| Fiji Islands - The State v Fiji Medical Council, Ex parte Padua - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW NO. HBJ 19 OF 2000
THE STATE
v.
FIJI MEDICAL COUNCIL
1st Respondent
and
THE MINISTER OF HEALTH
2nd Respondent
and 1">
THE ATTORNEY-GENERpan>
3rd Respondent
ex-parte
MARIO NAGALES PADUA
1st Applicant
and
CONSUELO ARCEO PADUA
2nd Applicant
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> S. Matawalu for the Applicants
S. Kumar for the Respondents
DECISION
The Applicants who are nd and wife both graduated with degrees in Medicine in the Philippines in 1970. In MaIn March 1hey were rere
recruited by the Ministry of Health in Fiji for contractual terms of 3 years and were posted to Labasa. They were also issued cert
certificaf registration by the Fiji Medical Council (the Council) fol) for the terms of their appointment.
In November 1995 the 1st Applicant was interviewed by the Labaspital superintendent who told him that he had received a cd a complaint against him. It appeart
complaints were were also made against the 2nd Applicant and the upshot was that on 6 March the Public Service Commission met to consider the compl. On 13 March both Applicants
were advised in writingiting that their services were to be terminated forthwith upon the payment of one month’s salary in lieu of
notice.
Both Applicants brought proceedings for Judicial Review against the Minister of Health (the Ministry) which were ultimately successful.
On 9 November 1998 k J quaJ quashed the 2nd Applicant’s dismissal (HBJ 10/96) while Fatiaki J quashed the 1st Applicant’s dismissal on 11 June 1999 (HBJ 9/96). No damages were awarded to the 2nd Applicant as she had been paid her full salary under the contract. The 1up> Applicant, hnt, however, had not been paid for the perillowing his dismissal and he was awarded $30,000 damages.&nes. Both acts
of employment exnt expired on 23 March 1997.
While the Judicial Review actions were proceeding boplicants began investigating the possibility of being re-emre-employed by the
Ministry. On 30 Ner 1999, however, ter, the Ministry wrote to the office of the Ombudsman which had been acting for the Applicants
and advised it that it had been decided not tor re-employment to the Applicants. That decision is t is the first decision which
the Applicants in these proceedings seek leave judicially to review. p class=MsoNormal smal style="text-align: justify; margin-top: 1; margin-bottom: 1">
On 27 January 2000 the Director of Immigration gave the Applicants 14 days to leave Fiji. It is not disputet they arey are both presently
unemployed and neither holds any form of visa allowing them to continue to reside in Fiji.
On 22 February papers were filed (file No. HBC 67/2000) seeking an injunctiotraining the Director of Immigration from expelling the
Appe Applicants “pending the determination of an application for Judicial Review”. In a supporting affi the 1the 1st Applicant explained that he had lodge an appeal to the Fiji Court of Appeal against the quantum of damages awarded to him by Fatiaki
J and that there was a further action (75/95) pending in the High Court at Labasa in which he was the Plaintiff who was seeking damages
for defamation connected with the allegations made against him which had led to his dismissal from his position at Labasa Hospital.
When Counsel appeared before me on 15 March Mr. Matawalu told me that the judicial review pahad not yet been filed but but were to
be filed that day. I ad the hearing of the aphe application for an injunction to 16 May and also ordered that the judicial review
leave application be heard on the same day. Althoughtwo actions have nave not fly been consolidated they ahey are closely related
and accordingly it is more straightforward give one written decision covering all pplications pending before me in both actions.
When the judicial review papers were filed on 26 April it emerged that the Applicants’ were not only seeking view e 30 November 1999
decisionision of the Ministry but were also seeking review of a decision of the Fiji Medical Council contained in a letter dated
6 March 00 (Exhibit T to the 1st Applicant’s supporting affidavit) which is as follows:
“The Fiji Medical Council further deliberated on the application (FMC meeting on 3/3/00) and have decided that Mr &amr & Mrs (Drs)
Padua are registrable provided they are able to secure employment with the Ministry of Health”.
