IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW HBJ No. 40 OF 2008

BETWEEN:

PIO TIKODUADUA, 
PERMANENT SECRETARY FOR JUSTICE, ELECTORAL REFORM, 
PUBLIC ENTERPRISES AND ANTI-CORRUPTION
FIRST RESPONDENT

AND:

PUBLIC SERVICE COMMISSION
SECOND RESPONDENT

AND

HUMAN RIGHTS COMMISSION
AMICUS CURAI

EX PARTE:

LESILI TUIWAWA
APPLICANT

Appearances:
Mr A. Roche & Ms A. Tavo for the Applicant
Ms M. Rakuita for the Respondents
Dr S. Shameem for Proceedings Commissioner as Amicus Curai

Dates of Hearing: 17 November 2008, 26 November 2008
Date of Judgment: 22 December 2008

JUDGMENT (No 1)

Headnote

Application for leave for judicial review; Decision to suspend; Decision to suspend without pay; Characterisation of decision as ‘managerial’ or ‘operational’ not determinative of grant of leave; Intermediate, not final, decision; Application premature; Alternative remedy; Requirement not to depart jurisdiction; ss. 23, 34 Constitution

Burns v. Australian National University (1981-82) 40 ALR 707
Divendra Bijay v. Permanent Secretary for Education, Women and Culture (HBJ 5/97) Fiji Evans v. Friemann (1981) 35 ALR 428
Federal Airports Corp. v. Aerolinas Argentines (1997) 147 ALR 649
Jimione Buwawa v. Public Service Commission and Attorney General of the Republic of the Fiji Islands (JudRev HBJ08 of 2008, 4 September 2008)
O’Reilly v. Mackman [1983] 2 AC 237
Public Service Association v. Civil Aviation Authority of Fiji and Attorney General of Fiji and Airports Fiji Limited (JR No. 015 of 1998L, 30 November 1998) 
R. v. Legal Aid Board; Ex parte Hughes (1992) 24 HLR 698 
R. v. Secretary of State for the Home Department; Ex parte Swati (1986) 1 WLR 477
Re Roland Warwick Sellars v. Sir Colin Woods and Alex Robert Bunt [1982] FAC 281; (1982) 69 FLR 105 (23 December 1982)
Rex v. Electricity Commissioner; Ex parte London Electricity Joint Committee Company [1920] 1 KB 171
Rajendra Prasad v. Divisional Engineer Northern and Ministry for Transport, Works and Energy (JudRev No. HBJ 03 of 2007, 17 July 2008)
Savita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No 1)(JudRev HBJ No. 2 of 2008, 11 February 2008)
Savita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No 2)(JudRev HBJ No. 2 of 2008, 14 August 2008)
The State v Commissioner for Magistrates Courts Inquiry Connors and Attorney General; Ex parte Sayed Mukhtar Shah (JudRev No. HBJ 47 of 2007, 7 April 2008) 
The State v. Public Service Commission; Ex parte Damodaran Nair (JudRev Action No. HBJ 02 of 2007, 30 March 2007)
The State v. Public Service Commission; Ex parte Peniasi Kunatuba (HBJ 18 of 2002)

Aronson, Dyer and Groves on Judicial Review of Administrative Action, Thomson Regulatory/Law Book, Sydney, 3rd Edn, 2004, pp. 87-88

1.	The Application & Notice of Opposition

Lesili Tuiwawa, the Applicant, applies for leave for judicial review in respect of a decision made on 27 August 2008 by the First Respondent, Pio Tikoduadua, Permanent Secretary for Justice, Electoral Reform, Public Enterprises and Anti-Corruption (the Permanent Secretary), suspending her employment as a civil servant and the Official Receiver. The grounds upon which relief is sought are:

a)	The suspension of [Ms Tuiwawa] by letter dated 27 August 2008 denied her procedural fairness in that [she] was given no notice of the fact, and was at no stage given an opportunity to be heard in relation to the decision;
b)	The suspension was effected contrary to the governing legislation;
c)	The [Permanent Secretary] in making the decision either took into account factors that ought not to have been taken into account, or failed to take [into] account factors that ought to have been taken into account; or
d)	The decision on its face is so unreasonable that no reasonable authority in the position of the [Permanent Secretary] would ever consider imposing it;
e)	The decision to suspend [Ms Tuiwawa] was a decision made ultra vires the Public Service Act & Regulations in particular section 23(1);
f)	The [Permanent Secretary] in purporting to act in accordance with the Public Service Act and Regulations acted ultra vires his powers.

1.1	Ms Tuiwawa seeks:

(a)	An Order for Certiorari to remove to this Court the Permanent Secretary’s decision conveyed by letter of 27 August 2008 suspending her (the decision) and that it be quashed.
(b)	A Declaration that the decision is unlawful, void and of no effect.
(c)	Such further Declaration and other relief as to the Court may seem just.
(d)	An Order for damages and costs.

1.2	By Notice of Opposition, the Respondents, the Permanent Secretary and the Public Service Commission, oppose the grant of leave. Grounds are:

1.	The Application for leave to apply for judicial review is premature.

The Applicant is applying for a review of the decision to suspend her under Regulation 23(1) of the PSC Regulations 1999. This decision is not amenable to judicial review as it is a managerial decision which is not final in nature.

2.	The Applicant has failed to exhaust an alternative remedy which is available to her.

The Public Service Commission has powers to cancel this suspension at any time under Regulation 23(2) of the PSC Regulations 1999. [Ms Tuiwawa] has not applied to the Commission for a cancellation of this suspension.

The Commission has powers to reinstate the salary of an officer who has been suspended under Regulation 23(1) like [Ms Tuiwawa] here. This power emanates from Regulation 23(4). [Ms Tuiwawa] has not applied to the Commission for the reinstatement of salary during the period of suspension.

1.3	The Notice of Opposition reserves the right to adduce more grounds of opposition on the hearing of the application for leave, and prays that:

(i)	The application be dismissed.
(ii)	Costs be granted in favour of the Respondents.

2.	Principles Governing Leave

The principles governing judicial review and leave to apply for judicial review are well established and need no reiteration. However, for the sake of completeness I set them out here.

2.1	(a)	Judicial Review: As to judicial review itself, Fiji Public Service Association v. Civil Aviation Authority of Fiji and Attorney General of Fiji and Airports Fiji Limited (JR No. 015 of 1998L, 30 November 1998) set down the principles, based upon O’Reilly v. Mackman [1983] 2 AC 237, where Lord Diplock widened Atkin, LJ’s limitation in Rex v. Electricity Commissioner; Ex parte London Electricity Joint Committee Company [1920] 1 KB 171, whereby a prerogative writ could issue solely to ‘those having the duty to act judicially’: at 205 

2.2	Contrary to that limitation, said Lord Diplock, wherever any body of persons ‘has authority conferred by legislation to make decisions’ whether judicial, quasi-judicial or administrative, a court can make an order to quash that body’s decision:

•	for error of law in reaching it; or 
•	for failure to act fairly towards the person to be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded him by the rule of natural justice of fairness, viz –

o	to have afforded him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it; and 
o	to the absence of personal bias against him on the part of the person by whom the decision falls to be made: at 279. 

2.3	As ‘a most basic principle’, he said, ‘an application for judicial review must show on the evidence, that one or more of the common law or statutory rights or obligations of the applicant has been adversely affected by the decision complained against’: at 279

2.4	(b)	Leave for Judicial Review: At the leave stage, the threshold is low. What needs to be established is ‘an arguable case’ to be resolved only by a full hearing of the application for judicial review: R. v. Legal Aid Board; Ex parte Hughes (1992) 24 HLR 698 A full review of the facts is unnecessary. Nonetheless, a court is obliged to sufficiently peruse the material provide to determine whether an Applicant raises an issue arguably involving:

•	an error of or in law;
•	a serious error in fact; 
•	a violation of natural justice or procedural fairness; or 
•	an excess of jurisdiction by the decision-maker the subject of the application. 

2.5	In The State v Commissioner for Magistrates Courts Inquiry Connors and Attorney General; Ex parte Sayed Mukhtar Shah (JudRev No. HBJ 47 of 2007, 7 April 2008) it was submitted that the primary test for a grant of leave was ‘potential arguability’, citing R. v. Director of Immigration: Ex parte Ho Ming-Sai (1993) 3 HKPLR 157, namely:

… whether the materials before the court disclose matters which might, on further consideration, demonstrate an arguable case for the grant of relief claimed. It is not necessary to show an arguable case at the leave stage.

2.6	This Court held that this is not the standard applicable in Fiji and, indeed, it has met with critique and a lack of approval in Hong Kong itself albeit having been followed by judges in the first instance: Wong Chung Ki and Chan Shu Ying v. Chief Executive and Secretary for Constitutional Affairs (CACV 1/200, Civil Appeal No. 1 of 200, 20 June 2000); Lo Siu Lan and Ma Ki Chiu v. Hong Kong Housing Authority (CACV 378/2004, Civil Appeal No. 378 of 2004, 1 March 2005) What is needed at leave stage is an arguable case.

