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State v Arbitration Tribunal [2013] FJHC 571; HBJ22.2008 (23 October 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL NO. HBJ 22 of 2008

IN THE MATTER of an Application by Joseph Subramani for leave to Apply for Judicial Review under Order 53 (2) of the High Court Rules of Fiji 1988.

AND

IN THE MATTER of the decision of the Arbitration Tribunal No. 4 of 2008 dated 8 February 2008 relating to the termination of the Applicant's employment.

AND

IN THE MATTER of the decision of the Land Transport Authority relating to the termination of the Applicant's employment from 24 February 2006.

BETWEEN :

The State

AND :

Arbitration Tribunal
FIRST RESPONDENT

AND:

The Land Transport Authority
SECOND RESPONDENT

EX PARTE : Joseph Subramani
APPLICANT

COUNSEL : Applicant in person
Ms Daunabuna S for the First Respondent
Ms May R for the Second Respondent

Date of Judgment: 23 October 2013

JUDGMENT

Introduction

1. This application for Judicial Review following leave granted on 16 July 2008 by Hickie J infavour of an employee of the Land Transport Authority, the Second Respondent, against the termination of the Employment.
   
2. Subsequent to the termination, First Respondent held an Arbitration between Fiji Public Service Commission, for and on behalf of the employee, and the Land Transport Authority concerning the dismissal.
   
3. The First Respondent by its award dated 8 February 2006, came to the conclusion that the dismissal of the employee was neither wrong unjustified, unfair nor in breach of the collective agreement.
   
4. The applicant is seeking Judicial Review against the decisions made by the First Respondent on 8 February 2008 and the Second Respondent on 24 February 2006, respectively.
   
5. The applicant has sought the following reliefs in his application.
   
   1. "An order of certiorari to remove the said Award by the Arbitration Tribunal (1st Respondent) dated 8 February 2008 and the Land Transport Authority (2nd Respondent) dated 24 February 2006, to terminate the Applicant's appointment from the same date and that the same be quashed.
      

2. An order of Mandamus directing the Land Transport (2nd Respondent) to cancel the decision of termination and reinstate the applicant to his substantive position prevailing prior to 24 February 2006 without any demise to his entitlements and benefits.

3. A declaration in any event that the said Award of the First Respondent is unfair, inconsistent, unreasonable and ultra vires and the Second Respondent is unfair, tainted with bias, arbitrary, smacks of double standards, procedurally unfair and most unreasonable in all circumstances.

4. Damages.

5. And any further declarations or other relief as this Honourable Court may see fit.

6. Costs."

6. The court allowed the Applicant leave to apply Judicial Review on the premise that natural justice appeared to have been denied. The Applicant relies on the following assertions to support his position:
   
   1. "The Applicant was not legally represented at the first disciplinary hearing.
      
   2. The Applicant was provided with little notice of such disciplinary hearing to be able to prepare and/or arrange such representation.
      
   100. The Applicant was not given any opportunity to cross-examine.
        
   4. The decision of the Arbitration Tribunal raises a number of concerns including that there was no evidence upon which the employer could have concluded that the Applicant had misappropriated funds, that
      
   5. "particulars are misleading", as well as the Tribunal being "troubled" by the facts on one count."
      
7. The Applicant filed two affidavits in support of the application for Judicial Review which deposed as follows:
   
   1. "That the Applicant was appointed as Prosecutor for the LTA on 1 May 2001.
      
   2. That on 3 February 2006, the Applicant was charged with five(5) counts of alleged breaches of the Code of Conduct.
      
   100. That on 7 February, the Applicant responded denying all charges.
        
   4. That on 20 February 2006, the Applicant appeared before the LTA Management Board as verbally requested without any prior knowledge and subjected to intensive cross-examination.
      
   5. That by a memorandum dated 22 February 2006, the Applicant was advised by the Second Respondent that his appointment was terminated from the date.
      
