Fiji Law Reports

“Excepotherwiherwise provided in this Part, an officer on first atment to the Public Service shall be required to serve on probation for a period of one yeae year:

Provided always the Commission may at any tiny time in writing, confirm or annul the appointment to the Public Service of a probationer.”
&#1r>On 5th April 1997 the applicant through his solicitor, advised the Commission that contraontrary to the reason ascribed: “... (he) was (conditionally) discharged without conviction ...” and the letter demanded his immediate reinstatement.

On 11th June 1997 after seeking legal advice, the Commission advised the applicant that “... (its) decision to annul (the applicant’s) appointment is in order and therefore stands”.

Four monthsr on 21st Ocst October 1997 the present application for leave to issue judicial review was filed based upon the following two grounds :

(1)ټ&##160;< The reason relpon by the Pthe Pthe PSC to annul the applicant’s appointment was erroneous in fact a law since the Magistrate’s Court did not enter a conviction against the Applicant bunt but it discharged him without conviction on the condition that he did not reoffend within 12 months from the day of sentencing. As the applicant did not reoffend within 12 months of the date of sentencing, the Applicant’s discharge had been confirmed.

(2)
h0; Tar chof larceny by y by servant arose from circumstances under which the Applicant was instructed by his superiorcarrydutiech helericficernot authoauthorised to perform by the Finance RegulRegulationations.s.”<221;
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If I may say it is culticult to imagine a more technical and unmeritorious ground than that advanced in (1) above, based as it is, upon a strict legalistic analysis of what occurred in the Magistrates’ Court criminal proceedings and predicated on the legal technical meaning of the word ‘conviction’. As for ground (2) above, I have no hesitation in saying that nothing therein raises a sufficient basis for judicial review.

State Counsel op the grhe grant of leave on two grounds :

1. &##160; < That there has bn inardinardinate delay in bringins application to Court ... ; and

2.&#12. ـټ < That the appliwas never deer denituralice ance the decision sion of thof the Come Commission is not unreasonable.

In light of the State’s grounds for opposing leave, the applicawas l for ent before more me on e on 5th N5th November 1997 and Notice of Opposition was ordered to be served on the applicant’s solicitors onefore 24.10.97. This was doas done.

Despite the ten cleas gays given to the applicant, no affidavit explaining the inordinate delay was filed nor was any attempt made to amend or add to the two grounds already advanced in the application for leave sue judicial review.
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Not isingly, State Coun Counsel opposes both oral applications which would have further prolonged the delay, and more so, of an application, which counsel submits, omed to failure.

At the usion of the heae hear hearing I refused counsel’s oral application to file an affidavit explaining the delay.

Thectness with which thch the Courts approach time-limits in judicial review proceedings was recently reaffirmed in R. v. Institf Chartered ered Accountants in England and Wales ex-parte Andreou (1996) 8 Adim L.R. 557 (llese leaf) where the Court of Appeal (U.K.) in refusing leave to appeal against a refusal to extend time to begin judicial revieceedings :

&#822Held: (1)& (1) &ـ#160; The purpose e pthcedure gore governing applications for judicial review is to provide a simplified and expeditious means of resolving disputes in the field olic lr>&#1p>

(2) < Tuis purs pe pose wosld beld be frustrated if the relatively leisurely and casual approach to time-limits which characterises civil litigation in the field of private law were to be adopted in the field of public law.

(3) ;d҈ T60; Therefoerefore, notwithstanding that the error had been entirely that of the applicant’s lawyers (the ) had righdismiss the application.”

(See also : per Sir Thomashomas Bing Bingham Mham M.R. in Regal Bourne Ltd. v. East Lindsay District Council (199Admin Law Rep. 102)
)

In this regard Order 5 r.4 of the High Court Rules provides :

4.- &##160; < (1) Subject to the prons oons of this rule, where in any the Court considers that there has been undue delay in makn making an application for judicial review or, in a case to which paragraph (2) app the catio leave underunder rule rule 3 is 3 is made after the relevant period has expired, the Court may refuse to grant -

(a) lear the makingaking of the application, or

(b) any relought onht on the application,

if, in the on of the Court, the granting of the relief sought would be likely to cause substantial harl hardship to, or substantially prejudice ightsny person, or wour would be detrimental to good administration.

(2) &#2) & ; I60; In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purof qug it,releveriodthe purpose of para paragraphgraph (1) is three months after the date oate of thef the proc proceeding.”

It is cleom the chronolronology of events traced earlier and considering relief (b) sought by the applicant, that “... there has bedue delay in making (the) application for judicial review ...”

In <160;R. ratftrd-on-Avon Avon DC ex-parte Jackson [1985] 1 W.L.R. 1319, AcL.Jr L.J. said of the meaning of ‘undue delay’ in the context of the U.K. alentrder 53 r.4, at p.1325 :

0;8220;... w... we . we have concluded that whenever there is a failure to act promptly or within three months there is undue delay (and) even though the Court may be satisfied ... that there is good reason for that failure nevertheless the delay, viewed objectively, remains `undue delay’. The Court therefore retains a discretion to refuse to grant leave ...”

A ori when no reason oron or excuse has been given or advanced by way of explanation for the undue delay.

I turn next to cer coun counsel’s oral application to amend the grounds upon which the application is based and which counsel submits raises an important and simple issue of law, namely, whether a probationer in the Public Service is entitled to be heard before his probationary appointment is annulled by the PSC?

Order 5(4) gives a disc discretion to the Court hearing an application for leave to allow the applicant to amend or add to the grounds specified in the Statement filedupport of the application “... on such terms, if any, any, as it thinks fit”. Clearly amendment of the grounds for judicial review is not a matter of right.

In my view in cering whng whether or not to exercise its discretion to allow an amendment under the above sub-rule, the Court is obliged, amongst other factors, to consider the following :

(60;&##160; < #160; e; Thure of the amendmeendment sought ;

(2) ;& Whethen or het the amendmeendment would or should have been obvious to the applicant or h or his professional advisors at the time of commencing toceed
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(4) ;d҈< W60; Whether or not tendmeendment, if granted, will entail the filing of additional or supplementary affidavit(s) ; and