Fiji Law Reports

“urisdiction tion extends to questions in issue in pending proceedings: cf Forster v Jododex Aty Ltty Ltd[19">[1972] HCA 61; [1972] HCA 61; (1972) 127 CLR 421, per Gibbs J at 438. The existence of this juriion, which antedated the ADJR Act, suggests that the conceponcept of a reviewable decision islimited to a final decl decision disposing of the controversy between the parties”. (underlining mine for emphasis)

He goes on to sap.23:

“..... a reviewable “dec0;decision” is one for which provision is made by or under a statute. Thal generally, but not always, entail a decision which is final or operative and determinativnative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accordingly be described as a decision under an enactment”.

bove-quoted passage by e by Mr. Baiju from Mason CJ’s judgment has no application and relevance to the facts and circumstances of this case as I am not concerned with any statutory provisions here.

That the dec in the case case before me is reviewable, is wholly supported by the said New Zealand Court of Appeal decision in Birss#160;a).
<160;
I therefore rejr. Mr. Baiju’s argument that the interdictrdiction was merely a ‘step along th’ and is not final and therefore not reviewable at this stage, that is, it is prematuemature, has no merit whatsoever. What more finality one needs, if one is needed, than for the Commission to interdict without pay. The applicant is doomed for ever and I cannot possibly imagine him ever being reinstated with this kind of decision based presumably on the fact that he fell in love with a student and allegedly defiled her from which he has, subsequent to interdiction, been acquitted by the Nausori Magistrates’ Court.

For thessons I find thad that there are no merits in the grounds of opposition advanced by the learned counsel for the Respondents to enable me to refuse leave.


I do not want to ghe imhe impression that I am dealing with the substantive issue in this application for leave, but I cannot avoid touching becaf what has been seen said in (supra) in a sn a similar situation involvinolving suspension which, on appeal, was held to be invalid.

I have alretated above bove the circumstances leading to the interdiction. The point to note is that ron the heels, to wit, the nthe next day, after serving the disciplinary charge, the memorandum interdicting is handed to the applicant by the first Respondent.
Birs (supra), in apin appropriate cases, “rules of natural justice and fairness prima facie applied to suspension from of#160;without salary” (underlining mine for emphasis). In fact, in my view the the principles involved on the issue before me is to be found in this case. In view of what I propose to say, in the light of BirssBirss, I state bele the headnote to thao that case to complete the picture. The headnote reads:

&#822 appellant wast was a senior probation officer employed by the Department of Justice. In May 1982 he was notified by the Secretar Justice of various charges which had been made against him under s 58 of the State Servicervices Act 1962. Nineteen months later without any immediate prior notice the appellant received a notice from the Secretary for Justice directing that he was to be suspended from duty with effect from the date of receipt of the notice. The suspension was with pay until the expiry of the appellant’s period of annual leave and then to be without pay. The appellant sought judicial review of the Secretary for Justice’s decision. In the High Court his application for review was dismissed and he appealed.

Held: The State Sesvices Act contained no provisions which specified the procedure to be observed in reaching a decision to suspend. In thence y clear expresxpression of a contrary legislative intent, the rules of natural justicestice and fairness prima facie applied to nsion from office without salary. What natural justice required in a particular case muse must be determined in the light of the facts of that case. It did not necessarily follow that notice and an opportunity to be heard must be given in every case where suspension was in contemplation. The nature of the charge and the exigencies of the moment might perhaps call for immediate action. But, in this case, having worked for 19 months after the charges had first been made against him, the appellant was entitled to notice that suspension was under consideration. He should also have been given an opportunity to submit arguments against the contemplated suspension. The Secretary of Justice, as a senior officer entrusted with the power of suspension, must be prepared to consider and weigh carefully arguments which the officer at risk might raise against the exercise of the power. The appeal was allowed and the suspension of the appellant was declared invalid (see p 517 line 34, p 522 line 37, p 523 line 22).” (underlining mine for emphasis)

The rationale of the iocision in Birss isvant here. Whereas in&#16n BirssBirss;at p.517) call called for immediate action. That can only be decided on the hearing of the application for judicial review after the granting of leave herein.<160;
Regulation 41 governs the institution and consideraideration of disciplinary charges, but the provisions governing interdiction are short. Talking of suspension and natural justice, Richardson J in Birss at p.516 said:

“In this ca i it is suspension, not dismissal, which is at stake. How should it be characterised in the statutory context? In Vaillrt v ing [160;[1927] Exch CR 21, detAudette J observed: “What does suspensioension mean, if not suspension of work whirries with it suspension of the right to wages?... Does not this amount to dismissal?”#8221; And more recently in John v Rees#160;[1970] C70] Ch 345, 397 Megarry J expressed the same view: “...suspension is merely expulsion pro tanto. Each is penad each deprives the member concerned of the enjoyment of his rights of membership or officeffice.” While the equating of suspension and dismissal may be debated the observations serve to emphasise two important features that suspension and dismissal have in common: in each case the officer is deprived of his entitlement to perform his duties in the Public Service so long as the suspension or dismissal stands; and in each case (where suspension is without salary) the officer is deprived of his entitlement to salary until the charges against him are determined. In those major respects a decision to suspend without salary inevitably and adversely affects the rights and reasonable expectations of a permanent officer of the Public Service.”

Tht that Reg. 42 is cous couched as it is, does not exclude or modify the rules of natural justice and it is so stated by Richardsin Birss at p.517 thus:

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“On the general issue inin Dixon v Cwealth [1981] FCA 77; (1d">[1981] FCA 77; (1918) 55 FLR 34, 44, the Federal Cof Australia (Bowen CJ, Deane and Kelly JJ) took the view that the fact that the relevant sant statutory power is in the form of a power to suspend pending inquiry does not import any general exclusion or modification of the rules of natural justice which are prima facie applicable to a statutory power adversely to affect the rights, property or legitimate expectations of another. Like the State Services Act 1962, the Act there contained no provisions specifying the procedure to be observed in reaching a decision to suspend. Having regard to the adverse effects on the officer - loss of entitlement to perform his duties and of salary - and to the likelihood that it would have profound emotional, social and financial effects on him, in the absence of any clear legislative intent to the contrary the rules were applicable in respect of that decision.”

For these reasons, it eems that in the absence of any clear expression in Regulation 42, the rules of natural justice and fairness apply to interdictrom teaching without salary. I cannot see how the applicant can be deprived of the opportunortunity to challenge the quality of the decision in this case under Order 53. The locus classicus on this aspect of judicial review is the judgment of Lord Greene M.R. in Associated Provincial recture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 22at case inve involved the question of exercise of discretion and the Master of Rolls stated the criteria affecting decision thus: