Lal v Minister for Education, National Heritage, Culture and Arts [2014] FJHC 931; Judicial Review 5.2013 (16 December 2014)

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RAJESH LAL, as next friend of Nathaneal Caleb Lal (Index No. 1041008200) (an infant), of Labasa, Student

THE MINISTER FOR EDUCATION, NATIONAL HERITAGE, CULTURE AND ARTS, Education Department, Suva, Fiji Islands

: THE PERMANENT SECRETARY FOR EDUCATION, NATIONAL HERITAGE, CULTURE AND ARTS, Education Department, Suva, Fiji Islands

1.1 Pursuant to leave granted on 17 January 2014, Applicants filed Application by Originating Motion dated and filed on 31 January 2014 for Judicial Review of decision of the Respondents made on 14 January 2013 whereby "First Respondent having appointed an independent panel to respond to complaint of unfairness in connection with the disqualification of Applicants' candidacy for the 2012 Fiji Seventh Form Certificate Biology Examination (Examination) purported to:

(b) Uphold the prior decision of the Second Respondent that zero marks be awarded to them for the Examination."

1. A declaration that the Decision is unlawful, invalid, irregular, null and void and of no effect.

3. An order that the First Respondent direct the Second Respondent pursuant to s.4 of the Education Act (Cap 262) to convene a proper inquiry into allegations of malpractice against the Applicants, to include:

(a) Detailing the allegations in writing to the Applicants with sufficient particularity (including evidence relied upon);

(b) Giving to the Applicants or their representatives' adequate notice of the allegations;

(d) Publishing to the Applicants the conclusions of the inquiry and reasons for those conclusions.

1.3 On 20 February 2014, being the returnable date of the Motion, Respondents were granted leave to file and serve Affidavits with liberty for Applicant to file Affidavit in Reply and all parties were directed to file submissions. The Motion was adjourned to 29 April 2014, for hearing.

1.4 Parties filed the Affidavits and Submissions as directed and presented oral submission on the date of hearing.

(ii) Supplementary Affidavit of Rajesh Lal sworn on 10th May 2013 (hereinafter referred to as "Rajesh Lals' 2nd Affidavit");

(iii) Affidavit of Rajesh Lal in Reply sworn on 13th August 2013 (hereinafter referred to as "Rajesh Lals' 3rd Affidavit").

(i) Affidavit of Brij Lal sworn on 24 July 2013 (hereinafter referred to as "Brij Lal's Affidavit");

(ii) Supplementary Affidavit No. 1 of Respondents sworn by Mereoni Volau on 14 March 2014 (hereinafter referred to as "Volau's Affidavit");

(iii) Supplementary Affidavit No. 2 of Respondents sworn by Viliame Naupoto on 14 March 2014 (hereinafter referred to as "Naupoto's Affidavit").

2.1 In the year 2012, the Applicants were Seventh Form Students at Labasa Sangam College.

2.2 They sat for Fiji Seventh Form Certificate Examination ("FSFCE") from 29th October 2012 to 12th November 2012.

2.3 Some of the subjects for which Applicants sat in FSFCE were English, Maths, Chemistry, Physics, Technical Drawing and Biology.

2.4 On or about 28th December 2012, Ministry of Education released the 2012 FSFCE results.

2.6 Principal of the College and Parents of the students who were awarded zero mark in Biology raised their concern with Ministry of Education and Prime Minister's Office.

2.7 As a result, Acting Minister for Education appointed an independent panel to investigate Principal's complaint and by letter dated 14th January 2013 informed Principal of the College of the panels recommendation to uphold the decision to award zero mark.

"1. (i) An application for an order of mandamus, prohibition or certiorari shall be made by way of an application for judicial review in accordance with the provision of this Order.

(ii) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that having regard to:-

2. On an application for judicial review any relief mentioned in rule 1(1) or (2) may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter."

3.2 It is well established that on an application for Judicial Review the Courts function is not to determine the merits of the decisions or substitute its own decision, but to see that the party affected by the decision has been afforded natural justice and procedural fairness before the decision is made.

Permanent Secretary for Public Service Commission v Anor Ex parte Lepani Matea [1998] ABU 16 of 1998

4.1 The relief sought by the Applicants and grounds for seeking such relief are stated in the Application for Judicial Review as follows:-

"1. A declaration that the Decision is unlawful, invalid, irregular, null and void and of no effect;

2. An order of certiorari to remove into this Court and quash the Decision;

3. An order that the First Respondent direct the Second Respondent pursuant to s. 4 of the Education Act (Cap 262) to convene a proper inquiry into allegations of malpractice against the Applicants, to include:

a) Detailing the allegations in writing to the Applicants with sufficient particularity (including evidence relied upon);

b) Giving to the Applicants or their representatives adequate notice of the allegations;

d) Publishing to the Applicants the conclusions of the inquiry and reasons for those conclusions.

