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Matea v Permanent Secretary for Education and Technology [2001] FJHC 256; HBC145.2001 (27 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 145 OF 2001

BETWEEN:

LEPANI MATEA
Plaintiff

AND

THE PERMANENT SECRETARY FOR
EDUCATION AND TECHNOLOGY
1st Defendant

THE SECRETARY FOR THE PUBLIC SERVICE
COMMISSION AND ANOTHER
2nd Defendants

I.V. Tuberi for the Plaintiff
L. Daunivalu for the Defendants

Dates of Hearing: 25th June, 16th July 2001
Date of Judgment: 27th November 2001

JUDGMENT

By Originating Summons issued on the 9th of April 2001 the Plaintiff who is a School Teacher seeks first a Declaration that he has the required qualification to be appointed the Head Teacher ED5E at Waiqanake District School and second an Order that the Plaintiff be appointed a Head Teacher ED5E at Waiqanake District School or any vacant ED5E school in Fiji.

In an affidavit in support of the Summons the Plaintiff states that he entered the Public Service in 1979 and has been teaching since in various schools in Fiji. He was transferred from Bishop Kempthorne Memorial School in early 1997 to Waiqanake District School as Acting Head Teacher on TE07. His acting appointment was subsequently extended for the years 1998 and 1999.

While Acting Head Teacher at Waiqanake District School he answered an advertisement in the Fiji Public Service Official Circular No. 6-99 dated the 31st of March 1999 for appointment as Head Teacher at Waiqanake District School. He states that he had the necessary qualifications for appointment as Head Teacher there.

On the 17th of September 1999 the Plaintiff says he was verbally informed by Mika Rokosova, Senior Education Officer, Primary (Headquarters) that his application for the post of Head Teacher was unsuccessful because the Plaintiff was unqualified.

On the 12th of June 2001 the Defendants issued a Summons to strike out the Plaintiff’s Originating Summons on the grounds that it discloses no reasonable course of action and is an abuse of process. The application is made under Order 18 Rule 18 (1) (a) and (d) of the High Court Rules 1988. The basis of the Defendants’ application is that the Plaintiff has chosen the wrong form of action. They say that because the Plaintiff is a civil servant his rights and duties are governed by the Public Service Act and Regulations thereunder and that consequently he should have proceeded by way of Judicial Review and not Originating Summons.

The Defendants rely on the House of Lords decision in O’Reilly v. Mackman [1983] UKHL 1; (1983) 2 AC 237 which is probably one of the most controversial decisions of the House of Lords given in the last 20 years, at least in Administrative Law.

The judgment of the House was delivered by Lord Diplock whose speech is described by Professor Wade and his Co-Author of the Seventh Edition of Administrative Law C.F. Forsyth at p. 683 as:

“An outstanding feat of analysis and synthesis, ranging widely over the landmarks of administrative law.”

The Plaintiffs were four inmates of Hull Prison, who sued (three by Writ and one by Originating Summons) for declarations that the visitors’ awards were void for breach of the Prison rules and for violation of natural justice. They chose the ordinary forms of action because they expected substantial disputes on questions of fact and wanted to be sure that they could call oral evidence. As the trial judge said, this was clearly a rational choice - 1983 2 AC at 249 (Peter Pain J).

The House of Lords held that in view of Order 53 of the Rules of the High Court the proceedings should be struck out as an abuse of the process of the Court. Lord Diplock said at 285 that:

“They were blatant attempts to avoid the protections for the Defendants for which Order 53 provides.”

The House held accordingly that the only available procedure in such a case, since it was a matter of public law, was application for Judicial Review.

He then said at pp 284 - 285 :

“that since all the remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule it would be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a public authority’s infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in each case the only claim made by the plaintiff was for a declaration that the board of visitor’s adjudication against the plaintiff was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals.”

The principle was adopted in Fiji in the case of Ram Prasad v. The Attorney-General ABU58/97 unreported judgment of the Court of Appeal of the 27th of August 1999 where the Court of Appeal upheld the decision of the High Court dismissing an action for wrongful dismissal of a civil servant on the ground that the Appellant should have proceeded by way of Judicial Review.

