the Union, which should be acting in the best interest of its members has decided not to cooperate in this
important matter of restructuring the organisation towards more efficiency.
Yours faithfully
S Qoro (Mrs)
CHIEF EXECUTIVE"
Reliefs sought
The reliefs sought by the Applicant are as follows:
(a) For an Order of Certiorari to quash the Respondent's decision made on the 3rd day of June, 1997, as communicated to the Applicant through its letter marked
"A" herein, purporting to unilaterally make redundant a number of employees whose names are indicated in a letter the Respondent
wrote to the said Secretary on the 20th day of May, 1997. This communication is annexed with the said affidavit filed herein by the
said Secretary, marked "D". AND A FURTHER ORDER to quash the Respondent's decision to unilaterally send the 27 staff as referred to in annexure "F1"
(b) For an Order of Mandamus directing the Respondent to comply with the provisions of Article 10 and 16 of the Collective Agreement, namely;
(i) to enter into a productive and meaningful dialogue with the Applicant Association on the ways and means of averting the intended
redundancies and/or alternatively to discuss with the said Association, with its concurrence, on how best to implement the intended
redundancies in a fair, equitable, and just manner;
(ii) to refer any disagreement and/or failure to reach consensus with the said Association to the Ministry of Labour and Industrial
Relations with a view to getting the matter referred to arbitration as an industrial dispute, in accordance with the provisions of
Article 16 of the Collective Agreement;
(c) For an Order that the Respondents desist and in every other way refrain, directly and indirectly or howsoever, from purporting
to create a redundancy situation in cases of the 27 employees referred to in annexure "F1", and of other employees not
yet named in the list pending a full adjudication and arbitration and/or judicial litigation of this case;
(d) that the Respondent do pay all costs incurred in this proceedings by the Applicant on the basis of Solicitor/client relationship
and in any event on the higher scale.
Background
The background to this case is set out fully in the 'Statement by the Applicant' filed herein on 6 June 1997 and in the written legal submission of the Applicant filed 16 September 1997. However, it is important
that I very briefly set out the facts and the background which culminated in the said decision.
The Authority is a statutory body which is incorporated under the provisions of the Housing Authority Act. It deals with the construction
of homes, land sales and general lending to members of the public for housing purposes. It has a large number of employees; majority
of these are members of the Applicant Union, namely, the Housing Employees Association which is registered as a Trade Union under
the Trade Unions Act.
The Collective Agreement
As stated by Mr. Maharaj, there is an employment agreement dated 23 July 1996 (which is called the "Collective Agreement" hereafter referred to as the "Agreement") between the Applicant and the Authority. The Agreement deals with all matters pertaining to the terms and conditions of employment
of employees who are members of the Applicant.
Articles 10 and 16 - Redundancy and grievance procedure
In this matter the provisions of the Agreement which are relevant for our purposes are Articles 10 and 16. Article 10 deals with aspects
of redundancy situations and Article 16 deals with dispute and grievance procedure. These Articles provides as follows:
"ARTICLE 10 REDUNDANCY
[1] Whenever the need arises the Authority and the Association agree to discuss the question of redundancy and the reasons thereof.
[2] If redundancy cannot be avoided, Employees will be discharged on the basis of "last in first out" generally but competence,
special skills, experience or ability of any other Employee would be the determining factors.
Where the Employees' services are terminated by the Authority because of redundancy and/or medical grounds, severance payment shall
be made on the following basis:-
1 week's pay for each year of completed service or part thereof provided the Employee has served for a minimum period of:-
For medical reasons - 3 years
In all other cases - 4 years
[3] Redundancy shall be treated with as much sympathy as possible and reasonable notice shall be given in all cases. The Authority
agrees to use its best efforts to assist an Employee in obtaining alternative employment.
[4] Subject to their being medically fit, suitably qualified and possessing a satisfactory service record, Employees who have been
declared redundant will be given prior consideration if it becomes necessary to recruit staff at a later date."