"a. In breach of the rules of natural justice, the First Respondent failed to ensure that:

b. The First Respondent, in accepting the purported investigation report, failed to ensure that sufficient inquiry was made into the allegations (specifically, that the Applicants' testimony be taken or their responses to allegations of malpractice be taken into account;

c. To the extent that the First Respondent had regard (if any) to the External Examinations and Assessment Policy of the Ministry of Education (Policy), he failed to take into account considerations relevant to the Decision, specially

(i) The requirement (at paragraph 6.1.20 of the Policy) that a disqualification for examination malpractice must be made after careful consideration of the evidence provided to him or her in connection with the misconduct and;

(ii) No such "careful consideration of the evidence" could have occurred without hearing from or taking testimony from the Applicants or their responses to specific allegations of malpractice.

d. In reaching the Decision the First Respondent acted unreasonably in that he reached a decision that no reasonable Minister for Education, if properly advised, could reasonably have reached."

4.2 Before looking at the grounds for review I think it prudent to reproduce the relevant parts the Affidavits, submissions and provisions of Examinations and Assessment Unit Professional Section Standard Operating Procedures for FSFCE/FSLCE.

"22. The FSFC examination results are important to the Applicants. They are the highest level secondary examination marks and may be reviewed by prospective employers. They may determine their future careers and ability to obtain scholarships. Most of all is the fact that on their records is the award of zero marks based on the Ministry's allegations that they cheated in their examinations. This goes directly to their personal reputations, which may also have prospects for future employment and gaining scholarships for higher or further education."

4.4 Before proceeding any further I must state in very clear terms that function of the Court in respect of Judicial Review applications are to look at the process by which the decision was reached. If there was a need to afford Applicants procedural fairness and if the Applicants were afforded such procedural fairness, Respondents complied with policy, procedures, guidelines and law then this Court will not interfere with the decision of the Respondents irrespective of the implications on the persons affected.

4.5 In the instant case if this Court finds that the Respondents did all that they were supposed to do when making the decision to award zero mark in Biology to the Applicants then this Court will not interfere with the Respondents decision irrespective of the implications of awarding zero mark in Biology on the Applicants.

"21. The Applicants specifically deny any malpractice. Nothing has ever been put to them for response on any matter concerning their sitting for the FSFC Biology examination. They have never had the opportunity to put their side of the story."

4.7 It is apparent from Affidavits filed on behalf of the Applicants and the grounds for review that gist of the Applicants case is that Applicants were not afforded procedural fairness and denied natural justice at the time of making the decision and during the investigations initiated by the First Respondent.

4.8 In Brij Lal's Affidavit, the Respondents annexed Examinations and Assessment Unit Professional Section Standard Operating Procedures for FSFCE/FSLCE, (Annexure PS2)("SOP") with parts of these two policies as Annexures PS3 and PS4.

4.9 The policies relevant to the current proceedings are stated at paragraph 6.1.20 of Annexure PS2 and paragraph G of Annexure PS1.

Any reported case of malpractice during an examination can lead to disqualification and the award of zero mark in the subject concerned or the whole examination. Such a disqualification is made by the PSE within reasonable time after careful consideration of the evidence provided to him or her in connection with the misconduct."

4.11 It is not doubted that the Respondents have the power to award zero mark for malpractice which fact is not challenged by the Applicants.

A misconduct or improper practice before, during or after an examination by the examinees or others with a view to obtaining good results by fraudulent means."

1. Receive report forms of case(s) of suspected malpractice with the supported evidence through the exam coordinator.

2. Compile a summary of the case(s) such as index number, centre code, subject, total no of candidates that sat for the examination, no of candidates that sat for the subject and the examination rule(s) breached.

3. Gather all available evidence in relation to the reported case(s) e.g. answer scripts, notes taken into the examination room.

4. If there is no case to answer, return the marked scripts to the exam coordinator.

5. In the case of copying/collusion, further investigation is needed. Request for all the scripts of the subject(s) from the same centre through the exam coordinator to be scrutinized.

6. Where applicable, gather all additional information such as raw marks, seating arrangements, annual examination marks, annual exam papers, identify any inconsistent trends in answered questions such as scoring very high marks in one section of the paper when compared to the other sections.

8. Schedule a meeting with senior officers from the section and CDU/TVET subject advisor to carefully consider all the evidences and verify all the information gathered to make recommendations.

9. Recommend through a minute to the DEAU, DSP and the PSE that the candidate(s) mentioned be disqualified from the subject based on the examination rule(s) breached.

10. Submit the minute with the file containing all the evidences to DEAU who will pass on the minute with the file to DSP thence to PSE for his/her final approval.

11. According to the decision given by PSE, submit the summary of the cases to DEAU who will inform the Principal of the candidate(s) school of the disqualification through a letter.

12. All communication regarding the disqualification is to be directed to the Principal of the school or to DEAU for explanation.

13. Further evidences can be collected through interviews or written statements e.g. from chief supervisors, candidates of the school teachers and principals."

