Emalus Campus

Information About



AB Annand (Christchurch) Ltd v Australia and New Zealand Banking Group Ltd

HIGH COURT OF FIJI ISLANDS

 

A.B. ANNAND (CHRISTCHURCH) LIMITED

 

v.

 

AUSTRALIA AND NEW ZEALAND BANKING

GROUP LIMITED

 

[HIGH COURT, 1997 (Fatiaki J) 30 January]

 

Civil Jurisdiction

 

Evidence: Civil - discovery of third party documents held by Defendant Bank - whether privileged- whether documents relevant to Plaintiff’s cause of action- whether “without prejudice” rule applicable - Bankers Books Evidence Act (Cap 45) Section 7 - High Court Rules 1988 O 24 rr 1, 2 & 3.

 

The Plaintiff sought discovery of documents held by the Defendant Bank relating to a company in receivership, in respect of which the Bank had supplied a certificate of credit worthiness. Allowing the application the High Court examined each of the Banks objections and HELD: (i) that the public interest required the disclosure to take place, (ii) the documents sought were relevant to the cause of action as pleaded and (iii) the “without prejudice” rule has no application to the right to discovery.

 

Cases cited:

 

Alfred Crompton v. Commissioner of Customs (No. 2) [1973] 2 All ER 1169

AMP Society v. Architectural Windows Ltd [1986] 2 NZLR 190

Barclays Bank PLC v. Taylor [1989] 3 All ER 563

Buckley v. The Law Society [1983] 1 WLR 985

Commercial Banking Co. v. R.H. Brown & Co. (1972) 2 Lloyds Rep. 360

Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55

Cutts v. Head [1984] Ch. 290

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465

O’Sullivan v. Herdman’s Ltd [1987] 3 All ER 129

Parry-Jones v. Law Society [1969] 1 Ch. D. 1

Peek v. Gurney (1873) LR 6 HL 377

Rabin v. Mendoza & Co. [1954] 1 WLR 271

Rainsford v. African Banking Corporation Ltd. (1912) CPD 729

Re Barlow Clowes Gilt Managers Ltd [1991] 4 All ER 385

Robinson v. National Bank of Scotland (1916) SC (HL)

Rush & Tompkins v. G.L.C. [1988] 3 WLR 939

South Staffordshire Tramsways Company v. Ebbsmith (1895) 2 Q B. 669

Swift v. Winterbotham (1873) LR 6 Q.B. 244

W v. Egdell [1990] 1 All ER 835

W.B. Anderson & Sons Ltd. v. Rhodes (Liverpool) Ltd. (1967) 2 All E.R. 850

Woods v. Martins Bank Ltd. [1959] 1 Q.B. 55

 

Interlocutory application in the High Court

 

M. Raza for the Plaintiff

S. Parshotam for the Defendant

Fatiaki J:

This is an interlocutory application lodged by Solicitors acting for the plaintiff company seeking inter alia an order for full discovery by the defendant bank “... of the complete files of its Naviti Street Branch, Lautoka containing all papers, documents, letters, reports etc. that the defendant has in its possession relating to its customer R.V. Patel and/or its Directors or servants and in particular the Defendants’ inter office memorandum file which relates to R.V. Patel’s various accounts with the Defendant ...”

The application is opposed by the defendant bank on various grounds more expressly set out in defence counsel’s written submissions but principal amongst which are:

(1) banker/customer privilege;

(2) ‘fishing’ expedition; and

(3) the documents were examined in ‘without prejudice’ circumstances.

Before dealing with the defendants’ objections it is necessary briefly to background the circumstances that give rise to the present application. The plaintiff company is a New Zealand company trading in agricultural grain and produce. During 1990 it supplied peas to a Fiji company based in Lautoka, R.V. Patel, on a credit basis in reliance on a favourable credit worthiness report dated the 29th October 1990 and provided by the defendant bank. On 18th January 1991 (i.e. barely 3 months later) the defendant bank appointed receivers of R.V. Patel pursuant to a debenture granted by R.V. Patel to the defendant bank’s immediate predecessor, the Bank of New Zealand and which had been transferred to the defendant bank in terms of the A.N.Z. Banking Group Decree No. 20 of 1991.

In its Statement of Claim the plaintiff alleges that in providing R.V. Patel with a favourable credit worthiness report the defendant bank ‘acted fraudulently, negligently and/or carelessly well knowing ... the report to be false or recklessly not caring whether it was true or false’. Alternatively the plaintiff claims that the defendant bank made the report in breach of its duty to the plaintiff to take care that its statements were honest and accurate and the plaintiff claims damages for the defendant bank’s fraudulent and/or negligent mis-statements in providing the R.V. Patel credit worthiness report.

As to what constitutes fraud in a claim based on fraudulent misrepresentation the learned editors of Vol. 31 of Halsbury's Laws of England (4th edn.) state at para. 1059:

“By the mid-nineteenth century it had been established that not only a misrepresentation known or believed by the representor to be false when made was fraudulent, but that mere non-belief in the truth was also indicative of fraud. Thus, whenever a person makes a false statement which he does not actually and honestly believe to be true, for purposes of civil liability, that statement is as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false. Proof of absence of actual and honest belief is all that is necessary to satisfy the requirements of the law, whether the representation has been made recklessly or deliberately; indifference or recklessness on the part of the representor as to the truth or falsity of the representation affords merely an instance of absence of such a belief.”

If I may say so the plaintiff’s claim is not dissimilar to and is supported by a long line of cases of which the most well-known example is Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 and includes such cases as Peek v. Gurney (1873) LR 6 HL 377; Swift v. Winterbotham (1873) LR 8 Q.B. 244 ; Robinson v. National Bank of Scotland (1916) SC (HL); Woods v. Martins Bank Ltd. [1959] 1 Q.B. 55; W.B. Anderson & Sons Ltd. v. Rhodes (Liverpool) Ltd. [1967] 2 All E.R. 850 and Commercial Banking Co. v. R.H. Brown & Co. (1972) 2 Lloyds Rep. 360 (High Court of Australia) to name but a few.

Quite plainly the state and extent of the defendant bank’s knowledge and information about the true state of R.V. Patel’s accounts and business affairs at the material time is a highly relevant issue in assessing and determining the bona fides and accuracy of the credit worthiness report it provided to the plaintiff’s New Zealand bankers concerning its customer R.V. Patel.

To that end the plaintiff Company, through its solicitors, issued on 14th July 1995 a summons against the defendant bank for its failure, within the relevant time limits, to file its List of Documents together with an affidavit verifying the same. (See : Order 24 rr. 3 & 7)

The defendant bank’s List of Documents was eventually filed on 17th August 1995. It itemises 6 documents which, with the exception of the first, refers to various letters that were exchanged between the solicitors acting for the parties.

The list was considered plainly inadequate by the plaintiff’s solicitors who had earlier been permitted by the defendant bank’s solicitors on the 31st of January 1995 to inspect numerous files of the defendant bank which were subsequently summarised in a comprehensive 14 page memorandum prepared by the plaintiff’s New Zealand solicitors. Of particular interest were files that contained inter-office memoranda and related documents which traced the defendant banks attitude towards and banking history of its customer R.V. Patel through the relevant period August to October 1990 and for some time before and after then until the appointment by the defendant bank of the receivers of R.V. Patel in January 1991.

The principal target of the plaintiff’s application for discovery appears to be a file in the possession of the defendant bank “containing letters, papers, documents, reports, inter-office memorandums (sic) notes and full bank records” relating to the bank accounts of R.V. Patel and which it is deposed:

“... are very much relevant to the issues raised in the pleadings …”

and (would)

“.... avoid any unnecessary delays and complications in bringing this action to its conclusion as early as possible.” ..

The affidavit of Mr. Capper for the defendant bank states however that:

“The opportunity made available to the Plaintiffs representatives to examine the documents was made only on a ‘without prejudice’ basis with no admission of any kind on the part of the Defendant. This extended to the admissibility of such evidence in a Court of law and admission of liability on the part of the Defendant.“

(the ‘without prejudice’ objection)

furthermore he deposes :

“... that the documents that the Plaintiff is now seeking to discover relate to the accounts of R.V. Patel & Co. (Merchants) Ltd. Group of Companies and the Defendant is bound by banker-customer privilege not to disclose these documents to the plaintiff without authority of this customer or its agents.”

(the ‘banker/customer privilege’ objection)

and lastly it is asserted that :

“What the Plaintiff is purporting to do is to establish by means of this discovery whether it has a case against the Defendant or not. It is tantamount to a ‘fishing’ expedition ...”

(the ‘fishing’ objection)

In Re Barlow Clowes Gilt Managers Ltd. [1991] 4 All E.R. 385 Millet J. said at p.393:

“It is a feature common to both systems of justice, civil and criminal that there is a strong public interest that the court should have all relevant information made available to it. But the courts have never assumed or been granted the power to compel the production of all such information regardless of its nature and source. That would amount to an intolerable invasion of privacy. Statute and rules of court made under statutory power have long established the circumstances in which production can be compelled in the interests of justice and have thereby resolved the conflict between the two competing public interests.”

In this latter regard Order 24 rr.1 & 2 of the High Court Rules makes automatic mutual discovery of documents mandatory unless the parties agree otherwise.

Failing such automatic discovery the power of the Court to order discovery is set out in Order 24 r.3 of the High Court Rules which provides:

“... the Court may order any party to a cause or matter ... to make and serve on any other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question in the cause or matter ...”

Quite plainly in order that any document may be discoverable it must firstly, be shown “... to relate to (some) matter in question in the cause ...” In other words the document must be relevant to a question or issue in the proceedings in so far as the same may be deduced from the pleadings in the action. Secondly, the document(s), must be shown to exist and ‘... are or have been in (the) possession, custody or power ...’ of the party against whom discovery is being sought.

In the leading authority Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55 Brett L .J. stated of the above first requirement at p.63:

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in, the words ‘either directly or indirectly’ because, it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”

In this regard counsel for the plaintiff submits:

“... the relevancy of the documents sought is clear as they relate to the A.N.Z. dealings with its client R.V. Patel who was also the customer of Annand and would support (or at least throw light on) Annand’s claim as pleaded briefly that the A.N.Z. already knew that R.V. Patel was insolvent when it advised Annand in such a way that Annand was encouraged to continue business with R.V. Patel and supply R.V. Patel with goods and credit.”

and further in his submissions in reply, counsel concludes by saying:

“... while R.V. Patel might well be a third party R. V. Patel is very much part of the factual situation and the complaint of Annand. Annand had extended credit to R.V. Patel relying on the ANZ’s assurance … The principal issue Annand considers relevant is that when the Bank Officer gave the report upon which Annands rely, he must have had relevant information on file upon which he relied in determining the way he would respond. The internal information available to the Bank Officer is very relevant issue in determining the state of mind of the A.N.Z. and the objectivity with which the report was given.”

I turn then to consider the defendant’s objections in more detail and I begin with the ‘fishing objection’. In this regard I adopt as appropriate the statement of Chilwell J. when he said in AMP Society v. Architectural Windows Ltd. [1986] 2 N.Z.L.R. 190 at p.196:

“In my view, the description of ‘fishing’ in the authorities ... comes to this: an applicant is fishing when he seeks to obtain information or documents by interrogatories or discovery in order to discover a cause of action different from that pleaded or in order to discover circumstances which may or may not support a baseless or speculative cause of action.”

In the present case the plaintiff’s Statement of Claim and affidavit evidence including its solicitor’s synopsis of the files sought to be discovered, clearly sets out a well-known cause of action based on the dual torts of deceit and negligent mis-statements arising in factual circumstances that cannot now be considered unprecedented. Nor I would add can the plaintiff’s claim be characterised as either baseless or speculative. Indeed, the plaintiff company in this application seeks discovery of documents that plainly exist and were in the possession, custody and control of the defendant bank’s solicitors. There is clearly no merit in this ground of objection which is accordingly dismissed.

The next ground of objection raises the head of ‘banker/customer’ confidentiality as a basis for refusing discovery. That a duty of secrecy exists in the normal relationship of a banker and its customer is clear from the dicta of Lord Donaldson

M.R. when he said in Barclays Bank P.L.C. v. Taylor [1989] 3 All E.R. 563 at p. 565:

“The banker customer relationship imposes on a bank a duty of confidentiality in relation to information concerning its customers and his affairs which it acquires in the character of his banker. But it is not an absolute duty. It is subject to four well-known qualifications. These entitle the bank to make disclosure where (a) disclosure is under compulsion by law, (b) there is a duty to the public to disclose, (c) the interests of the bank require disclosure (d) the disclosure is made by the express or implied consent of the customer.”

