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State v Permanent Secretary for Local Government, Housing and Environment, Ex parte Korovou [2022] FJHC 146; HBJ16.2019 (18 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION

Judicial Review No. HBJ 16 of 2019

IN THE MATTER of an application JULIA WAICALA KOROVOU for Judicial Review under Order 53 of the High Court Rules of Fiji

AND

IN THE MATTER of the decision made by the Permanent Secretary for LOCAL GOVERNMENT, HOUSING AND ENVIRONMENT dated 6 November 2019.

BETWEEN:

THE STATE

AND:

PERMANENT SECRETARY FOR LOCAL GOVERNMENT, HOUSING AND ENVIRONMENT

RESPONDENT

EX-PARTE:

JULIA WAICALA KOROVOU of 9 Nasilivata Road, Nadera, Deputy Secretary

APPLICANT

BEFORE:
Hon. Mr. Justice Vishwa Datt Sharma

COUNSELS:
Mr Nair D. for the Applicant
Ms Ali M. with Ms Solimalagi O. and Sharma B. for the Respondent

DATE OF DECISION:
Friday, 18^th March 2022 @ 9.00 am.

DECISION
[Leave to Apply for Judicial Review pursuant to Order 53 Rule 3 (O.53, r.3) of the High Court Rules 1988]

The Application and Notice of Opposition

1. The Applicant, Julia Waicala Korovou sought for Leave for Judicial Review in respect of the Decision made on 6^th November 2019 by the Respondent, not to renew the employment contract of service as a Deputy Secretary within the Ministry of Local Government of the Applicant.
2. The following relief were also sought:-

(a) An Order of Certiorari to remove and quash the said decision made by the first respondent on 6 November 2019 not to renew the employment contract.

(b) An Order of Mandamus

(i) Directing the Respondent to renew the employment contract of the applicant pursuant to Regulation 7(1) and (2) of the Civil Service Regulations, 1999 and clause 3(d) of the Employment Contract; or in the alternative.

(ii) Compensate for the balance of the contract until the applicant attains the age of 55 years.

(iii) Compensate the annual leave and long service leave and allowance.

(c) A Declaration that the decision of the Permanent Secretary for Local Government, Housing and Environment is irrational, arbitrary, unreasonable, inconsistent, tainted with bias, and ultra vires.

(d) Damages

(e) AND ANY FURTHER DECLARATIONS or other relief as this Honourable Court may consider appropriate.

(f) Costs pursuant to Order 62 Rule 27 of the High Court Rules.

The Grounds upon which the Relief is sought are:-

(1) That the Respondent had acted arbitrarily and in breach of the Applicant’s legitimate expectation that her employment contract will be renewed.

(2) That the Respondent failed to take into account relevant consideration pertaining to the doctrine of contra preferentum.

(3) That the fact the applicant continued to receive her normal wages after she was notified that her position of Deputy Secretary is no longer required proves that the position and the budgetary provision for the position had not been made superfluous.

(4) That the Respondent failed and or neglected to exercise its statutory powers lawfully and fairly, as such it had abused its discretionary powers.

(5) That the applicant was denied the due process of natural justice and procedural fairness by making the post of Deputy Secretary superfluous:-

a. By not consulting the applicant prior to implementing the endorsed organizational structure that caused her non-employment resulted in procedural impropriety.

b. The failure to disclose the purported new endorsed organizational restructure of the Ministry and the approved revised staff establishment/organizational structure that resulted in the disbandment of the Deputy Secretary position.

c. The failure to give the applicant the right to be heard prior to the decision on the non-renewal of her contract.

d. The failure to issue a certificate of service upon conclusion of the contract.

(6) That the Respondent made errors of law by acting contrary to Regulation 7(1) and (2) of the Civil Service Regulations, 1999 that provided for the renewal of the contract.

(7) That Respondent by not renewing the employment contract acted contrary to clause 3(d) of the Employment Contract that expressly state the limitation period of the contract is until the retirement age of 55 years.

(8) That the Respondent acted unreasonably and in bad faith by not providing valid and genuine reasons for not renewing the employment contract.

(9) That the Applicant reserves the right to add further ground upon inspection of documents pursuant to a discovery order in terms of Order 53 Rule 4 and Order 24 Rule 8.

3. By Notice of Opposition the Respondent, the Permanent Secretary for Local Government, Housing and Environment opposed the grant of Leave and sought for the dismissal of the Leave Application. Grounds are:–

(a) The Applicant’s Application for Leave to Apply for Judicial Review (‘Application’) is based on the Respondent’s decision to not renew the Applicant’s employment contract. The Applicant is therefore seeking to judicially review a decision that arose out of an employment relationship which is private in nature and therefore not susceptible to judicial review.