4.13 At this point it must be noted that at paragraph 5 of Annexure PS1 it is clearly stipulated that in case of copying/collusion further investigation is needed.

4.14 In response to letter written by Principal of Labasa Sangam College the Senior Education Officer (QA) on 3 January 2013, submitted her report to the Second Respondent in following terms:

"1. The case of malpractice was reported to us by the marker of one of the scripts and not by a student as raised in the letter. The student referred in the letter came to the office to collect his results and then enquired about his zero mark in Biology. He was informed of the reason and he denied copying answers but cited others to be copying answers (attachment 1).

2. The report involved the candidate showing exceptional inconsistent results in the different section of the paper. The candidate scored very high marks (16/20) in the Multiple Choice section (MC) but done very poorly in the other sections of the paper (attachment 2).

3. This candidate was either copying answers in the MC or that someone was probably providing the answers.

4. Further investigation was carried out to verify the extent and truth of this report by perusing through all the Biology Paper 1 scripts of the candidates from this school.

5. The findings showed that among the 11 candidates there were four groups which had the same total of marks in the MC and each different group had the exactly the same incorrect and correct choices. The table below illustrates the groups.

No	Code	Annual Mark	Raw Mark	Multiple Choice Mark
1	1041008143	86	60	14
2	8144	36	35	14
3	8175	74	54	18
4	8178	86	58	18
5	8194	74	59	14
6	8198		25	14
7	8200	76	51	14
8	8240	36	45	16
9	8241	35	32	16
10	8258	36	35	11
11	8293	33	31	11

5. The letter stated that these candidates were not all sitting together but were scattered in the hall. If the seating arrangement was such that the candidates were sitting according to index numbers, then these candidates were sitting close to each other as indicated in the table above. This is also verified by the school result sheet (attachment 3).

6. When comparing answers of scripts from other schools, the chances of candidates having exactly the same choices for the 20 multiple choice questions is highly unlikely. The scores can be the same but with different incorrect options chosen. The above candidates have chosen exactly the same correct and incorrect options.

7. Some of these candidates have scored very low marks in the other sections of the paper when compared to the Multiple Choice section. This shows the candidates lack of knowledge of the subject which does not correlate with the high score in the multiple choice section. For example, the candidates scoring 18 in the multiple choice section will have a raw mark around 80 as being shown in the trend from other schools. This is not the case in this school.

8. Finally, these candidates have breached Examination Rule 9 (c) as stated at the back of FSFCE Exam Timetable."

4.15 Respondents also submitted following table as Annexure PS6 to Brij Lal's Affidavit:

Index No	Multiple Choice/20	Raw Marks	Same Incorrect Choices
1041008143	14	60	1,8,9,10,17,18
8144	14	35	1,8,9,10,17,18
8175	18	54	16,18
8178	18	58	16,18
8194	14	59	1,8,9,10,17,18
8198	14	25	1,8,9,10,17,18
8200	14	51	1,8,9,10,17,18
8240	16	45	4,6,16,18
8241	16	32	4,6,16,18
8258	11	35	1,4,5,8,9,13,14,16,18
8293	11	31	1,4,5,8,9,13,14,16,18

"THAT on 28/12/12, Nathanael Lal arrived at the Examinations Office to pick up his results. Upon finding zero marks for his Biology paper, he wrote in a voluntary statement, annexed as Annexure PS8, that "my friends were copying with each other behind two desks of me; Priya Chand – 8146, Shayaal Kumar – 8194, Kavneel Chand – 8143". Of course, by this time the SEO's report had already confirmed that 8143 and 8194 were malpractice candidates. They are also Applicants in this Judicial Review Application."

4.17 At paragraph 3 to 5 of Rajesh Lal's 3rd Affidavit and in response to paragraph 34 of Brij Lal's Affidavit he states as follows:

"3. I have discussed with my son Nathaneal the allegations that Dr Lal has made about him at paragraph 26 and 34. Nathaneal denies ever writing the notes annexed to Dr Lal's Affidavit as PS8. He says no explanation was offered to him by persons he does not know (and whom Dr Lal does not name) at the time he came to pick up his exam results. No specific allegations were put to him, in writing or otherwise, and he was not given an opportunity to seek legal advice or parental support. He recalls only that he was accused of malpractice.

4. Nathaneal states that when he was given a zero mark he was shocked. He recalls crying as a result of the shock, but little more about the incident. He says he was spoken to harshly by people he did not know but assumed were Ministry officials.

Nathaneal met Mr Ronal Singh, a Munro Leys lawyer in Lautoka on 2 August 2013. Nathaneal advised Mr Singh that not only does he believe he did not write the note as alleged, he does not even believe that the note is in his own handwriting. I annex and mark "RL1" a short handwritten statement by Nathaneal written on Munro Leys notepaper. Nathaneal has confirmed to me as his next friend that he hand-wrote this statement and gave it to Mr Singh on 2 August. Behind that note is a typewritten transcript of what Nathaneal wrote."