Lord Diplock in discussing the nature of the duty of a banker to maintain the confidentiality of his customer’s affairs and in recognising its limitations said in Parry-Jones v. Law Society [1969] 1 Ch.D.1 at p.9: .

“What we are concerned with here is the contractual duty of confidence, generally implied though sometimes expressed ... Such a duty exists ... between banker and customer, doctor and patient and accountant and client. Such a duty of confidence is subject to and over-riden by, the duty of any party to that contract to comply with the law of the land ... For example, in the case of banker and customer, the duty of confidence is subject to the over-riding duty of the banker at common law to disclose and answer questions as to his customer’s affairs when he is asked to give evidence of them in the witness box in a court of law.”

In my view an order of the Court directing a party to any cause or matter to make discovery pursuant to Order 24 r.3 of the High Court Rules would amount to ‘disclosure ... under compulsion of law’ under qualification (a) above and gives rise to an over­riding duty on the party so-ordered to comply.

As was said by Bingham L.J. in W v. Egdell [1990] 1 All E.R. 835 at p. 848:

“The decided cases very clearly establish (1) that, the law recognises an important public interest in maintaining professional duties of confidence but (2) that the law treats such duties not as absolute but as liable to be over-ridden where there is held to be a stronger public interest in disclosure. Thus the public interest in the administration of justice may require a clergyman of a banker, a medical man, a journalist or an accountant to breach his professional duty of confidence.”

Furthermore Section 7 of the Bankers Books Evidence Act (Cap.45) empowers the Court to order “any party to a legal proceedings... to inspect and take copies of any entries in a bankers book” which in my view includes any books files or papers ordinarily used or maintained by a bank in the conduct of its ordinary banking business irrespective of whether such books, papers or files relate to a party to the proceedings or not.

Defence counsel seeks however to limit such discovery to ‘parties in the proceedings’ of which the defendant bank’s customer R.V. Patel & Co. is plainly not, and counsel quotes various extracts from the judgments in South Staffordshire Tramways Company v. Ebbsmith (1895) 2 Ch. B. 669 in support of his objection.

I am satisfied however that whilst the Courts must indeed be circumspect and cautious in ordering discovery of matters concerning non-litigant third parties, the power to do so nevertheless exists and may be exercised in exceptional circumstances in the interests of the administration of justice and where the Court is of opinion that such an order is necessary either for disposing fairly of the cause or matter or for saving costs. (per Lord Mackay in O’Sullivan v. Herdman’s Ltd. [1987] 3 All E.R. 129 especially at p.136)

The application in this case however, is not directed to a non-litigant third-party, nor does it seek to discover confidential correspondence that emanated from a third-party, or is in the custody and control of a non-litigant third party.

True it might be as defence counsel claims that such documents relate to the affairs of a non-litigant third party and are covered by the defendant bank’s duty of confidentiality towards its customers, but, as was said by Lord Cross in Alfred Crompton v. Commissioners of Customs (No.2) [1973] 2 All E.R. 1169 at p.l184f:

“Confidentiality is not a separate head of privilege, but it may he a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the Court has to do is weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should he disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other.”

Earlier his Lordship at p.1180, referred to an approved statement of general principle in Bray on Discovery which reads as follows:

“The mere fact that the giving of discovery will involve a breach of confidence as against some third party or in any way affect or prejudice his interest does not constitute of itself an independent objection to giving the discovery, disclosure under the compulsion of the Court being for this purpose distinguished from voluntary disclosure out of court.”

Bearing the above in mind and mindful that at the material time the non-litigant third party R.V. Patel & Co. was a customer of the plaintiff company and the defendant bank, and was placed under receivership in January 1991 by the defendant bank itself, there is not the slightest doubt in my mind of the relevance of the documents sought to be discovered, but also, that the balance of competing considerations is strongly in favour of maintaining and upholding the public interest that in a civil action the Court should be possessed of all relevant information to enable it to reach a decision.

I am further fortified by a decision in a South African case Rainsford v. African Bankinq Corporation Ltd. (1912) C.P.D. 729 which is noted in Vol.18 of The Digest (2nd re-issue) at p.142 under the following relevant entry:

“Confidential correspondence between a bank and its branches and confidential documents relating to the dealings of the bank with customers not parties to the suit, which are relevant to the issue between the parties, are not privileged and are not excluded from inspection and production.”

In somewhat similar vein and referring to internal minutes of the Law Society, Sir Robert Megarry V.C. said in Buckley v. The Law Society [1983] 1 W.L.R. 985 at p. 990:

“I do not think any documents should be excluded merely because they are internal documents, for the question is one of there being reason to suspect dishonesty on the solicitor’s part, and internal documents may showh how much or how little reason there was for the suspicion.”

This second ground of objection is accordingly rejected.

The third and final ground of objection is based upon the so-called ‘without prejudice’ opportunity given to the plaintiff’s solicitors to inspect the defendant bank’s files with a view to settling the plaintiff company’s claim.

In this regard Lord Griffiths said in Rush & Tompkins v. G.L.C. [1988] 3 W.L.R. 939 at p.942":

“The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is no where more clearly expressed than in the judgment of Oliver L.J. in Cutts v. Head [1984] Ch. 290, 306.”

and later, after citing a passage from Oliver L.J’s judgment (op.cit) Lord Griffiths continues :

“The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence ... However, the application of the rule is not dependant upon the use of the phrase ‘without prejudice’ and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission.”

and lastly at p.943/944 his Lordship laid down the following general rule:

“I would therefore hold as a general rule that the ‘without prejudice’ rule renders inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made in a genuine attempt to reach a settlement.”

I confess that the defendant’s objection raises the question of the application of the ‘without prejudice’ rule in wholly unusual and novel circumstances insofar as it is not any written or oral negotiations or admissions made by the defendant bank that is sought to be protected, but rather, the occurrence of an event, in which the plaintiff’s solicitors were permitted to peruse various files and documents belonging to the defendant bank.

It is therefore not so surprising that counsel for the plaintiff did not seek to address defence counsel’s submissions or affidavit evidence in that regard save as to the question whether or not such documents and files as were made available during counsel’s inspection, would be protected under a claim of ‘solicitor/client privilege’, which quite plainly they could not, since their creation and existence occurred long before any litigation was ever contemplated.

In my considered view the ‘without prejudice rule’ cannot and does not extend to exclude independent acts or events nor does it curtail a party’s right in civil actions to discovery and production of documents which does not depend upon the admissibility of the documents in evidence. The general rule being that a party is entitled to discovery of all documents that relate to the matters in issue irrespective of admissibility.

The case of Rabin v. Mendoza & Co. [1954] 1 W.L.R. 271 shows however that even between the parties to ‘without prejudice’ correspondence they are not entitled to discovery against one another. In that case, a surveyor’s report obtained by the defendant’s in pursuance of ‘without prejudice’ discussions between the parties was considered to be entitled to protection from production owing to its ‘without prejudice’ status.

But even in that case the defendant was obliged to disclose the existence of the report in its affidavit of documents and “... (the) report was clearly made solely for the purposes of the ‘without prejudice’ negotiations. The solicitor for the plaintiff himself says in his affidavit that at the time of the interview it was contemplated that steps such as these should be undertaken.” (per Lord Denning M.R. at p.273-274 ibid)

In the present case before me however, the files and documents sought to be discovered were clearly not made and did not come into existence either generally or even solely for the purposes of settling the plaintiff’s claim, nor could their creation have been within the contemplation of either the plaintiff’s or the defendant’s counsel at the relevant time much less can they give rise to a claim for privilege against disclosure on the basis of the ‘without prejudice’ rule.

There is no merit either in this third ground of objection which is also rejected. The defendant bank’s objections having all been rejected, the plaintiff’s application is granted with costs to be in the cause.

(Application granted; discovery ordered.)

Chand v AK Narayan and Company

        [1997] 43 FLR 33

         

        HIGH COURT OF FIJI ISLANDS

         

        PARMESH CHAND

         

        v.

         

        A K NARAYAN & COMPANY

         

        [HIGH COURT, 1997 (Lyons J) 31 January]

         

        Appellate Jurisdiction

         

        Practice (Civil) - Magistrates’ Courts - failure to serve notice of intention to defend within time - meaning of “hearing day” and “return day” - how discretion to give special leave to defend is to be exercised - Magistrates’ Courts Rules (Cap 14) Order VI Rules 1 to 10.

         

        A Defendant wishing to defend failed to serve its notice of intention to defend within 3 days of the return date. On the return date the Defendant indicated that it wished to Defend but the Magistrate nevertheless entered Judgment in default of defence. Allowing the appeal and remitting the matter to the Magistrates’ Court the High Court HELD: Order VI Rule 9 gives the Court a discretion to allow a defaulting defendant to defend and this discretion must be exercised judicially.

         

        Cases cited:

         

        Asgar Ali & Shabnam Nisha v. Nazmin Nisha (Lautoka H.C. Civ. 11/92)

        Luka Brewery v. Grundaman [1985] 2 Qd R 204

        Mason v. Magridge [1982] 8 TLR 805

        R v. House (1936) 55 CLR 499

         

        Civil Appeal from the Magistrates’ Court.

         

        H.A. Shah for the Appellant

        R. Prakash for the Respondent

         

        Lyons J:

         

        This is an appeal from the decision of the Ba Magistrates’ Court of the 8th May 1996 wherein default judgment was issued against the Appellant (Defendant).

         

        The Respondent (Plaintiff) is a firm of solicitors. On the 13th March 1996 the Respondents issued proceedings out of the Ba Magistrates Court for the sum of $2,805.00 being for the balance of agreed professional fees allegedly owing.

         

        The return date allocated pursuant to Order VI r.2 of the Magistrates Court Rules (Cap 14) was listed on the Writ of Summons as the 8th May 1996.

         

        The Applicant was served on the 23rd April 1996.

         

        The Applicant obtained solicitors and on the 3rd May 1996, a Notice of Intention to defend was filed. This at least from the Court Record, appears to have been served on the 7th May. In any event it was not served within 3 clear days before “the day fixed for hearing” required by O.VI r.6.

         

        On the 8th May 1996, the parties attended through their legal representatives. The Court Record of that day reads:-

         

        “08/05/96

         

        Plaintiff - Prakash

        Defendant - Miss Munam

         

        Prakash :          Notice of Intention to Defend not served.

         

        Munam:            Agree. Failed. Serve with 3 clear days.

         

        Prakash:           No evidence before Court as to why. Rules are very clear.

         

        Munam:            Claim is unenforceable under Legal Practitioners Act.

         

        Prakash:           No evidence before Court to exercise discretion.

         

        Munam:            Notice of Intention to Defend served yesterday. No clear days.

         

        Order:  Default Judgment & Costs.”

         

        The Appellant   (Defendant) appeals against this default judgment.

         

        The grounds of appeal are:-

         

        1.         THAT the Learned Magistrate erred in law and in fact in entering Default Judgment against the Defendant/Appellant on the 8th day of May, 1996 against a claim, the nature of which was not liquidated.

         

        2.         THAT the Learned Magistrate erred in law and in fact in entering Default Judgment against the Defendant/Appellant on the 8th day of May, 1996 when in fact Notice of Intention to Defend was properly issued out of the said court but served late on the Plaintiff/Respondent’s Counsel and sufficient and reasonable explanation being given to the said Magistrate for the delay, the Learned Magistrate failed to exercise his discretion in granting the said Default Judgment.

         

        3.         THAT the said Default Judgment is irregular.

         

        4.         THAT the Learned Trial Magistrate erred in law and in fact in entering default judgment against the Defendant/Appellant on the 8th day of May, 1996 in favour of a Plaintiff who had no legal capacity to sue.

         

        By ground 4 above, the Counsel for the Appellant raised another issue regarding the irregularity of the judgment, such issue arising from the stay decision of the Learned Magistrate at Ba (not the Learned Magistrate who entered the original Default Judgment) of the 23rd September 1996.

