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State v Architects Registration Board, Ex parte Samarawera [1999] FJHC 140; Hbj0014j.1995s (22 June 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 14 OF 1995

STATE

V

THE ARCHITECTS REGISTRATION BOARD

Ex parte:

JAIMI SAMARAWERA

Mr. A. Gates for the Applicant
Mr. D. Singh for the Respondent

JUDGMENT

This is JAIMI SAMARAWERA'S ("Jaimi") application for judicial review of the decision of The Architects Registration Board (the "Board") made on 15 March 1995 finding 'misconduct' on his part and imposing a 'reprimand'.

On 27 October 1995 PAIN J (who has since left Fiji) granted leave to Jaimi pursuant to Or.53 r3 to apply for judicial review of the said decision.

This application although made on 16 June 1995 proceeded at tortoise pace. After leave, on 29 November 1995 an Order for Discovery was made; on 15 April 1997 Notice of Intention to Proceed was filed; on 26 May 1997 Jaimi filed an affidavit as to Record. Then on 24 September 1997 this file came to me for the first time to be dealt with. Certain orders were made for the filing of affidavits and affidavits in reply and adjourned for hearing on 11 November 1997. From then on the matter was adjourned from time to time on the application of Jaimi's counsel. Orders were made for the filing of written submissions but Mr. Gates did not comply with the order and I adjourned the matter for hearing in Open Court for 11 February 1999 and awarded costs against the applicant/Jaimi in the sum of $150. The hearing took place on 11 February 1999.

Background facts

The applicant is an architect registered in Fiji in 1980 under the Architects Act Cap. 258 (the 'Act').

The respondent is the 'Architects Registration Board' (the 'Board') established under the Act.

The respondent commenced an investigation into the Lautoka Market in 1994 when the applicant was requested to appear before it.

The applicant drew the respondent's attention to the 'need for notice and for disciplinary charges to be forwarded and served on him, if the Respondent was contemplating making any adverse comment on his professional conduct'. The respondent declined to do so and stated at its final hearing that no charges were to be laid against him.

There was a complaint by one Ken Low regarding the manner in which Jaimi charged for his services pertaining to Lautoka Market. Ken Low was heard by the Board and although Jaimi allowed the Board access to his files and papers in this matter, he kept inquiring what was all this inquiry about and where was it leading to as far as he was concerned. He did not receive any satisfactory reply. He wanted to defend himself if there was going to be any adverse comment on his conduct in relation to the Lautoka Market project. The applicant states that at the last hearing one of the Board members stated that there is no intention of prosecuting him for anything but then came the bombshell with the said decision.

The applicant alleged that he was neither put on notice nor was he given any charges. He was merely asked questions about the project when he was spoken to.

Then by letter dated 15 March 1995 the Board informed the applicant as follows 'reprimanding' him:

I refer to our meeting in your office on 28 February, 1995, and write to inform you that the Architects Registration Board has met to consider its findings in this investigation.

The Architects Registration Board at its meeting on Monday, 6 March, 1995, has decided that your misconduct is not sufficient to merit your deregistration - the only disciplinary measure legally open to us under the provisions of the Architects Act, Chapter 258.

However, do consider yourself reprimanded for the way in which you charged fees to Lautoka Town Council. Your behaviour brought approbation upon the profession from the general public in the press, the Lautoka City Council, and your fellow Architects and Consultants. We advise you not to let this happen again". (emphasis mine)

The applicant complains that there was 'no power for the respondent to conduct a general inquiry, roving in nature, into an architectural project, or to pronounce conduct or misconduct, or to issue an official reprimand, in the absence of specific disciplinary charges, laid against a registered architect'.

Grounds to impugn the decision

The applicant impugns the decision upon the following grounds.

(a) the respondent acted ultra vires its statutory powers in that there was no power of punishment to issue a reprimand.

(b) No rules of procedure pursuant to s 3(2) of the Act have been made, promulgated and gazetted informing Architects registered in Fiji of such rules. In the absence of such rules, natural justice was to be applied procedurally. The respondent failed to provide notice of its intention to consider de-registering the applicant for cause. The respondent also failed to have framed disciplinary charges served on the applicant in considering whether to de-register the applicant.