"3.0 That on 28 December 2012, the day the 2012 Fiji Seventh Form Certificate Examination ("FSFCE") results were released, Nathaneal Lal ("Mr Lal") came to the Ministry of Education's Examinations Office located in Suva to collect his examination results.

4.0 That Mr Lal inquired about the zero mark for his Biology examination and he was informed by the Principal Education Officer at the time, Mrs Lusiana Fotofili, to see me. The Principal Education Officer brought him to me and we both sat with Mr Lal to explain the reason behind the award of zero mark.

5.0 That I explained to Mr Lal that the zero mark was awarded due to evidence of malpractice in the Biology examination. After the explanation, I asked Mr Lal if he understood what malpractice was and he indicated that he did not understand.

6.0 That when told it meant copying answers and he was suspected of malpractice, Mr Lal did not hesitate to give a verbal statement, which was later documented ("original statement"). The original statement is attached herein as Annexure MV-1. Mr. Lal said that he had asked questions during the examination but he did not copy the answers because they were not clear to him. He further said that those sitting behind him were copying each other. When asked how he knew the students were copying if they were sitting behind him, Mr Lal did not answer.

7.0 That I strongly state that Mr Lal had volunteered information about copying during the exam. I firmly emphasize that Mr Lal was not coerced into writing his statement and further state that Mr Lal offered to write his statement in an attempt to absolve himself from blame.

8.0 That I have been advised by counsel that on 14/08/13, Mr Lal filed an Affidavit in Reply ("said Affidavit") through his parent and next friend, Mr Rajesh Lal. In the said Affidavit, Mr Lal denied having written the original statement on 28/12/12. Moreover, Mr Lal stated that not only does he believe that he did not write the note, he does not even believe that the note is in his own handwriting. In fact, Mr Lal provided a handwriting sample ("second statement") to prove that the original statement was not written by him. Attached as Annexure MV-2 is the second statement as a reproduction of Annexure RL1, attached to the said Affidavit.

9.0 That in order to assist the Court and to provide evidence contrary to Mr Lal's denials and a hand writing sample in the form of the second statement, I attach handwriting samples of Mr Lal's handwriting from the same Biology examination paper in which he was awarded zero marks, attached as Annexure MV-3.

10.0 That I strongly state that the original statement and the handwriting from the Biology examination are of one and the same person. I further state that Mr Lal has unconvincingly attempted to provide a handwriting sample to his legal counsel in a handwriting which is the same save for the fact that it is slanted to one side."

4.19 After analyzing Annexure MV1 and MV3 of Volau's Affidavit, it is apparent that Nathaneal Caleb Lal wrote the statement in Annexure MV1 and the note he wrote on Munro Leys note paper (Annexure MV2) was an attempt to mislead his Solicitors or the Court.

4.20 In any event I do not place much weight on the statement written by Nathaniel Caleb Lal (Annexure MV1) for following reasons:-

(ii) He was not cautioned or informed of the implication and consequences of giving such statement;

(iii) The circumstance in which the statement was given. Nathaneal Caleb Lal at that time may have been 18 years old and just became aware that he had been awarded zero mark in Biology and as such blamed other students thinking that he may be able to save himself from award of zero mark;

(iv) The statement is not signed by Nathaneal Lal or properly documented by the Education Officer concerned.

"10.0 That I strongly emphasize that in making my decision to uphold the First Respondents decision to award zero marks to the Applicants, I thoroughly considered the following:

a) Explanations provided by the six students who were interviewed that in preparation, they had studied the previous years' examination papers and also engaged in group studies;

c) Nathaneal Lal's written statement and his recollection of the students sitting behind him;

d) Cross-referencing the above factors with all the Applicants results in section A of their Biology examination paper with Table 2 of the IC report which tabulated the incorrect answers of the Applicants; and

e) The Applicant's Biology examination marks in the 2011 Fiji School Leaving Certificate examination and 2012 mid-year and annual examinations, as shown in the table at page 10 of the IC report."

The right to afford natural justice and procedural fairness has been very well stated in the case of Annets v McCain (1990) 170 CLR 596 at 598 by Mason C.J Deane and McHugh JJ and adopted with approval in Divendra Pillay v Permanent Secretary for Education, Women & Culture & Anor Judicial Review No 5 of 1997 as follows.

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396; "Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109-110; Heatley v. Tasmanian Racing & Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 496, 500; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 456; Haoucher v Ministery for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 680. In Tanos (1958) 98 CLR at 396, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations' Not in such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board (NSW) (1986) 5 NSWLR 338 at 344-345, 347349. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584, Mason J said that the law in relation to administrative decisions, 'has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention."