         

        In that decision the learned Magistrate most generously pointed the parties to a likely irregularity which may bring into effect the Queensland decision of Luka Brewery v. Grundaman [1985] 2 Qd R 204. Counsel for the Appellant readily admitted that he was not as yet able to get a copy of the case so his submissions were a little vague in that respect. Luka’s case confirmed in Queensland the old rule of practice that a sole trader trading as a firm cannot sue (but may be sued) in the firm name. A sole trader must sue his own name trading as X (a firm). (See Mason v. Magridge [1982] 8 TLR 805 and the White Book generally re 0.81 r.1).

         

        As far as this appeal relates, the application of Luka’s case does not help. There is no material before this or the lower court to assist in deciding whether or not the Respondent is a sole trader and neither was it raised in the lower court. It would be improper for this Court, in its appellate jurisdiction, to assume “sole trading” so as to rule an irregularity and I decline to do so.

         

        Another ground argued by the Applicant as one covered by grounds 2 and 3, can also quickly be disposed of. The Appellant argues that the Learned Magistrate improperly exercised his discretion when, in ordering the default judgment, he failed to appreciate the difference between, “return day” and hearing date. To decide this, it is best to set out O. VI Rules 2, 5, 6, 7 and 8 of the Magistrates’ Court Rules.

         

        “ORDER VI - FORM AND COMMENCEMENT OF SUIT

         

        Commencement by writ of summons

        1.         Every suit shall be commenced by a writ of summons to be issued by the magistrate or the clerk of the court. The summons may issue without application in writing.

         

        Contents of writ of summons, Appendix A, Form 2

        2.         The writ shall contain the name, place of abode and occupation of the plaintiff and of the defendant, so far as they can be ascertained, and the date (called return day) and place of hearing: and there shall be endorsed on the writ particulars of the claim signed by the plaintiff or his barrister and solicitor which shall state briefly and clearly the subject matter of the claim and the relief sought.

         

        Time for service of writ

        5.         Every writ of summons shall be served eight clear days before the date of hearing when the defendant resides within the magisterial area of the court from which the writ is issued and in all other cases the period shall be fixed by the court when the writ is issued and shall be endorsed on the writ:

         

        Provided that the court may from time to time extend the date of hearing of a writ of summons which has not been served in time.

         

        Filing of notice of intention to defend

        6.         If the party served with the writ of summons deliver to the clerk of the court, and serves on the plaintiff, not less than three days before the day fixed for hearing, a notice in writing that he intends to defend the suit, then and in such case the suit shall be entered for hearing on the aforesaid date for hearing. (Amended by rules 21st August 1972)

         

        Special leave to defend where foregoing rule not complied with

        7.         When any defendant neglects to deliver and serve the notice of defence, as prescribed by rule 6, within the time limited by the said rule, the court may, at any time before judgment is entered, on the defendant disclosing a defence on the merits, let in the defendant to defend upon such terms as the court may think just. (Substituted by Rules 31st March, 1966 and amended by Rules 21st August 1972)

         

        Disposal of undefended suit

        8. In the case of liquidated demands only, where any defendant neglects to deliver and serve the notice of defence prescribed by rule 6 within the provisions of rule 7, then and in such case the plaintiff may enter final judgment against that defendant. (Substituted by Rules 21st August 1972)

         

        The argument is that as the 8th of May was the “return day” not the hearing day, then rule 6 has not been infringed upon as that rule requires service 3 clear days before the hearing date.

         

        Counsel for the Respondent argued that here is no substance in the argument as the “return day” in rule 2 can also be the hearing day. He is undoubtedly correct.

         

        I have been referred as authority for the Appellant’s submission in the case of Asgar Ali & Shabnam Nisha v. Nazmin Nisha (Lautoka H.C. Civ. 11/92). In that case the learned Judge does reason that return day and hearing day are different but it does not appear to have been the ratio decidendi of that case. To me it appears either to be obiter or as what can be termed “a throwaway line”. As Mr. Justice Young, as Editor of the Australian Law Journal said in his editorial column in the July 1996 edition of the Australian Law Journal at p.522:-

         

        “the value of throwaway lines in a Judgement should not be under-estimated. They are usually the result of serious research by the Judge on a point which when always worked out becomes unnecessary for the decision. The fault is, however, that the learning should be preserved for later consideration ………….. a throwaway line is meant to stimulate thought in later cases, to motivate academics to build upon it and to encourage counsel in a later case to develop arguments based on it. Indeed, counsel preparing a case is very unwise to ignore such a line. Counsel must either build on it or debunk it.”

         

        It now falls to me to develop further the line of thought expressed as a throwaway line by the learned Judge in the above case.

         

        Order 1 Rule 2 refers to the Writ of Summons. It defines the content of the Writ before it can be issued for subsequent service and further action. One of the matters to be attended to before issue is the appointment of a date and a place of hearing. This by any definition must refer to the date of the first available hearing. This is defined, no doubt for ease of reference and to avoid confusion, as “the return day.” The “return day” is a hearing day but it is peculiarly the first available hearing day. It is the point of reference for the parties so they may know when they must first come before the Court. Thereafter the court, may, being satisfied that all materials are in order, appoint another hearing date to allow a full airing of evidence. The rules however do not preclude that return day from being hearing dates. If the parties are ready and court time is available, the matter could undoubtedly be heard in full on that day, notwithstanding that it is the return day as expressed in the language of Order VI Rule 2.

         

        Additional support for this reasoning is found in Rule 5. The procedure is that the Writ, with the return day affixed, is issued for service. Rule 5 required such service to be eight clear days before “the date of hearing”. The reason for this is clearly to allow the defendant to gather his or her forces. The date of hearing in Rule 5 clearly refers to the “return date” in Rule 2. If, as counsel for the Appellant argues, the hearing date is that date affixed by the court subsequent to the “return day”, Rule 5 would be nonsensical.

         

        Similarly, Order VI Rule 6 would be rendered nonsensical.

         

        To my mind it is clear that “return day” and hearing date are the same but only when the “return day” is the first hearing date appointed in accordance with Order VI Rule 2. The argument advanced by counsel on this point relative to the exercise of discretion is dismissed.

         

        Counsel for the Appellant also urges on the matters pertaining to the Legal Practitioners Act (Cap 254) and Order XXXVIII of the Magistrates’ Court Rules. It is submitted that the Respondent in its substantive action had not complied with the statutory requirements of this legislation. I do not propose to go into this argument. It begs my interference in what could ultimately be a decision making rule of the Magistrate. I consider the Appellant has much stronger grounds which will determine this argument and which would avoid my ruling on the statutory argument presented. At least Counsel for the Appellant is aware of the provisions of the Legal Practitioners Act as relates to costs as it is from this Act (and only from this Act) are lawyers able to demand fees and, in strict accordance with its provisions.

         

        During submissions the argument arose, as foreshadowed by appeal ground 3 as to whether the Court below has properly exercised its discretion.

         

        On reading Rule 7 and rule 8 together one is able to get a better understanding of this argument.

         

        Accepting for the ease of argument that the claim is for a liquidated demand, the court has a discretion under Rule 7 to allow the Defendant to defend. Equally, under Rule 8, the Court has the ability, in the exercise of its discretion pursuant to Rule 7, to refuse to allow the defendant in to defend, but instead to allow the Plaintiff to enter judgment.

         

        The first matter thus to be decided by the court (the first exercise of its discretion) is whether or not to let the Defendant into defend.

         

        It is of note that on the Notice to the Defendant accompanying the Writ of Summons, it reads:-

         

        “ORDER VI

         

        8.             If the party served with the Writ of Summons delivers to the clerk of the court, and serves on the plaintiff, not less than three days before the day fixed for hearing, a notice in writing that he intends to defend the suit, then and in such case the suit shall be entered for hearing on the aforesaid date for hearing.

         

        9.            When any defendant neglects to deliver and serve the notice of defence as prescribed by the last preceding rule, within the time limited by the said rule, the court may at any time before judgment is entered, on an affidavit or, if the court sees fit, on oral evidence disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend, upon such terms as the court may think just.

         

        10.          In case of liquidated demands only, where any defendant neglects to deliver and serve the notice to defence prescribed by rule 6 of this Order within the time limited by the said rule, and is not let in to defend in accordance with the provisions of rule 9 of this Order, then and in such case the plaintiff may enter final judgment against that defendant.”

         

        This form is in compliance with Form 1 in the subsidiary legislation at page 67.

         

        It appears thus to me that, in exercising its discretion in regard to Rule 7, the Court must have regard to the evidence from the Defendant, arguably, no matter how it is taken. In fact this goes without saying as Rule 7 requires “the defendant discloses a defence on the merits”. As I see it this in turn requires the Defendant to be heard in such manner as satisfies the court and that due weight must be placed upon the Defendant’s material so advanced.

         

        On the face of the record, the Defendant has not been given the opportunity to advance any material evidence as to merit. If Ms Munam’s utterance that “Claim is unenforceable under Legal Practitioners Act” is considered as evidence, there is no reference in the ruling to that having been considered - if of course it could have been considered in such an unexpanded form.

         

        In R v. House (1936) 55 CLR 499 at pp504 and 505, the High Court of Australia (per Dickson J, Evatt J., and McTiernan J, said in reviewing the English Authorities as they then stood:-

         

        “It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge had reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

         

        I hold the view, that “some material consideration” must, by definition of Rule 7, refer to the materiality of the Defendant’s proposed defence. On the face of the record the Defendant was not given the opportunity to present this in any detail by any manner. Consequently, I consider the Learned Magistrate has exercised his discretion against allowing the Defendant entered defend improperly and his ruling pursuant to Rule 8 (based on this impropriety which arose in Rule 7) must be set aside.

         

        Counsel for the Respondent argued that the Learned Magistrate had exercised his discretion properly in that the ingredients to enliven his discretion were all that were required (i.e. the late service of the notice of intention to defend). I do not agree. Rule 7 is there such that if the Defendant has “some merits” in his Defence then at the Court’s discretion, he can proceed. The ground for the exercise of discretion in Rule 7 is set by the non-compliance with Rule 6 but the actual discretion must only be exercised on the Defendant disclosing a defence on the merits. Thus it stands to reason that the Defendant must be given a proper opportunity to disclose a defence on the merits before the discretion is exercised either in the Defendant’s favour or against it. The manner of disclosing this defence must be by the methods prescribed, and thus allowable, in the notes on Form 1.

         

        If this is not done then any Judgment following from Rule 8 has been obtained through an improper exercise of the discretion enlivened by the non-compliance and as provided for in Rule 7.

         

        For the above reasons, the appeal is upheld.

         

        The default Judgment of the 8th May 1996 is set aside.

         

        The matter should be returned thus to the Magistrates’ Court at Ba to be decided upon as the Magistrate sees fit, be it by way of letting the Defendant in or taking material as to merit before deciding on Rule 7. I might add that on reading the Learned Magistrate’s decision on the stay, he has given a very strong indication as to what he would do if given his task. Both parties may well be advised to take advantage of his judicial generosity before deciding what they will ask of his Court.

         

        The Respondent should pay the Appellant’s costs summarily assessed at $200.00.

         

        (Appeal allowed; Judgment set aside; matter remitted to the Magistrates’ Court.)
         

Bianco v Ruggiero

        [1997] 43 FLR 229

         

        HIGH COURT OF FIJI ISLANDS

         

        ALESSANDRO BIANCO

         

        v.

         

        GIUSEPPE RUGGIERO & TAEKO RUGGIERO;

        & MEDITERRANEAN ISLAND RESORT LTD

         

        [HIGH COURT, 1997 (Lyons J), 12 September]

         

        Civil Jurisdiction

         

        Exchange Control- issue of shares- whether subscriber resident in Fiji- whether issue totally invalid- whether purchase price recoverable- Immigration Act (Cap 88) Sections 2 & 8 (1) - Exchange Control Act (Cap 211) Sections 10 & 20.

         

        A visitor to Fiji purchased shares in a Fiji company. Later he sought to rescind the agreement and recover the purchase price. The High Court examined the relevant statutory provisions and HELD: (i) that a visitor is not a resident of Fiji while visiting (ii) that whether or not the shares were issued or transferred to the visitor ministerial consent to the sale was not beforehand obtained and therefore the transaction was wholly void and (iii) the parties not being in pari delicto the visitor was entitled to a refund.

