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IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW NO. HBJ29 OF 1997S
Re: RUSSILIMAIBAU
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T. Fa for the Applicant
Miss N. Basawaiya for the Respondent
ass=MsoNormal align=center nter style=text-align:center>DECISION
This is an application for leave to move for Judicial Review of a decision of the Commissioner of Prisons, communicated on 31 July
1997, not to re-engage the Applicant as a prison officer following the expiry of his contract of employment on 26 May 1995.
The relevant facts are not in issue and the only affidavit is that filed by the Applicant on 12 September 1997.
By coincidence, a Judgment allowing an appeal by the Director of Public Prosecutions against a sentence imposed on the Applicant by
the Suva Magistrates Court on 6 May 1997 (Criminal Appeal HAA 0055 of 1997) was delivered on 29 October, the day before I heard argument
on this application.
The Applicant joined the Prison Service in 1980. His contract was for five years. In 1985 he was re-engaged for a further period of
five years and in 1990 he was re-engaged for a second time for a further period of five years expiring on 26 May 1995.
In 1992 the Applicant was charged with a number of offences of larceny by servant. These charges, involving a total amount of over
$9,000 arose from a period in 1991 and 1992 when he was officer in charge of certain cemeteries.
In May 1997 the criminal charges were finally disposed of following a guilty plea by the Applicant and the imposition of a conditional
discharge. On appeal by the DPP the conditional discharge was set aside and in its place a fine of $5193.20 was in imposed in default
of payment 6 months imprisonment.
After the Applicant was charged he was interdicted on ¾ pay. He continued to receive this pay until about 25 June 1997 when he was
advised that his contract of employment had lapsed on 26 May 1995 and that therefore payment of his salary would cease forthwith.
Put shortly the Applicant’s case is that by continuing to pay him after 26 May 1995 the Commissioner of Prisons had by implication
renewed his contract of employment. Mr. Fa pointed out that no recommendation against his re-engagement had been made as required
by Standing Order 22 of the Prisons Standing Orders. He submitted that Section 12 of the Act could no longer assist the Commissioner
and that the only way in which the Commissioner could now terminate the Applicant’s employment was by acting under the provisions
of Section 36.
Opposing the granting of leave Miss Basawaiya conceded both the public law element of the Applicant’s complaint and his locus to bring
it. She submitted however that the Applicant’s case was simply unarguable. She suggested that the Applicant had in fact benefitted
by the prolongation of the criminal proceedings against him and that he was unable to show that he had suffered any detriment. She
described the application as futile and invited me to refuse leave.
As I see it this is yet another example of all too prevalent administrative inefficiency giving rise to a general muddle and sense
of grievance. I am also satisfied however that far from the facts affording the Applicant any cause of action he has been, as suggested
by Miss Basawaiya, a net beneficiary of the failure by the Prisons Department to follow its own rules and regulations.
Under Order 20 of the Service Standing orders the Applicant was required by no later than 26 February 1995 to apply for re-engagement
following the expiry of his contract the following May. He did not do so which is probably why no recommendation was made under the
provisions of Standing Order 22. Ignoring the fact that his contract had expired the Prisons Department continued to pay him his
salary for over 2 years until June 1997.
I know of no authority for the proposition that the payment of salary by mistake estops the payer from asserting that a fixed term
contract had expired by the effluxion of time. Even if it could be argued that each payment of salary had the effect of extending
the period of the contract it could not, in my view, sensibly be argued that these payments, either singly or together amounted to
a renewal of the contract for a further full term of five years. Apart from anything else the Applicant did not obtain medical clearance
in May 1995 as was required as a pre-condition for re-appointment by regulation 3 of the Prisons Service Regulations.
In my view neither section 12 nor section 36 has any direct relevance to this matter and the charging of the Applicant and his interdiction
and the subsequent criminal proceedings only led to confusion in what was really quite a simple situation. The Applicant’s contract
expired at the end of its term in May 1995. He did not apply to renew and was not re-appointed. He continued to be paid in error.
He performed no duties because he had been interdicted. In my opinion the Applicant has in law nothing to complain of. In effect
he is seeking an Order that the Prisons Department employ him, a convicted criminal, for a further three years or until such time
as the Commissioner moves to dismiss him under the provisions of section 36. In my view the Applicant’s case is quite unarguable
and accordingly the application for leave is refused and dismissed.
M.D. Scott
Judge
5 November 1997
Hbj0029d.97s
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