2.7	(c)	Arguments Against Grant of Leave: It is said that ‘except in exceptional circumstances’, courts will not review proceedings of inferior tribunals until a final decision is reached: The State v. Public Service Commission; Ex parte Damodaran Nair (JudRev Action No. HBJ 02 of 2007, 30 March 2007), at 2 If an application for leave to apply for judicial review is premature, then the application will be dismissed: The State v. Public Service Commission; Ex parte Damodaran Nair; The State v Commissioner for Magistrates Courts Inquiry Connors and Attorney General; Ex parte Sayed Mukhtar Shah (JudRev No. HBJ 47 of 2007, 7 April 2008)

2.8	Further, the existence of an alternative remedy provides a court with discretion to refuse leave if the Applicant failed to utilise it: R. v. Secretary of State for the Home Department; Ex parte Swati (1986) 1 WLR 477; The State v. Public Service Commission; Ex parte Damodaran Nair, at 2

2.9	In Fiji, a number of cases have held that a decision that is ‘managerial’ or ‘operational’ is not amenable to judicial review. However, this approach has been subject to critique, particularly in Australia: Re Roland Warwick Sellars v. Sir Colin Woods and Alex Robert Bunt [1982] FAC 281; (1982) 69 FLR 105 (23 December 1982); Burns v. Australian National University (1981-82) 40 ALR 707; Evans v. Friemann (1981) 35 ALR 428; Federal Airports Corp. v. Aerolinas Argentines (1997) 147 ALR 649; Aronson, Dyer and Groves on Judicial Review of Administrative Action, Thomson Regulatory/Law Book, Sydney, 3rd Edn, 2004, pp. 87-88

2.10	Decisions in Fiji go both ways. These decisions are referred to and analysed in Savita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No 1)(JudRev HBJ No. 2 of 2008, 11 February 2008); Savita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No 2) (JudRev HBJ No. 2 of 2008, 14 August 2008) and Jimione Buwawa v. Public Service Commission and Attorney General of the Republic of the Fiji Islands (JudRev HBJ08 of 2008, 4 September 2008)

2.11	As this Court has said in Savita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No 1); Savita Devi Nair v. Permanent Secretary for Education and Attorney General of the Republic of Fiji (No 2) (JudRev HBJ No. 2 of 2008, 14 August 2008)(under appeal) and Jimione Buwawa v. Public Service Commission and Attorney General of the Republic of the Fiji Islands (JudRev HBJ08 of 2008, 4 September 2008), I am not persuaded that the characterisation of a decision as ‘managerial’ or ‘operational’ removes it from judicial review. As observed in those decisions, managerial and operational decisions are generally likely and even highly likely to be administrative in nature, and numerous administrative decisions will be able to be characterised as ‘managerial’ or ‘operational’. That does not in my opinion take the matter very far: what must be looked at is the particular decision, its characteristics and its import, rather than making a ‘blanket’ ‘rule’ that the simple description of a decision as ‘managerial’ or ‘operational’ of necessity removes it from judicial review. As has been said elsewhere:

The word ‘administrative’ carries with it the notion of ‘managing’, ‘executing’ or ‘carrying into effect’. The administration of an enterprise or undertaking whether a business, a government department, a statutory authority or educational institution such as a University, inevitably involves decisions as to the appointment or dismissal of officers and other employees. Such decisions are, in my view, administrative in character. They are an essential part of managing, running or administering the enterprise or undertaking: Burns v. Australian National University (1981-82) 40 ALR 707, at 713, per Ellicott, J.

If there is anything that the authorities make plain .. it is that general tests will frequently provide no clear answer. It is, after all, not difficult to point to authority which supports the proposition that a decision which imposes obligations and is of general operation may nevertheless be administrative or executive … There is no escape, in my view, from the need to examine closely the particular provisions and the particular circumstances: Federal Airports Corp. v. Aerolinas Argentines (1997) 147 ALR 649, at 657, per Lehane, J.

3.	Present Application for Leave – Chronology per Applicant

The Applicant, Ms Tuiwawa, says she came into office as the Administration Officer and Acting Official Reviewer in 2001 and held that office until her suspension – the decision the subject of this application: Affidavit in Support, paras 4, 11

Ms Tuiwawa sets out the chronology of her suspension as follows:

3 July 2008

Ms Tuiwawa receives a letter from the Permanent Secretary advising her to take her long service leave for 42 days plus 7½ days annual leave effective from 4 July 2008

4 July 2008 

Ms Tuiwawa takes leave accordingly, upon the basis that her leave will expire on 26 August 2008, with her return to office on 27 August 2008

26 August 2008

Ms Tuiwawa rings the Permanent Secretary to advise him of her re-commencement on 27 August 2008; the Permanent Secretary advises that his secretary will call her back re the issue of her re-commencement of work