(b) The Application does not have an arguable case.

(c) The Applicant was appointed to the position of Deputy Secretary for a fixed period of 3 years effective from 30 November 2016 vide employment contract dated 5 December 2016 (“Contract”).

(d) The Applicant was suspended on 12 December 2017 pending investigation for allegation of abuse of office and general dishonesty obtaining again contrary to the Civil Service Code of Conduct under section 6 of the Civil Service Act 1999. The matter was further investigated by the Respondent.

(e) The Applicant was suspended with full pay.

(f) In accordance with the Contract, the Respondent issued a notice of non-renewal of the Contract vide letter dated 6 November 2019, to the Applicant. The Applicant was informed one month prior to expiry of the Contract of the Respondent’s decision to not renew the Contract.

(g) The Respondent’s decision not to renew the Contract was also made in accordance with the constitutional authority conferred under section 127(7) of the Constitution of the Republic of Fiji (‘Constitution’) which authorizes the Respondent to inter alia remove all staff of the ministry, with the agreement of the Minister responsible for the ministry. The Respondent is responsible for the administration of the Ministry of Local Government (‘Ministry’) within which the Applicant was employed.

(h) Under section 163(5)(b) and (c) of the Constitution, the power to remove a person expressly includes the power to terminate the employment of that person; or a power not to renew the contract on which the person is employed.

(i) Given that the Contract was for a fixed period and expressly provides that non-renewal of the same is at the discretion of the Respondent, the Applicant cannot legitimately expect automatic renewal of the Contract.

(j) The Respondent’s authority to remove a staff from the Ministry is separate and distinct from the authority to institute disciplinary action against a staff.

(k) The Respondent reserves the right to adduce more grounds of opposition on the hearing of the application herein.

4. Both parties to the proceedings furnished Court with their written submissions citing case authorities.
   

Affidavits Filed

5. Affidavit in Support deposed by Julia Waicala Korovou.
6. Affidavit in Response deposed by Dimity Fifer.
7. Affidavit in Reply deposed by Julia Waicala Korovou.
   

Principle Governing Leave

8. The then Justice Scutt in Lesili Tuiwawa v. Pio Tikoduadua & Ors HBJ No. 40 of 2008 (22 December 2008) stated that “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] UKHL 1; [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 –
  
  • 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
  • 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”

Determination

9. Leave is sought by the Applicant to apply for Judicial Review against the decision of the Respondent dated 06^th November 2019 wherein the employment contract of the Applicant was not renewed on the ground that the post of Deputy Secretary is no longer required.
10. On 10 July 2017, the Applicant executed a contract of service with the Permanent Secretary for the Ministry of Local Government, formerly the Ministry of Local Government, Housing and Environment.
11. The contract had two (2) provisions pertaining to the duration of the contract. At clause 3(a) the duration is for 3 years whereas at clause 3(b) until the Applicant reaches the retirement age of 55 years.
12. On 06 November 2019, the Respondent informed the Applicant that the Contract would not be renewed pursuant to Clause 3(b) of the Contract. On 09 December 2019, the Applicant filed an Application for Leave to Apply for Judicial Review in respect of the Respondents decision to not renew the contract.
13. The Applicant’s contention is that the Respondent removed the Applicant from her employment by suspending her from 12^th October 2017. This suspension continued until 6^th November 2019 when the Applicant was informed that her contract will not be renewed due to the changes in the new endorsed organizational structure whereby the Ministry no longer requires the position of Deputy Secretary.
14. The Applicant deposed that she was initially suspended from employment for her alleged breaches of the Civil Service Code of Conduct and later applying the new endorsed organizational structure that caused her non-employment, the Respondent acted contrary to the principles of fair labour practices.
15. The Applicant deposed further the circumstances under which the Respondent had determined not to renew her contract based on the purported new endorsed organizational structure when the existing contract was on the verge of renewal casts serious doubt on the integrity and validity of the said decision which this Court has the Jurisdiction to review.
16. She added that she has direct interest in the matter as there is no further right of redress except the Inherent Jurisdiction of the Court.
17. However, the Respondent’s contention is that the Applicant’s Leave application is premised on a decision which arose out of an employment contractual relationship between the Respondent and the Applicant, which is private in nature and does not involve a public law element. The Leave application is therefore not amenable to judicial review.
18. The Respondent deposed that the Applicant’s suspension was warranted because the allegations were serious and that having the Applicant in the Ministry’s premises could compromise or hinder the investigation into the allegations. Further, the investigation into the allegations against the Applicant has no bearing on the review of the organization structure as this process reviews the positions and not the person holding the position.
19. The Applicant was paid all entitlements until the expiry of the contract and that any overpayment of remuneration would be recovered from the Applicant.
20. The Applicant’s suspension was not left in abeyance as investigation was being carried out and the Applicant was receiving full pay during the entire suspension period. The Applicant will be paid all entitlements until date of expiry of contract if that is not done already.
21. The purpose for the requirement of leave is provided for in the Supreme Court Practice 1999 Vol 1 on page 903 under Order 53/14/21, that is:-

