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Shah v Fiji Islands Revenue and Customs Authority [2006] FJHC 31; HBJ0042.2001 (30 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ0042 OF 2001

BETWEEN:

DILDAR SHAH
Applicant

AND:

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
First Respondent

AND:

FIJI PUBLIC SERVICE COMMISSION
Second Respondent

AND:

THE ATTORNEY-GENERAL OF FIJI
Third Respondent

Counsel: Mr. S. Chandra – for Applicant
Mr. J. Apted – for 1st Respondent
Mr. Tuiloma – for 2nd and 3rd Respondent

Date of Hearing: June/November & on notice
Date of Judgment: 30th January, 2006

JUDGMENT

Introduction

The applicant joined the Public Service in March of 1977. Some 21 years later he had risen to the position of Chief Administrative Officer with the Department of Customs and Excise. As a result of the establishment of the Fiji Islands Revenue and Customs Authority (“FIRCA”) in 1998 the applicant received a letter from the Secretary of the Public Service Commission advising him that his position in the Public Service was to terminate on the 1st of January 1999 and thereafter he was to work with the newly established FIRCA.

Mr. Shah stayed with FIRCA for some three months when on the 29th of March 1999 he was advised by his employer that his designated post of Chief Administrative Officer had been abolished. He was told re-deployment was considered to another job and that regard had been had to his service and experience but regrettably there were no suitable vacancies for which he could be considered. He was made redundant. He was sent a cheque by way of redundancy payment amounting to some $38,319.23.

The applicant returned the cheque and asked for higher compensation. He threatened legal action. While this issue was being resolved a complaint of serious misconduct was received against the applicant. This complaint had been referred to the police. During the course of the police investigation it was thought proper by FIRCA that the applicant be suspended from his duty on full salary.

A short while later (in May of 1999) the applicant changed his mind about his redundancy and decided to accept the payment it as originally offered. He was paid on the 12th of May 1999.

The investigation into the allegations of misconduct against the applicant took 2½ years to resolve. The applicant was advised on the 16th of November 2001 by the Acting Commissioner of Police that the Director of Public Prosecutions advised against any charges being laid. The investigation was closed.

Thereafter the applicant sought reinstatement and vigorously renewed his calls for the redundancy decision to be re-considered.

On the 7th of December 2001 the Authority rejected the applicant’s request for reinstatement.

He accordingly made an application for leave to apply for judicial review on the 19th of December 2001.

In addition, between 1999 and December 2001 the applicant attempted to have himself taken back into the Public Service. He sent letters to the second respondent complaining about the manner in which he had been made redundant by FIRCA so soon after he had been transferred from the Public Service.

The Public Service Commission refused to accept his request for reinstatement. They were joined into these original proceedings.

Curial History

The case has had a chequered curial history. It began with documents filed by the applicant on the 10th of December 2001 (pages 265 – 238 of the agreed bundle of documents hereafter referred to as “ABD”). The notice of motion seeking leave to apply for judicial review was poorly drafted and as a result almost immediately needed amendment so as to comply with the bare requirements of Order 53 Rule 3(2) of the High Court Rules.

The application did not set out particulars of the judgment, order, decision or other proceeding in respect of which judicial review was sought. It failed to specify relief and describe proper grounds upon which relief was sought. Leave was granted for filing the amended application. That was filed (cf pages 254-257 of ABD). This document is the basis upon which leave to take judicial review was eventually granted.

I observe straight away that it is a confused, uncertain and unsatisfactory application.

The particulars of the decisions sought to be challenged are not clearly referred to. In particular the applicant mixes up the decision to make the applicant redundant and the subsequent but unrelated decision to suspend him from office because a serious complaint of misconduct had been received (23rd of April 1999).

The document barely engages the second respondent in any meaningful way and does not clearly state a decision that is being challenged.

The relief sought of certiorari and mandamus against FIRCA relate only to the issue of redundancy.

The second relief sought against both respondents is a declaration they have acted in breach of natural justice and or abused their discretion in “removing the applicant from the position of Chief Administrative Officer”.

I detail the matters in this way as the decision of his honour Mr. Justice Scott in granting leave to take judicial review addresses only those decisions.

His honour held a hearing on the application for leave and gave a decision granting leave on the 1st of March 2004. The applicant filed a notice of motion for judicial review on the 9th of March 2004 (cf pages 34 – 36 ADB).

