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State v Legal Services Commission, ex parte Singh [2000] FJHC 200; HBJ0033.2000 (24 November 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

ACTION NO. HBJ 0033 OF 2000

STATE

V.

LEGAL SERVICES COMMISSION AND
THREE OTHERS

EX-PARTE:

DANIEL SINGH

H.K. Nagin for the Applicant
Vijay Maharaj for the Respondents

Date of Hearing and Ruling: 24th November 2000

RULING

On the 26th of October 2000 I gave the Applicant leave to apply for Judicial Review of the decision of the First Respondent of the 23rd of October 2000 appointing one Jai Janmai Udit as State Solicitor and not re-appointing the Applicant whose contract expired on the 1st of November 2000. I also gave orders as to service of documents and listed the application for mention on the 8th of November 2000 at 9.00 a.m.

At approximately 3.00 p.m. on the 1st of November I was asked by Miss Prem Lata Narayan counsel for the Applicant if I could hear an urgent application later that day for an order injuncting the Respondents from refusing to allow the Applicant access to Government Quarters 220 Stoddart Road, Suva which he was then occupying. Miss Narayan informed me that the Applicant had been told by his employer that unless he vacated the house at 3.00 p.m. that day all the locks on it would be changed, effectively preventing him from entering the premises.

Because I regarded the matter as urgent I directed the Applicant through his counsel to swear an affidavit as to the ultimatum he had received from the Respondents and prepare a draft order which I could peruse and, if satisfactory, approve.

I informed counsel that I would remain in my Chambers for as long as it was necessary to hear the application.

At 5.00 p.m. counsel appeared and after hearing her I made an order granting the Applicant the stay which would allow him to continue his employment and restraining the Respondents from interfering with his employment and all entitlements including his salary until further order.

I made this order having first read a draft order submitted by the Applicant. At the time I queried the use of the words "all entitlements" in the draft order when, as I had been informed and believed, the Applicant really only wanted an order preventing him from being evicted from his house.

After some discussion with counsel who submitted that the phrase was wide enough to cover the Applicant's occupation of his house I agreed with some reservations, having expressed the opinion that the phrase was too general and should specifically refer to the relief which I understood the Applicant was seeking.

I adjourned the matter for mention until the 8th of November when Mr. Nagin appeared with Miss Narayan for the Applicant who was also present and Mr. V. Maharaj appeared for the Respondents. After hearing submissions I gave the Applicant leave to file and serve an Affidavit in Reply in answer to affidavits which then had been sworn by Nainendra Nand the Solicitor-General of Fiji the Second Respondent, Usman Karim the Acting Senior Assistant Secretary in the Office of the Solicitor-General and Peni Cavuilagi the Secretary of the Legal Services Commission, the First Respondent, herein.

During the hearing I asked the Applicant whether he still believed that the Respondents would order him to leave his Quarters and he told me quite candidly, that he did not believe this. Thus on the Applicant's own admission the principal reason for my making the order of the 1st of November was not true. It therefore appeared that wittingly or unwittingly his counsel Miss Narayan had misled me when asking me to hear the application on the 1st of November.

During argument on the 8th of November I expressed the tentative view that probably the Applicant's remedy lay in damages in that no employer could be compelled to employ someone he did not want. Also by this time I had read the affidavits in answer sworn by Nainendra Nand, Usman Karim and Peni Cavuilagi which put a totally different complexion on the claims made by the Applicant which caused me to express my tentative opinion that the only relief to which the Applicant might be entitled was an award of damages.

On the 16th of November Nainendra Nand swore another affidavit in answer to those of the Applicant in which, inter alia, Mr. Nand alleged that the Stay Order had already caused serious inconvenience in his office because the promotee had not been able to take up his position and his office had not been able to identify a Principal Legal Officer to move to Lautoka where Mr. Udit had previously been stationed. Mr. Nand also claimed that the Applicant had not suffered any inconvenience or hardship as he has been fully paid all his entitlements and has been on notice for some time that his contract would not be extended a third time.

This morning I was handed another affidavit by the Applicant sworn on the 22nd of November which had been filed on the 23rd of November in which he disputed the claims being made against him by the Respondents. He also alleged that the First Respondent exists as a result of the State Services Decree 2000 which in itself is invalid presumably because of the recent judgment of Gates J. in the matter of Chandrika Prasad.

The parties had appeared before me again on the 13th of November when as a matter of priority I fixed the hearing of the substantive motion for 10.00 a.m. on the 4th of December and extended the stay until midday on the 5th of December.

Having now read the latest affidavits of the Solicitor-General and the Applicant, and having considered all the material now before the Court I have reached the clear conclusion that the stay order must be dissolved.

Because the substantive motion will be heard on the 4th of December I am not satisfied that the Applicant will suffer any loss or inconvenience which cannot be compensated by an award of damages but I am equally satisfied that there is real inconvenience being caused to the Respondents because of my stay order.

I therefore order that my order of the 1st of November be dissolved. I also give the Applicant leave to amend his Statement no later than the 27th of November so as to add a ground for relief that the Legal Services Commission has no jurisdiction or status to appoint any judicial or legal officers.

JOHN E. BYRNE
JUDGE