   6. That the Applicant was denied the principles of natural justice and procedural fairness including:
      
      1. Not being informed of the disciplinary hearing on 20 June 2006 so as to adequately prepare and be represented.
         
      2. Not being given the opportunity to mitigate the finding and on penalty.
         
      3. Not being given the right to cross-examine.
         
   7. There was no independent inquiry as required by the Collective Agreement.
      
   8. That the Dispute Hearing conducted by the Arbitration Tribunal (First Respondent) denied him the right to be adequately heard."
      
8. The First Respondent in its affidavit in opposition deposed as follows:
   
   1. "The Applicant does not have an arguable case established on any of the grounds sought for Judicial Review of the relevant decisions.
      

2. The First Respondent submits that this is not a proper Judicial Review but rather an appeal."

9. The Second Respondent in its affidavit in opposition deposed as follows:
   

1. "The Applicant does not show any reasonable grounds for Judicial Review.

2. That the Applicant seeks to Judicial Review the decision (and the decision making process) by the Second Defendant in terminating his services, issue that were dealt with by the 1st Respondent and issues that cannot be subject to Judicial Review.

3. That the Applicant's grounds are more like grounds of Appeal and going into the merits of his termination by the Second Respondent rather than the decision making process of the First Respondent.

4. That the decisions of the Second Respondent cannot be the subject to [sic] Judicial Review by the Applicant.

5. That the First Respondent acted properly throughout the proceedings and the decision made is final and binding on the Applicant.

6. The Applicant has not shown any basis for an interim stay."

The Determination

10. Upon perusal and examination of the application for Judicial Review, it is evidently clear that the Applicant seeks relief that go to the merits of the decision which is in the form of an appeal. The Applicant in addition to the relief sought in this application on merits, has taken up the position that there was a clear denial of natural justice in the decision making process, acting unfairly and further denying the Applicant a fair hearing process before arriving at its most unreasonable decision to terminate his employment.
    
11. The Applicant in his application has sought orders of certiorari and mandamus.
    
12. It is trite law that there is a clear distinction between Judicial Review and an Appeal.
    
13. The remedy by way of certiorari cannot be made use of to correct errors or to substitute a correct order for a wrong order. Judicial Review is radically different from appeals. When hearing an appeal the Court is concerned with the merits of the decision under appeal in Judicial Review the court is concerned with its legality on appeal the question is right or wrong. On review, the question is lawful or unlawful. Instead of substituting its own decision for that of some other body as happens when an appeal is allowed, a court on review is concerned only with the question whether the act or order under attack should be allowed to stand or not.
    
14. In the case of Chief Constable of North Wales Police v Evans (1982) IWLR 1155, 1173, stated:
    

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the Court is observed, the Court will in my view under the guise of preventing the abuse of power, be itself guilty of usurping the power."

The Decision further stated that:

"The Applicant is thereby endeavouring to persuade the Court that it should reverse the decision. This is the very thing, bearing in mind the principle involved in a Judicial Review that the Court cannot do. It is not question whether I, as a member of this Court agree with him or not."

15. In the case of Sherton Resorts Denarau & Others v Arbitration Tribunal & National Union of Hospitality. Catering & Tourism Industries Civil Action No. 005 of 2007" relying on the underlying principle of the Chief Constable of North Wales Police v Evens case, held:
    

"The purpose of the remedy of the Judicial Review is to ensure that an individual is treated fairly in the process of hearing. It is not the function of the Judicial Review by which the opinion of the judge is substituted for the opinion of the tribunal hearing the matter: Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155."

16. The Applicant in his application for Judicial Review relies that the decision of the authority is unfair, inconsistent and unreasonable.
    
17. In the case of Counsel of Civil Service Unions v Minister of Civil Service [1985] AC 347 commonly known as GCHQ case, Lord Diplock classified the grounds of Judicial Review where he divided into three divisions. Illegality, (unlawfulness), irrationality (unreasonableness), and procedural impropriety (unfairness).
    
