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State v Public Service Commission, Ex parte Tokaibai [2005] FJHC 107; HBJ0016O.2005s (9 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 16 OF 2005

Between:

STATE

v.

PUBLIC SERVICE COMMISSION
MINISTRY OF EDUCATION
Respondents

Ex parte: MELI TOKAIBAI
Applicant

GOVIND SAMI
Interested Party

Mr. J. Raikadroka for Applicant
Ms. A. Uluiviti for 1st Respondent
No appearance of Interested Party

ORDERS
(An application for Leave for judicial review and stay)

This is an application by Meli Tokaibai (the ‘applicant’) for leave to apply for judicial review of the decision of the Public Service Commission (the ‘PSC’) that his application for the position of Chief Education Officer which was advertised in Public Service Official Circular No. 1/2003 was unsuccessful. This decision which was taken on 6 April 2003 was communicated to the applicant on 14 April 2005. The position went to Govind Sami (the ‘Interested Party’).

Since the application was also for a stay of the decision I decided to hear the parties which I did on 19 April. However, Ms. Uluiviti wanted further time to make submission so I adjourned the matter until 28 April.

Both counsel made oral submissions and also filed written submissions, inter alia, on stay to which I have given careful consideration.

Consideration of the application

Under Or.3 r.8 of the High Court Rules 1988 it is provided:

“Where leave to apply for judicial review is granted, then:

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;”

On an interim application of this nature, namely stay, Court has “wide and flexible powers to make orders securing a particular position, where justice so requires pending the hearing of judicial review” (Judicial Review Handbook 3rd Ed. by Michael Fordham p366).

It has been held that “stay of proceedings” is capable of being applied to an executive decision or an implementation, and not restricted to proceedings of an inferior court.

The following passage from the judgment of Glidewell L.J. in R v Secretary of State for Education and Science ex.p Avon County Council [1990] 1 QB 558 is pertinent and which ought to be borne in mind in support of an application for a stay in judicial review proceedings. It states:

“an injunction ... is an order directed at a party to litigation, not to the court or decision-making body. Of course, in some respects an application for judicial review appears to have similarities to civil proceedings between two opposing parties, in which an injunction may be ordered by the court at the suit of one party directed to the other. When correctly analysed, however, the apparent similarity disappears. Proceedings for judicial review, in the field of public law, are not a dispute between two parties, each with an interest to protect, for which an injunction may be appropriate. Judicial review, by way of an application for certiorari, is a challenge to the way in which a decision has been arrived at. The decision-maker may take part in the proceedings to argue that his, or its, decision was reached by an appropriate procedure. But the decision-maker is not in any true sense an opposing party... Thus the distinction between an injunction and a stay arises out of the difference between the positions of the persons or bodies concerned. An order that a decision of a person or body whose decisions are open to challenge by judicial review shall not take effect until the challenge has finally been determined is, in my view, correctly described as a stay. For these reasons I am of the opinion that a decision made by an officer or Minister of the Crown can, in principle, be stayed by an order of the court”.

Order

Upon a careful consideration of the papers, affidavit and submissions filed herein and on the authorities and upon hearing both counsel I consider that in the interests of justice this is a proper case for the grant of a stay. The parties should exercise due diligence in having the application disposed quickly.

I therefore grant the applicant leave to apply for judicial review which shall operate as a stay of proceedings until the determination of the application under the said order 3 r.8.

D. Pathik
Judge

At Suva
9 May 2005