“(a) to eliminate frivolous, vexatious or hopeless applications for judicial reiew without the need for substantive inter partes judicial review hearing; and

(b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further investigation at a full inter partes hearing.”

22. The test for Application for Leave for Judicial Review was stated by her Ladyship Justice Scutt (as she then was) in Nair v. Permanent Secretary for Education & Ors. Judicial Review No. 2 of 2008 as hereunder:-

(i) Does the Applicant have sufficient interests in the application?

(ii) Is the Decision susceptible to Judicial Review – that is, is it of a private or public nature?

(iii) Are alternative remedies available to the Applicant and, if so, have they been pursued by the Applicant?

(iv) Does the material available disclose an arguable case favouring the grant of the relief, or what weight, on further consideration, be an arguable case?

23. At 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. A full review of the fact is not necessary. Nonetheless, a Court is obliged to sufficiently peruse the material provided to determine when an applicant raises ‘an arguable’ case or not?
24. In Palani v. Fiji Electricity Authority [1997] FJCA 21: ABU 0028.96 where the Court held that judicial review is not applicable in a strict master and servant relationship based on a private contract of employment as there is no element of public law involved. This appeal arose out of an application for judicial review seeking orders to inter alia quash the decision by the respondent to suspend and later dismiss the first appellant. The appellants contended that the element of public law was present because the Fiji Electricity Authority (‘FEA’) was a statutory authority and the second appellant was a trade union therefore the terms and conditions of the first appellant’s employment were also governed by the Trade Disputes Act, and that the FEA Board was appointed under statutory powers. The Court in dismissing the appellants’ contention stated:-

“In our view none of these matters injects the necessary element of public law into the master and servant [Employer & Employee] relationship. Walsh’s case makes it clear that the mere fact of Mr Palani being employed by a public statutory authority is not sufficient. The fact that the second appellant is a trade union does not appear to us to bear upon the question is a trade union does not appear to us to bear upon the question and the only relevance of the Trade Disputes Act (Cap. 97) appears to be that the collection agreement was registered pursuant to s.34 and thus imported the provisions of the collective agreement into Mr Palani’s contract of employment with the Authority. Further we do not see that the mode of appointment of the Board of the Authority bears upon the question.”

25. In determining whether or not the respondent’s decision was susceptible to judicial review, the Court of Appeal in Palani (supra) considered and applied the following authorities:

“In R. v. East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; (1984) 3 All E.R. 425 it was held by the Court of Appeal that whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee’s position and not on the fact of employment by a public authority per se or the employee’s seniority or the interests of the public the functioning of the authority. Sir John Donaldson M.R. in his judgment discussed the question of statutory underpinning in relation to three of the most well known cases in this area, Vine v. National Dock Labour Board (1956) 3 All E.R. 939, Ridge v. Baldwin [1963] UKHL 2; (1963) 2 All E.R. 66 and Malloch v. Aberdeen Corp (1971) 2 All E.R. 1278, and said at p.430:

“In all three cases there was a special statutory provision bearing directly on the right of a public authority to dismiss the plaintiff. In vine’s case the employment was under the statutory dock labour scheme and the issue concerned the statutory power to dismiss given by that scheme. In Ridge v. Baldwin the power of dismissal was conferred by statute (s. 191(4) of the Municipal Corporations Act 1882). In Malloch’s case again it was statutory (s.3 of the Public Schools (Scotland) Teachers Act 1882). As Lord Wilberforce said, it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a ‘higher grade’ or is an ‘officer’. This only makes it more likely that there will be special statutory restrictions on dismissal or other underpinning and not the seniority which injects the element of public law. Still less can I find any warrant for equating public law with the interest of the public. If the public through Parliament gives effect to that interest by means of statutory provisions, that is quite different, but the interest of the public per se is not sufficient.” (emphasis added)

