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State v Public Service Appeals Board, ex parte Karan [2002] FJHC 138; HBJ0016D.2002B (23 July 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0016 OF 2002

THE STATE

v.

PUBLIC SERVICE APPEALS BOARD
AND MINISTRY OF EDUCATION

EX-PARTE JAI KARAN

Mr. S. Prasad for the Applicant
Mr. J. Raikadroka for the Ministry of Education
Mr. R. Green for the Public Service Appeals Board

RULING

The background to this case may be briefly stated. It concerns a dispute between the management of Bulileka Sanatan College, Labasa and its principal (the applicant) which necessitated the intervention of the Ministry of Education officials in an attempt to defuse the escalating dispute.

At settlement talks conducted between the school management and Ministry officials it was agreed that the applicant would be temporarily transferred to Labasa College. This was notified to the applicant by the Ministry in a letter dated 26.02.2002 entitled: 'POSTING= and was to take effect from 1.3.02.

The applicant refused to move and appealed the Ministry=s decision to the Public Service Appeal Board. By its letter dated 2.5.02 the Board advised the applicant that his appeal was unsuccessful and he was 'to report to Labasa College with effect from 13/05/2002 on your existing terms and conditions of service=.

On 10^th May, the applicant filed papers seeking leave to issue judicial review proceedings against the Board=s decision and also applied ex-parte for a stay of the Board=s decision and for an injunction restraining the Ministry from pursuing its decision to send the applicant to Labasa College.

These applications were filed in the Suva High Court and were placed before a judge. Counsel appeared in support of the application and both orders were granted '...... until further order= in the absence of counsel for the respondents, with liberty reserved to the parties to apply '...... on 48 hours notice=. The action was also unilaterally ordered to be '...... transferred to Labasa High Court=.

On 20^th June 2002 the respondents applied in the Labasa High Court to dissolve the ex-parte orders. The papers were served on applicant=s counsel on or about the 21^st June.

On 26^th June when the respondent=s application was listed for argument, applicant=s Counsel complained that he had not had sufficient time to fully go through the application and respond to the affidavit filed in support and counsel sought 14 days to respond. This was vehemently opposed by counsels for the respondents and an adjournment was refused.

It is unfortunate that the court file notes of what transpired at the ex-parte hearing is singularly unhelpful as to the submissions of counsel (if any) and the authorities (if any) that were drawn to the Court=s attention, nor, is it entirely clear why the matter was entertained ex-parte at all since the Board=s decision had not yet taken effect and no urgency could be claimed on that score.

Be that as it may, I confess that a plea for time to respond sounds ill even cynical, coming from counsel who obtain an order ex-parte in the absence of the opposing side, and, having obtained such an order, counsel then seeks its prolongation on the basis of his unpreparedness.

Counsels for the respondents sought the immediate dissolution of the ex-parte orders on the ground firstly, that there was no power in the Court to grant an injunction against the State as represented by the Ministry and secondly, given the nature of the challenged decision, a stay would serve no useful purpose as 'it can have no possible application to an executive decision which has already been made= [per Lord Oliver of Aylmerton delivering the opinion of the Privy Council in Minister of Foreign Affairs, Trade and Industry v. Vehicle and Supplies Ltd. (1991) 1 W.L.R. 550 at 556].

Counsel for the applicants in seeking the continuation of the ex-parte orders pointed out that dissolving the orders would defeat the whole purpose of bringing the application which was to preserve the 'status quo= pending the determination of the application for judicial review.

In particular Counsel sought to avoid the provisions of Section 15(1) & (2) of the Crown Proceedings Act (Cap.24) by confining its ambit to 'civil proceedings against the State= that are begin by Writ action and thus excluding applications for judicial review under Order 53 of the High Court Rules. Reference was also made to the provisions of Order 53 r.1(2) which expressly empowers the Court to grant an injunction claimed in an application for judicial review '...... if it considers having regard to= -

'(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari,

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order, and

(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.=

At the outset it should be noted that Or.53 r.1(2) is confined in its terms to 'an application for judicial review= which is once removed and different from 'an application for leave= to apply for judicial review under Order 53 r.3(1) which is the actual application pending before the court, no leave having yet been granted to the applicant.

Notwithstanding the 'distinction= there is not the slightest doubt in my mind that the ex-parte orders that were granted in this case cannot be continued in the light of this Court=s judgment in State v. P.S.C. ex-parte Epeli Lagiloa (1994) 40 F.L.R. 237 and the highly persuasive remarks of the Privy Council in the Vehicle and Supplies Ltd. case (op.cit) and the observations of the House of Lords in Factortame Ltd. v. Secretary of State for Transport [1989] UKHL 1; (1989) 2 ALL E.R. 692 at pp.705-709.

In this latter regard and mindful of factors (b) & (c) above, Counsel for the respondents forcefully submits that it is neither 'just (or) convenient= to grant or continue the ex-parte orders in this case where:

(1) the party sought to be restrained is the Ministry of Education which is the government department primarily responsible for the efficient and effective allocation and management of education resources including teachers;

(2) the decision to transfer the applicant is an executive/ administrative decision in an 'employer/employee= relationship that has been upheld on appeal;

(3) the decision does not prejudicially affect the applicant=s future career prospects or his existing terms and conditions of service; and

(4) the public interest in the early resolution of the dispute so as to minimise any adverse impact it may have on the school students is the paramount consideration that strongly favours the dissolution of the injunction.

In this latter regard it may be noted that Section 12 of the Education Act (Cap. 262) vests the management of a registered non-government school in a controlling authority such as a school management committee subject, of course, to the power of the Permanent Secretary to close a school (see: Section 19 of the Education Act).

For the foregoing reasons the ex-parte orders are dissolved forthwith with costs of $150.00 to be paid within 14 days.

(D.V. Fatiaki)
JUDGE

At Labasa,
23^rd July, 2002.