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State v Public Service Appeal Board, Ex parte Temoirokomalani [2005] FJHC 672; HBJ0020.2004L (1 April 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0020 OF 2004

BETWEEN:

THE STATE

AND:

THE SECRETARY, PUBLIC SERVICE APPEAL BOARD
THE PERMANENT SECRETARY FOR HEALTH
Respondents

AND:

MACA TEMOIROKOMALANI
Ex-parte Applicant

AND:

MUNIAMMA KAMINI NARAYAN
Interested Party

Counsel for the Applicant: Mr. T. Vakalalabure
Counsel for the 1st Respondent: Mr. E. Veretawatini
Counsel for the 2nd Respondent: Mr. Tuiloma
Counsel for the Interested Party: Mr. G.P. Shankar

Date of Hearing: 16 March 2005
Date of Ruling: 1 April 2005

RULING

The applicant seeks leave to file for Judicial Review of the decision of the Public Service Appeals Board allowing an appeal by the Interested Party, which resulted in the Interested Party being appointed to the position of Senior Dietician at the Lautoka Hospital.

The Public Service Appeals Board handed down its decision on the 30^th July 2004 and this application for leave was filed on the 2^nd December 2004; almost 4 months after the decision.

Order 53 Rule 4 of the High Court Rules provides that the court may refuse to grant leave where there has been undue delay or –

“(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.”

The date of the proceeding is the 30^th July 2004. The relief sought by the applicant includes an order of certiorari.

Fatiaki J., as he then was, considered the law applicable to delay in R v Minister for Labour and Industrial Relations ex-parte Shore Buses Limited & Ors – Judicial Review 0021 of 1993. There, the issue was not raised on the application for leave as the respondent consented to leave being granted. The issue was considered by His Lordship when dealing with the application for Judicial Review. His Lordship considered R v Herrod ex-parte Leeds Council [1976] 1 Q.B. 540 at 575 where Shaw LJ said:

“If there has been unreasonable delay, then even though the application for leave is made (in time), resulting hardship to an opposing party may well be a reason for refusing the order sought.

It is true (time) can be extended, but only if the delay is accounted for to the satisfaction of the court; and, if it is so accounted for, the question whether the case is a proper one for granting relief will only be answered in the affirmative if the applicant shows that in all the circumstances the demands of justice are best served by that answer. It is for (the applicant) to show that on balance it is right to make the order and not for the opposing party to show it would be wrong to do so.”

His Lordship also referred to O’Reiley v Mackman [1983] UKHL 1; [1983] 2 A.C. 237 at 280 where Lord Diplock said:

“The public interest in good administration requires that the public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”

Perhaps, most relevantly His Lordship considered Regalbourne Limited v East Lindsay District Counsel [1994] 6 admin L.R. 102 where it was held (dismissing the appeal):

“(1) In the absence of agreement, before the court will consider exercising its discretion to extend time...it will normally need to be satisfied that there is an acceptable explanation

for the delay. Lawyer’s commitments or ignorance would be unlikely to be an acceptable explanation;

(2) If such an explanation is found, then the risk of prejudice will be considered;

(3) Where decisions of public law bodies are the subject of the application, the Court will be reluctant to extend time because of the need for such bodies to know where they stand.”

In Fiji Public Service Association v Public Service Commission – Civil Appeal No. ABU 0010 of 2004S, the Fiji Court of Appeal highlighted the need to avoid two hearings and possibly two appeals. Notwithstanding that note of caution in this matter, all parties have been heard on the application for leave.

The applicant, in her affidavit sworn on the 4^th February 2005, deposes (paragraph 3) that she received advice by registered mail from the Public Service Appeal Board of the outcome of the appeal “on or around the first week of August”.

Notwithstanding, the applicant says, she did not instruct solicitors until “immediately” after she received notification from the Ministry of Health on 7 September 2004 that the decision of the Public Service Appeals Board was to have immediate effect.

Ample time was then the available for the application to be filed within the time prescribed by Order 53 Rule 4 but it was not filed until 2 December 2004.

Where there is delay, the court must scrutinize with care the reasons for that delay before finding that there is good reason for extending the time limits. The authorities do not set forth any comprehensive definition or good reason since much depends on the facts of the case and the extent to which the court might regard the actions taken by the applicant as reasonable in the circumstances. Delay caused by the applicant’s lawyer in making the application will not be a good reason for extending the time-limit unless the reasons for the delay are satisfactorily explained – R v Institute of Chartered Accountant in England & Wales, ex p. Uandreou (1996) 8 admin L.R. p. 557, R v Secretary of State for Health, ex p. Furneaux [1994] 2 All E.R. 652.

The delay may be considered to be excusable if it resulted from facts outside the applicant’s or her advisors control.

An Applicant, who is not informed that the decision has been taken has good reason for the delay, so long as she moves expeditiously once she is aware of the decision – R v Commissioner of Local Administration, ex p. Croydon London Borough Council [1989] 1 All E.R. 1033 at 1046.

The explanation offered by the applicant as to the delay in her affidavit sworn on the 4^th February 2005, does not satisfy the requirements as required by the authorities.

The applicant’s dilatory behaviour and the subsequent apparent dilatory behaviour of her lawyers does not justify the exercise of the Court’s discretion to grant an extension of the time prescribed by the High Court Rules. The burden of satisfying the Court in this regard rests with the applicant. It is essential for the good administration of the public service that any challenge to the appointment of officers be done in a timely fashion. The creation of uncertainty can only lead to a breakdown in the good administration of the public service and nowhere is this more essential than in the provision of health services.

The applicant does not satisfy the Court that there is an acceptable explanation for the delay and accordingly leave to apply for Judicial Review must be refused.

Orders of the Court

1. Leave to apply for Judicial Review refused.

2. Applicant to pay Respondents’ and Interested Party’s costs of the application as agreed or taxed.
   

JOHN CONNORS

JUDGE

At Lautoka

1 April 2005