"ARTICLE 16 DISPUTE AND GRIEVANCE PROCEDURE
[1] The aim of these procedures is to secure amity and achieve/preserve good relations between Authority and its Employees and to
resolve any differences of opinion least it develops into a dispute.
[2] It is agreed that both the Authority and the Association shall mutually pursue this aim with a spirit of compromise and goodwill
and that no Employee shall be prejudiced in his relations with the Authority or any of its Management because he may make use of
these procedures.
[3] The procedures which shall be in operation at all times shall apply to all the foregoing ARTICLES AND ANNEXURES and may also be
applied to any matter that may be of concern to any individual, the Association or the Authority. Such procedures shall operate as
follows:-
(i) Any Employee or Association spokesman for a group of Employees (preferably an Association Officer) wishing to raise with the Authority
any matter, complaint, dispute or grievances in which he or the group is directly or otherwise involved with shall, in the first
instance, approach the immediate superior or Divisional Head as appropriate.
(ii) If after a reasonable lapse of time no settlement is reached or it appears obvious that the matter has been given no attention
or priority, the matter shall be referred to the Human Resources Manager of the Authority by the Employee(s) concerned or their spokesman.
(iii) If the matter, complaint, dispute or grievance is still not satisfactorily resolved, the Association's President and/or Secretary
will refer directly to the Chief Executive and will make every effort to have the matter resolved.
(iv) If, after a mutually agreed reasonable time the matter has still not been satisfactorily resolved, the matter shall be reported
to the Permanent Secretary for Employment and Industrial Relations by either or both parties under the provisions of the Trade Dispute
Act.
(v) Should conciliation prove unsuccessful, this company and association may agree for the dispute be referred to arbitrator mutually
acceptable to both parties provided that:
(a) Both parties agree not to delay matters unnecessarily in considering acceptance of this method; and
(b) The decision of such an arbitration shall be binding upon the parties.
[4] It is further agreed that no strike action or action by the Authority to create a lockout shall be taken until all the above stages
of this procedure shall have been fully exhausted."
The decision impugned
As a matter of a Ministerial directive the Authority decided on making some of its employees redundant. A series of meetings between
the Applicant and the Authority took place on this issue. No agreement was reached and on 3 June 1997 the Authority conveyed its
said decision to the Applicant after the meeting of 29 May 1997 at which the Applicant stated that they "do not accept redundancy and are not ready to negotiate on a redundancy package" whereupon the Authority reported that "since the Association is not willing to accept redundancy, Management will take necessary action".
The decision was reached on the purported reliance of Article 10(3) of the Agreement.
Leave and Stay application
The Applicant filed an Application for Leave to Apply for Judicial Review on 6 June 1997. On 12 June 1997 leave was granted together
with an interim Order for stay pending a final resolution of this application.
The Applicant says that the Authority "declined to permit the affected employees to keep working after the 13th of June, 1997, despite the fact that such employees
turned up for work in the normal manner. The Respondent however, kept such employees on the payroll, and continues to do so".
Consideration of the issues
The Application for Judicial Review was made on 6 June 1997 and leave and stay was granted on 12 June; Notice of Change of Solicitors
was filed by Munro, Leys & Company on 26 June; counsel appeared before me on 9 July when Court ordered that Applicant file and
serve the Amended Motion after objection was taken to Motion already filed. On 31 July Affidavit in Reply was ordered and hearing
date was given for 2 September 1997. The hearing was completed on 3rd September when it was ordered that counsel file written legal
submissions. The Authority's submission was filed on 29 September 1997.
Both counsel filed lengthy but very comprehensive written submissions. I found them very useful in deciding the issues before me.
I have taken their arguments into consideration and these are reflected in the decision to which I have arrived.
