IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

CIVIL ACTION NO. HBJ0002 OF 2003

THE STATE

v.

THE FIJI ISLANDS REVENUE &
CUSTOMS AUTHORITY
Respondent

and

SILIPA TAGICAKI
KUBUABOLA
Interested party

EX-PARTE: BARBARA MALIMALI
Applicant

Counsel for Applicant: Prem Narayan
Counsel for Respondent: S Sharma, Patel Sharma & Associates
Interested Party: In Person

Date of Delivery: 16 April, 2003
Time of Delivery: 9.30am

RULING

This is an application seeking leave to apply for Judicial Review.

At the time of this application the Applicant is employed by the Fiji Islands Revenue and Customs Authority (“FIRCA”) as one of its two Senior Legal Officers at salary point 6 on the LG04 scale. The other is the Interested Party to this Proceedings.

In December 2002, the post of Manager Legal fell vacant. Mrs. Silipa Tagicaki Kubuabola, the Interested Party, was appointed as Acting Manager Legal by FIRCA’s Chief Executive, following the Board’s approval of the same.

The Applicant challenges the acting appointment on the ground that she was the more senior and more experienced of the two Senior Officers. Furthermore, and in support of this, the Applicant referred in her affidavits to Clause 7 of the Collective Appointment between FIRCA and its employees which states that:

“7.1	Acting Appointments shall be made from the grade immediately below the vacant post. However, where there is no officer available in a grade immediately below, then the Acting Appointment can be offered to an Officer in the next lower grade.”

The Applicant who has been on LG04 salary point 6 for about 4 years compared to the Interested party, who is on LG04 on a lower salary point of 8 for one (1) year, is, according to the Counsel, the only person who is qualified as the officer “from the grade immediately below the vacant post”.

Leave to Apply for Judicial Review

The requirement that the application for Judicial Review will only be with leave of the Court (O.53 R.3) of the High Court Rules, is with good reason. It is a checking system to try and eliminate as early as possible, applications which are either frivolous, vexatious or hopeless. As Lord Diplock aptly puts it in R v. Inland Revenue Commissioners, ex p. National Federation of Self-Employed and Small Business Ltd. [1982] AC 617 at 642:

“to prevent the time of the Court being wasted as busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of if were actually pending even though misconceived.”

The requirement for permission also enables an Applicant to get a quick and cheap judicial consideration whether her or his case has any prospect of success. However, a Court will almost automatically grant leave, if the material available to it is sufficient to establish an arguable case for the granting of the relief sought by the Applicant.

In this case, it would certainly appear from the affidavits filed by the Applicant that she has an arguable case. As a Senior Legal Officer eligible for consideration to the post of Manager Legal of FIRCA, she certainly can claim to have sufficient interest in the matter upon which this application is based. Also arguably, the Applicant can assert that there has been a breach of natural justice in the decision to appoint someone other than her, to the acting position of Manager, Legal.

Submissions by Counsel on whether leave should be granted or not centred on other issues which I now deal with in turn.

Public vs. Private Law

The Appellant argues that the subject matter of this proceedings properly falls under the area of public law. Counsel points to the fact that FIRCA, its Board and Management are set up by an Act of Parliament and that in exercising their statutory duties, they are in fact exercising their public functions, which become susceptible to judicial review.

Counsel for the respondent however submits that there is no public law element to the Appellant’s grievance. Such matters are covered by the Appellant’s Letter of Appointment and the Collective Agreement between the Employees and FIRCA, and as such can only be subject to private law. Counsel referred for example to R v East Berkshire Health Authority, ex p. Walsh [1985] QB 152, where the Court decided that a claim in connection with the dismissal of an employee from an employment with a public authority, where the conditions of employment are governed by a statutory instrument, are properly a matter for private, not public law.

The law is clear. While it is true that FIRCA is a creature of statute and performs a public function, this does not necessarily mean that every decision personal to individual employees of FIRCA, including the Applicant, are matters that automatically attract public law remedies.