Again I must observe that this motion is poorly drafted. In particular it does not specify the decisions against which the applicant seeks his relief. At the hearing of the motion my brother Justice Jitoko expressed uncertainty as to the grounds for each of the reliefs sought. Against objection from respondents counsel my brother Judge granted leave to the applicant to yet again amend his motion and re-state the grounds upon which relief was sought. Leave was limited by inference to that alone.

The motion was not amended within the required seven (7) days and the applicant sought and was granted an extension. He filed an amended motion on the 26th of August 2004 (pages 5-10 of ABD). Regrettably this contained the decisions, relief and grounds that had not been the subject of the leave granted originally by his honour Mr. Justice Scott.

The matter then came before my chambers as Jitoko J. recused himself from the matter at the applicant’s request.

The judicial review was managed to a hearing on the 1st of March 2005. At that time the first and second respondents took objection to the amended motion as much of it was fresh material not the subject of leave granted by Scott J. nor the further leave to amend granted by Jitoko J.

I upheld those objections, awarded a wasted hearing fee but granted the applicant one further and final leave to amend the motion for judicial review to bring it into line with the leave originally granted.

I took care to explain to the applicant and his counsel the limits of the leave that was granted and in particular explained that the amendment was restricted to the decisions, relief and grounds that had been the subject of the original leave granted and subsequent leave to amend.

These orders were made by consent of all counsel. The remaining issue was the applicant’s redundancy of the 29th of March 1999.

The Application

The first respondent with the support of the second and third claims that the successive non-compliance with court orders and now the intention to proceed with an expanded second amended motion for judicial review are nothing short of a vexatious abuse of the courts process. They submit under my inherent powers to guard the due administration of justice the only way this can be cured is by an order striking out the entire proceedings as an abuse of process.

It is also submitted that the notices of motion and in particular the current motion made on the 1st day of March 2005 and filed on the 17th of March 2005 are in breach of Order 53 of the High Court Rules. The relevant portions of Order 53 read:

“Cases appropriate for application for judicial review

1.-(1) An application for an order of mandamus, prohibition or certiorari shall be made by way of an application for judicial review in accordance with the provisions of this Order.” (my emphasis).
(2) “An application for leave must be made upon filing in the Registry:

(a) a notice in Form 32 in the Appendix hereunder containing a statement of:

(i) the particulars of the judgment order, decision or other proceeding in respect of which judicial review is being sought;

(ii) the relief sought and the grounds upon which it is sought;

(iii) the name and description of the applicant;

(iv) the name and address of the applicant’s Solicitors (if any); and

(v) the applicant’s address for service;
(b) an affidavit which verifies the facts relied on.” (my emphasis)

This rule is supported by the language of its related form.

“Form 32
Application for Leave to Apply for Judicial Review (O.53, r.3(2))
.........

Take notice that the plaintiff/applicant seeks leave of the Court pursuant to Order 53 rule 3(2) of the High Court Rules to apply for judicial review of (set out particulars of the judgment, order, decision or other proceeding in respect of which judicial review is being sought) and (set out relief sought and the grounds upon which it is sought) et cetera.” (Note my emphasis)

The rule is to the effect that judicial review in Fiji is initiated by a single notice on the prescribed form containing a statement of necessary particulars which are:

(a) a judgment, order, decision or other proceedings which must be particularized;

(b) the relief sought (which must implicitly be in relation to the decision sought to be reviewed); and

(c) grounds (which must be related to the relief and the decision that is the subject of the relief).

Decision

From the outset of these proceedings the application for judicial review did not meet the requirements of the rules. The motion and accompanying statement do not clearly set out the decisions, relief and grounds for a leave application. They were in addition inconsistent with each other.

The original motion did not particularize at all the decision to be challenged. It must be remembered there are 3 separate respondents. The application does not make it clear in each case whose “decision” is being challenged and when it does refer to a respondent it does not make clear which of the various decisions, that respondent made, was being challenged.

The grounds specified in the motion did not clarify that basic uncertainty. It was no doubt in the light of these uncertainties that Scott J. granted leave to amend the application.

That amended motion (pages 254-257 of the ABD) never really separately particularized the decisions being challenged as required by the rules and the form. In a very general sense it engaged the first respondent only on its decision to make the applicant redundant.

Mandamus was sought for the applicant’s reinstatement. However, no other relief was sought in relation to the applicant’s subsequent disciplinary suspension which occurred after the redundancy. Indeed no other application was sought in relation to any other decision subsequent to the redundancy.