26 August 2006

Ms Tuiwawa rings the Permanent Secretary’s secretary who advises her that the Permanent Secretary is liaising with Mr Tuiloma and someone will get back to her as to her re-commencement

26 August 2008

Ms Tuiwawa receives a call from Ms Rusila Matuataumada, Administration Officer, Personnel Division, Ministry for Justice, advising she was directed by the Permanent Secretary to inform Ms Tuiwawa that Ms Tuiwawa was not to resume duties and was to continue to remain at home

26 August 2008

Public Service Circular 27/2008 sent to Permanent Secretaries – Ms Tuiwawa states that this Circular ‘prohibits Permanent Secretaries from suspending their officers without the written consent from the PSC [Public Service Commission]’

28 August 2008

Ms Tuiwawa makes enquiries of the Public Service Commission and they inform her they have received nothing from the Ministry of Justice on the matter

9 September 2008

Ms Tuiwawa is served with a letter of 27 August 2008 from the Permanent Secretary informing Ms Tuiwawa of her suspension from duties and that her suspension is due to the 2005, 2006 and 2007 Auditor General’s Report on the Office of the Official Receiver

12 September 2008 

Ms Tuiwawa’s lawyers write to the Permanent Secretary requesting re-instatement of Ms Tuiwawa’s remuneration, entitlement and withdrawal of fetters on her Constitutional Rights, and that she be afforded due process, failing which appropriate proceedings will be brought at the expiry of seven calendar days from the date of the letter (12 September 2008)

19 September 2008

Ms Tuiwawa’s lawyers receive a letter from the Permanent Secretary indicating its actions to suspend Ms Tuiwawa are governed by Legal Notice 92/2002 and she will be served in due course with charges

3 October 2008

Application for Judicial Review & Leave filed in High Court

4.	Present Application for Leave – Chronology per First Respondent

The Permanent Secretary says that the Office of the Official Receiver comes under his supervision and overall management as Permanent Secretary for Justice.

May 2007

Permanent Secretary takes up position 

June 2008 (approximately)

Permanent Secretary becomes aware of the Auditor General’s Report on financial management of the Office of the Official Receiver for years 2005-2007 (‘the Report’)

3 July 2008

Permanent Secretary writes Memorandum to Ms Tuiwawa directing her to take leave due to her, to enable an investigation t be carried out on her Office accounts in light of the Report’s findings

12 August 2008

Permanent Secretary formally requests a special audit of the Office of the Official Receiver’s accounts – Terms of Reference:

•	Verify and report on the findings of the 2005 Auditor General’s Report on the Office f the Official Receiver
•	Verify and report on whether the responses by the Applicant to the findings in the report were justifiable

27 August 2008

Permanent Secretary writes a further memorandum to Ms Tuiwawa informing her of his decision to suspend her pending an independent and through investigation of allegations leveled against her financial management practices in the Office of the Official Receiver

7 October 2008

Special audit team submits their report to the Permanent Secretary

6 November 2008

Further information provided to Permanent Secretary pointing to unprofessional and unethical discharge by the Applicant of her duties as Deputy Official Receiver

6 November 2008 (approximately)

Permanent Secretary considers findings of the Report and special audit team and decided to lay disciplinary charges on the Applicant; requested Office of Solicitor General to verify and accordingly draft relevant disciplinary charges; envisaged that charges will be served on Ms Tuiwawa before the end of November 2008

5.	Submissions by Parties

In short compass, the parties’ positions are as follows.

5.1	(a)	Submissions for Applicant: For Ms Tuiwawa, it was emphasised that she was suspended without pay by letter of 27 August and was directed not to travel outside Fiji without permission and not to enter her workplace. Counsel traversed the relief sought and the chronology, noting amongst other matters that there was no documentary evidence as to the request by the Permanent Secretary for a special audit, stated as made on 12 August 2008. 

5.2	Counsel addressed the Respondents’ contentions that the decision sought to be reviewed as not final in nature, the proposition that Ms Tuiwawa had not exhausted her remedies, and that the application is premature. 

5.3	Counsel said as to the first, that a final decision has been made, namely to lay charges. Further, there are no avenues to exhaust as it is clear that the Permanent Secretary will extend no latitude to Ms Tuiwawa and has ‘already made up his mind’. As to the power to suspend, Counsel said that suspension in the way Ms Tuiwawa has been suspended is open to the Public Service Commission under Regulation 23(1), however it does not lie with the Permanent Secretary to suspend Ms Tuiwawa without pay, and under directions not to leave the country and not to enter her workplace. Not only is this ultra vires the powers of the Permanent Secretary said Counsel, but Ms Tuiwawa’s Constitutional right to freedom of movement is thereby breached.

