| Fiji Islands - In re Talawadua - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW
ACTION NO. HBJ0026 OF 1998
of an application by P.C. 1457 SEMI TALAWADUA
former Police Officer for leave to apply for Judicial Review
under Order 5the High Court Rules.
AND IN THE MATE MATTER
of the Decision of the COMMISSIONER OF POLICE
made on the 23rd day of September 1998.
AND IN THE MATTER
of the Public Service Act, Cap. 74 and the Public Service Commission
(Constitution) Regulations 1990 and/or the Police Act, Cap. 85.
BETWEEN:
P.C. 1457 SEMI TALAWADUA
of Valelevu Police Compound,
Nasinu, Police Officer
Applicant
AND:
THE COMMISSIONER OF POLICE
AND ATTORNEY-GENERAL OF FIJI
Respondents
A. Singh for the Aanlicant
K.T. Keteca for the Respondents
Dates of Hearing and Submissions: 11th December 1998,
8th January 1999
Date of Ruling: 18th June 1999
RULING
I have given considerable thought to this application for leave to apply for Judicial Review of the Decision of the Commissioner of
Police made on the 23rd of September 1998 dismissing the Applicant from the Police Force on that day. The application is opposed.
In or about August 1980 the Applicant joined the Fiji Police Force as a Police Officer and since then according to the affidavits
that have been filed by the Commissioner opposing his application and which are not denied by the Applicant he has had a very undistinguished
career in the Force consisting of:
(a) 15 previous convictions for disciplinary offences;
(b) constant counselling by superiors for improvement in his work and attitude with no effect;
(c) charged for assault occasioning actual bodily harm on the 25th of November 1996. The Applicant reconciled with the assault victim
and proceedings were terminated on 15th January 1997;
(d) a personal address to the Applicant by the Commissioner about improving his conduct on 17th January 1997;
(e) receiving a final warning from the Commissioner of Police on the 29th of January 1997;
(f) charged with assault occasioning actual bodily harm to his wife on 2nd September 1997, this charge being withdrawn by the Director
of Public Prosecutions Office upon reconciliation between the Applicant and his wife. The Applicant was acquitted on 2nd September
1998.
In 1994 the Applicant was counselled by the Fiji Police Assistant Chaplain on persistent indiscipline and frequent domestic problems
with no subsequent improvement in the Applicant's conduct.
The Applicant received his Notice of Dismissal in a hand-written message addressed to the Divisional Police Commander advising that
the Applicant had been dismissed from the Force as from that day. The note stated that a memorandum would follow but this was not
received by the Applicant until the 12th of November 1998. He was informed by the Assistant Commissioner/Administration that the
Commissioner had discharged him from the Force under Section 14(1)(c) of the Police Act for ceasing to become an efficient Police Officer.
The Applicant complains that he was never informed of the reasons for his dismissal or given any hearing or right to explain or show
cause why he should not be dismissed from the Police Force and that on his last appearance in Court the Magistrate acquitted him.
He complains that he should have been given an opportunity to explain to the Commissioner the circumstances of this last incident
and was denied that opportunity. Consequently he wishes to argue that the decision to dismiss him should be quashed and he seeks
an order of Mandamus directing the Respondents to reinstate him to his substantive former position as a Police Officer.
The Respondents concede that the Applicant is entitled to natural justice but say that he has received this in abundance in the forms
of counselling (both professional and spiritual) and a clear warning by the Commissioner. The Respondents further submit that the
Applicant has no legitimate expectation to be heard and to make representations as he has put himself so far outside the limits of
tolerable conduct as to disentitle him to expect that any further representations on his part could have any influence or relevance.
All these combine, according to the Respondents, to show that the Applicant has no arguable case and leave for Judicial Review should
be refused.
I do not propose to discuss the many cases coming before this Court and the Courts of other jurisdictions on this perpetually recurring
question of whether a particular Applicant has been denied natural justice. Summarised the cases say that where an Applicant's livelihood
has been affected or is likely to be affected by being denied a right to be heard the Courts will intervene. Many of these cases
are listed in the submissions I have received by the parties concluding with the most recent one the Supreme Court judgment in Civil
Appeal No. CBV 0009 of 1998S The Permanent Secretary for Public Service Commission v. Lepani Matea - unreported judgment of 10th March 1999.
In De Smith, Woolf and Jowell of Administrative Action Fifth Edition 1995 at paragraph 10-035 the authors state:
"But on the whole judges have declined to commit themselves unequivocally to the proposition that intervention will never be
withheld when they are satisfied that no amount of procedural propriety would have affected the outcome."
I have no doubt that the Applicant must have been well aware from his record that sooner or later the patience of his superiors and
the Commissioner would be exhausted. His record shows that he has been consistently a nuisance and bad example to his fellow officers.
He has received numerous reprimands and fines and was reduced to the rank of Constable in 1992. There can also be no doubt that the
warning made by the Commissioner was in the clearest terms and includes this statement:
"It is therefore my fervent hope that you will take heed of this advice and change your attitude accordingly for your own good."
All that said, I am left with a nagging doubt about the fairness of the Applicant's dismissal on the 23rd of September 1998. In my
judgment it is arguable that the Applicant should have been given perhaps one last opportunity to explain the circumstances of the
charge leading to his last Court appearance. Perhaps he can say nothing more but at least I think he should have been given the opportunity
to give an explanation which he was denied. I therefore propose to given him leave to apply for Judicial Review basically because
he was not convicted of any criminal offence. In this respect his case is different from that of the six car-hire drivers who eventually
lost their licences after scores of convictions for offences connected with their practice at London's Heathrow Airport - Cinnamond v. British Airports Authority (1980) 1 WLR 582.
I accordingly grant leave to the Applicant to apply for Judicial Review. Judging from the helpful submissions I have received from
both sides I doubt whether much more can be said on the substantive Motion which the Applicant will now have liberty to file. When
a hearing date is fixed for this Motion I will discuss this question with the parties. Meanwhile until the final determination of
this matter I direct that this grant of leave shall operate as a stay of proceedings to which the application relates.
JOHN E. BYRNE
JUDGE
Cases referred to in Ruling:
Cinnamond v. British Airports Authority (1980) 1 WLR 582.
Civil Appeal No. CBV 0009 of 1998S The Permanent Secretary for Public Service Commission v. Lepani Matea - unreported judgment of Supreme Court of 10th March 1999.
Hb0026d.98s
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