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State v Disciplined Services Commission, Ex parte Naiveli [2005] FJHC 11; HBJ0012.1999 (25 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO.: HBJ0012 OF 1999

BETWEEN:

THE STATE
APPLICANT

AND:

THE DISCIPLINED SERVICES COMMISSION
RESPONDENT

EX-PARTE: MERE TUISALALO NAIVELI

Mr. R. Prakash for the Applicant
Mr. J. Udit for the Respondent

DECISION

The issue before me in the chequered history flowing from the dismissal of Beniamino Naiveli by the Respondent Commission is whether in light of the decision of the Supreme Court of Fiji delivered on 24th October 2003, I should proceed further with the claim for compensation or damages by the applicant. The claim for compensation formed part of the judicial review proceedings. I had already taken evidence of two of applicant’s witnesses prior to delivery of the decision of the Supreme Court. I received submissions though belated from the applicant but no response from the respondent.

The applicant submits that the Supreme Court had not set aside the order for compensation made by Justice Fatiaki. The applicant submits that the only issue before the Supreme Court was whether the Disciplined Services Commission could dismiss a gazetted (senior) police officer without conducting a disciplinary hearing.

The issue is what is the effect of the Supreme Court judgment. The applicant was dismissed on the basis of his criminal conviction for abuse of office. According to the judgment, it was not open to the applicant to challenge that finding of guilt and to try to show that he was innocent. The Supreme Court ruled that there was no breach of natural justice in the Commission’s failure to provide a hearing for that purpose.

The Commission had heard the applicant before imposing the penalty. It went on to say –

“Mr. Naiveli’s offending was not only serious but also involved his position as a police officer. It was entirely open to the Commission to take the view that he must be dismissed.”

It found the dismissal valid. How can the applicant claim damages if the dismissal was valid. I am of the view that decision of the Supreme Court leaves no room for the applicant to claim damages. Accordingly I see no point in proceeding further with the claim for compensation and stay of proceedings permanently. I further order costs against the applicant to be taxed if not agreed.

[ Jiten Singh ]
JUDGE

At Suva
25th January 2005