5.4	As to the application’s being premature, Counsel said that the suspension is not ‘incidental’ vis-à-vis the disciplinary process by reason of the disciplinary process not having been exhausted. It is not incidental, said Counsel, as the Permanent Secretary has ‘made a decisive finding’ that Ms Tuiwawa is ‘guilty’ of wrongful misconduct. The determination that she be suspended without pay is final, and the directive in relation to her right of movement and right of access to her workplace is final. That is, she cannot recover her right to access her workplace for that period she has been denied it, and she cannot recover her right of movement vis-à-vis the directive not to leave the country for that period during which her right has been terminated.

5.5	Counsel also objected to paragraphs 13 and 14 of the Permanent Secretary’s Affidavit upon the basis that these cover material that is not relevant to the decision to suspend Ms Tuiwawa for the matters set out were not before the Permanent Secretary at the time Ms Tuiwawa was suspended. Those paragraphs state:

13.	FURTHERMORE on 6 November 2008, further information was disclosed to me pointing to the unprofessional and unethical discharge by the Applicant of her duties as Deputy Official Receiver. This information was brought t me by legal clerks in private law firms and I have instructed the Office of the Solicitor General to verify and accordingly draft relevant disciplinary charges. As such I am not at liberty to divulge this information until it has been verified by independent sources.

14.	I considered the findings of the report and the special audit team report [finally submitted to the Permanent Secretary on 7 October 2008: para 12] and decided to lay disciplinary charges on the Applicant. In that request, I requested the Office of the Solicitor General to assist me in drafting disciplinary charges against the Applicant. I envisage that the charges will be served on her before the end of this month.

5.6	Counsel also observed that ‘nowhere in the Audit Report is the Internal Investment Account referred to, albeit the Permanent Secretary refers to this as a matter in issue in the action taken’ against Ms Tuiwawa. Further, when the 27 August 2008 memorandum was issued advising Ms Tuiwawa of the decision to suspend her without pay, no copy of the internal report was provided to her. 

5.7	The power relied upon by the Permanent Secretary is limited, said Counsel, there being no power in the Permanent Secretary to suspend Ms Tuiwawa without pay; that power lies only with the Public Service Commission and has not been delegated to the Permanent Secretary. 

5.8	The decision, it was said, has directly affected Ms Tuiwawa’s livelihood and she is unable to support her family. She has been in the Public Service for almost 28 years, is 47 years of age, holds degree qualifications form the University of the South Pacific, is married with three children. 

5.9	In suspending Ms Tuiwawa, said Counsel, the Permanent Secretary had disregarded the Public Service Commission circular sent out by the Public Service Commission on 27 August 2008 relating to suspension of Public Servants.

5.10	In sum, said Counsel:

1.	Ms Tuiwawa has a sufficient interest as the decision is directed at her and directly affects her.
2.	Judicial review is appropriate because the matter is public in nature and relates to a public authority.
3.	The decision is reviewable.
4.	Ms Tuiwawa has no alternative remedies.
5.	Ms Tuiwawa has a clearly arguable case.

5.11	(b)	Submissions for Respondents: The Respondents say that the Permanent Secretary has the power to suspend in accordance with Regulation 23. Suspension is appropriate when:

1.	An employee has breached the Public Service Commission Code of Conduct;
2.	Proper management may be prejudiced if an employee is not suspended.

5.12	In submitting that the Permanent Secretary had the necessary power to suspend, Counsel referred to a Legal Notice of 2002, and stated that Permanent Secretaries have the power to suspend under Regulation 23(1) as this is delegated to a delegate and Schedule 1, listing delegates to whom the power of suspension is delegated, lists the Permanent Secretary of Justice as delegate number 5. All powers of the Public Service Commission are delegated, subject to the limitations in the Legal Notice. 

5.13	As to power to suspend without salary, Counsel referred to Regulation 23(1) which is the power to suspend, Regulation 23(3) which provided that an employee is not entitled to remuneration for the period of suspension, and Regulation 23(4) where the Public Service Commission may as decide to suspend all or part of the remuneration for all or part of the period of suspension. 

5.14	Counsel drew attention to Regulation 23(2) which provides that the Public Service Commission may cancel a suspension at any time. Further, said Counsel, the power to suspend is not a reviewable decision. Suspension was done to look further into the Auditor General’s Report. The Office of the Official Receiver is the trustee of funds. The Reports annexed to the Permanent Secretary’s Affidavit raise matters of grave and great concern to the Permanent Secretary. There is an issue of the ways in which trust funds are handled by Ms Tuiwawa in her capacity in the Office of the Official Receiver. 

5.15	This is not, said Counsel, at this stage an issue of the merits of the decision. Suspension is not a final matter. It is a temporary matter to enable investigation to be done to decide as to an outcome. Ms Tuiwawa’s is a high position and leaving her there even without access to material of concern could influence the investigation.

