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Public Service Appeal Board v Kumar [2006] FJHC 105; HBJ011.2005 (13 January 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL JURISDICTION ACTION NO. HBJ011 OF 200S

BETWEEN

THE PUBLIC SERVICE APPEAL BOARD
as established under Section 24 of the Public Services Act 1999 and
Section 7A of the Public Service (Amendment) Act 1998 (No 58 of 1998)
RESPONDENT

JOJI QARANIVALU
INTERESTED PARTY

AND

ANOOP KUMAR
Lecturer, ED4C, Lautoka Teachers College
APPLICANT

Messrs Law Naivalu for the Applicant
Eroni Veretawatini Lawyers, Nausori for the Respondent and the Interested Party.

Date of Hearing: 16 November 2005
Dates of Submissions: 9 November, 7 December and 14 December 2005
Date of Ruling: 13 January 2006

INTERLOCUTORY RULING OF FINNIGAN J
RE: GRANTING OF LEAVE

This Ruling Concerns the Grant of Leave to apply for Judicial Review, The applicant seeks to challenge a decision made on 9 May 2005 by the Public Service Appeals Board whereby the Interested Party Joji Qaranivalu succeeded in an appeal against the applicant's appointment to a teaching post at Lautoka Teachers College, The applicant seeks also a stay of implementation of the decision of the Board pending the review if leave is granted.

Submissions:

Counsel for the two main parties have filed excellent written submissions. After reading the affidavits and the submissions I find only one clear course of action.

Both parties in the affidavits and in the submissions have given a clear indication of what the substantive issues will be in the application for review if leave is granted. I note those matters but make no decision accept to say that clearly there is a serious issue for all concerned and I find that the applicant does have a sufficient interest in the application.

The Considerations:

An application for leave for Judicial Review is similar to an application for interlocutory injunction, in that the Court does not go into the merits of the case but decides by applying guidelines whether the interlocutory step should be granted or refused. There are many authorities available to me and Counsel have cited several that are relevant. I note the purpose for the requirement that leave be sought as set out in the Inland Revenue Commissioners -v- National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 642. From the judgment of Connors J in Dean -v- CEO Education and Attorney General & Ors Civil Action No HBJ004/2004L, judgment 14 May 2004 I accept that the issues for me to consider are as follows:

1. Does the applicant have a sufficient interest in the application?

2. Is the decision sought to be reviewed a decision of a private or public nature? and

3. Are there alternative remedies available to the applicant?

Conclusions:

I have already found that the applicant has a sufficient interest in this application. Whether the decision sought to be reviewed is of a private or public nature is not difficult to ascertain. The teaching position for which the two lecturers contend is a position in one of the leading teachers' colleges and the applicant board is a public body established by statute. As well, the applicant openly raises questions about the application in this case of Section 140 of the Constitution. I hold that the decision is of a public nature.

About alternative remedies there is nothing in the affidavits or submissions that I can find to show the applicant has another course opened to him after the decision of the Appeal Board. It seems he has no alternative remedies.

Order:

For the above reasons I am guided to one decision only and that is that leave should be granted. I made that order accordingly. The matter will be placed in the Callover list on 17 February 2006 so that a hearing date may be allocated. This matter has to be treated as relatively urgent. If Counsel can conduct a hearing on the papers an early decision can be given.

Costs on this application are the applicant's costs in the cause.

D. D. Finnigan
JUDGE

At Lautoka
13 January 2005