4.23 Respondents by their Counsel at paragraph 15.0 of Respondents Submissions submit as follow:-

"15.0 Furthermore, and in response to the contention that the Applicants were not heard on the malpractice allegation before the decision was made by the 1st Respondent, the Respondents remind the Honourable Court that the Respondents were allowed to present their case at the interviews which were conducted by the Independent Committee which was convened by the 1st Respondent to conduct further investigations into the malpractice. The Respondents further reiterate here that the Ministry has a very limited time within which it conducts its investigations under the Ministry of Education's Standard Operating Procedures ("SOP") before the national results are released. In any event, the Respondents state that SOP neither calls for nor allows for evidence to be heard from those students who are alleged to have engaged in malpractice."

4.24 Respondents rely on following statements of Lord Parmoor in De Verteuil v Knaggs & Anor [1918] AC 557

"The particular form of inquiry must depend on the conditions under which the discretion is exercised in any particular case, and no general rule applicable to all conditions can be formulated. In the particular case under appeal the acting Governor exercised his discretion on a complaint made against the appellant .........." (page 560)

4.25 Respondents also relied on State v Divisional Engineer Northern, Ex Parte Yankalu [2003] FJHC 88 (13 February 2003) and following statement from Matea's case:-

".... a requirement that a person be given a fair opportunity to be heard...we add that what is a fair hearing will depend upon the circumstances of each case, it does not mean that in every case a right of personal appearance must be given."

4.26 With respect I do not agree, that De Verteuil's case and Yankalu's case in any way discount the right to natural justice and procedural fairness that needs to be afforded to an aggrieved party.

4.27 Respondents Counsel did not fully appreciate the reasoning in Yankalu's case (supra) where His Lordship Justice Pathik quoted principles relating to natural justice from prior cases. His Lordship stated as follows:

"It is well established that before a penalty of such a serious nature is imposed the person affected has the right to be heard.

"where a statute confers powers upon a person to make a decision affecting the rights, property or legitimate expectations of a person, the rules of natural justice will prima facie be applicable." It was further held that "the audialterampartem rule did apply to s.62(1) of the Act in the absence of any clear legislative intent to the contrary" and that "the appellant was denied the opportunity of being heard to which the rules of natural justice entitled him."

"The broad principle is stated by Lord Diploch in O'Reilly v Mackman (1983) 2AC 237 at p.276 as follows:

"But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement." (emphasis added)

Also in Pratt v Wanganui Education Board and Others (1977) 1NZLR 476 Somers J quoted Lord UpJohn in Durayappan v Feranando (1967) 2 AC 337 on the question of audialterampartem when he said:

"A long course of decisions, beginning with Dr. Bentley's case (1723) 1 Stra 557; 8 Mod Rep 148, and ending with some very recent cases, establish, that, although there are no positive words I the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature" [1976] 2AC 337, 348." (emphasis added)

"....... the legislature may certainly exclude or limit the application of the general rules. But it has always been insisted that this must be done, clearly and expressly.

Such an intention is not to be assumed nor is it to be spelled out from indirect reference, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment."

Finally, on this aspect, the following passage from the judgment of Barwick CJ in Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109 is apt and I have applied this to the facts of this case;

"But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However it that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject of the exercise of the statutory power." (emphasis added)

4.29 In De Verteuil's case, Lord Parmoor for and on behalf of Privy Council stated as follows:

"Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which be may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice. It must, however, be borne in mind that there may be special circumstances which would justify a Governor, acting in good faith, to take action even if he did not give an opportunity to the person affected to make any relevant statement, or to correct or controvert any relevant statement brought forward to his prejudice. For instance, a decision may have to be given on an emergency, when promptitude is of great importance; or there might be obstructive conduct on the part of the person affected. Their Lordships, however do not find any suggestion of such conditions in the case under appeal. Moreover, in this case the Supreme Court, on the evidence before them, has found that the acting Governor did give the appellant a fair opportunity of being heard and of meeting statements made to his prejudice, and, for reasons given later, their Lordships fully concur in this finding." (pages 560 and 561)

4.30 In De Verteuil's case the aggrieved party was afforded natural justice and procedural fairness.

4.31 It is not disputed that none of the students who were subject to award of zero mark in Biology were heard prior to the Decision being made to award zero mark.

4.32 It is apparent that Ministry of Education was desperate to make the decision quickly because the results had to be published. Also as submitted by the Applicants Counsel the Independent Committee ("IC") was rushed into carrying out the investigation within a very short period of time.

4.33 It seems that "need for speed" was paramount consideration by the Respondents rather than the need for natural justice and procedural fairness.

4.34 The need to afford natural justice is derived from the maxims "le principe que nul ne doit etre condamne ou prive de ses droits sans etre entendu, et surtout sans avoir meme recu avis qtte ses droits seraient mis on jeu est dune equite universelle, ("the principle that no one ought to be condemned or deprived of his rights without a hearing and especially without having received notice that his rights would be imperiled is one of the universal equity") and audi alteranl partnem ("hear the other side").