Preliminary observation (subsequent events)
After the decision of 3rd June, by letter dated 4th June, the Applicant wrote to the Authority pointing out "that its decision to unilaterally create a redundancy situation for its members was not in accordance with the established procedures
and guidelines set out in the Collective Agreement between the parties, and that it was rejecting the offers being put forward as
being dictatorial, contrary to terms and conditions as agreed upon in the Collective Agreement and the ordinary terms and conditions
of its members as set out in their contract of employment with the Respondent" (from Statement by the Applicant of 6.6.97, item 4).
After the decision of 3 June the Authority on 4 June asked the Applicant to come up with alternatives by 9 June but in the meantime
as alleged "unilaterally and with compulsion sent 27 of their members on leave". At that time (6 June) this judicial review application was already before this Court.
The issues
At the hearing, after some argument Mr. Maharaj withdrew the reliefs which he included in the Amended Notice of Motion filed herein
and agreed that the original reliefs remain (as already stated hereabove).
Mr. Maharaj says that there are two issues. Firstly, "Was the creation of and implementation of the redundancies in question carried out in accordance with the provisions of the
Collective Agreement?". Secondly, "did the Respondent arrive at the decision to create and implement such redundancies in a fair and reasonable manner?".
Mr. Naidu dealt with the application by firstly, arguing that this decision is not susceptible to judicial review on the authority
of the Fiji Court of Appeal case of PRAVEEN PRAKASH PALANI and F.E.A. EXECUTIVE OFFICERS ASSOCIATION v FIJI ELECTRICITY AUTHORITY (No. 28/96, 18 July 1997); secondly, and in the alternative, that alternative remedies are available and that this case is really
about merits and not legality.
The issues as I see them boil down to a very narrow compass and I propose to deal with the matter before me, firstly, by considering
whether the decision is reviewable or not under Order 53 of the High Court Rules; and secondly, if reviewable what reliefs, if any,
ought to be granted.
Is Judicial Review available?
In a judicial review the Court is concerned not with the decision but with the decision-making process or as it was put in CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS [1982] UKHL 10; 1982 1 W.L.R 1155 at 1174 that "judicial review is not so much concerned with the merits of the decision as with the way in which it was reached." In this process the Court has to see that the Authority exercising a power does so in a proper manner. In considering the issue before
me the following passage from the judgment of LORD HAILSHAM in Evans (supra) at 1161 has been borne in mind:
"This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access
than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the
abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first
practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly
vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner." (underlining mine for emphasis)
Judicial Review will not lie against a person or body carrying out private law and not public law functions.
In this case there is this Agreement which sets out a very comprehensive terms and conditions of employment (and I do not propose
to go into the details). It provides for, inter alia, for the purposes of this case, redundancy of employees and dispute and grievance
procedure under the said Articles 10 and 16 thereof. I would say that this kind of Agreement is found in private employment in an
industry or undertaking.
The question that arises here is, where is the public law element in this case for the decision to be amenable to judicial review.
A similar case involving Housing Authority employees arose in PENIASI QARANIKULA and HOUSING AUTHORITY (Action No. 15/96 - judgment of BYRNE J delivered 7 October 1997). There the same aspect which is before me namely, employment situation, was dealt with by the Court. I
agree with his Lordship's findings and observations in that case. In fact while BYRNE J was dealing with the case before him the
Fiji Court of Appeal decision in PALANI (supra) was given which upheld LYONS J's decision (in PALANI) given on 17 May 1996 that the
Applicant has to satisfy the Court that there was an element of public law and he held that there was not. In PENIASI (supra), it
was submitted by the Authority and it was accepted by BYRNE J that "once it (Housing Authority) became a statutory Authority then all employees such as the Applicants became Corporate employees". A proposition with which I also agree. Further, section 6 of the Act creates the Authority a 'body corporate' and section 7 provides that it can sue and be sued in its corporate name in contract or tort.