5.16	As to the contention that there was no opportunity to be heard, Counsel referred to a number of authorities. As to the premature nature of the application, Counsel cited authorities. As to the directive as to leave, Counsel said there was no evidence that Ms Tuiwawa wished to take leave. As to alternative remedies, there is the avenue of the Public Service Commission – a request can be made to the Public Service Commission to cancel the suspension and to reinstate salary. 

5.17	As to the directive not to leave the country, Counsel said that all Public Service Officers undergoing the disciplinary process have that clause included, and there are ‘hundreds’ of disciplinary cases. The rule is that all must let the Public Service Commission know if they are going overseas. Counsel referred to Public Service Regulations, saying that whether an officer is suspended or not, this requirement must be satisfied – that is, they must notify of the intention to go overseas. The intention of the requirement for notification is to ensure that an officer is in Fiji for any disciplinary proceeding.

5.18	(c) 	Applicant’s Submissions in Response: In response, Counsel said that Regulation 23 does not give the power to the Permanent Secretary to suspend without pay. The power of delegation is restricted under the Legal Notice to Regulation 23(1). To provide the Permanent Secretary with the power to suspend without pay, the Legal Notice should have stipulated Regulation 23(1) and 23 (3). There is a twofold process and requirement as to power here: namely, the power of suspension; and the power to suspend without pay. The power to suspend only is delegated to the Permanent Secretary. If the Public Service Commotion had suspended Ms Tuiwawa then under Regulation 23(3) the power to suspend without pay would operate.

5.19	As to the application’s being premature, Counsel said it was clear that the Permanent Secretary has made a final decision.

6.	Direction not to Leave the Jurisdiction

Because the direction not to leave the country has Constitutional implications, the Court invited further submissions on this aspect, together with inviting the Human Rights Commission to intervene as Amicus Curiae. These matters are important in and of themselves, raising as they do sections 23 and 34 of the Constitution.

6.1	The parties and the Human Rights Commission provided comprehensive submissions and authorities which require a judgment more extensive than can be effected at this time. 

6.2	It is important that Ms Tuiwawa’s application for leave be determined promptly. Therefore, this aspect of the application will be dealt with in a separate judgment. That judgment will not affect the outcome of Ms Tuiwawa’s application for leave for judicial review. 

7.	Contentions re ‘Alternative Remedy’, Suspension not ‘Final’ & Application Premature

The principal hurdle for the Applicant, Ms Tuiwawa, is the contention by the Respondents that the application is premature. Before addressing that aspect, I turn to the proposition that there is an ‘alternative remedy’, thence to the question whether there is a ‘final’ determination upon which leave for an application for judicial review can appropriately be founded.

7.1	(a)	Alternative Remedy: First as to ‘alternative remedy’: I am not persuaded at this stage by the contention that Ms Tuiwawa has not exhausted her remedies vis-à-vis the suspension. The letter from her Solicitor to the Permanent Secretary dated 12 September 2008 refers to the suspension of Mr Tuiwawa without pay and concludes:

Upon its face, the action/s would appear to be taken under Part 5 of the Public Service Act 1999, which statute confers power not upon you, but upon the Commission. We would be interested to have your response to this question.

In the meantime, we request that you immediately reinstate our client’s remuneration entitlements, withdraw the claimed fetters upon our client’s constitutional rights and afford our client proper and due process, failing which the appropriate proceedings will be brought at the expiry of seven calendar days from the date of this letter: Letter of 12 September 2008, Annexure ‘D’, Affidavit in Support filed 3 October 2008

7.2	That this request is addressed to the Permanent Secretary rather than to the Public Service Commission does not, in my view, deprive the request of its essence – that is, Ms Tuiwawa is seeking to effect an alternative remedy in relation to the suspension of her pay, and to the directive that she not leave Fiji without first advising and seeking permission of the Public Service Commission.

7.3	As at the first date of the hearing (17 November 2008) and then at the second date (27 November 2008) there had been no reinstatement of Ms Tuiwawa’s salary nor had the directive in respect of her travel or intention to travel been withdrawn. Is the evidence is, there appears to have been no response to this request.

7.4	I am unable to see any impediment to the Permanent Secretary’s passing on this request to the Public Service Commission and the Public Service Commission’s responding to it. Once having forwarded it, the Permanent Secretary could advise Ms Tuiwawa’s lawyers this had been done. There is no evidence before the Court that this approach has been followed. 

7.5	In the circumstances, on the material presently before the Court, Ms Tuiwawa cannot be said to failed to endeavour to take an alternative path – that is, to effect an alternative remedy, at least insofar as remuneration and the capacity to move freely are concerned. As to whether that alternative remedy is ‘exhausted’, this depends upon the response of the Public Service Commission. 