         

        Cases cited:

         

        Central Piggery Co Ltd v. McNico11 (1949) 78CLR 594

        Chalmers v. Pardoe [1963] All ER 552

        Green v. Portsmouth Stadium Ltd [1953] 2 All ER 102

        Hughes v. Assett Management Co. Pty Ltd. [1995] 3 All ER 669

        Kiriri Cotton Co. Ltd. v. Dewani [1961] All ER 177

        Mosekly v. Koffyfontein Mines Ltd [1911] 1 Ch 73

        Re Fry , Chase National Executors and Trustees Corporation Ltd [1946]

                    2 All ER 106

        Re Transatlantic Life Assurance Co. Ltd. [1979] 3 All ER 352

        Spitzel v. Chinese Corporation [1899] 80 LT 347 at 351

         

        C.B. Young for the Plaintiff

        A. Patel for the Defendants

         

        Lyons J:

         

        The Plaintiff commenced action by Writ dated the 3rd August 1995 against the Defendant for recovery of monies paid by way of purchase of a shareholding, and a loan to, the 2nd Defendant Company.

         

        The Plaintiff is an Italian citizen presently residing in Fiji. At this present moment I believe he is here on a visitor’s permit.

         

        The 1st Defendants also reside in Fiji and are the office bearers of the 2nd Defendant Company.

         

        I will deal with one matter first, so as to avoid confusion.

         

        As shall be seen, the Plaintiff invested $100,000.00 in the 2nd Defendant Company. For his investment the Plaintiff received 10,000.00 shares in the 2nd Defendant Company. At the time the 1st Defendant were the office bearers of the company. The 1st Defendant, Guseppe Ruggiero, was a Director, and the Defendant Taeko Ruggiero was the company secretary and, as I understand, also a director of the Company if one is to read paragraph 2.1 of the Defence correctly.

         

        At the commencement of his submission, counsel for the Defendant argued that there was no evidence against the 1st Defendants such as would satisfy the Court that they had incurred any liability to the Plaintiff. As I will explain later on, I consider that as a correct view. So, for ease of understanding, I will hereinafter refer to the 1st Defendant as Ruggerio (collectively) and the 2nd Defendant as Mediterranean.

         

        As I have said, the Plaintiff is an Italian citizen. He first arrived in Fiji on the 28th August 1993. He was issued a permit to enter as a visitor. He left Fiji on the 29th September 1993.

         

        The Plaintiff next returned to Fiji, again on a visitor’s permit on the 9th February 1994. This permit was valid for one month unless extended.

         

        On the 4th March 1994 this visitor’s permit was extended until the 9th June 1994.

         

        On the 25th June 1994, the Plaintiff was issued a permit pursuant to Section 8(1) of the Immigration Act (Cap 88). This Section deals with permits to reside in Fiji, for work purposes or otherwise. It is distinctly different from a permit to visit as issued pursuant to Section 9(1) of the Act.

         

        The permit under Section 8(1) was to expire on the 6th April 1997. In my view, this is the permit that the parties referred to as “a work permit”. This permit carries with it a right to reside in Fiji.

         

        Ruggiero was the Italian Consul for Fiji. They also run a resort called the Mediterranean. This resort offers a restaurant and accommodation.

         

        In August 1993, soon after his arrival, the Plaintiff visited Ruggiero’s resort. He had discussions with the Ruggiero. These discussions centred on the Plaintiff investing in Mediterranean, a company set up to establish and run the resort and more particularly, a smaller resort situated on an island just off Vuda in Western Viti Levu called Tivua Island.

         

        The Plaintiff was on holiday. He had some money to invest having received it from his late father’s estate. He had some experience in business in the field of Insurance Brokerage working principally for his late father.

         

        In these discussions, Ruggiero offered the Plaintiff 10,000.00 shares of Mediterranean for the consideration of $100,000.00 (Fijian).

         

        The Plaintiff likes Fiji. He does not deny he was looking for investment. But at the time (August/September 1993) he made no firm commitments to invest in Fiji in general or Mediterranean in particular.

         

        He returned to his home in Europe but kept contact with Ruggiero.

         

        He returned to Fiji, as stated, on the 9th February 1994. After further discussions with Ruggiero he decided to invest in Mediterranean on the terms previously discussed.

         

        On the 25th February 1994, Ruggiero and the Plaintiff met in the offices of Ruggiero and Mediterranean’s Accountant in Lautoka being Messrs Kapadia Singh & Co Chartered Accountants (Mr. Ravindra Singh). Minutes of that meeting deemed a meeting of Mediterranean are dated the 28th February 1994 and are Exhibit 2 herein.

         

        The meeting resolved as follows.

         

        “It was unanimously resolved that:

         

        a)         A further 10,000 ordinary shares be issued to Mr Allessandro Bianco at a price of $100,000 (One Hundred Thousand Dollars), the receipt of which is hereby acknowledged by the company.

         

        b)         Upon completion of the above transaction, Mr. Allessandro Bianco will be entitled to a share certificate for 10,000 ordinary shares in the company representing 10% of the total registered share capital of the company.

         

        c)         The Directors hereby appoint Mr. Allessandro Bianco as ‘Island Manager” from the date issued “Working Permit” by the Fiji government for the period of 3 (three) years. His “Working Permit” for the years will be applied by the company to the Ministry of Immigration in Fiji. The conditions of his employment will be discussed and determined in the next Director and shareholders meeting.

         

        Kapadia Singh & Co., Chartered Accountants of Lautoka are hereby instructed to prepare the necessary share allotment documents, share certificates etc to give legal effect to the above transactions. They are further instructed to attend to stamping and filing of the necessary documents with the Commissioner of Stamp Duties and Registrar of Companies.”

         

        This was signed by Guiseppe Ruggiero and Taeko Ruggiero and witnessed by the said Mr. Singh, the Accountant.

         

        A share certificate in Mediterranean, being No. 3 and dated the 28th February 1994 for 10,000 shares, was issued to the Plaintiff (Exhibit 3).

         

        The Plaintiff further purchased certain items for F$8,200.00 which were provided to Mediterranean for use on its Tivua Island Resort. The monies so expanded were treated as a loan to Mediterranean from the Plaintiff. Exhibit 4 is very clear on that. The $8,200.00 was expressed as a loan “with the condition of No Interest, No Term and No Security”. It was, in effect a “pay back when you can” loan.

         

        Matters progressed thereafter according to plan until August 1995 when the Plaintiff had his solicitor write to Ruggiero and Mediterranean seeking to rescind the agreement to purchase the shares and, as well, demand repayment of the loan. The Plaintiff’s reasons for this appear to relate to matters centred on his personal life which, in my view, have little relevance here.

         

        The Defendants of course resisted this.

         

        The Plaintiff’s argument is a very narrow one. He says that at the time of purchase of the shares, he was a non-resident of Fiji and thus the agreement to purchase the shares (security) was contrary to Section 10 of the Exchange Control Act (Cap 211).

         

        Further, as relates to the $8,200.00 loan, it is argued that the Plaintiff, by serving demand, had “called in” the loan, to which the Defendant had no right to refuse payment thereof.

         

        There are some preliminary matters which need to be disposed of.

         

        Firstly, it is not in dispute that at the time of the transfer of the shares (25th February 1994 - 28th February 1994) there existed no approval for the issuing of those shares as envisaged in Section 10 of the Act. This approval was obtained on the 20th September 1995 (See Exhibits 9, 10 and 11) one month after the letter from the Plaintiff’s solicitors (Exhibit 5) which no doubt, drew this to the Defendants’ attention.

         

        Secondly, at the commencement of the Defendants’ case, the Defendants were granted leave to add to paragraph 11 of the Notice of Defence the following:-

         

        “Further and/or in the alternative if the issue of the 10,000 shares in the 2nd Defendant Company was without the permission of the Reserve Bank of Fiji and/or was contrary to the Exchange Control Act, the Plaintiff was in pari delecto and the Plaintiff is not entitled to the refund of the purchase price of the said shares.”

         

        The Plaintiff was allowed to reply in terms as follows “Plaintiff claims he was not pari delecto and that he is entitled to the refund of $100,000.00”

         

        Thirdly, as I have said, Defence Counsel submitted that the Plaintiff had not made out a case against Ruggiero. I will deal with that submission now.

         

        In my view the submission (thirdly above) is correct. On the evidence (and in fact it is not even pleaded) I can find no cause of action against Ruggiero in their personal capacity. As I understand the evidence, they acted at all times in the capacity of office bearers of Mediterranean. There is no evidence that they acted improperly in that capacity such as would remove from them the protection of the Corporate veil. In acting as they did, they acted for and on behalf of the Company (Mediterranean) for which the company must bear the liability of those actions.

         

        Accordingly the Plaintiff’s case against Ruggiero is dismissed.

         

        The only cause of action here is the Plaintiff’s cause of action against Mediterranean.

         

        Section 10 (1) of the Exchange Control Act reads:-

         

        “Except with the permission of the minister, no person shall in Fiji issue any security or, whether in Fiji or elsewhere, issue any security which is registered in Fiji, unless the following requirements are fulfilled , that is to say:-

         

        (a)        neither the person to whom the security is to be issued nor the person, if any, for whom he is to be a nominee is resident outside Fiji, and

         

        (b)        the prescribed evidence is produced to the person issuing the security as to the residence of the person to whom it is to be issued and that of the person, if any, for whom he is to be a nominee..”

         

        The Plaintiff’s argument is that as a non-resident, the Minister’s permission was needed before the issue of the Share Certificate. As no such permission was obtained prior to the issue of the security, this cannot now be remedied by subsequent approval or, alternatively, it has not been subsequently approved.

         

        Consequently, it is argued, the share issue is illegal: it should be rescinded and the monies returned to the Plaintiff.

         

        Section 10 (1) of the Exchange Control Act is quite clear. If a person is a non-resident, permission must be granted before any security can be issued. Mediterranean’s Counsel argues that, taking the term “resident” at its normal meaning, the Plaintiff was in fact resident in Fiji in or about February 1994. He was, it is argued, living here, day to day. He intended, it is argued, to remain. This, it is submitted makes him “resident here” for the purposes of Section 10 (1).

         

        The counter argument to this is that the term “resident” must be given the meaning attributed to it under the Immigration Act (Cap 88). To do otherwise, it is argued, is to make a nonsense of the provision for it would allow a person to fly into the country, stay a week, purchase securities and then leave. The whole point of the provision, that of having some control over foreign ownership of locally issued securities, would thus be defeated.

         

        I agree with Counsel for the Plaintiff. The term “resident” must take for its meaning, that definition attributed to it under the provisions of the Immigration Act (Cap 88).

         

        In Section 2 of the Immigration Act, “resident” is defined thus:-

         

        “Residence with its grammatical variation means residence in Fiji which is not unlawful under any of the provisions of this Act.”

         

        Thus by definition, to be a resident of Fiji, a citizen of another country (such as the Plaintiff) must have a permit to reside issued pursuant to Section 8 (1) of the Immigration Act.

         

        In February 1994, the Plaintiff did not have such residency - he only had a visitor’s permit issued under Section 9. He was not a resident at the time, however, for the Immigration Act, or, as I see it for the purposes of the Exchange Control.

         

        Whilst the general preference of the Court is to give words to their natural meaning, in this instance the meaning of “resident” must be restricted by the definition in the Immigration Act. The Plaintiff was here as a visitor. If his permit at the time has not been extended and eventually he had not been granted the permit to reside and work, he would have been here illegally and liable for deportation.

         

        In fact, as I read the Defendants’ material, as much as admitted.

         

        In paragraph (c) of the Minutes of the Meeting of the 25th February 1994 (Exhibit 2) the need to get a work permit (and consequential residency) is acknowledged. That, to my mind, acknowledges the Plaintiff’s non-resident status and the Defendants’ knowledge of it.

         

        Further, having received notice of the Plaintiff’s intention to rescind and his reasons why, Mediterranean immediately set about acquiring permission under Section 10. This must again be taken as an acknowledgement that the Plaintiff was a non-resident such that permission was needed and that Mediterranean was fully aware of that.

         

        To my mind, it is clear that Mediterranean, in issuing the securities (for shares) to the Plaintiff on or about the 28th February 1994 did so knowing that the Plaintiff was not a resident in Fiji; did so without the Minister’s permission; and in so doing, was in breach of Section 10 of the Exchange Control Act.