For the purposes of the case before me, before refusing leave to apply for judicial review in PENIASI (supra) and applying PALANI
(supra), the following statement of BRYNE J is apt and I accept:
"It seems to me that the Court of Appeal in Walsh's case (R v East Berkshire Health Authority ex parte Walsh [1984] EWCA Civ 6; (1984) 3 All E R 425) summed up the law on this topic when it said that whether a dismissal from employment by a public authority was subject to public
law remedies depended on whether there was special statutory restriction on dismissals which underpinned the employee's position
and not on the fact of the employment by a public authority per se".
In the matter of the application for judicial review in a case involving master and servant relationship I refer to the following
passage from the judgment of WOOLF J (as he then was) in R v BBC ex parte LAVELLE (1983) 1 WLR 23:
"Those remedies were not previously available to enforce private rights but were, what could be described as, public law remedies.
They were not appropriate, and in my view remain inappropriate remedies, for enforcing performance of ordinary obligations owed by
a master to his servant. An application for judicial review has not and should not be extended to a pure employment situation." (emphasis added)
This does not appear to be a case where the Court should exercise its supervisory jurisdiction to intervene where there is no element
of public law sufficient to attract the procedure of judicial review.
I accept Mr. Naidu's submissions in regard to the non- availability of judicial review in this case on the authority of PALANI (supra).
He says and I agree that the members concerned hold posts which are not senior offices which could in any way be regarded as 'public offices' with "statutory underpinning", the taking of a decision in respect of which would be amenable to judicial review.
Hence there is an ordinary master and servant relationship governed by contract devoid of any public law element.
Most of the arguments put forward by the Applicant have been answered in PALANI on page 8 - 10 in the following passage particularly
in relation to the question of susceptibility of the Authority's decision to judicial review:
"Dr Sahu Khan submitted that the issue here was not a matter of private law. He argued that the element of public law was present
because the [Fiji Electricity Authority is a statutory authority; the [Union] is a trade union; the terms and conditions of employment
are also governed by the Trade Disputes Act; and the Board of the Authority is appointed under statutory powers. In our view, none of these matters inject the necessary elements of public law in the master and servant relationship. [R v East Berkshire Health Authority, ex p.] Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425]'s case makes it clear that the mere fact that Mr Palani being employed by a public statutory authority is not sufficient. The fact
that the ... appellant is a trade union does not appear to us to bear upon the question and the only relevance of the Trade Disputes Act (Cap 97) appears to be that the Collective Agreement was registered pursuant to s.34 and thus imported provisions of the Collective
Agreement into Mr Palani's contract of employment with the Authority. Further we do not see that the mode of appointment of the Board
of the Authority bears upon the question."
(emphasis added)
In summary, although the Authority per se is a public Statutory body, the terms and conditions of employment of the members of the
Applicant Association are governed by the Agreement. This is akin to the case of a purely master and servant relationship in the
private sector and the situation here amounts to a pure employment situation and judicial review has no place.
Situation if judicial review available
Assuming I am held wrong in the view that I have taken about the availability of judicial review in this case, let me now consider
the matter on the facts as if the decision is reviewable.
Without going into details it is clear from the affidavit evidence before me that after several meetings with the Applicant, the Authority
had on 3 June 1997 communicated its decision to offer redundancy package to Applicant's members. It is quite evident that the Applicant
did not agree to this although subsequent to the decision the Applicant was given a few more days to come up with alternative proposal
which it failed to do but instead made this application to Court earlier on for judicial review of the decision.
The terms and conditions of the Applicant's members' employment are governed by the Agreement; there is provision for "redundancy" in Article 10 thereof and this is the provision that has been invoked in this case by the Authority and it is well within its powers
to do so. But the difficulty that has arisen here is that no agreement has been reached between the parties on this aspect of the
matter. Hence this has given rise to a 'dispute' and a 'grievance' and the procedure governing this type of situation is contained in Article 16.
It is obvious in this case that the parties had failed to comply fully with the procedure laid down in Article 16. Even further to
the decision of 3rd June, the Authority, after the application was made for judicial review herein, sent letter to some of the Applicant's
members making them redundant. This unilateral action on the part of the Authority is one of the main complaints of the Applicant.