7.6	Of course, there may be an alternative remedy to be exhausted by Ms Tuiwawa once (see Permanent Secretary’s Affidavit, para 13, and below) or if (see below) disciplinary charges are served upon her. That is a matter that does not arise in the immediate circumstance, however, where Ms Tuiwawa’s application is in relation to her suspension. 

7.7	(b)	‘Final’ Determination: There is a ‘final’ determination here in the sense that Ms Tuiwawa’s suspension is ‘final’ so long as it exists. However, Ms Tuiwawa does have an alternative remedy, namely to seek reversal of the suspension through the Public Service Commission. She has sought this avenue in respect of remuneration and freedom of movement, per her letter of 12 September 2008. She did not include in that letter a request that the suspension be lifted, although the import of her letter to the Permanent Secretary could be read in this light. 

7.8	Ms Tuiwawa could (as the Respondents say) write directly to the Public Service Commission seeking reversal under Regulation 23(2) of the Permanent Secretary’s decision to suspend her. However, it is doubtful that this would effect the outcome she seeks. In this regard, it would appear that submissions made by Counsel have some force, namely that the Permanent Secretary does not intend to reverse the decision. Hence, it may seem unlikely that the Public Service Commission would do so.

7.9	That is, the Permanent Secretary’s position is that the suspension is necessary in order to undertake and complete an investigation of matters within the Office of the Official Receiver as indicated, he accepts, by the Auditor’s Report as being necessary. The Permanent Secretary’s position is that suspension of Ms Tuiwawa from her position is essential to enable this investigation to be completed. It seems unlikely, in the circumstances, that the Public Service Commission would reverse the suspension. This is all the more so in light of what the Permanent Secretary has said in his Affidavit filed 7 November 2008: Affidavit, para 14 (see below)

7.10	Ms Tuiwawa’s request, should she make one, to the Public Service Commission for reversal of the suspension can be predicted to result in the Public Service Commission’s seeking the Permanent Secretary’s advice as to the reasons for the suspension. Ms Tuiwawa could then justifiably say that natural justice requires her to be able to respond to the Permanent Secretary’s advice to the Public Service Commission. 

7.11	The problem at this stage is whether Ms Tuiwawa’s request will be effective in any event, for the Permanent Secretary has said that he has made a decision that disciplinary action should be taken vis-à-vis Ms Tuiwawa and has sought the advice and assistance of the Office of the Solicitor General in this regard.

7.12	The Permanent Secretary said in his Affidavit filed 7 November 2008 that he ‘envisage[s] that charges will be served on [Ms Tuiwawa] before the end of this month’. The end of ‘this month’ – per the Affidavit, November 2008 – has arrived and passed and there is no indication from the parties that disciplinary charges have indeed been served on Ms Tuiwawa.

7.13	It is now almost the end of the next month – December – and there has been no indication from the parties that disciplinary charges have been served. 

7.14	In light of the assurances given in the Permanent Secretary’s Affidavit, Ms Tuiwawa has a right to be served promptly with any disciplinary charges, or to be advised that contrary to the Permanent Secretary’s Affidavit, no disciplinary charges are in fact to be laid and hence none will be served upon her. It is understood that administrative and bureaucratic processes harbour delays. However, it is inappropriate that an employee be kept in a state of suspension – awaiting disciplinary charges foreshadowed by the Permanent Secretary but not yet served upon her (as it appears to the Court).

7.15	That disciplinary charges are foreshadowed does, however, support the proposition put forward by the Respondents that Ms Tuiwawa’s application is premature. I turn then to that aspect.

7.16	(c)	Application Premature: In The State v. Public Service Commission; Ex parte Damodaran Nair (JudRev Action No. HBJ 02 of 2007, 30 March 2007) His Lordship Justice Singh dealt with an application for leave for judicial review in circumstances where the Applicant, Damodaran Nair, was suspended without pay for alleged misconduct – namely nepotism, discriminatory treatment or abuse of office. At the time of his application for leave, Mr Nair had not been charged official for any disciplinary offences. The Public Service Commission said (similarly to Ms Tuiwawa’s situation) that the suspension was necessary ‘to allow it to conduct an unhindered investigation into all the allegations’: at 1

7.17	His Lordship observed that whether or not disciplinary proceedings would, in fact, follow ‘will depend on the outcome of the investigations’:

If in the course of the investigators the PSC [Public Service Commission] finds evidence to substantiate its allegations then disciplinary proceedings will probably follow. There is also provisions for appeal from the decision of the PSC: at 1-2