         

        The above applies, if in fact the shares were “issued” as opposed to transferred. The distinction is perhaps pedantic, academic and, as it turns out, arguably unnecessary but for completeness I should cover it.

         

        In the normal sense of a company’s business, the term “issued” can be somewhat confusing. In Ford Principles of Company Law para 806 the learned author says:-

         

        “The word “issue” is a difficult term and it is capable of meaning different things. In Mosekly v. Koffyfontein Mines Ltd [1911] 1 Ch 73 at 84, Farwell LJ said:

         

        “There are three steps with regard to new capital; first it is created; till it is created the capital does not exist at all. When it is created it may remain unissued for years ... When it is issued it may be issued on such terms as appear for the moment expedient.Next comes allotment. To take the words of Stirlimg J, in Spitzel v. Chinese Corporation [1899] 80 LT 347 at 351), he says: “What is an allotment of shares? Broadly speaking, it is as appropriation by the directors or the managing body of the company of shares to a particular person.”

         

        Dixon J, in Central Piggery Co Ltd v. McNico11 (1949) 78CLR 594 at 599, after citing that statement referred to another meaning of the word “issue”. He said:

         

        “Speaking generally the word “issue” used in relation to shares means, where an allotment has taken place, that the shareholder is put in control of the shares allotted.”

         

        This would occur when his name was placed on the register of members or some other step was take by which the title derived from the allotment would be made complete.”

         

        Perhaps it is splitting hairs, but to my mind, the transfer of shares takes place when one shareholder, having previously had shares issued and allotted to him or her, sells or transfers all of that allotment or part thereof to a third party. Ford covers this distinction in paragraph 1119 but there is no need for me to go into that at any depth. In any event, Section 11 of the Exchange Control Act (without setting it out in full), enacts a similar provision for the transfer of shares as Section 10 does for the issue of them. Irrespective of whether it was an issue of shares or a transfer which the Plaintiff took, the law would, in my view, be the same.

         

        The evidence before me was a little vague as to whether it was a transfer of the shares or an issue of the shares. The Certificate (Exhibit 3), notably in the panel indicating share numbering on the left hand side thereof indicates an issue of further shares from 80,001 to 90,000 to accommodate the Plaintiff’s the purchase.

         

        In contrast, the letter from the FTIB of the 12th September 1995 (Exhibit 9) although secondary evidence, indicates a transfer of part of Ruggiero shareholding to the Plaintiff.

         

        As it turns out, however it is of little moment, as either way, Section 10 and/or Section 11 of the Exchange Control Act have been breached due to the failure to obtain the Minister’s permission.

         

        I note Exhibit 9, whilst approval to issue the securities retrospectively appears to be the intent to this correspondence, it inaccurately reflects the agreement. The Plaintiff was to get 10,000 shares not a 10% shareholding as is shown in this letter. Accordingly I do not place much value on Exhibit 9. It appears to me to be an “after the event” attempt to obtain the required permission rather than accurately reflecting the agreement.

         

        I also note that paragraph (a) of the Minutes of Meeting (Exhibit 2) refers to “shares to be issued”, thus, on balance, I accept that an “issue” of shares is applicable and not a “transfer”. On balance therefore, Section 10 is the applicable Section although, for completeness Section 11 should not escape reference.

         

        Given that there has been a breach of Section 10, Counsel for the Plaintiff put the transaction is thus invalid. He referred the Court to Re Transatlantic Life Assurance Co. Ltd. [1979] 3 All ER 352, a decision in Chancery of Mr. Justice Slade.

         

        In Re Transatlantic, Mr. Justice Slade considered the effect of Section 8 (1) of the Exchange Control Act 1947 (UK).

         

        The factual situation, at least on the crucial points, was similar to the case herein in that shares were issued to a non-resident without the consent of the Treasury as required by the appropriate Section, Section 8 (1).

         

        Section 8 (1) of the English Act almost mirrors the Fiji equivalent save for what could be called local variations.

         

        Justice Slade held that a breach of Section 8 (1) (Section 10 in Fiji) rendered the transaction invalid. His Lordship held that shares were securities and as required by the legislation (See also Re Fry, Chase National Executors and Trustees Corporation Ltd [1946] 2 All ER 106 at 112 and Re Transatlantic at p.356).

         

        Having satisfied himself that Section 8 (1) (Section 10 of Fiji) Slade J. reasoned that a breach rendered the transaction invalid by reference to Section 18 of the English Act.

         

        The equivalent of Section 18 is found in Section 20 Cap. 211.

         

        Section 20 (Section 18 UK) reads:-

         

        “(1)- The title of any person to a security for which he has given value on a transfer thereof, and the title of all persons claiming through or under him, shall, notwithstanding that the transfer, or any previous transfer, or the issue of the security, was, by reason of the residence of any person concerned other than the first-mentioned person, prohibited by the provisions of this Act relating to the transfer or issue of securities, be valid, unless the first-mentioned person had notice of the facts by reason of which it was prohibited.

         

        (2)- Without prejudice to the provisions of subsection (1), the Minster may issue a certificate declaring, in relation to a security, that any acts done before the issue of the certificate purporting to effect the issue or transfer of the security, being acts which were prohibited by this Act, are to be, and are always to have been, as valid as if they had been done with the permission of the competent authority, and the said acts shall have effect accordingly. ( Amended by Legal Notice 112 of 1970).

         

        (3)- Nothing in this section shall affect the liability of any person to prosecution for any offence against this Act.”

         

        Mr. Justice Slade reasoned at p.355:-

         

        “In my judgment counsel for the company is correct in submitting that this section, by necessary inference, presupposes that the purported issue of a security in manner prohibited by the 1947 Act is wholly invalid. Were this not so, I could see no point in the provisions of S.18 (1) which, when applicable, by their terms operate to validate the title to such a security of a person who has given value on taking a transfer thereof. Were this not so, I could likewise see no point in the provisions of S. 18(2) which empower the Treasury to issue a certificate, inter alia, retrospectively validating acts purporting to effect the issue of a security in manner prohibited by the 1947 Act. The very use by the legislature of the phrase “purporting to effect”, in S.18(2), in my judgment further illustrates that the acts which purport to effect the issue in a prohibited manner do not in fact operate to effect that issue ab initio. In these circumstances, on a bare reading of the Act, I would conclude that the purported issue of 200,000 ordinary shares by the company in March 1974 wholly invalid and void.”

         

        Then, referring to Re Fry, the only previously decided case in UK on Section 8, His Lordship said at p. 357:-

         

        “The reasoning of Romer J in Re Fry, mutatis mutandis, in my judgment, supports the conclusions, which I would have reached in its absence, that the relevant issue of the 200,000 shares to LACOP was wholly invalid and void and that it operated to confer on LACOP no title whatever to any such shares, either at law or in equity.”

         

        I have closely read Mr. Justice Slade’s judgment and consider it to represent a correct view of the effect of a breach of Section 8 (1) (UK), consequently it thus a correct approach to adopt in respect of a breach of Section 10 (1)the Fiji equivalent.

         

        In my judgment, relying heavily on the reasoning of Mr. Justice Slade, I consider that, in breach of Section 10, the issue of shares to the Plaintiff by Mediterranean must be treated as wholly invalid and void. Thus no title to the shares can be conferred on the Plaintiff at law or an equity.

         

        Before moving to consider the effects of this finding of invalidity, and the submissions of Counsel in respect thereof, I feel I must look at the question of retrospective approval of the issue.

         

        Neither Re Fry nor Re Transatlantic offer any assistance on this point. Retrospective approval, although clearly an option of the parties, was not effected prior to the rulings in those cases.

         

        In the matter now before the Court, neither Counsel argued on this point and nor is it pleaded. The point is however raised in the evidence.

         

        On the evidence before me, the Plaintiff, through his solicitor, raised the issue of non-compliance with Section 10 in the correspondence of the 10th August 1995. It appears this may have galvanised Mediterranean into action. Exhibits 9, 10 and 11 show that Mediterranean applied to the FTIB and the Reserve Bank for approval under the Exchange Control Act for 10,000 share to be issued to the Plaintiff.

         

        On the 20th September 1995, the Reserve Bank, for and on behalf of the Minister, granted approval (Exhibit 11).

         

        Although it does not say so, I am prepared to accept in the circumstances, the approval was granted as applies to Section 10 of the Act.

         

        As the issue of 10,000 shares was decided by Mediterranean on the 25th February 1994 and actually effected on the 28th February 1994, (Exhibit 2 - the Minutes and Exhibit 3 - the Shares), such approval is obviously retrospective.

         

        Section 20 of the Exchange Control Act falls to be considered.

         

        Section 20 (1) reads:-

         

        ‘The title of any person to a security for which he has given value on a transfer thereof, add the title of all persons claiming through or under him shall, notwithstanding that the transfer, or any previous transfer, or the issue of the security, was, by reason of the residence of any person concerned other than the first-mentioned person, prohibited by the provisions of this Act relating to the transfer or issue of securities, be valid, unless the first mentioned person had notice of the facts by reason of which it was prohibited.”

         

        My understanding of this sub-section is that it applies to further transfers beyond the initial transfer or issue. That is, in this instance, if the Plaintiff, not having notice of the infringement of Section 10 or 11, has transferred his shares to another party, Section 20 (1) could be used to validate the transfer notwithstanding the initial imperfection. In my judgment, Section 20 (1) is not relevant to the argument before me.

         

        Section 20 (2) reads:-

         

        “Without prejudice to the provisions of Section (1), the Minister .may issue a certificate declaring, in relation to a security, that any acts done before the issue of the certificate purporting to effect the issue or transfer of the security, being acts which were prohibited by this Act, are to be, and are always to have been, as valid as if they had been done with the permission of the competent authority, and the said acts shall have effect accordingly.( Amended by Legal Notice 112 of 1970).

         

        In my view, this Section is directly relevant. It gives the Minister the power to validate what was previously invalid - in other words, it gives the Minister the power, obviously on application (my emphasis) to validate retrospectively, a transaction previously invalid on account of a breach of Section 10 (or any other Section) of the Exchange Control Act.

         

        On the face of Exhibit 9, 10 and 11, this could have been the case. I emphasise “could have been”.

         

        As I read Section 20 (2), it must be encumbent on the Applicant for Minister’s approval thereunder, to give the Minister the full details of the transaction sought to be validated. The party applying must inform the Minister of the invalidating factors before seeking his indulgence under Section 20 (2). To not do so would not be obtaining a validation under the Section.

         

        On reading Exhibits 9, 10 and 11, there is reference to previous correspondence and facsimile from Mediterranean to the FTIB and the Reserve Bank. This correspondence were not placed before me as evidence so I have no way of knowing if what was sought by Mediterranean was merely an approval to issue securities to a non-resident or, retrospective approval/validation under Section 20 (2). In my Judgment the greater probability is the former, not the latter. I consider that if Mediterranean had sought retrospective validation under Section 20 (2) the Reserve Bank would have specifically referred to that Section when giving its eventual approval. There is no such reference in the correspondence.

         

        Further, if there was such validation, I would have expected a Certificate declaring the same, to issue in accordance with the sub-section.

         

        I am thus, not prepared to accept Exhibits 9, 10 and 11 would operate as a retrospective validation.

         

        As a consequence of this finding, the transaction between the Plaintiff and Mediterranean must remain as invalid and of no effect in law and equity. Thus no title in the shares can be conferred on the Plaintiff.

         

        As to the effect of such invalidity, Counsel for Mediterranean submitted that, as the invalidity sprang from non-compliance with a statute, the whole transaction is null and void ab initio and illegal and thus the contract between the Plaintiff and Mediterranean, being an illegal contract is unenforceable. Relying on decision such as Chalmers v. Pardoe [1963] All ER 552 and Kiriri Cotton Co. Ltd. v. Dewani [1961] All ER 177 (Privy Council), Counsel submitted the parties were in pari delicto and thus, as the illegal transaction was an executed transaction, the Plaintiff could not recover.

         

        Counsel for the Plaintiff refutes this by saying that the parties were not in pari delicto. His argument is based on the supposition that for this to apply, both parties must be guilty of committing the breach. This is not the case here, he argues, for it was Mediterranean’s obligation and responsibility alone to meet the requirements of Section 10. And the onus is on the Defendant, Mediterranean and as this action is fundamentally one for monies had and received, Counsel says that these monies are recoverable at Common Law.