(c) the respondent acted ultra vires in purporting to hold a 'roving inquiry' into the Lautoka Market Project. It was empowered under the Act to consider applications for registration, de-registration, or removal of name from the register only.

(d) the proceedings were a nullity as in considering removal of name from the register, the respondent could have had framed disciplinary charges in accordance with s.7 (1)(a) to (e) of the Act.

The relief sought

The applicant seeks the following relief:

a) an order of certiorari

b) an Order of prohibition

c) an order of mandamus

d) an order for costs

The applicant has abandoned his claim for damages.

Determination of the issue

The hearing took place on 11 February 1999.

I have before me for my consideration Statement by the applicant filed pursuant to Or.53 r3(2) of the High Court Rules, affidavit of the applicant verifying the contents of the applicant's Statement, Affidavit of the applicant filed 27.5.97 'as to Record' and the affidavit of the respondent in Reply filed 30 October 1997.

At the hearing in Open Court both counsel made submissions on the issue before me.

In reply to the applicant's said Statement the respondent stated, inter alia, that record of proceedings before the Board was sent to the applicant and this he admits in paragraph 7 of his affidavit filed on 27 May 1997. Further that the hearing of 28 October 1995 was merely to 'clarify some of the issues contained in the records of the hearing. The Board having heard the applicant was, however, concerned for the manner with which the fees were charged to the Lautoka City Council, and as a consequence the applicant was duly "reprimanded", which in the Board's interpretation meant, 'the ARB "reproved" of the action and severely warrant "the applicant" not to repeat such action'. (item 6 of Respondent's affidavit). The affidavit further stated that "such reprimand or warning has been exercised by the ARB in the course of its administration of all conduct of the profession for many years, and the applicant being a former ARB member should have been fully aware of this procedure". (item 7 of affidavit).

The respondent further states in item 8 of the affidavit that "pursuant to section 3(2) and section 7(1) of the Architects Act and the Fiji Architects Registration Board Code of Practice and Professional Conduct, the Board had conducted due inquiry by carrying out an investigation to ascertain whether charges were to be laid or otherwise against the applicant".

Architects Act Cap. 258

On an application for judicial review the Court is concerned not as much with the merits of the decision as with the process by which the decision was reached. In REG v INLAND REVENUE COMMISSION, Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862, LORD TEMPLEMAN on this aspect said:

"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers".

In considering the matter with which the Board was concerned it was incumbent upon the Board to keep within the confines of the provisions of the Act. If it acted outside the powers vested in it then certainly it has acted ultra vires.

The applicant alleges that the actions of the Board were ultra vires.

To better understand its actions it is necessary to examine the powers vested in it under the Act.

The Act itself is a three page one which was first enacted in 1959 with amendments in 1966, 1969, 1974 and 1977. The preamble says that this is an Act to provide for the registration of architects in Fiji. There are no rules made under it nor any subsidiary legislation although there is provision to make them in s 3(2) which provides:

"(2) Subject to the provisions of this Act, the Board may regulate its own procedure and may frame rules for that purpose."

The next most relevant provision for the present purpose deals with 'Removal of names from register' and for ease of reference I state below what it provides:

7. - (1) If any person who has been duly registered under the provisions of this Act shall -

(a) be convicted of any felony or misdemeanour;

(b) be guilty of any act or conduct which in the opinion of the Board is infamous in any professional respect;

(c) be guilty of a breach of the code of professional conduct referred to in section 14;

(d) be disentitled to practise architecture in the United Kingdom or in any other country in which he was granted a recognized architectural qualification;

(e) cease to practice in Fiji or be absent from Fiji for a continuous period of at least three years,

the Board may after due inquiry order that the name of such person be removed from the register in which case the Registrar shall serve upon such person a notification of such removal.

(2) A person whose name has been removed from the register may apply for re-instatement and the Board, upon receipt of satisfactory evidence of proper reasons for his re-instatement, may approve such re-instatement.