4.35 It is apparent from above maxim and case authorities that any public authority should not make a decision which has adverse consequence or affect the citizen without giving an opportunity to that person to be heard before making such decision unless that right is expressly excluded by statute (Yankalu) or specific circumstances exist (De Verteuil's)

4.36 Whilst it is undisputed that the Applicant's were not heard prior to the decision the IC report in Naupoto's Affidavit state that the IC did give an opportunity to the Applicants to be heard and did interview following students:

4.37 For sake of convenience I re-produce extracts from Annexure "VN 2" to "VN 4" of Naupoto's Affidavit:

*Paper 1*	*Paper 2*
*3 hours 10minutes*	*1hour*
*Section A*	*- Multiple Choice (20 marks)*
*Section B*	*- Long Answer/Short answer*
*Section C*	*- Essays*

10 yr biology papers studied. SPBC (exam papers studied). 2 biology forms.

4.38 From notes taken by the Mr Naisara it is apparent that investigation by IC was done in a hurry and without giving the students an opportunity to fully respond to the allegations of malpractice against them.

4.39 In Yankalu's case the Divisional Engineering Northern terminated the Applicant's employment effective from 6 February 2001 by Memorandum which is re-produced in Yankalu's case stating as follows:

gateman, Samuela Sagabola taking out of the yard a container of diesel estimated to be more than 20 litres. You had covered the container with empty cardboard and waste papers concealing it and it is indicative of your intention to steal.

You have committed a very serious offence and taking into consideration the provisions of JIC Agreement Clause 37(a) I have no alternative but terminate your service from 06.02.01.

Your service is therefore terminated from 06.02.01 and you are directed to return all government properties issued to you by 4:30p.m to-day."

4.40 The Court in Yankalu's case held that the Applicant by not being heard prior to decision to terminate him was denied natural justice and procedural fairness.

4.41 There is no express provision in the Education Act or the SOP which denies the Applicants right to be heard prior to Respondent making decision to penalize the Applicants on allegation of malpractice.

4.42 The First Respondent's argument that his decision was based on SOP and documentary evidence which they had in term of seating arrangement, exam results and index numbers does not negate the right to natural justice and procedural fairness.

4.43 In this instance, the Applicants were Form Seven students and about to venture in tertiary studies or enter workforce and any finding that they were engaged in malpractice in relation to Biology should have been made after the allegations of malpractice and evidence was put to the Applicants as its consequence is quite serious in nature.

4.44 I therefore hold that Applicants were denied natural justice when decision to award zero mark in Biology in 2012 Fiji Seventh Form Certificate Examination was made by Second Respondent and when investigation was conducted by IC, appointed by the First Respondent

4.45 It is not doubted that once again the IC was tasked to carry out its investigation and submit its recommendation within a very short span of time, in that IC was appointed on 4 January 2013 and its report was published on 11 February 2013.

4.46 At paragraph 4 of Naupoto's Affidavit he state that six (6) of the eleven (11) students were interviewed. If so, then where is the interview for remaining three (3) students?

4.47 It is apparent that "need for speed" was again taken as paramount consideration by IC in carrying out the investigation.

4.48 The interview notes annexure as VN2, VN3 and VN4 are totally inadequate in that detailed responses have not been obtained from Priyanka, Shayal and Prashika.

4.49 It also seems that Mr Naisara did not have the ability or knowledge as to how interviews are conducted by public officers. I also note the following:

(i) The students were not advised of the purpose and consequence of the interview.

(iii) Mr Naisara only took down notes which he thought would support IC's recommendation.

(vi) None of the other five supervisors who were present at the examination centre were interviewed.

"5.0 That I considered the students explanation at length whereby they claimed that by studying the past years examination papers, they got the same answers in the Section A multiple choice section of the examination paper. However, I failed to understand how some students had crossed out answers and selected new answers which matched the same answers of other students."

4.51 With all due respect, I do not believe that he did not consider students explanation at length where they claimed they studied past examination papers.

4.52 Out of the three interview notes annexed to Naupoto's Affidavit only Priyanka's interview note state:

4.53 Out of the five members of IC only Mr Naisara travelled to Labasa to carry IC's investigation in Labasa and the other four remained in Suva and carried out IC's investigation at Education office in Suva.

4.54 IC also believed the oral statement allegedly given by Chief Supervisor that he reminded student about copying and students were disrespectful over his written statement that examination were conducted in a proper manner. I cannot see any reason why the Chief Supervisor will not report on students who were disrespectful to him.

4.55 I therefore find that there were shortcomings in IC investigation as highlighted in the preceding paragraphs and they were inadequate.

4.56 Respondents submit that Second Respondent made the decision after careful consideration of the evidence and in compliances with SOP.

4.57 It is clear from the finding of the IC that Second Respondent made his decision was made without fully adhering to the SOP and consideration of relevant source of information. (Last sentence paragraph 16 of Annexure VN 1 of Naupoto's Affidavit refers).

