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Dean v Ministry of Education [2004] FJHC 418; HBJ0004.2004L (14 May 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBJ0004 OF 2004L

BETWEEN:

USMUL NISHA DEAN
f/n Wali Mohammed
Applicant

AND:

CHIEF EXECUTIVE OFFICER FOR MINISTRY OF EDUCATION & ATTORNEY GENERAL OF FIJI
1st Respondent

AND:

DR. DEO NARAYAN, DR. MIKAELE MUA & DR. TUI TAOI
2nd Respondent

Counsel for the Applicant: Mr. S. Maharaj
Counsel for the Respondents: Ms. S. Tabaiwalu

Date of Hearing & Judgment: 14 May 2004

EXTEMPORE JUDGMENT
ON LEAVE TO APPLY FOR JUDICIAL REVIEW

The applicant, by application filed on 10th May 2004, applies for Leave to Apply for Judicial Review of a decision of the Acting Senior Education Officer, Lautoka/Yasawa dated 14th April 2004.

The decision sought to be reviewed, is the order of the 1st respondent, that the applicant be transferred from the position of Assistant Head Teacher ED5B from Lautoka Muslim Primary School to Lautoka Central Primary School as Assistant Teacher ED8A on her existing terms and conditions of service with effect from 17th May 2004.

In support of the application, the applicant relies on an affidavit sworn on 8th May 2004. I do not attempt to recite the background in detail, as it is set forth in the affidavit to which I referred.

It would appear that the applicant has taught at the Lautoka Muslim Primary School for a number of years and has been a teacher for more than 30 years.

During year 2002, the applicant underwent two major operations and her health apparently deteriorated which caused her to be absent from school for periods of time that exceeded her leave limit. As a result of these absences, the applicant was referred to a medical board who apparently reported to the respondent in March 2004. That report made recommendations which included that the applicant was fit to continue with her job as a teacher; that she attend to either the civil service doctor at the Lautoka Hospital or a general practitioner if she falls sick and thirdly, that she be transferred to another school.

The respondent subsequently transferred the applicant to another school that being the Lautoka Central Primary School and transferred her to the position of Assistant Teacher ED8A on her existing terms and conditions of service. It is this action of the respondent that the applicant seeks be reviewed by means of Judicial Review pursuant to Order 53 of the High Court Rules.

It would appear from the affidavit in support of the application that the applicant sought to appeal the decision to the Public Service Appeal Board. That Board determined that no right appeal existed as the transfer was within the same district and that a right of appeal under section 25(1) of the Public Service Act 1999 only exists with respect to the transfer from one district to another within the Fiji Islands.

Applications to the court for Judicial Review are governed by Order 53 of the High Court Rules. Order 53 Rule 3(1) provides: -

“No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule.”

Lord Diplock in Inland Revenue Commissioners ex p. v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] A.C. 617 at 642 said and I quote: -

The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

The issues for consideration by the court in determining an application for Leave for Judicial Review are: -

1. Does the applicant have sufficient interest in the application;
2. Is the decision sought to be review, a decision of a private or public nature;
3. Are there alternative remedies available to the applicant.
   

Dealing with those matters seriatum, the first requirement is a requirement of Order 53 Rule 3(5).

The applicant as I have earlier stated, is a school teacher, and obviously falls under the administrative control of the Ministry of Education. It would seem in these circumstances, that the applicant does indeed have a sufficient interest in the application.

Jumping to the 3^rd recited requirement, that is, are there alternative remedies available, the authorities clearly indicate, that it is an absolute requirement at any alternate available remedy be exercised, prior to leave being granted for judicial review.

I don’t set forth those authorities, as it would appear on the evidence that is before me, that there are no other available alternate remedies for the applicant to pursue.

Is the decision sought to be reviewed, a decision of a private or public nature?

Most recently, the High Court has considered the situation with respect to the rights of public servants in circumstances not dissimilar to the applicants in State v Fiji Islands Revenue & Customs Authority and Silipa Tagicaki Kubuabola ex p. Barbara Malimali HBJ0002 of 2003. In that matter, His Lordship, Mr. Justice Jitoko after considering various authorities said and I quote at page 8 of his judgment:-

“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 the 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 the possibility that the High Court in concluding that there was public law jurisdiction that allowed the decision to be reviewed, may have based the 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 statute 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 he made the decision. For example, the impugned decision did not affect the applicant’s status as he retained his rank. And whilst 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.”

His Lordship relying on that authority similarly held that the Fiji Islands Revenue & Customs Authority in making a decision to appoint an Acting Manager, Legal, was exercising a function not amenable to judicial review.

As I have said in the past, it is important that this court exercise judicial comity and in saying that I relying in part on the decision of Justice French sitting as a Judge of Federal Court of Australia in Hicks v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FJCA 757 (21 July 2003), Mr Justice French of course is also a member of the Supreme Court of Fiji and he said at paragraph 76 of that judgment and I quote: -

“The injunction to judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value in places upon consistency in judicial decision- making and mutual respect between judges.”

For this reason I find myself obliged to follow the decision of Mr. Justice Jitoko in Barbara Malimali. In saying that, it is not to suggest that I disagree with His Lordship’s decision.

In applying that authority to the matter before the court, I find that the action of the 1^st respondent, in transferring the applicant from one school to another is an operational or management decision and is not a decision that is amenable to judicial review and accordingly the Order of the Court will be:-

1. Application refused.

JOHN CONNORS
JUDGE

AT LAUTOKA
14 MAY 2004