On page 9 of the judgment the Court said:

“In the present case the terms of the appellant’s employment ... were governed by the Regulations to which we have referred. It was the existence of those regulatory provisions which injected the element of public law that attracted the remedies of administrative law. Once that conclusion is reached, it follows that any remedy requires consideration of the exercise of what are in effect statutory powers .... For these reasons we consider ... that as the appellant had been appointed under a statutory provision law applied to his appointment, and any claim .. can only be brought by an application for judicial review.”

In HBC 359 of 2000 Nair v. The Secretary for the Public Service Commission and Another unreported decision of Scott J. of the 28th of May 2001 the judge followed Ram Prasad and held that the Plaintiff who was a Clerical Officer in the Ministry of Agriculture and who was dismissed from the Public Service had no right in law to seek redress by way of civil Writ and that in line with what was said by the Court of Appeal who in turn followed O’Reilly v. Mackman she should have sought Judicial Review of her dismissal.

In O’Reilly v. Mackman Lord Diplock explained that:

“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision by a litigant.”

The Public Service Act 1999, which derives its power from Chapter 10 of the 1998 Constitution in Section 11 gives the Commission among other powers the right to perform the functions of an employer including but not limited to -

(i) the classification of employees;

(ii) the duties of employees, and the place where they are to be performed;

(iii) the transfer of employees to and between Ministries and departments;

(iv) the setting of remuneration and other terms of employment, unless another written law confers those functions on some other person or body in relation to any employee or class of employee.

These powers are given practical effect in the Regulations made under the Act which came into force on the 13th of May 1999. Regulation 5 states that the appointment or promotion of a person in the Public Service must be made on the basis of merit after an open, competitive selection process.

Therefore the Defendants argue, contrary to the submission of the Plaintiff, that the Plaintiff is not employed under any contract of employment, as in private law but under the Public Service Act and thus his remedy lies only in public law, namely in Judicial Review.

This statement underlines the fallacy of the Plaintiff’s submission quoting from Wade and Forsyth at p.689 that:

“Contracts of employment are enforceable by ordinary action and not by Writs”.

This only confirms what Lord Goddard C.J. said in Inland Revenue Commissioner v. Hambrook (1956) 2 Q.B. 641, 654 :

“... an established civil servant is appointed to an office and is a public officer, remunerated by monies provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be ... exceptional cases as, for instance, an engagement for a definite period, where there is a contractual element in or collateral to his employment.”

In this case had the Plaintiff made an application for Judicial Review he would almost certainly have sought an order for certiorari to quash the decision of the Defendants not to appoint him as Head Teacher at Waiqanake District School. Under Order 53 Rule 4 he would have three months from the date of the decision which appears to have been the 17th of September 1999 to apply to this Court for leave. He did not do
so and, although the Court has a discretion to extend that period I would have thought any application beyond six months would not have been entertained by this Court. I have no doubt the Plaintiff’s legal advisers realised this and so issued an Originating Summons.

The Plaintiff invites the Court to “liberate the rigid doctrine established by O’Reilly v. Mackman”. In England since 1990 beginning with Law v. Greyhound Racing Club Ltd [1983] EWCA Civ 6; (1983) 1 WLR 1302 the English Courts, realising the problems which O’Reilly v. Mackman gave rise to, have taken a much more liberal attitude.

Undoubtedly the decision gives many frustrations to litigants with much waste of effort, time and money, causing Sir Michael Kerr to say in the Court of Appeal in Lonhro Plc v. Tebbit (1992) 4 ALL E.R. 161 that:

“Our law ‘has suffered too much from the undesirable complexities of this over-legalistic procedural dichotomy’.”

Any Judge familiar with the history of Judicial Review in England since O’Reilly would respectfully agree but as a single Judge, no matter what my personal preferences may be, I am bound by authority and that authority in Fiji is among others Ram Prasad v. The Attorney-General of Fiji.

Consequently following Ram Prasad and more recently Scott J. in Nair’s case I find myself without any alternative but to grant the orders sought in the Defendants’ Summons. I have personally suggested on a number of occasions that the time is ripe in Fiji to adopt the system of Administrative Tribunals created in Australia in the 1970s so as to avoid the procedural minefield which, no doubt unintentionally, Lord Diplock created. But this is a matter for Parliament and not the Courts to attend to. The orders

I make therefore are that the Plaintiff’s action be dismissed as disclosing no reasonable cause of action and as being an abuse of process.

JOHN E. BYRNE
JUDGE