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State v Arbitration Tribunal, Ex parte Colonial National Bank [2003] FJHC 155; HBJ0023D.2003S (31 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0023 OF 2003

Between:

THE STATE

and

ARBITRATION TRIBUNAL
FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
RAJESHWAR SINGH
f/n name Chattar Singh)
Respondents

Ex parte: COLONIAL NATIONAL BANK
Applicant

Mr. H. Nagin for the Applicant
Mr. J. Udit for the 1st Respondent
Mr. G. P. Shankar for the 3nd Respondent

DECISION

(An Application for leave and
extension of time to file judicial review)

The Colonial National Bank (the ‘applicant’) is seeking leave for judicial review of the decision of the Arbitration Tribunal made on 16th August 2002 and also for extension of time to file application for judicial review out of time.

An employee of the applicant, Rajeshwar Singh (the third respondent –R3) was dismissed from employment for alleged sexual harassment. The Arbitration Tribunal gave its award on 16 August 2002 and the application for judicial review was filed on 25 June 2003. The statement filed herein shows ‘that the dismissed Respondent’s actions did not amount to sexual harassment’.

The applicant is well out of time in making this application for judicial review of the award of the Tribunal.

The relief sought are:

(a) an order of certiorari to review the said award of the Tribunal into this Court and the same be quashed.

(b) (b) A declaration that the Tribunal made errors of law in the face of the record.

Applicant’s submission

The applicant’s counsel submits that under Order 53 Rule 4 of the High Court Rules, 1988, discretion is vested in the Court to hear the application for judicial review and grant certiorari and/or other orders although he accepts that the applicant is out of time in applying.

Counsel further submits that ‘however, in this case alternative remedy of declaration is also sought and if the delay is upheld at the end of the day after the hearing the Court may decide not to grant certiorari but still can grant a declaration. It is therefore submitted that this issue of delay be left to at the end of the hearing and to the remedies being granted rather than to block this review at leave stage’.

Third respondent’s opposition to application

The learned counsel for the third respondent has opposed the application stating, inter alia, that the applicant should have made the application promptly and within the period of three months as provided for under Order 53 of the High Court Rules, 1988. He says that the delay has not been explained.

Mr. Shankar submits that the complaint made by the applicant on the grounds, appear to be ‘appeal’ grounds; review is not concerned with merits but with the legality of the decision-making process.

Counsel says that there is no basis for judicial review and that the stale application ought to be refused with costs.

Determination of the issue

This is an application for leave to file judicial review of the said award. This has been filed out of time, that is, a delay of over 7 months.

Nowhere in the papers before me is there any explanation, why there has been such a considerable delay in making the application.

Before one can consider the granting of leave for judicial review the applicant has to overcome the first hurdle and that is to convince the court that the reason for delay was justifiable. This the applicant has failed to do.

On the issue of delay the relevant Rule in The High Court Rules, 1988 is Or. 53 r.4 which is a follows:

4. - (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant-

(a) leave for the making of the application, or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.

(3) Paragraph (1) is without prejudice to any statutory provision, which has the effect of limiting the time within which an application for judicial review may be made. (emphasis added)

The effect of this rule is ‘to limit the time within which an application for leave to apply for judicial review may be made in accordance with its terms, i.e. promptly and in any event within three months’ (R v Stratford- on-Avon District Council & Anor, ex. p. Jackson, [1985 1 WLR 1319 C. A.]. The ‘Court has however power to grant leave to apply despite the fact that the application is late; this it does by extending the period.’ (ibid 1326C).

Even though the Court is willing to extend the period under the Rule, it may either refuse to grant leave at the leave stage or relief at the substantive hearing stage, in the words of the Rule the ground ‘would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration’. (ibid 1326 E).

In considering this application I have not overlooked the following passage from the judgment of Woolf J in R v Commissioner for Local Administration, ex p Croydon London Borough Council & Another [1989]
1 All E.R. 1033 which is pertinent:

‘While in the public law field, it is essential that courts should scrutinize with care any delay in making an application and a litigant who does delay in making an application is always at risk, the provisions of RSC Ord 53 rule 4 and s 31(6)... are not intended to be applied in a technical manner. As long as no prejudice is caused, which in my view of the position here, the Court will not rely on those provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled’.

On the issue of ‘delay’ and the exercise of ‘discretion’ the following passage from R v Essex City Council [1990] [1] All ER. 422G to 423 it is said: -

“Second, the question of delay and discretion as stated, the applicant was not made promptly; no justification has been advanced for the delay; and Tutorhome and Peninsular have both suffered prejudice. Generally speaking, these considerations would of themselves have been sufficient to bar relief.

That said, however, I cannot sufficiently stress the crucial need in cases of this kind for applicants to proceed with the greatest possible urgency, giving moreover to those affected the earliest warning to proceed.

Only rarely is it appropriate to seek judicial review of a s 29 permission, rarer still will be the occasion when the court grants relief unless the applicant has proceeded with the greatest possible celerity. For reasons earlier given, this application fails and is dismissed”.

The alternative remedy of a declaration cannot be considered as that would tantamount to circumventing the leave provision under Order 53. If leave is refused, that is the end of this application for leave to apply for judicial review.

To conclude, for the above reasons and on the authorities leave to file for judicial review is refused. The delay has been far too long and has a prejudicial effect on the persons or parties affected. To allow such an application is detrimental to good administration. In view of this refusal it is not necessary to consider the ‘leave’ aspect of the application.

The application is therefore dismissed with costs the sum of $300.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
31 October 2003