For the Applicant to succeed, she must show that the activity complaint of is of a public nature. It would be difficult to convince this Court to agree to the proposition that the decision to appoint an Acting Manager Legal for a period of 3 months, falls within this exception. The decision amounts to no more than a management holding action to allow the selection of the new Manager, Legal to be made. I cannot see how it can be elevated beyond that status to one of a “public nature” and thence a “public law issue” which maybe resolved by way of an application for judicial review. I will elaborate on this issue later.

Alternative Remedies

The Appellant submits that even if the matter fell outside public law, the fact that there are no appeals procedures available even under the Collective Agreement, makes the matter amenable to judicial review.

Certainly it maybe possible in a situation where there is no private law remedy available, an aggrieved party may still seek the Court’s indulgence through other avenues including public law remedies.

However, as the Respondent points out and succinctly addressed by the Interested Party in her affidavit of 3 March 2003, the terms of the Collective Agreement do contain dispute and grievance procedures, which all employees covered under its scheme, including the Applicant, must first sought reliance upon, before seeking other remedies. Indeed Chapter 7 of the Agreement at paragraph 61.1 thereon states:

“…….The authority and the Association/Unions agree that all employees have the right to seek redress for grievances relating to their terms and conditions of employment and their entitlements”.

Also relevant at paragraph 62.0 of the same, which sets out step by step procedure of how an officer’s grievance is to be handled culminating, if still not settled along the way, in the matter being referred under the Trade Dispute Act to the Ministry of Industrial Relations.

According to the Respondent, the Applicant had not exhausted the alternatives available under Chapter 7 of the Agreement, and the Court should refuse the relief sought given that there are alternative remedies available which the Applicant has failed to use.

The general principle on alternative remedies, is that, “……save in the most exceptional circumstances, that [judicial review] jurisdiction will not be exercised where other remedies were available and have not been used” per Sir John Donaldson MR in R v. Epping and Harlow General Commissioners, ex p. Goldstaw [1983] 3 ALL ER 257 at 262.

While the Applicant contends that the grievance procedure under Chapter 7 is not intended nor adequate to cover situation as had arisen and for which these proceedings had been brought, this Court nevertheless is of the view that the procedures and processes of referral and hearing of submissions on grievances at every stage, envisaged at the initial level of grievance at any rate, that all matters pertaining to an individual’s employment with FIRCA, could be addressed under Chapter 7. The Court having considered all the materials placed before it, holds that the Appellant has not exhausted all alternative remedies that was available to her.

Judicial Review and Acting Appointments

Counsel for the Respondent argues that since the decision of the Board is only in respect of an acting position, the process of judicial review does not apply. The fact that the position of Manager, Legal is an acting capacity, does not confer upon her any permanent right to the position. The post is being advertised and a more permanent appointment will be made thereafter. Until such an appointment, the position is transitory. 

Judicial review is the process by which the Courts exercise supervisory jurisdiction over the activities, including decisions of public authorities. Is an acting appointment decision also included as a proper subject of judicial review?

Both counsel concede that they are not aware of any precedents on the subject matter. There does not appear to be any case law specifically on whether an acting appointment can be subject of judicial review.

The issue in my view, is really one of conclusiveness of a decision or decision-making process. Certainly, the Courts have held in the past that it is possible to seek a review in the decision – making process before the process is completed and a final decision is reached. Similarly, one may seek to review a preliminary decision such as a decision refusing an adjournment.

The concept of prematurity, in whether applications are made duly early, is an evolving one. Certainly, there is now a considerable volume of case law including from within our own jurisdiction, that have indicated firmly that premature challenges should not be allowed. But the Courts have always dealt with the issue of premature challenge in the context of interlocutory decisions. In R v. Association of Futures Brokers and Dealers Ltd, ex p. Mordens Ltd. [199] 3 Admin. L. Rep. 254 the Court held that (at 263 D-F):

“it is only in exceptional circumstances that the Court will grant judicial review of a decision taken during the course of the hearing…before that hearing have been concluded.”