         

        In Lord Denning’s discussion of “in pari delicto” in Kiriri Cotton, His Lordship (on behalf of the whole Privy Council) established the following principles:-

         

        i)          In respect of mistake at law, the true proposition is that no man can excuse himself from doing his duty by saying he did not know the law on the matter;

         

        ii)         Monies paid under a mistake at law, by itself and nothing more, cannot be recovered back;

         

        iii)         At page 181, His Lordship said:-

         

        “If there is something more in addition to a mistake of law - if there is something in the defendant’s conduct which shows that, of the two of them he is the one primarily responsible for the mistake then it may be recovered back. Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than the other - it being imposed on him specially for the protection of the other - then they are not in pari delicto and the money can be recovered back: see Browning v. Norris by Lord Mansfield. Likewise, if the responsibility for the mistake lies more on the one than the other - because he has misled the other when be ought to know better - then again they are not in pari delicto and the money can be recovered back: see Harse v. Pearl Life Assurance Co., by Romer, L.J. These propositions are in full accord with the principles laid down by Lord Mansfield relating to the action for money had and received.”

         

        It is the finding of this Court that the onus of complying with Section 10 is solely on Mediterranean. If Mediterranean does not seek the Minister’s permission, then the Plaintiff cannot do it by operation of Section 10 alone. Further, Exhibit 2, indicates that Mediterranean instructed its Accountant Messrs. Kapadia Singh & Co. to attend to all the necessary matters relevant to a share issue. This must have included the obtaining of permission under Section 10 (See Exhibit 2 para (c)). This alone is evidence that, by referring to the need of a work permit in paragraph (c), that Mediterranean and its Accountants were, as I have previously found aware, of the Plaintiff’s non-residential status.

         

        The crucial phrase in the Privy Council judgment in Kiriri Cotton is as follows:-

         

        “Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than other it being imposed on him especially for the protection of the other - then they are not in pari delicto and the money can be recovered back see Brown v. Morris (by Lord Mansfield).”

         

        Although not fully developed, this was the argument for Counsel for the Defendants. He argued, in anticipation of such cases as Hughes v. Assett Management Co. Pty Ltd. [1995] 3 All ER 669 may be raised by the Plaintiff, that the benefit of Section 10 does not fall to any individual but to the benefit of the nation as a whole. Section 10 he argued, is designed to prevent a risk of unchecked foreign takeovers with the consequential national detriment of an outward cash flow of profits to foreign residents. Counsel gave no authority for this proposition. Counsel may have benefited from developing the argument further by reference to such cases as Green v. Portsmouth Stadium Ltd [1953] 2 All ER 102 (Court of Appeal) which is referred to in the Kiriri Cotton case.

         

        In Green’s case, the Court of Appeal agreed with Parker J. (the Judge at first instance) that in an action for monies had and received, the monies are recoverable at common law if the parties are not in pari delicto. How the Court of Appeal differed from Parker J. was that they considered that the effect of the statute under review was not to confer a benefit on the Plaintiff such that a civil action would lie, but to create a means of regulating racecourses which could only be enforced by criminal proceedings (See particularly Denning L at p.104 and Hodson LJ at pp 104 and 105).

         

        In my opinion the Exchange Control Act and Section 10 (1) in particular, gives rise to both a criminal prosecution and a civil remedy.

         

        The Fifth Schedule to the Act obviously creates criminal offences. It is correct for the Mediterranean’s Counsel to say that the section (and the Act in general) is for the good of the nation. That, however, does not mean that the individual (in this case the Plaintiff) does not have a civil remedy. In my view Section 10 both protects the nation and gives rise to criminal prosecution to achieve this end but also protects the individual by ensuring (through Section 20 (2)) that the issue of the securities is effected and value given for money - this of course by definition, can only give rise to enforcement through civil action.

         

        On reading Section 20 (2), it appears to me that a civil action can be brought by an individual caught in the position of the Plaintiff, to enforce the Company or party issuing the security, to apply to the Minister for retrospective permission.

         

        Section 20 as a whole is obviously enacted to prevent a non-resident, who has paid good consideration for security, from being left empty handed because the person or corporation issuing or transferring the security had failed to observe the obligations of Section 10 or Section 11.

         

        It must thus be further stated that if the Plaintiff (as then beneficiary of the transfer or issue) can take civil action to enforce the right to get title to the security, the converse must apply as a matter of the Plaintiff’s election. That is to say that the Statute confers a right to civil enforcement which by definition, and at election, must include a remedy for monies had and received as well as for enforcement of the contractual terms.

         

        If I am correct in this, then as per the Privy Council’s decision in Kiriri Cotton, the evidence before me must lead to a finding that the parties were not in pari delicto.

         

        There was a mistake at law in not observing the requirements of Section 10.

         

        The Defendant, Mediterranean, is the party primarily responsible for this mistake. The obligation to obtain permission to issue the security is its sole responsibility under Section 10.

         

        Further the obligation is placed there for two reasons:-

         

        (1)       for the good of the nation (as Counsel for the Defendant puts it) - this is enforceable by criminal prosecution.

         

        (2)       for the benefit of the other party - the purchaser of the security - to ensure that he or she gets what they have bargained for - this gives rise to enforcement by civil action.

         

        Indeed both Re Fry and Re Transatlantic confirm this approach.

         

        Accordingly, in my judgment, a mistake has been made but between the two of them, the duty of observing the law is placed on the shoulders of Mediterranean rather than the Plaintiff - and this duty is imposed on Mediterranean for protection of the Plaintiff, inter alia - then the parties are not in pari delicto and the money can be recovered (to paraphrase Lord Denning).

         

        As this is fundamentally an action for monies had and received, the Plaintiff should succeed in his action for return of the $100,000.00 (One Hundred Thousand Dollars) paid in February 1994.

         

        If I am wrong in this, the situation remains that the issue of the 10,000 shares to the Plaintiff was invalid thus the share registry of Mediterranean reflects an incorrect number of shares properly issued. Of the 90,000 share issued (see Exhibits 2 and 3), only 80,000 shares have been correctly issued (perhaps by way of example, I should also note that this would also reflect an inaccuracy in the issued share capital of Mediterranean some $100,000 (One Hundred Thousand Dollars).

         

        In Re Transatlantic, Slade J. was confronted with this position. He was asked to make a declaration by way of an order for rectification under Section 116 of the Companies Act 1948 (UK).

         

        Slade J. made an order for rectification of the share registry to reflect the true position resulting from his finding of an invalid issue of shares due to the breach of Section 80 (1).

         

        In so doing, His Lordship expressed the view that if rectification is made, repayment to the Plaintiff, as ancillary relief flowing therefrom, would have the Court’s approval.

         

        Section 116 (UK) is identical to Section 120 of the Companies Act (Fiji) Cap 247. This leaves open the argument that the Plaintiff may well be able to bring an action based on the finding herein of an invalid issue, under the Companies Act and obtain a refund of monies paid. This is of course not the cause of action pleaded herein, but for completeness it is worth mentioning even only if academic purposes only. It does of course support, in a peripheral sense, that a breach of Section 10 of the Exchange Control Act does not necessarily preclude repayment of the monies.

         

        As far as the loan of $8,200.00 is concerned, the law is quite settled. One simply cannot have a loan with no terms for repayment. That would be a gift. This is not a gift. It is a loan for an indeterminate term.

         

        My understanding of the law is that the term can be defined by reasonable notice of demand for repayment given to the borrower from the lender.

         

        I consider the letter of the 10th August 1995 to be a reasonable notice of demand for repayment of the $8,200.00. As such it determines the time of the loan which thereafter fell for repayment. In my judgment, Mediterranean must repay the loan and I will order it to do so.

         

        In all I find for the Plaintiff.

         

        I order that:-

         

        1.       By way of declaration, the issue of shares of the 28th February 1994 be declared invalid.

         

        2.       That Mediterranean repay to the Plaintiff the sum of $100,000.00 (One Hundred Thousand Dollars). Interest on this amount is to be at 9.5% per annum from the day of the commencement of the action until repayment.

         

        3.       That Mediterranean do repay to the Plaintiff the sum of $8,200 (Eight Thousand and Two Hundred Dollars). In accordance with the terms of the loan, no interest would attach to this. It could be argued that interest should apply from the date of commencement of this action, but in the exercise of my discretion, I feel it more equitable to order that no interest accrue on the sum of $8,200 (Eight Thousand and Two Hundred Dollars) if it is repaid within 28 days from the date of delivery of this judgment. Thereafter (subject to any orders of another court) interest should accrue on the Judgment sum of $8,200.00 (Eight Thousand and Two Hundred Dollars) at the rate of 9.5% per annum until payment.

         

        4.       The Plaintiff is entitled to his costs on a party-party basis to be taxed or agreed.

         

        5.       That the Plaintiff’s action against the 1st Defendant Ruggiero be dismissed. I make no order as to costs on that matter. As I see it both Defendants were acted for by the same solicitors and it would be impossible to separate each Defendant’s costs independently. The greater probability is that the costs incurred by Ruggieros were for the exactly same things and on the same matter as Mediterranean.

         

        I do so order.

         

        (Judgment for the Plaintiff).

         

        (Editor’s Note: An appeal against this Judgment was dismissed by the Court of Appeal on 7 October 1998 - FCA Reps 98/426)

Prasad v Wati

        [1997] 43 FLR 107

         

        HIGH COURT OF FIJI ISLANDS

         

        AMRIT PRASAD

         

        v.

         

        LILA WATI

         

        [HIGH COURT, 1997 (Pathik J) 6 May]

         

        Appellate Jurisdiction

         

        Bankruptcy- error in amount of debt specified in bankruptcy notice and petition- whether curable by amendment- whether petition a nullity- Bankruptcy Act (Cap. 48) Sections 4 & 101.

         

        Upon the hearing of a petition of bankruptcy the Resident Magistrate allowed the petitioning creditor to amend the petition by altering the amount said to be owed. Allowing the debtor’s appeal the High Court stressed the importance of strict compliance with the procedural requirements of the Bankruptcy Act and HELD: that on the facts, including the uncertainty surrounding the amount properly claimable the petition could not be amended but was a nullity and should have been dismissed.

         

        Cases cited:

         

        Ex-parte The Debtor v. Bowmaker Ltd [1951] Ch. 313

        James v. Federal Commissioner of Taxation (1955) 93 CLR 631

        Kleinwort Benson Australia Ltd v. James Albert Crowl 165 CLR 71

        Re Macro Constructions Pty Ltd (1992) 10 ACLC 1. 7222

        Re McDonald ex parte Elder Smith Golsbrough Mort Ltd (1978) 32 FLR 11

         

        Appeal from the Labasa Magistrates’ Court.

         

        V. P. Ram for the Appellant

        A. Sen for the Respondent

         

        Pathik J:

         

        This is an appeal by the Debtor against the Ruling of the Learned Magistrate, Labasa given on 4 June 1996 upon the ground that the “Learned Magistrate has erred in law in holding that the Bankruptcy Notice upon which the petition was founded could be amended at the hearing of the Bankruptcy Petition and that the Petition ought properly to have been dismissed.”

         

        Background

         

        The facts are set out in the Ruling but in so far as it is relevant to this Appeal, they are briefly as follows:

         

        (a)        The Respondent (the judgment “creditor”) on 26 May 1993 obtained judgment against the appellant (the “debtor”) in the sum of $3500.00 and $50.00 costs.

         

        (b)       Bankruptcy Notice was issued on 29 June 1995 in the sum of $4984.11.

         

        (c)        The Petition was presented on 4 October 1995.

         

        (d)       On 14 November 1995 the debtor filed an affidavit deposing that the Petition was an abuse of the process of the Court and ought to be dismissed “since the Petition is for an excessive amount it is null and void and therefore does not form the basis on which a Receiving Order can be made”.

         

        (e)        The Creditor realizing the error filed an affidavit praying for an amendment to the Petition by reducing the amount to $4175.31 i.e. a reduction of $808.80 from the previous claim.

         

        For the reasons given in the Ruling the Learned Magistrate allowed the amendment by ordering that the Bankruptcy Notice and Petition be amended by deleting the said figure $4984.11 and by substituting therefor the figure $3916.96 (yet another, a third figure). He further ordered that the Notice and Petition should be filed in Court and served on the judgment debtor within 7 days of the date of his order.