4.58 In Yankalu's case His Lordship Justice Pathik after finding decision in that case to be Wednesburry unreasonable quoted following statement of Lord Templaton in Brind v Secretary of State [1991] UKHL 4; [1991] 1 ALL ER 720 at 725:

"The English courts must, in conformity with the Wednesbury principles (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; (1947) 2 All ER 680, (1948) 1K.B. 22) discussed by Lord Ackner, consider whether the Home Secretary has taken into account all relevant matters and has ignored irrelevant matters .. If these conditions are satisfied, then it is said on Wednesbury principles the court can only interfere by way of judicial review if the decision of the Home Secretary is 'irrational' or 'perverse'".

4.59 Having held that Applicants were denied natural justice; and they were not afforded procedural fairness; the SOP were not fully complied prior to the decision being reached and the IC investigations was not carried out properly, I find that First Respondents decision to accept IC's recommendations was irrational.

4.60 The First Respondent should have called for a more thorough investigation rather than relying on IC's recommendation when it was apparent that Second Respondent prior to making the decisions did not fully comply with SOP and IC investigations were not adequate.

4.61 I do not wish to say any further on this ground except to say that where any procedure or policy is put in place and exercise of which may adverse effect on individuals then those procedures or policies must be complied strictly.

4.62 The Respondents submit that First Respondent was not unreasonable and relied on statement from Associated Provision Picture Houses Limited v Wednesburry Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680 and R. v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 at 518.

"It is frequently used as a general description of the things that must be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter he has to consider. If he does not obey those rules, he may truly be said, and often is said to be 'acting unreasonably'. Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority..."

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity (for example breach of natural justice), or unreasonableness in the Wednesbury sense - unreasonableness verging on absurdity ... Where the exercise or non-exercise of a fact is left to the judgment and discretion of a public body and the fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the discretion of the fact to the public body to whom Parliament has entrusted the decision-making power save in the case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

4.64 Having held that the First Respondent's decision to accept IC's recommendation was irrational. I also hold Second Respondent's Decision was not in full compliance of provisions of 6.1.20 of SOP.

4.65 The Respondents also submit that in view of the evidence of copying there was no need to hear the Applicants prior to award of zero mark which was in line with SOP.

4.66 The Respondents relied on the case of Bihar School Examination Board v Subhas Chandra and Others [1970] A1R 1296 where Supreme Court of India held that under the circumstances of the case and overwhelming evidence of unfair practice and the fact that Board had not charged anyone for unfair practice so that he could defend himself there was no need to hear the examinees.

4.67 Respondents rely on following statements from Bihar case to support their submissions that the Applicants were not entitled to be heard.

"While we do not wish to whittle down the requirements of natural justice and fair play in cases where such requirement may be said to arise, we do not want that this Court should be understood as having stated that, an inquiry with a right to representation must always precede in every case, however different. The Universities are responsible for their standards and the conduct of examinations. The essence of the examinations is that the worth of every person is appraised without any assistance from an outside source......"

"......If there is sufficient material on which it can be demonstrated that the University was right in its conclusion that the examinations ought to be cancelled then academic standards require that the University's appreciation of the problem must be respected. It would not do for the Court to say that he should have examined all the candidates or even their representatives with – a view to ascertaining whether they had received assistance or not.

To do this would encourage indiscipline if not also perjury. We are satisfied that no principle of natural justice was violated in this case. The Board through its Chairman and later itself reached the right conclusion that the examinations at this Centre had been vitiated by practicing unfair means on a mass scale and the Board had every right to cancel the examination and order that a fresh examination be held. There was no need to give the examinees an opportunity of contesting this conclusion because the evidence in the case was perfectly plain and transparent."

4.68 The Respondents submit that the matter at hand is similar to Bihar case in that the evidence against the Applicants was self-evident and overwhelming. Furthermore, the Respondents submit that the Second Respondent's decision to award zero marks to the Applicants was made in accordance with the penalty described in the SOP and the decision-making process was in accordance with the provisions prescribed in the SOP. It is categorically stated that the Policy has been the same for a number of years such that the autonomy of academic institutions remain.

4.69 With all due respect, once again the Respondents by their Counsel have failed to fully appreciate or understand the reasoning in Bihar's case which is distinguishable from the instant case on the ground that in Bihar's case the examination results for the centre was withdrawn and new examination was scheduled for the centre which affected all students and not few student as is here.

4.70 The facts of this case are almost similar to that of Board of High School and Intermediate Education, U.P. v Ghanshyan Deo Gupta and others [1962] AIR 1110 referred by Applicants Counsel.