Two further important documents must now be noted. The fis a memorandum from from tnistry dated 8 March 00 whi0 which is Exhibit
AS-1 to Ajay Singh’s affidavit in opposition filed in 67/2000 (which strictly speaking rely an interlocutory application unsupported
by an action)tion). The memorandum reads as follows:
“I am submitting a briefy to a Court Order filed by from Mr. & Mrs. (Drs) PaduaPadua in response to their employment.
1. p;&nbbsp; That the Ministry of HealtHealth is not liat liable and does not have any obligation to the employment of Mr.
& Madua the ion oir judicial review and subsequent expiry of their contract inct in 1997 1997.
2. &nnbsp;;&bspp;&bssp;&bbsp;&bsp; That the Ministry otry of Health is not liable under arcumss or manit grounds in the employment of Mr. & Mrs. Padua and this whis
we have have rele relayed ayed to the Ombudsman Office.
3. &nbssp; &&bsp;;&bspp;&bssp; &nsp; &nsp; p; That that the reply to the Ombudsman Office was the deciof thistryealthd on aints received from the Medical Superintendent Laba Labasa
Hosa Hospitaspital forl for his his poor work performance.
4. &nbbsp;& p;&bsp; &bsp; &&nbp;;&bsp; &nbbp; Tpan>That based on the reports submitted byMedicperintendent Labasa Hospital and its own assessment of the case the Ministry of H
of Healthealth found it appropriate not to issue another contract to Mr. &ams. Pa/span>
5. ;&nbssp; &nsp; &nbs; nbss;&nbbs;&nnbsp; &nbp; That the Fiji MedCoal Council have met and decided that Mr. & Mrs. Padua are registrable (temporary and non-resident) provided
they can secure yment the try of Health and at the sahe same time obtain work permit.
6. &nnsp;&&nsp;;&nspp;&nssp;&nsp; That the Medi al Coal Council have met and their decision are given at item 5.” &nbB>
The second document is another memorandum from the Ministry dated 5 May 00 which confirms that the Aant’s have applied for vaca vacant
posts advertised by the Ministry (apparently at Lautoka Hospital) and that their applications are currently under consideration.
The memorandum reads as follows:
“I refer to your recent enquiry concerning the Paduas’ application for emplt.
ass=MsoNormal stal style="text-align: justify; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> We confirt Dr. Padua have applied for the vacancies which was advertised in the local newspaper and and Fiji Public Service Official
Circular.
Before anysion can be finalised about the officers application they are normally required to undergo ergo a vigorous screening and
short listing, a process where the most suitable applicant are selected.
Normally the process will involve short listing of applicants to select the moslified and meritorious offi officer. After this is
done, it is then submitted to the Ministry of Health Staff Board for their assessment. After they (Staff Bohave aave analysed all
the applicants they are then required to decide and submit their recdation to the Permanent Sect Secretary for Health for his endorsement
and subsequently to the Public Service Commission and Honourable Prime Minister for his approval.
This whole process will take about 2 to 3 months at the most.
I do hope this explanations would assist you in deliberating on Ddua’s case.”
Given the complex...ounds to this litigation it will be convenient to summarise the 3 issues which are all cont contested and which
now call for decision.
The first is whether the Applic should be given leave to move for judicial review of the Ministry’s decision communicated ated to
the Ombudsman on 30 November 1999 not to offer them re-employment.
The second is whether the Applicant’s should be given leave to move for judicial review of the Council’s determination on 6 March
00 that they were registrable provided they could secure employment with the Ministry.
The third is whether the Applicant’s should be allowed to remain in Fiji unti final determination of these judicial review proceedings
angs and any appeals there from and the proceedings for defamation pending in the Labasa High Court.
On the first issue the Applicant’s case is that the effect of the successful judicial review proceedings before Pathik J and Fatiaki
J was to exonerate the Applicants of the charges against them which led to their dismissals from Labasa Hospital. It is said thatMinistry
wrry wrongly considered the allegations made against the Applicants when it decided not to offer them re-employment and therefore
the decision to refuse them re-employment was unfair and should be quashed.