In R. v. Civil Service Appeal Board, ex parte Bruce (1988) 3 All E.R. 686 May L.J. said at p. 691:

“The first issue in this case, therefore is whether the board’s decision on the applicant’s appeal against his dismissal is capable of challenge in this court by means of judicial review. This will only be if there was a public or administrative element in the board’s jurisdiction to hear and decide such an appeal, in other words, whether an issue of public law was involved. The test is relatively simple to state, but by no means easy to apply. As Sir John Donaldson MR said R. v. Panel on Take-overs and Mergers, ex p Datafin plc [1986] EWCA Civ 8; [1987] 1 All ER 564 at 577[1986] EWCA Civ 8; , [1987] QB 815 at 838:

“In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all of those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms ....”

Further, the decision of this court in Walsh’s case makes it clear that the mere fact that an applicant is employed by a public authorities does not of itself inject the necessary element of public law so as to attract the remedies of administrative law or judicial review.”

26. The R. v. East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; (1984) 3 All E.R. 425 case was subsequently applied by the Court of Appeal in Permanent Secretary for Education v Nair [2011] FJCA 2; ABU0061.2008 (5 January 2011). In allowing the Permanent Secretary’s appeal, the Court of Appeal held that the decision by the Permanent Secretary to transfer the respondent from one school to another was not amenable to judicial review.
27. The ratio in Palani (supra) was applied by the then Justice Alfred of the Suva High Court in Permanent Secretary for Education, Heritage and Arts v Kumar [2016] whereby the applicant sought inter alia an order of certiorari to quash the decision by the Permanent Secretary to terminate the applicant’s employment. In dismissing the applicant’s leave to apply for judicial review application, this Honourable Court stated:

“27. The fact that the Applicant was a public servant and her employer was a Government Ministry did not, ipso fact, convert an employee/employer situation from a private law one to a public law situation where judicial review becomes available. I prefer to use the terms employee and employer rather than the obsolete terms of master and servant. If the Applicant were at the material time an employee of a private company employed under a contract, there would have been no contemplation of resorting to judicial review, if her employer had terminated her employment. Why then should the Application feel entitled to apply for a review by the Court of her employer’s decision to terminate her employment in accordance with their contract, just because the employer is a Ministry of Government.

28. A normal, ordinary employee/employer unfair dismissal dispute like that in the East Berkshire Appeal would have been determined by an industrial tribunal (employment tribunal in Fiji). In fact, one of the Appeal Judges, May LJ said that if as contended by counsel for the applicant, one of his client’s principal objects in initiating his judicial review proceedings was “to clear his name”, that could have achieved by obtaining a finding from the tribunal. In May LJ’s opinion the application was a misuse of Order 53. My opinion of the instant application is the same. If the Applicant’s intention here is to clear her name, then judicial review is not the proper vehicle to utilize to achieve that objective.

29. The remedy of Judicial Review is only available where an issue of public law is involved. In other words the decision impugned has been made by the State qua State. That has to be the preceding immediate cause which makes judicial review available. There is no such issue in an ordinary relationship of employer and employee, such as in the instant case and no such issue arises just because the employee is in a higher or more senior grade. The issue whether the dismissal is unfair or is valid has to be determined from within the 4 corners of the contract.”

28. Bearing above case authorities in mind, it can be ascertained that it is well settled than an ordinary employment relationship albeit between a civil servant and a Government Ministry, is private in nature and does not convert the matter into a public law situation where Judicial Review is available.
29. The Applicant was a public servant or a civil servant employed in her capacity as the Deputy Secretary within the Ministry of Local Government, Housing and Environment. The contract annexed to the application hereto clearly shows that the Respondent was the employer and that the Application was holding the position of the Deputy Secretary. The contract had a fixed term from 10^th July 2017 to 14^th December 2019.
30. At clause 3(b) and 3(d) of the contract, it was clearly agreed between the Applicant and the Respondent that the renewal of the contract was at the absolute discretion of the Respondent and non-renewal of the contract would not give rise to any course of action of any sort against the Respondent. Clause 3(b) of the contract further stated that the Applicant would be informed of whether the contract would be renewed one month prior to the expiry of the contract. This meant that if the Respondent was contemplating non further renewal of the contract, then she was requested to inform the Applicant on or before 14^th November 2019.
31. The Respondent accordingly issued its non-renewal notice on 6^th November 2019 as was agreed by the parties at the time of the execution of the contract.
    