It wanted more time to consider the decision and come up with an alternative proposal.
In this state of things while the Applicant rushed to Court for a judicial review, the Authority had on 25 June 1997 (after the judicial
review application by the Applicant) written to the Permanent Secretary, Ministry of Labour and Industrial Relations stating, inter
alia, that because of the breakdown in negotiations it is "reporting a Trade dispute which is existing between the Authority and the Housing Employees Association over the issue of redundancy". The reply dated 30 July 1997 from the Ministry stated that "I am unable to proceed to take action on your report of the trade until the matter before the High Court is finalised".
In all the circumstances of this case, I am of the firm view that the parties should have exhausted the procedure in Article 16 before
coming to Court as it was open to either party to do so. It is item 3(iv) & (v) of Article 16 which is relevant here. Under 3(iv)
the Applicant's counsel had on 7 July 1997 written to the Ministry regarding the dispute and the reply was as stated above. Also,
when the Authority wrote to the Ministry on 25 June the matter was already before the Court.
In short what has actually happened here is that without following the procedure in item 3(iv) the Applicant headed to Court for a
judicial review. After the procedure in 3(iv), another procedure in 3(v) was open to the parties. By applying for judicial review
at the stage of negotiation at which the Applicant did, resulted in putting a halt to invoking Article 16 item 3 procedure to resolve
disputes for hitherto I cannot find anything wrong in the decision-making process by the Authority which is the main concern of the
court in a judicial review.
In the outcome, I find that the decision to apply for judicial review is ill-advised and misconceived particularly in the light of
the clear provisions in Article 10 and 16 in the matter of redundancy and settlement of disputes and grievances. These laid down
procedures should be complied with and exhausted before recourse is had to judicial review provided the decision is reviewable.
In considering an application for judicial review account must be taken of alternative remedies available to the Applicant (REG v CHIEF CONSTABLE OF THE MERSEYSIDE POLICE, Ex parte CALVELEY and Others (1986) 2 W.L.R. 144). In CALVELEY it was held "that the judicial review jurisdiction would not normally be exercised where there was an alternative remedy by way of appeal,
save in exceptional circumstances." In Reg v HILLINGDON LONDON BOROUGH COUNCIL, Ex parte ROYCO HOMES LTD (1974) Q.B. 720, 728 LORD WIDGERY C.J. said:
"... it has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy."
After referring to the above statement GLIDEWELL L.J, in Ex parte WALDRON (1985) 3 W.L.R. 1090, 1108 stated:
"Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure
would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical
knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take
into account when deciding whether to grant relief by judicial review when an alternative remedy is available."
Although this is not a case where strictly an 'alternative remedy' situation arises in the sense the term is understood, the same principle, however, will apply here because of procedure available
to either party in Article 16 relating to settlement of disputes and which has not been exhausted before applying for judicial review.
Since there was this procedure available I hold that judicial review will have no place for in the words of LORD TEMPLEMAN in Reg v INLAND REVENUE COMMISSIONERS Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at p.862:
"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach
of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers."
None of the above factors can be availed of here and as Mr. Naidu says, a challenge to the merits, which it is here, belongs in the
Arbitration Tribunal as provided in Article 16.
Redundancy
Article 10 does provide for 'discussing' the question of redundancy but it does not mean that the Authority is required to agree with the Applicant over whether or not redundancies
will occur. It is not a joint decision-making process as Mr. Naidu puts it. The procedure in Article 16 allows for settlement of
dispute. The Applicant has not taken steps to comply with Article 16 fully rather it has come straight to Court.
