| Fiji Islands - The State v The Secretary of the Public Service Commission, Ex parte Rabuka - Pacific Law Materials |
HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW NO. HBJ 6 OF 2000S
THE STATE
v.
THE SECRETARY OF THE PUBLIC SERVICE COMMISSION
THE PERMANENT SECRETARY FOR FOREIGN AFFAIRS
THE PERMANENT REPRESENTATIVE OF FIJI TO THE UNITED NATIONS
THE ATTORNEY-GENERAL
ex parte
SAKIUSA RABUKA
K. Vuetaki for the Applicant
S. Chandra for Respondents
DECISION
THE applicant is Counsellor and deputy representative of Fiji to the United Nations in New York. He seeks leave to move for Judicial
Review of a decision of the Permanent Secretary for Foreign Affairs that he return to Fiji on 27 January 2000. He also seeks a stay
of the decision.
The proceedings were commenced on 20 January and the Attorney-General’s Chambers were served with the papers on the following day
at 3.25 p.m. Notwithstanding service there was no appearance by the State on 25 January at 9.30 a.m., the return date for the application.
It was not until 12.25 p.m. that Mr. S. Chandra appeared on behalf of the State. He had no papers and was not aware that the
matter had been called at 9.30. It is quite obvious from a perusal of the papers that this is an urgent application and the failure
of the Attorney-General’s Chambers to appear on the return date is not appreciated; Mr. Vuetaki was obliged to return to Suva from
27 January and the Court was obliged to defer pending work in order to hear this application.
The hearing of the application I was much assisted by careful and comprehensive written submissions filed by Mr. Vuetaki and by concise
and careful submissions by Mr. Chandra.
Due to the nature of the stay claimed I am delivering this brief decision now.
In my view some elements of the Applicant’s claim may well give rise to issues of public law and accordingly I will grant leave
to him to move for judicial review.
In my opinion transfer matters are essentially administrative and I believe that it would be wrong for the Court, absent manifest
error, to over-rule such decisions by Heads of Department, without a full hearing. I do not think that the Applicants financial
entitlements will in fact be lost if it is eventually shown that he should have been allowed to remain in the USA for the period
which he is claiming. The questions of his leave entitlement and his children’s education are questions which in my view the Applicant
should have resolved long before he raised them almost at the end of the term of his posting. No explanation has been offered for
his failure to take his leave prior to the end of his tour. In all the circumstances I do not think that a stay of the decision
that the Applicant must return to Fiji on 27 January 2000 would be justified.
Leave granted but stay refused.
M.D. Scott
Judge
27 January 00.
HBJ0006.00
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