Then the other very important section is s9 in regard to 'Appeals against decision of the Board' which provides:

9. Any person aggrieved -

(a) by the refusal of the Board to approve his application for registration; or

(b) by the removal of his name from the register; or

(c) by the refusal of the Board to approve re-instatement of his name in the register,

may, within three months of such refusal or removal, as the case may be, appeal to the Supreme Court.

Ultra vires the Act

In this case after inquiry about which I shall have more to say later in this judgment, the Board 'reprimanded' the applicant.

As is evident from the abovementioned provisions of the Act, the Board has certain limited powers. This fact is acknowledged by the Board when in its said letter conveying the decision it stated 'that your misconduct is not sufficient to merit your deregistration the only disciplinary measure legally open to us under the provisions of the Architects Act, Chapter 258'.

It is also my interpretation of the Act that the only power that the Board has is to 'remove' the name of a registered architect from the Register of Architects for reasons contained in s7 of the Act.

This view is fortified by s9 where there is provision for appeal in only certain circumstances. It does not include appeal in case of 'reprimand' if there was such a power. Had the legislature intended to allow appeal in such a case it would have done so specifically like it has in the three instances stated in s 9.

As empowered under s 3(2) the Board has not framed any rules under the Act to enable it to do what it has in this case on the question of imposing punishment on its members. The board could have made regulations such as are contained in the Public Service Commission (Constitution) Regulations 1990 where there is a 'punishment' regulation.

The Act is an old one with the last amendment being in 1977. Time is now ripe for further amendment governing the conduct of professional people like the architects along the lines in Legal Practitioners Act and Public Service Commission (Constitution) Regulations.

This decision was taken under the Act which does not contain the necessary power or duty, or contains precise limits on the circumstances in which power to 'reprimand' could be used, and the action or decision in question exceeds these limits. It is quite possible that the Board has made the decision based on a wrong interpretation of the law particularly in regard to the said provisions of the Act. In such a case, as Lord Denning M.R. in Pearlman v Governors of Harrow School [1978] EWCA Civ 5; [1979] Q.B. 56 stated:

"No court or tribunal has any jurisdiction to make an error on which the decision of the case depends. If it makes an error, it goes outside its jurisdiction....."

To conclude, therefore, on this ground, I hold that the Board acted ultra vires the powers invested upon it when it 'reprimanded' the applicant. Hence, on this ground alone the applicant succeeds in his application for judicial review.

Natural justice - obligation to afford procedural fairness

The applicant says that the manner in which the inquiry was conducted, which his counsel terms as a "roving inquiry", he was denied natural justice.

It is obvious from the evidence before me that there are no rules governing the procedure in relation to the inquiry that the respondent held under the Act.

In this case neither any charges were laid against the applicant nor was he made aware that he was being investigated against with the view to taking disciplinary action against him under the Act. Although he was present at the hearing it was not brought to his attention that he would be subjected to a penalty if he was found to be in the wrong but to the contrary the Board stated at its final meeting that no charges were to be laid.

This was a clear cut case of procedural impropriety which is a good ground for claiming relief by way of certiorari. In KANDA v GOVERNMENT OF MALAYA [1962] UKPC 2; [1962] A.C. 322 at 337 LORD DENNING M.R. observed that:

"The rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims; nemo judex in causa sua, and audi alteram partem. They have recently been put in the two words, impartiality and fairness. But they are separate concepts and are governed by separate considerations." (emphasis added)

It is this traditional formulation of natural justice or its modern counterpart "procedural impropriety" which is primarily related to the notion of a fair hearing.

There was an obligation on the part of the Board to afford procedural fairness in the inquiry for the person to be affected, namely, the applicant who should have had a fair and complete right to put his case. Accordingly the rules of natural justice applied to this inquiry.

Here the applicant's rights and interest have been affected. In such a case the following passage from the judgment of Mason J in KIOA v WEST 159 CLR at 582 is apt:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council (82); Salemi [No.2] (83); Ratu (84); Heatley v. Tasmanian Racing and Gaming Commission (85); F.A.I. Insurances Ltd v. Winneke (86); Annamunthodo v. Oilfields Workers' Trade Union (87). The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests." (emphasis mine)

Mason J goes on to say at 584:

"The law 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 statutory intention."