7.18	Singh, J. referred to authorities advanced by the Respondents in the present application, namely:

•	State v. PSC; Ex parte Penisai Kunatuba (HBJ 18 of 2002)
•	Divendra Bijay v. Permanent Secretary for Education, Women and Culture (HBJ 5/97)

7.19	As to the first, Singh, J. said:

The law is clear. Except in exceptional circumstances, the courts will not review proceedings of inferior tribunals until a final decision is reached. Here the proceedings have only reached the investigatory stage. It is granted that disciplinary powers must be exercised under the rules of natural justice but the High Court will not by its intervention take away statutory powers entrusted to a body or authority: The State v. Public Service Commission; Ex parte Damodaran Nair, at 2, citing State v. PSC; Ex parte Peniasi Kunatuba

7.20	As to the second, Singh, J. observed that there, the Court held an application for judicial review was premature and Mr Bijay ‘had to wait until charges against him had been finalised’. The circumstances were that Mr Bijay had been interdicted without salary pending determination of disciplinary proceedings: The State v. Public Service Commission; Ex parte Damodaran Nair, at 2, citing Divendra Bijay v. Permanent Secretary for Education, Women and Culture

7.21	Singh, J. went on to canvass the ‘alternative remedy’ proposition in the context of disciplinary charges being levelled against a Public Servant. He said:

A court may in its discretion refuse to grant leave to apply for judicial review or set aside leave previously granted if an adequate alternative remedy exists or if such remedy existed but the Applicant failed to utilise it: R. v. Secretary for State for the Home Department; Ex parte Swati (1986) 1 WLR 477 The existence of an unused statutory right of appeal can be a strong reason to refuse leave or refuse relief at the end of a hearing. The Court normally looks at the nature of the case before it, and whether the alternative remedy is suitable to resolve it. Judicial review is a remedy of last resort: at 2

7.22	As matters presently stand in the present case, however, as I have said there is no alternative remedy for Ms Tuiwawa unless the Public Service Commission responds to the letter of Letter of 12 September 2008: Annexure ‘D’, Affidavit in Support filed 3 October 2008

7.23	This circumstance exists in that no disciplinary charges have yet (as it is understood on the material before the Court and in light of there being no advice from the parties that the Permanent Secretary’s averment that charges would be laid before the end of November 2008 has come to pass) been laid or served upon Ms Tuiwawa. 

7.24	Returning, however, to the proposition that the application is premature, in light of the imminent laying and serving of disciplinary charges upon Ms Tuiwawa, that conclusion appears apt at the present time.

7.25	That is, if leave were granted at this stage, and the disciplinary charges were laid and served, then it is likely that Ms Tuiwawa’s suspension would continue pending the outcome of the disciplinary action. Ms Tuiwawa’s attention and resources would then most likely be directed at addressing the disciplinary charges and suspension in that context rather than in pursuing an action for judicial review in the present application.

7.26	This is not to say that there may not be circumstances where judicial review is appropriate in the case of suspension. That possibility must remain open. In Rajendra Prasad v. Divisional Engineer Northern and Ministry for Transport, Works and Energy (JudRev No. HBJ 03 of 2007, 17 July 2008), judicial review proceeded where there was dispute as to whether the Applicant was suspended or had had his employment terminated. Its being considered by the Court that his employment had been terminated albeit the Respondents said that that termination had been set to one side and an earlier suspension resurrected, it was considered proper to address the application as properly before the Court as judicial review.

7.27	In the present case, were there to be ongoing delay in the laying of disciplinary charges and their being served upon Ms Tuiwawa, then it may be that she has no other recourse should she be kept in limbo – on suspension without pay, and under a directive not to leave the country without advising the Public Service Commission or making a request of the Public Service Commission in that regard, yet without any disciplinary action being taken to which she can respond and where her rights of natural justice/procedural fairness and substantive fairness can be met.

7.	Determination

The Application is premature for the reasons set out above. Hence, leave is refused. However, in light of the fact that, as it appears, no disciplinary charges have yet been laid albeit they were anticipated by the Respondents to be served upon Ms Tuiwawa by the end of November 2008, it appears to me that this may not be a case where costs should be awarded.

7.1	If disciplinary charges have been laid and served upon Ms Tuiwawa, then costs in the present application are awarded against Ms Tuiwawa in the amount of $300.00 to be paid within 21 days.

Orders

1.	Application for leave refused.

2.	Subject to Order 3, no Order as to costs.

3.	In the event that prior to this determination disciplinary charges have been laid against the Applicant and served upon her, then costs are summarily fixed in the sum of $300.00 to be paid by the Applicant to the Respondents within 21 days of these Orders.

Jocelynne A. Scutt
Judge

Suva
22 December 2008