This was an agreed procedure or provision in the Agreement relating to redundancy which was collectively agreed between the Applicant
and the Authority. There was no question of any variation of the agreed procedure arising in this case and hence there was no unilateral
decision arising, as alleged, on the facts of this case. On variation, if there was one, it is stated by CYRIL GRUNFELD in his book THE LAW OF REDUNDANCY 3rd Ed (1989) p.304 based on authorities thus:
"Any variation of an agreed procedure must itself be agreed, expressly or in principle impliedly, by both collective parties;
and the variation must be made known to interested employees or, at least, they must be in a position to learn about the variation
on reasonable enquiry."
Also on the question of obligation to consult the Applicant which was raised by Mr. Maharaj the said author with reference to decided
cases said at p.316:
"As we have seen, an employer is under a legal obligation to consult agnised trade union in resperespect of proposed redundancies.
However, mere failure so to consult will not in itself make a dismissal for redundancy unfair. This is different issue from that
of the union's action against the employer for a protective award. Due consultation with the union will generally be sufficient to
indicate a reasonable employer's behaviour, but not always. There may be circumstances in which consultation with the individual
employee or employees concerned should have taken place."
But he goes on to further state (with reference to cases) at 317 that:
"There may be special circumstances which justify the failure to consult. Principally, these will be a sudden trade emergency
or a "catastrophic" cash flow problem. The early tribunal case of Guy v. Delanair (Car Heater) Ltd. was a good illustration.
The company made car heaters. Their main customer was the Ford Motor Company. After a damaging dispute at Fords, the latter made
a substantial cut in the number of heaters required from Delanair. This, together with the stockpiling of heaters during the dispute,
confronted Delanair with a serious emergency making it essential to reduce production and personnel as soon as possible. Consequently,
Guy was promptly dismissed for redundancy with pay in lieu of notice. There had been no prior warning or consultation. Held: the
sudden decision was not in itself unreasonable owing to the nature of the emergency. Delanair had in fact taken such steps as they
could, though in vain, to try to find Guy and his fellows others jobs with an associated company and others in the area. The dismissal
was fair."
Conclusion
The procedure in Article 16 allows for settlement of disputes and the Applicant had not taken step to comply with its provision fully
but instead it decided to come straight to Court.
It lay on either party to report the matter of dispute under the Trade Disputes Act (Art.16 (3)(iv)) but this was not done. Bearing in mind the facts and circumstances of this case particularly the fact that the Authority
has complied with the terms of Agreement in offering the redundancy package and held a number of meeting with the Applicant, the
correct forum would have been the Arbitration Tribunal rather than judicial review to resolve the dispute. On the whole question
of judicial review, PALANI (supra) at pp 15-16 has summed up the situation very well thus:
"It must be remembered judicial review is not a cause of action. It is a procedure by which a person may apply to the High Court
for an order of mandamus, prohibition or certiorari; and if such an application has also been made, and the Court considers it would
be just and convenient, it may also grant a declaration and an injunction. It is fundamental, however, that some person must have grounds on which to seek the orders of mandamus, certiorari and prohibition. See order 53. Thus judicial review is not a procedure to be invoked, as it were, in a vacuum.
It is no doubt the case that all administrative decisions and discretion of statutory bodies are made or exercised by them are subject
to review by the Courts in some circumstances. But anyone who seeks to challenge such a decision or administrative action must establish some ground relevant to the decision or action challenged and have the status to challenge it... Every application for judicial review has to be considered in relation to the particular circumstances
applicable to it."
(emphasis added)
I have said more than enough on some of the grounds on which the Applicant seeks relief and hence there is no need for me to consider
the remainder of the grounds suffice it to say with respect that there are no merits in any of them.
To conclude, I consider that the parties should be in another forum for the resolution of their dispute. The procedure of judicial
review is wholly inapplicable to the circumstances of this case; even if was, it was premature as the procedure laid down in Article
16 must be exhausted before an application is made to Court.
For the above reasons the application for judicial review is dismissed with costs which is to be taxed unless agreed.
D. Pathik
Judge
At Suva
14 November 1997
Hbj0013j.97s
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