IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0080 OF 2003

Between:

PENIASI KURIVITU KUNATUBA
Plaintiff

and

PUBLIC SERVICE COMMISSION
Defendant

Mr. T. Fa for the plaintiff
Mr. S. Navoti for the defendant

DECISION

This is the plaintiff’s application by summons seeking an order ‘restraining the Defendant herein by themselves, their servant and/or agents from deliberating in any issues pertaining to the Plaintiff in any manner or form until the determination of the issue currently before the Court in Suva High Court Action No. 259/2002 or until further order of this Honourable Court.’

An affidavit in support has been filed by the plaintiff to which Mr. Sakeasi Waqanivavalagi, the Chairman of the Public Service Commission replied by affidavit followed by an Affidavit in Reply by the plaintiff.

As ordered both counsel filed written submissions to which I have given due consideration.

Background facts

In civil action No. 259/02 the plaintiff has sued the Prime Minister, his 19 Cabinet Ministers and others. In the present application the plaintiff is seeking the above stated Order.

The Public Service Commission (hereinafter referred as the ‘PSC’) has laid 61 disciplinary charges against the plaintiff. The plaintiff thereafter went ahead and issued the said C.A. 259/02.

On 8 January 2002 following the receipt of preliminary reports on the Ministry of Agriculture Fisheries, and Forests and ALTA’s Farming Assistance Scheme from the Auditor-General and from the Ministry of Finance, the PSC suspended the plaintiff on full pay. On 1 May 2002 it laid 61 disciplinary charges against the plaintiff and gave him 14 days to explain the subject matter of the charges.

Throughout May and June 2002 the plaintiff did not appear before the PSC to explain his actions but instead instituted civil action No. 259/02 on 18 June 2002.

Then on 27 June 2002 in Judicial Review No. 18/02 he sought, inter alia, a declaration ‘that it is totally unfair and prejudicial on the Applicant that the Commission continues to hear the disciplinary charges given the allegations made against it in High Court Civil Action No. 259 of 2002’.

However on 15 January 2003 Scott J dismissing the application for judicial review stated that:

“If at the conclusion of the proceedings the Applicant considers that he has been unfairly dealt with then the Court will be ready to hear him and if necessary to intervene”.

The issue

The issue before the Court is whether, because the matter is before the Court, it (the Court) ought to hear and determine the matters in question before the PSC proceeds with its disciplinary proceedings.

Consideration of the issue

As the learned counsel for the plaintiff Mr. T. Fa asks, the questions is: ‘what happens in a situation like this when the Public Service Commission is dealing with a disciplinary matter and the aggrieved citizen has moved the High Court of Fiji for a number of declarations alleging bias, collusion and corruption involving sum of $16 million of public funds?’

There is a very narrow issue here for Court’s determination. All that Mr. Fa is asking is that his application to the High Court should take precedence over disciplinary proceedings. In other words he is asking the Court that it should first hear the matter before the PSC continues with the hearing of the said disciplinary matters against the plaintiff.

Mr. Fa relies heavily on the principles laid down in the leading case of American Cyanamid Co. v Ethicon Limited (1975) A.C. 396 in the granting of injunction. He asks that in the exercise of its discretion the Court grant an injunction in favour of the plaintiff.

I would say there are two independent proceedings afoot. One is 259/02 and the other the PSC’s disciplinary proceedings.

On the affidavit evidence before me the issues for Court’s determination do not appear to be identical. I agree with the defendant’s counsel that the opposition to the application is based on the alleged ground that the current disciplinary charges against the Plaintiff deal primarily with his personal failure to follow regulations and guidelines of the Government in particular the Finance Instructions and the Public Service Code of Conduct.

While the disciplinary proceedings were pending and the plaintiff was required to attend to PSC, he went ahead and issued 259/02 followed by the present action in C.A. No. 80/03 seeking injunction. He seeks an order from Court preventing PSC from proceeding with the disciplinary proceedings.

The PSC has certain statutory function to perform and the Court cannot as the situation is at present prevent it from carrying out its function. No question of the civil action 259/02 having precedence over the disciplinary proceedings arises. The plaintiff’s actions in this case by issuing the two civil actions tantamount to putting spanner in the works as far as the discharge by PSC of its functions is concerned. The PSC’s work has already been hampered by the plaintiff taking out Judicial Review 18/02 proceedings which was dismissed as being premature.

As matters stand at present I do not see why the two matters, namely, 259/02 and disciplinary proceedings, cannot proceed in the normal way without any interference by the Court.

On the affidavit evidence before me, I do not consider that this is a proper case where the Court ought to at this stage interfere in the performance by PSC of its statutory function in proceeding with the disciplinary proceedings which has already commenced and is awaiting the plaintiff’s presence before it for hearing.

I conclude with the following words of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR:

“Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.”

Although disciplinary proceedings are not criminal proceedings they arise out of the statutory provision under the Public Service Act No. 8/99 and the same principles apply as stated above. One very important point has been made by Scott J in J/R 18/02S (supra) when he expressed the opinion, with which I agree, when he said:

“In my opinion the intention of Parliament in giving the power to the PSC to take disciplinary action against holders of public offices (1997 Constitution – Section 147 (1) (c)) was to allow the PSC to pursue that action to its conclusion and not, save in the most extraordinary circumstances, to have that power taken away by the intervention of the High Court”.

In the circumstances of this case it behoves the plaintiff to answer to the charges laid against him and allow the proceedings to take its normal course. Should he be not satisfied with the decision therein in the end, he will have every opportunity to knock on the door of the Court for relief.

For these reasons the application for injunction as prayed is refused with costs to the defendant in the sum of $200.00.

D. Pathik
Judge

At Suva
16 May 2003