Alternative Remedy

32. Lord Diplock spelled the scope that Judicial review provides the means by which judicial control of administration action is exercised. The subject matter of every Judicial Review is a decision made by some person(s) or else a refusal by law to make a decision. Judicial Review is a remedy of last resort and is inappropriate where there is another jurisprudence of law to which the Applicant could resort to. If such is the case, then this Court should not exercise the residual jurisdiction to hear and determine application for leave when alternative remedies are available to the Applicant and had not been accordingly exhausted by the Applicant.
33. Reference is made to the case of R. v Secretary of State for Home Department, ex-parte Swati [1986] 1 WLR 477, Sir John Donaldson M.R. stated at page 485

“....it is well established that in giving or refusing leave to apply for Judicial Review, accounts must be taken if alternative remedies available to the Applicant.”

34. No doubt, non-renewal of the contract in this case was cautiously exercised pursuant to the terms and conditions of the contract which clearly allowed the Respondent not to renew the Applicant’s contract pursuant to clause 3(b). The discretion to renew and not to renew the Applicant’s contract rested with the Respondent.
35. The Applicant’s alternative remedy lies within the special courts established under the Employment and Relations Act by pursuing a civil claim for breach of contract.
36. The Applicant has failed to exhaust the alternative remedy available to her in terms of her grievances.
37. Further, the Applicant held a senior position that of the Deputy Secretary within the Ministry and ought to have known and be familiar with the remedies available under Section 3 and 185 and Section 188(4) (page 19) of the Employment Relations Act 2007 which established special courts to deal with grievances arising out of employment to the Employment Relations Tribunal or Employment Relations Court pursuant to Part 13 and 20 of the Act.
    

No Arguable Case

38. Reference is made to the case of Kumar v. Judicial Services Commission & Anor. – Judicial Review No. 0038 of 2007 (21 December 2007); on Leave application arising out of non-renewal of an employment contract, the Court refused the Leave application to apply for Judicial Review.
39. The facts of the case in the current case before the Court also arises out of non-renewal of an employment contract
40. It can be ascertained from the Affidavit evidence before this Court that:-
    • (i) The decision to renew the Applicant’s contract was at the absolute discretion of the Respondents, in terms of clause 3(b) of the contract entered into by the Applicant;
    • (ii) Clause 3(b) further stated that the Applicant would be informed of whether the contract would be renewed one (1) month before prior to the expiry of the contract and on 6^th November 2019, the Respondent informed the Applicant that the contract would not be renewed pursuant to clause 3(b) of the contract.
    • (iii) The contract had a term commencing on 10^th July 2017 and coming to an end on 14^th December 2019.
41. The Respondent made an administrative decision not to renew the Applicant’s contract pursuant to Clause 3(b) of the contract.
42. The Permanent Secretary with the agreement of the Minister is the authority that determines all matters pertaining to employment of staff in the Ministry of Local Government, Housing and Environment including remuneration payable. Therefore, the Permanent Secretary was empowered and had acted within the ambits of his power to reach a decision not to renew the contract of the Applicant herein.
43. The Applicant has failed to plead and establish any facts that would show to Court that the Respondents:-
    • (i) Acted in excess of its powers;
    • (ii) Committed an error by law;
    • (iii) Committed a breach of natural justice;
    • (iv) Reached a decision which was reasonable Tribunal could have reached; and/or
    • (v) Abused its powers.
44. Taking above into consideration, I do not find that the Applicant has succeeded in establishing any arguable case before me.
45. The Applicant’s Leave application hinges on an administrative decision arising out of an employment contractual relationship between the Respondent and the Applicant which is found to be private in nature and does not involve a public law element.
46. Further, alternative Remedy as discussed hereinabove in my Decision was available to the Applicant and should have been exhausted first by the Applicant rather than seeking Leave to file a Judicial Review. It should be borne in mind that Leave to file a Judicial Review is a remedy of last resort.
47. For the aforesaid rationale, I have no alternative but to refuse the Applicant’s Leave application to file a Judicial Review accordingly.
    

Costs

48. The Application proceeded to a full hearing, together with oral and written submissions by parties. It is only appropriate that the Applicant pay the Respondent a sum of $650 as summarily assessed costs.
49. Following are the Orders of this Court:
    

Orders

(i) Leave to apply for Judicial Review fail and is accordingly refused.
(ii) The Applicant to pay the Respondent a sum of $650 as summarily assessed costs.

DATED at SUVA this 18th day of March, 2022.

VISHWA DATT SHARMA
JUDGE

cc. Nilesh Sharma Lawyers, Suva.
Office of the Attorney-General, Suva.