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State v Public Service Commission, Ex parte Vuki [2007] FJHC 134; HBJ 12.2004 (2 February 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO.: HBJ 12 OF 2004

BETWEEN

STATE
1^st Plaintiff
AND
MINISTRY OF EDUCATION
2^nd Plaintiff

vs

PUBLIC SERVICE COMMISSION

EX-PARTE:
ERONI ROKOCOVU LOGANIMOCE VUKI
Applicant

Counsel: Ms A. Uluiviti - for 1^st and 2^nd Plaintiff
Mr. Raman Singh - for Applicant

Date of Hearing: 31^st January 2007
Date of Decision: 2^nd February 2007

DECISION

[1] Mr. Vuki (the "Applicant") a teacher is applying for judicial review against an unspecified decision of the Ministry of Education and the Public Service Commission refusing to pay or adjust his salary in accordance with the 1993 Job Evaluation Agreement signed on the 6^th of March 1998.

[2] The application was filed on the 28^th of June 2004 and despite the passage of time has not been improved by any amendment specifying the particular decision impugned.

[3] However, it appears by inference taken from the applicant's affidavit dated the 23^rd of June 2004 filed in support of the application for leave and counsels submissions on the leave application that the particular decision impugned is that of one Mr. M. Driubalavu of the Ministry of Education dated the 24^th of June 1998 where the applicant was told:

"please be informed that you are a Principal (TE04) of Dreketi Medium/Secondary School, now classified as ED2A. Therefore you were Principal ED2A in 1997. But from 1998 you were transferred to Laucala Bay Secondary School as Vice-Principal (TE04). Laucala Bay Secondary is ED1A and the Vice-Principal's new grade is ED3B. Therefore you will receive a salary from 01.07.97 to 31.12.97 and will come down to ED3B salary from 1998."

The Applicant's Grounds for Challenging the Decision

[4] The grounds on which the applicant challenges the decision are that:

(a) That the Respondent had wrongly applied the Job Evaluation Agreement, signed on the 6^th of March 1998, between the Respondents as employers, and the Fiji Teachers Union and Fijian Teachers Association on behalf of the employees, regrading the Applicant as ED2A grade Vice Principal when he was holding the substantive post of Principal in TE04 grade as at 1^st of July 1997, the effecting date of the said Agreement, are refusing to correct or adjust the Applicant's salary in grade ED2B in abuse of their public powers.

(b) That the Respondents have acted arbitrarily in abuse of their public powers in refusing to correct their erroneous grading of the Applicant's substantive post of Principal in TE04 grade to Vice Principal in ED2A grade when his correct converted reclassification should have been Principal in ED2B grade.

(c) That the decisions of the Respondent are arbitrary, irrational, unfair and wrongful demotion of the Applicant to Vice Principal level reducing his salary to ED3B level when he is entitled to continue to receive salary at Principal ED2B grade from 1^st of July 1997 irrespective of his subsequent transfer to another school which should have been in ED2A grade Vice Principal and not ED3B grade is in breach of the said Job Evaluation Review Agreement signed on 6^th of March 1998, causing loss of the Applicant's earning constituting damages and exemplary damages.

Relief Sought

[5] The applicant then seeks the following relief:

1. For an Order for Certiorari to remove the decisions of the Public Service Commission and the Ministry of Education refusing to pay or adjust the applicant's salary in the grade of Principal ED2B level in accordance with the Job Evaluation Agreement signed on 6^th March 1998, which was implemented from 1^st July 1997, into this Honourable Court and be quashed.

2. A declaration that the decision of the Respondents to reduce the Applicant's salary from Principal level ED2B at Dreketi High School to Vice Principal level ED2A was contrary to and in breach of the JER Agreement, wrongful, erroneous, arbitrary, irrational, unreasonable and unfair and null and void and abuse of public power in refusing to adjust his salary.

3. For an Order for Mandamus, if aforesaid declarations are granted, directing the Respondents to pay his correct salary with interest at the commercial rate of 13.5% as damages for loss of use of the salary for services rendered and/or alternatively an order for damages.

4. Further Declarations or other relief as to this Honourable Court may deem fit.

5. For an order for costs on Solicitor and client or indemnity basis.

[6] Leave was not granted on the application as originally filed as the applicant and his counsel entered into protracted discussions with the first and second respondents seeking to find some common ground concerning the history of the applicant's correct grade and salary.

[7] Those discussions dribbled on for a considerable time until August of 2004 when leave was sought and granted for amended affidavits to be filed. The time-tabling orders for the filing of those documents was not complied with. The matter was listed for further mention in October of 2004 that converted into a robust settlement conference described in my minute of the 19^th of October 2004.

[8] The parties were at that point confident that the matter may be capable of resolution by reference to the Ministry of Education records. The parties were given a month to resolve the matter but no settlement occurred and the original application was set for hearing subject to the filing of an Agreed Statement of Facts.

[9] No agreement on the Statement of Facts could be reached and accordingly only a provisional date was set for a hearing of the matter on the 3^rd of February 2005. Case Management orders were made but not complied with.

[10] No further steps were taken for a year. The matter was then brought back to court in January of 2006 when a hearing date of the 31^st of March was set. It was at about that time that the applicant's file was lost by his solicitor and despite calls between May and October of 2006 the file could not be located. It was eventually found in October. At that time a further pre-trial conference resulted in additional orders being made for the filing of a fresh Agreed Statement of Facts by the 30^th of October, submissions by the 10^th of November, replies by the 20^th of November and a hearing was set for the 29^th of November.

[11] Those directions were not complied with.

[12] Regrettably the hearing could not proceed on the 29^th of November as a pre-existing criminal trial went longer than expected. The matter was set for hearing before me today the 31^st of January 2007. Again Case Management orders had not been complied with. Nonetheless counsel appeared to argue the case.

[13] To save time and allow the court to give a decision on an administrative decision taken some nine (9) years ago it was agreed by the parties that the application for leave be treated as a hearing of the substantive motion for Judicial Review

The Law

[14] The Court of Appeal in Nivis Motors and Machinery Company Limited vs The Ministry of Lands and Mineral Resources, Civil Appeal No. ABU0087 of 2004 at paragraph 38 described the principles generally applicable to public administration. Their Lordships approved the English Court of Appeal decision of R v Monopolies Commission Ex-Parte Argyll PLC [1986] 1 WLR 763 and described the principles in this way:

"(1) Good public administration is concerned with substance rather than form.

(2) Good public administration is concerned with speed of decision.

(3) Good public administration requires proper consideration of the public interest.

(4) Good public administration requires a proper consideration of the legitimate interests of individual citizens, however rich and powerful they may be and whether they are natural or corporate persons. ...regard has to be had to the purpose of the administrative process concerned.

(5) Lastly good public administration requires decisiveness and finality unless there are compelling reasons for the contrary."

[15] Order 53(3) of the High Court Rules provides that no application for Judicial Review shall be made unless the leave of the court has been obtained. The rule gives no guidance as to the matters which will be considered when deciding whether or not to grant leave except that the court be satisfied over the applicant's standing and in Rule 4 a provision that leave may be refused if the court considers there has been undue delay in making the application.

[16] Again the Court of Appeal in Fiji Public Service Association and Others vs The Public Service Commission, Civil Appeal No. ABU0010 of 2004S at pages 9 and 10 detailed the appropriate considerations for leave. In quoting from the English decision of The Inland Revenue Commissioners vs National Federation of Self Employed and Small Businesses [1981] UKHL 2; [1982] AC 617 their Lordships observed (in reliance to the decision of Lord Diplock at 642) that the purpose of leave to start proceedings is to prevent the time of the court being wasted.