The question in this case remains whether the decision of FIRCA for the appointment of the Interested Party as acting Manager, Legal is subject to judicial review. This in turn depends on whether such a decision is a final decision as compared to a preliminary or interlocutory one. In this Court’s view, the decision to an acting appointment notwithstanding the fact that is by its nature a temporary one, amounts to a final decision. It is final insofar as to the appointment and the duration of the acting capacity made and decided.

Having arrived at the conclusion that a decision to make an acting appointment is a final decision, the question arises whether it follows that all and such matters remain subject to judicial review.

In Leech v. Deputy Governor of Parkhurst Prison [1988] 1AC 533 the Privy Council had to decided whether a prison governor’s disciplinary adjudication was open to judicial review. Lord Oliver of Aylmerton said at p573:

“The principles governing the jurisdiction of the High Court to review decisions of statutory bodies are now well established and scarcely need reiteration. It is clear, in principle, since the decision of your Lordships’ House in Ridge v. Baldwin [1964] AC40, that the susceptibility of a decision to the supervisory jurisdiction of the Court does not rest upon some fancied distinction between decisions which are “administrative” and decisions which are “judicial” or “quasi-judicial.”

The question whether the Court will intervene will depend on the nature and consequences of the decision being impugned, not on the personality or individual circumstances of the person called on to make the decision.

In Regina (Tucker) v. Director General of the National Crime Squad (Unreported, January 2003) the English Court of Appeal dealt with a claim for judicial review of a policeman who had his secondment to the National Crime Squad terminated by its Director General based on a loss of confidence in his management performance. He was returned to the Derbyshire Constabulary, his home force. In the High Court, Mr. Justice Harrison held that the Director General’s decision was amenable to judicial review. However the Court also found that the Director General had acted fairly notwithstanding the absence of reasons for the decision and the lack of opportunity for the Applicant to make representations.

On appeal, the Court took into account of the possibility that the High Court in concluding that there was public law jurisdiction that allowed the decision to be reviewed, may have based his decision on the grounds that the applicant had no contract of employment and no private law remedy. Also that the Crime Squad was a public body created by stature (section 48 of the Police Act 1997), to perform public law functions.

The Court of Appeal however, held that even in such situation, the Court must look further and focus on what the Director General of the Squad was doing when the made the decision. For example, the impugned decision did not affect the applicant’s status as he retained his rank. And while it was true that the crime squad performed an important public function, it did not necessarily mean that every decision personal to the applicant involved public law remedies. It concluded that there was a line over which the Courts should not or could not go. The Court ruled that the police were entitled to run their affairs concerning operational or management decisions without the interventions of the Courts and therefore those matters, as distinct from disciplinary issues, were not amenable to judicial review. In respect of the decision to terminate the appellant's secondment, the matter was essentially an operational or management decision not subject to judicial review.

Counsel for all the parties in this case agree that the decision to appoint the Interested Party for the acting Manager Legal post was made by Chief Executive Officer of FIRCA, with the concurrence of its Board. In accordance with the terms of the appointment letter, the Interested Party’s acting appointment is for a period of three(3) months only and to expire on 23 March 2003. As is the normal occurrence in any organisation, such a scheme is put in place to allow the management adequate time and space to find a suitable permanent appointment to the post. The decision is ephemeral. The Appellant does not in effect loose her position in the organisation, nor is she prevented from applying for the post when advertised. She therefore still has the opportunity to be appointed to the position provided she satisfies the criteria set by the appointing authority.

Whatever will be the outcome of the search by FIRCA for a new Manager Legal, the fact of the matter is, insofar as the action of the Chief Executive and the Board is concerned in deciding an acting appointment in the meantime, such a matter is properly within the competence and the domain of operational or managerial decisions of the organization. This category of decisions, the Court holds, are not amenable to judicial review.

In the result this application for leave is refused. 

Costs is summarily assessed at $300 against the Applicant.

F. Jitoko
JUDGE

09th April, 2003
At Suva