4.71 The brief facts in Gupta's case as appears from the judgment of Justice Wanchoo are as follows:

"The three Respondents were students of G.H. Hindu Intermediate College at Sikandrarao and appeared at the Intermediate (Commerce) Examination conducted by the Appellant in the year 1954. On June 12, 1954, the result of the examination was published in newspapers and the three Respondents passed in the second division. Thereafter they prosecuted under further studies. But in December 1954, their fathers and guardians received information from the Principal of the G.S. Hindu Intermediate College that the Examinations' Committee of the Appellant (hereinafter referred to as the Committee) had cancelled the result of the Respondent for the examination of 1955. Thereupon the Respondents filed a writ petition in the High Court contending that the Committee had never afforded any opportunity to them to rebut the allegations made against them and that they were never informed about the nature of the unfair means used by them in the said examination and The first thing they come to know was the resolution of the Committee cancelling their results and debarring them from appearing in the examination of 1955. They therefore contended that they were entitled to an opportunity being afforded to them to meet the case against them of using unfair means at the examination before the Appellant took action against them by cancelling their results and debarring them from appearing at the examination of 1955. The procedure thus adopted by the Appellant was said to be in violation of the principles of natural justice in as much as they were given opportunity whatsoever to defend themselves and to show cause against the action contemplated against them."

The Appellant (Board) opposed the application and its case was that the Respondents had used unfair means at the examination and their cases were reported to the Committee under the Regulations and the Committee had acted under the powers conferred on it under the Act and the Regulations framed there under after a thorough inquiry. It was not disputed, however, that no opportunity had been afforded to the Respondents to rebut the allegations against them in the inquiry made by the Committee which resulted in the resolution cancelling the results of the examination. A large number of contentions appear to have been urged in the High Court; but we are here only concerned with one of them, namely, whether the Respondents were entitled to a hearing before the Appellant decided to cancel the results. The contention on behalf of the Respondents before the learned Single Judge was that the Appellant was under a duty to act judicially and therefore the Respondents should have been given a hearing before any order was passed against them."

4.72 In Gupta's Case majority of the High Court set aside the Board's decision on the ground that the Respondents (Examinees) were not given the opportunity to be heard prior to decision by Board to cancel the results of the examination thus denying them natural justice.

4.74 The reason I said earlier that it seemed Respondents Counsel did not fully understand or appreciated the reasoning in Bihar's case or only attempted to quote extracts from Bihar's case which suited their case is that Guptas' case was referred to in Bihar's case and in Bihar's case Supreme Court explained Gupta's case as follows: -

"Reliance was placed upon Ghanshyam Das Gupta's Case(1), to which we referred earlier. There the examination results of three candidates were cancelled, and this Court held that they should have received an opportunity of explaining their conduct. It was also said that even, if the inquiry involved a large number of persons, the Committee should frame proper regulations for the conduct of such inquiries but not deny the opportunity. We do not think that that case has any application. Surely it was not intended that where the examination as a whole was vitiated, say by leakage of papers or by destruction of some of the answer books or by discovery of unfair means practiced on a vast scale that an inquiry would be made giving a chance to everyone appearing at that examination to have his say. What the Court intended to lay down was that if any particular person was to be proceeded against, he must have a proper chance to defend himself and this did not obviate the necessity of giving an opportunity even though the number of persons proceeded against was large.

4.75 In the instant case the Second Respondent relied on the provisions of SOP as basis for awarding zero mark to the Applicants in Biology without the need to afford the Applicants natural justice and procedural fairness.

4.76 I do not agree with Second Respondents' submission. Since there is no express provision in the SOP or the Education Act which empowers the Respondents to make such decision without giving the Applicants an opportunity to be heard and respond to the allegation and evidence relied on by the Second Respondent for decision (Yankalu) Applicants should have been afforded natural justice and procedural fairness prior to Decision being made. Also there is no special circumstances which justify departure from rules of natural justice and procedural fairness (Bihar, De Verteuil).

4.77 The fact that SOP requires Second Respondent to carry out further investigations in respect to copying suggests that the Applicants should have been given an opportunity to be heard prior to Second Respondent making the Decision and First Respondent accepting the IC's recommendation.

4.78 I therefore hold that the Applicants were denied natural justice and not afforded procedural fairness when the Second Respondent made the Decision to award zero marks in Biology to the Applicants and as such the Decision cannot stand.

4.79 For reason stated at paragraph 4.49 of this Judgment I hold that the investigation carried out by IC appointed by the First Respondent was inadequate for First Respondent to accept the recommendations of the IC.

4.80 Applicants seek costs. I note from Applicants Counsels' submission that they are prosecuting this matter on a pro-bono basis and such Applicants are only entitled to minimal costs.

5.1 Even though the Second Respondent may have overwhelming documentary evidence to make a finding of malpractice by the Applicants which justified award of zero mark in Biology he nonetheless had to grant a fair hearing to the Applicants before making the decision.

5.2 I hold that the Applicants were denied natural justice, not afforded procedural fairness and the Decisions of the Respondents are irrational.

(a) Detailing the allegations in writing to the Applicants with sufficient particularity (including evidence relied upon)

(b) Giving to the Applicants or their representatives adequate notice of the allegations.

(d) Publishing to the Applicants the conclusions of the inquiry and reasons for those conclusions.

Munro Leys, Solicitors for the Applicants
Office of the Attorney General, Solicitors for the Respondents

High Court of Fiji

Lal v Minister for Education, National Heritage, Culture and Arts [2014] FJHC 931; Judicial Review 5.2013 (16 December 2014)