[17] Much of the proceedings before me focussed on the two issues of delay and hopelessness of the cause. Having considered the evidence, submissions of counsel and the original unamended proceedings I have come to the firm view that the case can be resolved on these issues.

[18] It must be remembered that judicial review proceedings are directed towards the relevant principles referred to above including substance, speed of process, public interest, finality and decisiveness of the impugned decision.

The Facts

[19] The facts of the matter can be briefly summarized. The applicant was a principal at the smaller Dreketi High School and was graded accordingly. He elected to be transferred to the larger Laucala Bay Secondary School on his existing terms and conditions of service with effect from the 29^th of January 1998. This predated the implementation of a subsequent Job Evaluation Exercise (JEE). He not unreasonably assumed that such a transfer involving obviously increased responsibility would carry with it a higher grade and therefore an increase in salary. That, however, was not the position. The grading he received described in the letter from the Ministry of Education to which I have earlier referred as a result of the TEE was lower at the larger school.

[20] Transecting these arrangements were the related proceedings between the applicant's Union, the Public Service Commission and the Ministry of Education concerning an arbitration award over this job evaluation agreement (Award marked PSC 3 respondents submissions, 9^th August). This award was the subject of earlier proceedings in HBJ 3 of 1999 and led to the consent decision of Justice Byrne on the 8^th of March 2004 deleting item No.3 of award No.18 of 1998. This decision prevented multiple post holders being concurrently paid in a single post held by a single incumbent.

[21] In 1999 at the time of the JEE implementation the applicant was an incumbent Vice Principal at an ED3B salary level, and not a Principal in a ED1A graded school.

[22] The applicant was therefore only eligible for salary arrears for the period he held the principal post in Dreketi Secondary School (from 1/7/97 to 31/12/97) until he was transferred to a post which was regraded to ED3B. He was paid that salary difference.

[23] The applicant was not downgraded in the JER implementation. Rather he remained at his Vice Principal post at Laucala Bay Secondary School. His Vice Principal post was regraded as an ED3B.

[24] In simple terms Justice Byrne's order meant the Government was no longer required to pay for two principals in the one school.

[25] The significance of that deletion being that it took away any remedy this applicant may have had for judicial review concerning the maintenance of an increased grading and consequent salary. The award as amended by the judgment is binding on the applicant.

[26] The applicant was appropriately paid any arrears in salary adjustment on the 29^th of June 1998 (see exhibit PSC 5 in the respondent's affidavit dated the 9^th of August 2004). That was all he was entitled to. The applicant has not been demoted or downgraded.

[27] I find accordingly that the decision impugned although morally unfair was nonetheless administratively correct. Further, even if that were not so as a result of HBJ 3 of 1999 the applicant has no available remedy. For these reasons alone I find that this application was hopeless from the outset.

[28] However, there is a further difficulty for the applicant. After the impugned decision was sent to him rather than challenge that decision by judicial review he entered into lengthy correspondence with the Ministry trying to encourage them to change their mind about his grading. That was his choice. It was accordingly also his choice to delay filing these proceedings for 5 years.

[29] It was also his choice through counsel to take a leisurely attitude to the prosecution of his claim. I attribute no fault to him for the loss of his file from his counsel's office. However, it can be fairly said that these proceedings once filed languished for a further 2 years without much action being taken by the applicant to bring some finality to them. The result is that he seeks leave to bring judicial review of a decision made some nine (9) years ago. Bearing in mind the principles of good administration described above he cannot be allowed to do so. The delay in bringing the action is too long and cannot be excused.

[30] Accordingly independent of my decision that this is a hopeless proceeding I refuse leave on the basis that there was an unacceptable delay in commencing the proceedings.

[31] In the result judicial review is refused with costs to the respondents to be taxed if not agreed.

Gerard Winter
JUDGE

At Suva
Friday 2^nd February 2007

Counsel:
Kohli & Singh, Soliciotrs - for the Applicant
Public Service Commission - for the 1^st and 2^nd Plaintiff