Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Fijian Teachers Association v Public Service Commission [2007] FJHC 106; HBJ03D.2007S (7 August 2007)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 03D OF 2007S

BETWEEN

FIJIAN TEACHERS ASSOCIATION a trade union established under the provisions of the Trade Union Act Cap. 96 having its registered office at 68 Knolly Street,Suva,
FIJI PUBLIC SERVICE ASSOCIATION a trade union having its registered office at 298 Waimanu Road, Suva.
APPLICANTS

AND

PUBLIC SERVICE COMMISSION of Berkley Crescent, Suva.
FIRST RESPONDENT

AND

ATTORNEY-GENERAL OF FIJI of Level 7,
Suvavou House, Victoria Parade, Suva.
SECOND RESPONDENT

Counsels for the Applicants: J. RAIKADROKA :RAIKADROKA LAW
H. Nagin: SHERANI & CO.

Counsel for the Respondents: Ms M. Rakuita: ATTORNEY GENERAL’S CHAMBERS

Date of Decision: 7 August, 2007

Time of Decision: 11.00 a.m.

EX-TEMPORE DECISION

I am satisfied that the Applicants' have an arguable case for leave to be granted. The decision to be reviewed is the authority's decision to reduce the compulsory retirement age of civil servants from 60 to 55. This administrative decision is tantamount to varying the terms and conditions of their employment. The Courts have made clear that generally actions which sought to vary the terms of employment of civil servants is in principle reviewable on any of the grounds of illegality, irrationality or procedural impropriety as Lord Diplock identified in Council for Civil Service Unions v. Minister of the Civil Service [1985] AC 374. In this instance the Applicants' argument is based on the legitimate expectation that the Unions would be consulted on behalf of its members before their terms of employment is altered.

All the Court needs to be satisfied with at this stage, is that the Applicants have what can loosely be described as ″a scintilla of cause of action″ that merits further arguments on a full inter parte basis with all the relevant evidence and arguments in the law. Whether the Applicants have the locus to bring this action is an issue raised by the Respondent. This arises from the Applicants relying on section 41 of the Constitution. It is not the intention of the Court to address this issue at this stage. It would deal with it fully at the substantive hearing. For the time being it is enough to say that the Applicant has satisfied the threshold requirement of leave.

Leave is therefore granted.

Stay is also granted suspending the implementation of the decision pending the determination of the challenge. The essence of a stay is to maintain the status quo and ensure that the Applicants are not prejudiced should their challenge be successful.

In the end leave is granted with the Order for stay.

The following are consequential Orders:

(1) Leave is granted to the Applicants to amend their Statements under Order 53 rule 3 (2) (a) by 21 August 2007;

(2) Respondents to file Response by 4 September;

(3) Submissions to be filed by the Applicants by 25 September;

(4) Response by the Respondents to be filed by 9 October;

(5) Leave granted to the Applicants to reply if necessary by 23 October.

Adjourned for arguments to 30 October, 2007 at 11.00 a.m.

Costs in the cause.

F.Jitoko
JUDGE.

At Suva
7 August 2007