In my view the leave granted by Scott J. must be construed as limited to challenging the decisions expressly referred to, the relief expressly sought and the grounds given for that relief in the amended motion filed immediately after his honour granted leave. Accordingly the review only relates to what may loosely be termed the applicant’s redundancy of the 29^th of March 1999.

However, the matter does not rest there. Order 53 Rule 5 requires a notice of motion to be filed and served under Order 53 Rule 6(1). That latter rule reads:

Under Order 53 Rule 6(1) –

“Statements and affidavits

6.-(1) Copies of the statement in support of an application for leave under rule 3 must be served with the notice of motion or summons and, subject to paragraph (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.” (our emphasis)

Under Order 53 Rules 6(2) and (3) further provide –

“(2) The Court may on the hearing of the motion or summons allow the applicant to amend his statement, whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party”. (Note my emphasis)

These sub-rules make it clear that on a judicial review the applicant is limited to the decisions, relief and grounds that were in the application for leave and were the subject of the leave granted, unless upon the hearing of the substantive judicial review, leave is granted to amend those matters.

The courts jurisdiction under Order 53 Rule 6(2) is limited to granting amendments for additional grounds or relief only upon those matters for which leave was originally granted. That makes sense because in general pleading terms an amendment to a court document cannot allow the addition of an otherwise time limited relief. In addition a principle consideration in the granting of leave is whether or not there has been undue delay in bringing the application for relief.

For the purposes of certainty I find that any amendment now seeking to enlarge the scope of the judicial review to encompass not only the decision to render this applicant redundant but also the decision to suspend him and further the decision not to reinstate him is too far removed in time to have any relevance for a prerogative remedy.

In any event at my hearing of the 1^st of March 2005 and by consent applicant’s counsel conceded that his amended motion had gone beyond the leave granted and agreed that he would file an amended motion restricted by consent to the issue of the decision over the applicant’s redundancy of the 29^th of March 1999. The second amended motion goes well beyond that order.

Abuse of Process

The circumstances in which abuse of process can arise are varied and the kinds of circumstances in which the court has a duty to exercise its inherent jurisdiction are not limited to fixed categories. The dual principles are well settled. It is a matter of determining on the facts whether the continuation of the present proceedings will be an abuse of the process of the court (Richardson J in the New Zealand Court of Appeal decision of Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at page 10).

The courts exist so that litigants can bring matters for resolution. However that right is subject to the rules and inherent powers of the court. Breaches of the High Court rules by counsel is an abuse of the court’s process. Failure to respect court orders is an abuse of process. The court must be vigilant to protect abuse of its processes that may bring the administration of justice into disrepute among right thinking people.

These proceedings had a shaky start. Despite clear direction by three judges of the High Court there has been little improvement. The court is now faced with a second amended motion. This motion is not in conformity with the rules and remains uncertain. These uncertainties are not trivial and go to the heart of the review. They demonstrate an ignorance of the rules and the court’s previous orders. The motion is both an abuse of the court’s process and a misuse of Judicial Review.

The exact case that the respondents are required to answer is not certain. At most there is a general reference to the decision of redundancy but exactly what relief is sought in relation to that decision and on what grounds the relief is sought is not clear. A critical reading of the second amended motion will not answer any of those questions. Certainly not with enough precision to allow the respondents to properly defend themselves. The applicant by his counsel consented to filing an amended motion restricted to the issue of the decisions over the applicant’s redundancy of the 29^th of March 1999 and nothing else.

It is clear to me that when his honour Mr. Justice Scott granted leave it was the redundancy aspect that was challenged and integrity of the redundancy process as it applied to the applicant was the major concern.

Accordingly:

(i) I strike out the second amended motion.

(ii) I grant the first and second respondents’ application but do not strike out the entire proceedings.

(iii) The history of this matter is such that the respondents are entitled to indemnity costs. They are to calculate, certify these and then submit them for taxation. Those costs are to include the wasted hearing fee reserved on the 2^nd of May when my orders of the 1^st of March 2005 were not complied with when the applicant sought an adjournment.

These costs once certified and taxed are to be paid in full within 14 days. I stay the substantive proceedings until the 1^st of April, 2006. If the costs as taxed are not paid by that date I order that the substantive proceedings be struck out. If the taxed costs are paid the matter can be re-listed for mention on 7 days notice to fix a further hearing on the remaining issue of the applicant’s redundancy. However, the applicant is warned that his failure to bring that issue promptly to court may result in a nugatory decision.

Gerard Winter
JUDGE

At Suva
30th January, 2006