On the papers before me it is impossible to decide whether the Applicant’sission is well founded. This isuse neither the Mthe Mthe
Ministry’s letter of 30 November 1999 (Exhibit B to the 1st Applicant’s supporting affidavit in HBC 67/2000) not the memorandum of 8 March 00 (set out above) specify precisely which facts and
matters adverse to the Applicant’s were considered by the Ministry nor whether those were the same facts and matters which led to
the original decision to terminate their employment.
Mr. Kumar also pointed out that the application for leave is out of time and that no excuse was offered fo commencing the proceedingsdings
within the 3 months required by RHC 0 53 r 4. While Mr. Kumar doubtedly edly correct I do not think, given the vexed background
of this case, that it should be decisive.
p class=MsoNormoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> A more fundamental difficulty for the Applicant’s, as I see it, is that I do not believe the successful judicial revi review proceedings
before Pathik J and Fatiaki J necessary exonerate the Applicant’s from the charges brought against them. Whether in fact do or do
n do not would, in my opinion, require a detailed examination of both judgments neither of which has been included in the papers
before me. It be remembered that judi judicial review proceedings are not appeals on the merits.
Having said that, however, the application relating to the 30 November decision does raise at least the possibility that the Ministry
may have taken the wrong approach to the Applicant’s application for re-employment. There is as yet idence to e to contradict paragraphs
37 to 42 of the 1st Applicant’s affidavit filed on 26 April. I was not addresseCounsel nsel on the questiother or not the rules of natural justice apply
to applicatiications for employment as opposed to dismissals and if so how far. thesertainties I am not mnot minded to refuse the
first apst application for leave at this stage.
The second application, that involving the March 00 decision of the FMC owever, in my view unarguable. ything, the decisdecision
sion assists the applicants. There cano duty on the Coue Council to register persons who are neither employed in Fiji nor have a
right to live here. Furthermore, asted out by t by Mr. Kumar, pplicants have not appealed the Council’s decision as is this their
rights under Section 28 of the Medical and Dental
Practitioners Act (Cap 255) and accordingly judicial review does not lie (see e.g. R v. Chief Constable ex-parte Caverly [1986] 2 WLR 1440.
The final matter is the application for a stay.; Mr. Matawalu accepted that a string of High Court Judgments (some of which I cited
in n In Re: Cui Zhong Yi & Ors (HBJ 2/1997S) have hold that pending court proceedings cannot, for obvious reasons, save in the most exception circumstances, afford
an unlawful immigrant a right to remain in Fiji until the proceedings are finally determined. It is also accepted that the Applicants’
have not appealed under the provision of Section 18 of the Immigration Act (Cap 88). Mr. Matawalu did, howeargue that the Applicants should, in the special circumstances of this case, at least be albe allowed
to remain in Fiji until the outof their applications for employment in the Ministry referred to in the memorandum of 5 May5 May set
out above. Against the bacnd of over over 4 years litigation, some of which had favoured the Applicants, 2 or 3 months would, Mr.
Matawalu submitted, makele difference.
I have given anxious consideration to this request particularly as the High Court has twice held that the Applicants dismissals were
unfair. The se, pain and unnecessacessary upheaval involved in leaving Fiji only then to return if the job application are in fact
successfut be borne in mind. But it seemme that given tven the Ministry’s view about the AppliApplicants expressed in the memoranda
of 8 March and 5 May the reality is that the Applicants prospects of obtaining re-employment with the Ministry are remote indeed.
Aither, in my opinion, ..., ... the 1st Applicant’s appeal against quantum of damages to the Fiji Court of Appeal nor pparently dormant defamation action in the Labasa High
Court provide exceptional grounds ords or departing from the now well established rule in immigration cases already referred to.
In the outcome therefore I will adjourn the application for leave to move for judicial review of the 30 Novemb99 decision for further
argr argument on the duty of an employer to a prospective employee and for an affidavit in answer to be filed by the Ministry. A
date fe adjourned hearinearing will be fixed after hearing Counsel.
The application for leave to move for judicial review of the March 00 ofCouncil is dismissed.
The application for a stay of the Director of Immigrations Deportation Order of 27 January 00 is also dismissed.
M.D. Scott
Judge
19 May 00
HBJ0019D.00
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