18. In my view, this decision is only an outline and their heads are neither exhaustive nor mutually exclusive. But the courts over the years have come to rest on two important distinctions, the first between the substances (illegality and irrationality) and procedure (procedural impropriety); the second between hard edged questions, the illegality and procedural impropriety and soft questions the irrationality.
    
19. In recent judicial decisions have moved away from the traditional position of the "duty to act judicially" and now require that there must be merely a duty to act fairly. In other words Judicial Review will lie if it can be established that the Respondents had the minimum of a duly to act fairly even if they were not performing a strictly "judicial" function.
    
20. The Applicant in the instant application asserted that the Respondent failed to act fairly in the decision making process specially by denying the legal representation, sufficient notice about the impending inquiry against him and right to cross examine the witnesses summon by the complainant.
    
21. In order to ascertain whether there was denial or breach of acceptable principles of natural justice, the careful examination of the manner in which the inquiry was conducted is of paramount importance.
    

Proceeding held on 20 February 2006, reveals as follows:

"Present : A. Simpson (CE/Chairman)

A.Veiogo (GMFA)

A. Vaurasi (GMTO)

V. Vosarogo (MLS)

S. Nabou (MPP)

L. Naiveli (MHR)

V. Malani(PRO)

L. Rabuka (ES)

In Attendance: J Subramani (PO)

Proceedings of Hearing

CE : Joseph, you have been here today to answer some of the charges which we hope you are familiar with.

JS : Yes sir!

CE : You have the right to have representation if you wish. Were you aware of that?

JS : No sir, I was not informed to be represented.

MHR : I told him verbally.

CE : You suppose to write a letter and inform him.

JS : But it's alright sir I can answer myself.

CE : Are you sure.

JS : Yes sir.

CE : You have been charged with five (5) counts and we have got your explanation."

22. It is abundantly clear to this court that, in view of the above part of the proceedings in the hearing that all opportunities were given to the Applicant to have legal representation, and if requests, further time to prepare for the Inquiry. I am unable to apprehend the contention of the Applicant that the manner in which the inquiry was held tantamount to breach of natural justice.
    
23. Supreme Court of Fiji in the case of Permanent Secretary for the Public Service Commission v Matea [1999] FJSC 7 (CBV0009U.1998S, 10 March 1999, Lord Cooke of Thorndon, Mason and Brennan JJ) at page 3 ( a bench including two former Chief Justices of the High Court of Australia confirming both a judgment of the Court of Appeal (Casey, Savage and Dillon JJ) and High Court (Byrne J) that:
    

"The Permanent Secretaries appeal to this Court from the decision of the Court of Appeal on the first ground. But the law on such a question is so clear that the appeal is virtually hopeless. There are numerous authorities establishing, at common law, that where someone's livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v Borneman [1971] A.C. 298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and the additional steps would not frustrate the apparent purpose of the legislation. We repeat that we are not now called upon to consider whether the Constitution requires some qualification of the last part of Lord Reid's proposition. The general presumption of a common law right to a hearing is, however, so well established that we need not labour it. As already indicated, an opportunity consistent with the scheme of the Regulations. It is only the elaborate disciplinary code procedure that is excluded in a case such as this."

24. The Applicant in his written submissions relied on several authorities to support his assertion the importance of a fair hearing. It is to be noted that this court concedes the importance of a fair hearing in view of the underlying principles and guidelines stipulated in large volume of cases and further the importance of adherence to the principles of natural justice. However, having considered the manner in which the inquiry against the Applicant was held, I conclude that, taking into consideration of all facts and circumstances that there was no serious breach of natural justice to make the decision made by the Inquiring officer void.
    
25. This court has considered this application on the material placed before the court and come to the conclusion that the Applicant has failed to establish any ground on which this court could issue a order of certiorari to quash the said decision. Hence this court dismisses this application.
    

The Final Order

26. The application for Judicial Review is dismissed with costs to the Respondents, summarily assessed in the sum of $500.00 each.
    

Susantha N. Balapatabendi
JUDGE