         

        It is from this order that the debtor has appealed.

         

        Appellant’s submission

         

        Mr. Ram for the debtor argues that item 3 of the Petition (p.31 of Record) has the incorrect amount of $4984.11 and therefore item 5 cannot be correct when it states that the debtor “...failed on or before the 29th day of June, 1995 to comply with the requisition of a bankruptcy Notice duly served on him on the 18th day of July, 1995 ...”. He says that the Affidavit Verifying Petition sworn 26 July 1995 (p.35 of Record) has been sworn to “an incorrect Petition”.

         

        Respondent’s submission

         

        Mr. Sen for the Creditor submits that had the Learned Magistrate struck off the Petition, the creditor would have issued fresh Petition or may not have proceeded. He said that there was power in the Court under s101(3) of the Bankruptcy Act to allow the amendment sought.

         

        The issue

         

        The issue before me is very simple, namely, whether the overstatement in respect of the amount claimed under the bankruptcy notice (the ‘notice’) invalidates the notice in the circumstances of this case.

         

        Consideration of the issue

         

        Under section 4 of the Bankruptcy Act (Cap 48) it is provided that a bankruptcy notice:

         

        “shall be in the prescribed form, and shall require the debtor to pay the judgment debt or sum ordered to be paid in accordance with the terms of the judgment or order,................

         

        Provided that a bankruptcy notice -

         

        (a)       .........

         

        (b)       shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due, unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of such misstatement; but, if the debtor does not give such notice, he shall be deemed to have complied with the bankruptcy notice if within the time allowed he takes such steps as would have constituted a compliance with the notice had the actual amount due been correctly specified there.”

         

        In this case the debtor disputed the amount on the hearing of the Petition. As stated earlier the amount initially claimed as due was $808.80 in excess of the judgment. I am not sure whether even the amended claim of $3916.96 is correct or not. The Formal Decree dated 26 June 1995 at page 13 of Record shows the amounts of “debt $3500.00” and “costs $50.00” making a total of $3550.00. Then at page 53 in Affidavit Verifying it states that there was typing error in the previous notice and “the amended petition should read” $4175.31. This figure included judgment debt $3500.00, deposit of $110.00 paid to Official Receiver, filing of bankruptcy action $34.10 and interest from 26.5.93 to 10.4.96 i.e. $431.21.

         

        It is abundantly clear from the above affidavit evidence that the whole claim is in a complete mess. It cannot be said with certainty as to what is the actual amount due.

         

        This shows that the Petitioner has not complied with the provisions of section 4 in this regard which requires the debtor to pay the ‘judgment or order’.

         

        The Petitioner was of the view that he could apply to amend the petition and he applied to Court to invoke the provisions of s101 (3) of the Act which provides:

         

        “(3)      The court may at any time amend any written process or proceeding under this Act upon such terms, if any, as it may think fit to impose.”

         

        The amendment was allowed by the learned Magistrate.

         

        I find this to be a case in which the bankruptcy notice was a nullity because it failed to meet a requirement made essential by the Act (Section 4) and it could reasonably mislead the debtor as to what is necessary to comply with the notice. In such cases the notice is a nullity whether or not the debtor is in fact misled. It was so held in Kleinwort Benson Australia Limited v. James Albert Crowl (165 CLR 71 at 72). It was further held that “if the amount specified in a bankruptcy notice is in fact due and payment is claimed in accordance with the judgment, the essential requirements of s.41(2)(a)(i) are met”. This requirement is similar to our s.4 of the Act. Here the amount alleged to be due was in excess by over eight hundred dollars. This cannot be in accordance with the judgment. The Petitioner therefore swore a false affidavit and tried to shelter behind the excuse that the amount stated was a typographical error. This is hard to believe; this reason was put forward at the eleventh hour, namely, at the time of the hearing of the Petition. Had the debtor not disputed it the Petitioner will have got away with it.

         

        The overstatement in this case was not a formal defect or an irregularity to enable the Court to amend under s101(3). There is no doubt that this was a “proceeding” under the Act. Even with the inclusion of interest in the amended petition, the difference in the amount due was substantial. “Interest due in a judgment debt may, but need not, be included in a bankruptcy notice” (Kleinwort at 77,(supra). However, here the Formal Decree makes no mention of interest. Where does the interest come from and at what rate is it claimed? This has not been revealed. It is said in Kleinwort, supra at 78 that: “if interest is included in a bankruptcy notice it must be calculated: Re O’ Keefe (1962) 19 A.B.C. at p.103.”

         

        In Kleinwort, Deane J gave a dissenting judgment. I agree with him when he said at p.81 that:

         

        “It has long been a fundamental precept of the law of bankruptcy that a bankruptcy notice, which is the foundation of a bankruptcy, attended as a bankruptcy is with penal consequences, is a matter in which great strictness is required”:

         

        per Cozens-Hardy M.R., In re A Judgment Debtor, 530 of 1908 2 KB 474 at 476 - 477; see also James v. Federal Commissioner of Taxation (1955) 93 CLR 631 at 644. A defect in a bankruptcy notice will invalidate it “except in the case of a merely formal defect”: per Vaughan Williams L.J., In re O.C.S. (A Debtor); Ex parte The Debtor [1904] 2 KB 161 at p163, see also In Re a Debtor, No 21 of 1950; Ex parte The Debtor v. Bowmaker Ltd. [1951] Ch. 313 at 317. If a defect in a bankruptcy notice is other than a formal one, the notice itself is defective and failure to comply with it does not constitute an act of bankruptcy.

         

        To show how important it is to comply with the provisions of the Act I refer to the following statement of Deane J when he said in Kleinwort at 802 that:

         

        “As Riley J, a noted Australian authority on bankruptcy law, sometimes pointed out to those appearing before him, the least that the courts can do is to insist that a person who seeks to subject another to the law of bankruptcy himself strictly observes the requirements of that law.”

         

        Deane J in Kleinwort at 82, further pointed out that subject to two qualifications, that:

         

        To comply with the above rules, a bankruptcy notice must correctly state the amount of the debt upon which it is based. If interest is included in the claim under the bankruptcy notice, it must be accurately calculated and stated. Otherwise, the bankruptcy notice is invalid:” Re McDonald; Ex parte Elder Smith Golsbrough Mort Ltd (1978) 32 F.L.R. 11 at p.13)

         

        The first qualification is that if the misstatement is “a mere clerical error - which could not mislead or embarrass the debtor, because he could see on the face of the document ... what the amount which was really claimed from him” (per Kennedy L.J. In re A Debtor [1908] 2 KB 684 at 691 ... the defect will be merely a formal one which may be cured pursuant to s.306 ...” (as in our s.101). The second qualification is similar to our s4 which contain express provisions which may operate to avoid the invalidating consequences of an overstatement of the judgment debt. I have already dealt with overstatement hereabove.

         

        Application of s101(3)

         

        The learned Magistrate, even after stating “how the figure $4984 was arrived at remains a mystery”, goes on to say in his Ruling that the “defect is formal and curable and not likely to cause any injustice” and then he refers to proviso (b) to s.4.

         

        With respect I differ with the learned Magistrate’s grounds for allowing the amendment to the Petition and uphold Mr. Ram’s submissions.

         

        The creditor admitted that the notice was defective but submits in effect that the alleged defects were procedural irregularities which had not caused nor would cause any substantial injustice. This meant that in his opinion and also in the opinion of the learned Magistrate, the alleged defects were protected by s101(3) and the proviso to s.4.

         

        It is my view that on the facts of this case particularly when there is so much uncertainty surrounding the amount actually due under the judgment, that justice of the case demands that because of the severe consequences of such a notice, its accuracy in detail is demanded as a matter of justice for that was the basis on which the notice is founded and on which the Petition is based.

         

        Therefore, on the facts I find that this was not a case of procedural irregularity to enable either the creditor to shelter behind s101(3) and s4 or for the learned Magistrate to make the order which he did make.

         

        Conclusion

         

        As was said by Derrington J in Re Macro Constructions Pty Ltd (1992) 10 ACLC 1.7222 (which was a winding up case but the same principles apply), that there is abundant authority that the courts will require strict compliance by an alleged creditor with the technical formal requirements of a notice subject to section 4 the reason being the draconian consequences to the debtor because default of compliance with the notice will render him vulnerable to a receiving order. However, the quality of strictness of compliance will depend on the facts of each case for not every error will attract invalidity, for example, the court will look to see whether on a fair construction of the notice, there is need to invoke the provisions of the proviso to s4 or s101(3).

         

        For the above reasons, with respect, I consider that the learned Magistrate fell into error in interpreting as he did the proviso to s4 and s101(3) to the facts of this case. The Petition ought to have been dismissed by him.

         

        The appeal is allowed. The said Ruling of 4 June 1996 is set aside and the Petition is dismissed with costs against the creditor to be taxed if not agreed.

         

        (Appeal allowed; bankruptcy petition dismissed).
   

Arula Investment Company Ltd v Commissioner of Stamp Duties

        [1997] 43 FLR 155

         

        HIGH COURT OF FIJI ISLANDS

         

        ARULA INVESTMENT COMPANY LIMITED

         

        v.

         

        COMMISSIONER OF STAMP DUTIES & THE ATTORNEY GENERAL

         

        [HIGH COURT, 1997 (Fatiaki J) 22 July]

         

        Civil Jurisdiction

         

        Stamp duty- whether sale and purchase agreement relates to several distinct matters- whether made for more than one consideration- Stamp Duties Act (Cap 205) Section 29.

         

        The Plaintiff agreed to purchase a sawmilling operation. The sale and purchase agreement apportioned the total purchase price partly to land and buildings and partly to plant, equipment and machinery. The Commissioner of Stamp Duties raised duty on the whole sum at the rate applicable to land and buildings. The High Court examined and explained the meaning of Section 29 of the Act and HELD: that despite the apparent apportionment the agreement was in reality unitary and indivisible and therefore the Commissioners assessment was upheld.

         

        Cases cited:

         

        A.G. v. Cohen [1937] 1 K.B. 478

        Commissioner of Stamp Duties v. International Packers Ltd & Anr [1954]

                    NZLR 25

        Controller of Stamps v. Martin (1967) V.R. 369

        Great Western Railway Co. v. IRC (1894) 1 QB 507

        IRC v. G. Angus & Co. (1889) 23 QBD 579

        McInnes v. Inland Revenue (1934) S.C. 424

        W.T. Ramsay Ltd v. IRC [1981] 1 All ER 865

         

        Action for declaratory Judgment in the High Court.

         

        R. Gordon for the Plaintiff

        Ms. N. Basawaiya for the Defendants

         

        Fatiaki J:

         

        By a contract of Sale and Purchase dated the 12th of November 1991, the plaintiff company Arula Investment Company Limited (‘Arula’) “... agreed to purchase (a) sawmilling operation for the purchase price of $500,000 (Five Hundred Thousand Dollars) ...” (the Agreement) from Pacific Lumber Company Limited (‘Pacific’).

         

        It is common ground that the Agreement in question is an ‘instrument’ for the purposes of the Stamp Duties Act (Cap. 205) and therefore chargeable with stamp duty for which Arula as the purchaser/transferee was by Clause 11 of the Agreement made solely liable.

         

        On the 27th of May 1992, Solicitors acting for Arula sent the Agreement to the Commissioner of Stamp Duties (‘The Commissioner’) together with a covering letter and a cheque for $4,003 being for stamp duty calculated at the rate of 2% on $200,000 (i.e. the consideration for the land and buildings) plus a nominal stamp duty of $1.00 for the plant equipment and machinery and $2 for two copies.

         

        The Commissioner disagreed with the solicitor’s submission and in the exercise of his powers under the Stamp Duties Act (Cap. 205) assessed the stamp duty payable on the Agreement “... on the consideration amount at the rate of 2% which amounts to $10,000.00”. The assessed amount was duly paid under protest.

         

        On the 9th of September 1996, Arula issued an Originating Summons in which it sought a declaration that it was only liable to pay the sum of $4,001.00 stamp duty on the above-mentioned Agreement and it sought the refund of $5,999.00 being the sum it claims was an over-payment together with interest at the rate of 13.5% per annum.

