| Fiji Islands - Reddy v Public Service Appeal Board - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW
JUDICIAL REVIEW NO: HBJ 40 OF 1999
BETWEEN:
MUNSAMY REDDY
Applicant
AND:
PUBLIC SERVICE APPEAL BOARD
1st Respondent
AND:
MINISTRY OF HEALTH
2nd Respondent
AND:
ELINA RAIWALUI
3rd Respondent
COUNSEL: Mr M. Reddy in person
Mr E. Walker for 1st and 2nd Respondents
Hearing: 19th January 2000
Ruling: 28th January 2000
DECISION
On 3rd December 1999, I granted leave to the Applicant to apply for judicial review of a decision made by the Public Service Appeal Board
refusing his appeal against the appointment of Elina Raiwalui as executive officer at the St. Giles Hospital. The matter was adjourned
for mention to set a hearing date on 13th January 2000. On that day, the Applicant made an application to allow Mr Suresh Charan to appear with him as his friend to assist
him in his submissions.
This is my decision on that application. Mr Suresh Charan was formerly the second Applicant. However, I ruled at leave stage, that
he had no standing, and refused him leave to apply for judicial review. The Applicant Munsamy Reddy applies to have Mr Charan present
in Chambers to assist him. In his written submission he states that he is only a senior clerical officer, that he cannot afford
a lawyer, that Mr Charan is well-versed in legal matters (having appeared in the Supreme Court) and that Mr Charan would simply appear
to quietly advise Mr Reddy on the conduct of the case. He cited the case of R v. Leicester City of Justices ex parte Barrow (1991) 3 WLR 368 in support of his application.
Mr E. Walker for the Respondents left the matter to the discretion of the court. However he stated that he would object if Mr Charan
made submissions on Mr Reddy’s behalf.
Mr Reddy, in his oral application said that Mr Charan would be making oral submissions on Mr Reddy’s behalf, if the court granted
this application.
There is no doubt that the court has a discretion to allow unrepresented litigants to be accompanied by a “friend.” In R v. Leicester City Justices and another ex parte Barrow and Another (supra) the appellants had appeared before justices on summons issued by the local authority for liability orders for non-payment
of community orders. The appellants applied, through a solicitor to allow a friend to sit with them to give advice and assistance.
The justices refused the application.
In proceedings for judicial review the appellants challenged this decision. The Divisional Court held that there was no right to
a friend. On appeal, the Court of Appeal held that fairness dictated that the appellants should have been afforded all reasonable
facilities to enable him to exercise his right of audience and that the justices should have allowed the application in the interests
of fairness.
This application is not an application for representation. It is an application to allow a person to attend as a friend, to take
notes and to give advice. It is an application about the right to be heard.
In McKenzie v. McKenzie (1970) 3 WLR 472 Sachs LJ said:
“It is .... in the public interest that litigants should be seen to have all available aid in conducting cases in court surroundings,
which must of their nature to then seem both difficult and strange.”
In R v. Leicester JJ (supra) Lord Donaldson referred to an unreported decision of the Court of Appeal, In re G (A Minor) (unreported 10 July 1991), in which a judge, sitting in chambers refused to allow a party to be assisted by a solicitor who was not
on the record. Lord Donaldson said:
“Who, other than a party to the proceedings, his solicitor on the record or counsel, shall be permitted to attend proceedings in chambers
is always a matter for the discretion of the judge ... and this court ... declined to interfere with that discretionary decision.
Being a chambers matter, this decision does not assist.”
Lord Donaldson went on to say that all courts are open to the public, and that a party to the proceedings has a right to present his
own case in any way he thinks appropriate. Therefore, the right to a “friend” is specifically a right which may be exercised without
leave in open court.
In Chambers however no such right exists. The judge in chambers has a discretion to allow persons other than parties to the proceedings,
to attend hearings.
This judicial review application has been conducted in chambers. The substantive hearing will be conducted on the basis of affidavits
and written submissions.
In all the circumstances I see no reason to depart from the normal procedure of allowing only parties to attend with counsel. Mr
Walker for the Respondents has agreed that submissions may be in writing. Mr Reddy will then be able to seek all assistance he requires
from Mr Charan or anyone else, in the preparation of those submissions. If at a later stage there arises a need for oral submissions,
Mr Reddy may renew his application.
This application to allow Mr Charan to appear with Mr Reddy in chambers to assist him, is therefore refused.
Nazhat Shameem
JUDGE
At Suva
28th January 2000
HBJ0040X.99S
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