Procedural fairness requires, generally, that defendant is entitled to notice of allegations so that he has adequate opportunity of being heard but not the way it was done in this case. The right to notice implies the giving of sufficient detail of the opposing case to provide a fair opportunity to the applicant of preparing his own case. Thirdly a hearing must be fair and a party is entitled to present his case fully. There are often rules of procedure for tribunals inquiries and courts but in the absence thereof the procedure will largely depend on the nature of the adjudicating body in question. (Local Government Board v Arlidge [1915] A.C. 120 at 122, per Viscount Haldane L.C).

As I have already stated the Board could not have acted as it did on the interpretation that I have placed on the Act. The applicant should have been given a fair opportunity to present his case and contradict statements prejudicial to him. This he was denied altogether. A fair procedure should have been adopted in the interest of the applicant. His rights and interests have been affected. The applicant's attention should have been drawn to the critical issue or factor on which the administrative decision is likely to turn. Nothing of the kind took place in this case. This clearly was a denial of natural justice to which the applicant was entitled for as MASON C.J. and Deane and McHugh JJ said in Annetts v McCann (1990 170 C.L.R. 596 at 598:

"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...

The above passage has been adopted and applied in subsequent cases in the High Court of Australia; and in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992), 175 C.L.R. 564 at 578 it has been reiterated by Mason C.J., Dawson, Toohey and Gaudron JJ that:

"It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice".

I might at this stage mention that it should not be taken for granted that every decision requires the decision-maker to afford procedural fairness for this was an inquiry which can only be answered by looking at the whole of the Act in question as Mason C.J. Dawson, Toohey and Gaundron JJ Ainsworth (supra) at 576 said:

"Obviously, not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness".

It is the Court's view that this was a case in which the principles of natural justice should have been applied and in this regard I apply the following passage from the judgment of Ormiston, Coldrey and O'Bryan JJ in Cornall v A.B. (A Solicitor) [1995] VICSC 7; [1995] 1 V.R. 372 at 395 Sup.Ct.

"On the other hand, as was said by the High Court in the passage immediately following that sentence, it does not follow that, because a body is engaged in an exercise which may be characterised as an inquiry or investigation, there is no duty to ensure procedural fairness. What is decisive is "the nature of the power, not the character of the proceeding which attends its exercise": ibid. Thus Ainsworth's case confirms that it is not appropriate merely to characterise a particular process of decision-making as investigative without enquiring as to the consequences of that investigation."

If it is intended to exclude the rules of natural justice it "must be clearly evident in the express words of a statute. Such an intention cannot be gleaned from "indirect references, uncertain inferences or equivocal consideration". [Commissioner of Police v Tanos [1958] HCA 6; (1958), 98 C.L.R. 383 at 396]. There was no exclusion of natural justice in the Act.

In the result I find that a breach of the rules of natural justice occurred in regard to the making of the decision.

I conclude with the following passage from the judgment of the Supreme Court of Fiji in The Permanent Secretary for Public Service Commission and the Permanent Secretary for Education, Women and Culture v Lepani Matea (Civ. App. No. CVB0009 of 1998S) on the application of principles of natural justice in a case of the nature such as this:

"There are numerous authorities establishing, at common law, that where someone's livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v Borneman [1971] A.C. 298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and the additional steps would not frustrate the apparent purpose of the legislation."

The Supreme Court went on to state that "the general presumption of a common law right to a hearing is, however, so well established that we need not labour it".

In the outcome, for the above reasons, on normal principles of judicial review the said decision should not stand as it was unlawful and arbitrary. I would, therefore, quash it. It means that the Board has never made a proper decision upon the alleged complaint.

The form of relief to be granted on an application for judicial review is always in the Court's discretion and in the exercise of that discretion I order that certiorari go to quash the decision of the Board made on 15 March 1995 to reprimand the Applicant. The dilatory manner in which the applicant pursued this action was a cause for concern and in the whole of the circumstances of this case each party is ordered to bear his own costs.

D. Pathik
Judge

At Suva
22 June 1999

HBJ0014J.95S