         

        The plaintiff’s Originating Summons was supported by an affidavit sworn not by an official of Arula but, by a clerk in the firm of solicitors acting for Arula and which, in large part, quite improperly advanced not “... facts as the deponent is able of his own knowledge to prove” (see : Order 41 r.5), but opinions as to the meaning of the Agreement and the proper interpretation to be given to the provisions of Section 29 of the Stamp Duties Act (Cap. 205).

         

        I state the above advisedly because a copy of the Agreement which formed Annexure ‘A’ to the affidavit indicates on its back cover that it emanated out of the offices of Messrs. Bulewa Inoke Vuataki & Semisi in Suva and not out of the law firm in which the deponent was an employee.

         

        Be that as it may the Agreement is before the Court and in its most relevant parts reads :

         

        “(indecipherable) 12th day of November 1991

         

        BETWEEN PACIFIC LUMBER COMPANY LIMITED a duly incorporated company having its registered office in Lautoka (hereinafter together with its successors and assigns referred to as “the Vendor”) of the one part AND ARULA INVESTMENT COMPANY LIMITED a duly incorporated Company having its registered office in Ba, (hereinafter together with its successors and permitted assigns referred to as “the Purchaser”) of the other part.

         

        (a)               The Vendor is the proprietor of a sawmilling operation together with the buildings, machinery and equipment situate on the land comprised in Certificate of Title No. 23022 (hereinafter referred to as “the said Sawmilling Operation”).

         

        (b)              The Vendor has been carrying on the said sawmilling operation at Vatukoula has agreed to sell and the purchaser has agreed to purchase the said sawmilling operation for the purchase price of $500,000.00 (Five Hundred Thousand Dollars) ($200,000.00 for Land and Buildings and $300,000.00 for plant equipment and machinery) under the terms and conditions herein.

         

        Now therefore this Agreement witnesseth as follows:

         

        1.                THE Vendor will sell and the Purchaser will purchase the said sawmilling operation for the purchase price of $500,000.00 (Five Hundred Thousand Dollars) free of all encumbrances in the manner hereinafter provided.

         

        5.                THE Vendor shall give possession of the said sawmilling operation to the Purchaser on the Approval Date and the Purchaser shall be entitled to have access to same for the purposes of installing new equipment and buildings or repairing existing equipment and buildings and making the said Sawmilling Operations ready for production but shall not be entitled to operate same for profit or otherwise without the consent of the Vendor.

         

        As for the introductory part of the Agreement it is deposed in the affidavit in support :

         

        “5. THAT ... in its preamble at paragraph (b) specifically and expressly provided for separate and distinct items to be sold and purchased with their respective values specified.”

         

        and

         

        “6. THAT the respective values specified the separate and distinct items were $200,000 ... for the land and building and $300,000 to the (plant, equipment and machinery) - making a total consideration sum of $500,000 ...”

         

        For his part the Acting Commissioner of Stamp Duties in denying in his affidavit that the Agreement fell within the ambit of Section 29(1) and (2) of the Stamp Duties Act (Cap. 205) deposed that :

         

        “... stamp duties of 2% was levied on the total consideration of $500,000 for the sale of the Sawmilling Operation”,

         

        in so far as he was of the view that :

         

        “the sale and purchase agreement was for the sale of Sawmilling Operation as a going concern and not as separate and distinct items.”

         

        Counsel for Arula in support of the application referred to the recitals to the Agreement and argued that ‘it was made very clear that the sale was specifically in respect of separate and distinct items with the values separately specified’ and, as an alternative argument, counsel submitted that the Agreement is clearly comprised in ‘an instrument made for more than one consideration’ and therefore, in both respects fell within the clear wording of Section 29 of the Stamp Duties Act (Cap. 205).

         

        Counsel also forcefully argued that the intention and purpose of Section 29 was to obviate the necessity of drawing up or preparing separate instruments to deal with distinct matters or with more than one consideration where such matters and considerations are sufficiently plainly set out or apportioned in the one instrument.

         

        State Counsel for her part relying on dicta in A.G. v. Cohen [1937] 1 K.B. 478, submitted that if there was an interdependence between the seemingly distinct matters contained within the same instrument then Section 29 did not apply.

         

        In this particular case, State Counsel submitted that properly and fairly viewed, the Agreement relates to a single transaction namely, the sale of a sawmilling business as a going concern (see : Clauses 5 & 9) and the notional separation and apportionment which the parties sought to make in ‘recitals (b)’ was a mere device to evade the stamp duty payable.

         

        In order to resolve these opposing submissions it is necessary briefly to consider the provisions of the Stamp Duties Act (Cap. 205). In this regard Section 3 provides for Stamp Duty to be levied in respect of various instruments specified in the Schedule to the Act and, in particular, the Schedule provides that a transfer on sale attracts duty on a scale according to the consideration money at the rate of $2.00 ‘for every $100 ... of consideration money’ i.e. 2%.

         

        Reference may also be made to Section 98 which provides that an agreement for the sale of any estate or interest in any property shall be charged with “... the same ad valorem duty to be paid by the purchaser as if it were an actual transfer on sale of the estate ... or property contracted or agreed to be sold”.

         

        The Act also relevantly defines in Section 2 a ‘transfer on sale’ as including :

         

        “... every instrument ... whereby any property or any estate or interest in any property upon the sale thereof is transferred to or vested in the purchaser ...”

         

        It is sufficiently plain from the charging section and from numerous authorities that stamp duty is imposed on instruments and not on transactions.

         

        In this latter regard it is sufficient to refer to the dicta of Lord Esher M.R. in IRC v. G. Angus & Co. (1889) 23 Q.B.D. 579 when he said at p.589 :

         

        “The first thing to be noticed is, that the thing which is made liable to the duty is an “instrument” ... It is not the transaction of purchase and sale which is struck at ; it is the instrument whereby the purchase and sale are effected which is struck at ... The next thing is that it is not every instrument which is brought into being ... which is struck at. It is the instrument whereby any property upon the sale thereof is legally or equitably transferred. The taxation is confined to the instrument whereby the property is transferred ...”

         

        Nothing in this case turns however on those observations since it is common ground that the Agreement is an ‘instrument’ for stamp-duty purposes in so far as it is a written document through which Arula acquired the legal ownership and equitable interest in both the land and sawmill the subject-matter of the Agreement.

         

        I turn then to consider the meaning and effect of Section 29 of the Stamp Duties Act (Cap. 205) which Arula seeks to invoke and which provides :

         

        “(1)      Except where express provision to the contrary is made by this or any other Act an instrument containing or relating to several distinct matters is to be separately and distinctly charged with duty in respect of each of such matters as if each matter were expressed in a separate instrument.

         

        (2)       An instrument made for more than 1 consideration is to be charged with duty in respect of each such consideration according to the rate with which each is chargeable as though such consideration were expressed in a separate instrument.”

         

        In construing the above provision I recall the frequently quoted passage in the judgment of Lopes L.J. in Great Western Railway Co. v. I.R.C. [1894] 1 Q.B. 507 at 513 when he said:

         

        “It is an established rule in cases under the Stamp Acts that the substance of the transaction is alone to be looked at in determining the question whether an instrument is liable to stamp duty.”

         

        In similar vein North J. said in Commissioner of Stamp Duties v. International Packers Ltd. and Anor. [1954] N.Z.L.R. 25 (C.A.) at p.50 :

         

        “... once the Commissioner has before him an instrument, he is entitled to examine the whole of the circumstances and is entitled to have regard to the substance of the transaction or transactions, and is not bound by the form of the instrument.”

         

        More recently the House of Lords held inter alia in W.T. Ramsay Ltd. v. I.R.C. [1981] 1 All E.R. 865:

         

        “It was the task of the Revenue and the Courts to ascertain the legal nature of any transaction to which it is sought to attach a tax or tax consequence, and ... where a taxpayer used a scheme comprising a number of separate transactions with the object of avoiding tax, the Revenue and the Courts was not limited to considering the genuineness or otherwise of each individual step or transaction in the scheme, but could consider the scheme as a whole ...”

         

        At this stage bearing the above in mind, I would highlight from Section 29(1), the word ‘distinct’ in the phrase ‘several distinct matters’, and, in Section 29(2), the words ‘made for’ in the phrase ‘... instrument made for more than 1 consideration’.

         

        The simple question in this case is, - What in substance is the transaction expressed by the Agreement entered into by Arula and Pacific ? or to put the question in ‘Section 29’ language, - Does the Agreement between Arula and Pacific contain or relate ‘to several distinct matters’ ? or was the Agreement ‘made for more than 1 consideration’?

         

        In this regard having carefully considered the various provisions of the Agreement, and the submissions of counsel, I am driven to the conclusion that in substance the Agreement was an entire contract for the sale and purchase of a sawmilling operation intended to be continued and operated as such and not for several distinct matters or more than 1 consideration.

         

        I am fortified in my view by the judgment of Adam J. in Controller of Stamps v. Martin (1967) V.R. 369 where his honour in rejecting the appropriation of the purchase price in the contract of sale in that case between the land and the personalty, said at p.373:

         

        “In my opinion, the appropriation by the contract of part of the price to the chattels is ... clearly one for convenience in the apportionment for duty purposes of the entire consideration, the assumption no doubt being that the resulting transfer of the land would be assessed with transfer duty on a sale at the consideration apportioned to the land, and I do not consider that this warrants my finding that the transaction is other than one entire indivisible transaction and I so hold.”

         

        Later in his judgment, his honour in considering the provisions of Section 22(a) of the Stamps Act 1958 (Vic) which is in identical terms to our Section 29(1) observed that, so far as he was aware from his researches, Section 22(a) had only ever been successfully invoked by the revenue authority with the object of obtaining a higher duty than would otherwise be chargeable and never by a taxpayer seeking to reduce the amount of duty.

         

        In rejecting the applicability of the section to the contract before him Adam J. said at p.374:

         

        “Section 22(a) ... deals with the case of one instrument, and would appear to be directed to the ... purpose of protecting the revenue ... The explanation and justification for the section, ..., would seem to be a long-settled and well established rule of stamp law that one instrument attracts one duty only. The appropriate duty being determined by its leading object.”

         

        Then in dealing in greater detail with the wording of Section 22(a) his honour said (also at p.374):

         

        “(the Section) applies where an instrument contains or relates `to several distinct matters’, and contemplates that if each of such matters were dealt with in a separate instrument, duty would be chargeable thereon. Certainly the contract of sale covers both real property and personal property - that is, distinct classes of property - but is it for this reason an instrument relating to distinct matters within the meaning of the Section ? As already stated, I consider that the contract although dealing with two different classes of property, is one entire and unseverable contract, the whole of the property sold being sold together for one entire consideration. It should not be inferred that the vendor would have sold for the agreed consideration the land, unless the purchaser had agreed also to purchase the personal property, nor that the purchaser would have agreed to purchase the personal property for the apportioned consideration, unless the vendor had agreed also to sell the real property.

         

        If these are the relevant considerations, I would certainly see no ground for concluding that this was an instrument relating to several distinct matters. Rather it relates to one matter only, that matter being a sale together of both real and personal property.”

         

        Finally Adam J. said in words that are equally applicable to the present case with only slight variations, at p.375 :

         

        “Even were I to be persuaded that the contract of sale related to `distinct matters’ within the meaning of the Section, I would be disposed to the view that the section could not be availed of by the appellant in this case for quite a different reason. From its very terms the section contemplates as the basis for its operation that each `distinct matter’ would, if the subject of a separate instrument, be separately and distinctly charged with duty. I think that it is to such a case only that it applies ... were Section 22(a) to be applied to the Contract of Sale by reason if its relating to `distinct matters’, the result would be that each of the matters would be chargeable with duty. The sale of the livestock and effects treated in isolation from the sale of the real property, as a sale for a bona fide adequate pecuniary consideration, would not be chargeable with any duty as a gift or otherwise.”

         

        Needless to say, despite the apparent apportionment of the consideration in recital (b), I would nevertheless hold that the Agreement was made for and contemplated only one purchase price namely $500,000 as is clearly set out in the recital and Clause 1 and reinforced by Clause 3(a) which required a single deposit ; Clause 3(d) which envisaged a single outstanding balance sum and the remaining payment Clauses where no distinction is made between payments for the land and buildings, on the one hand, and payments for the plant, equipment and machinery, on the other.

         

        Indeed Clause 10 graphically illustrates to my mind both the unitary and indivisible nature of the Agreement insofar as it clearly requires ‘payment in full of the said purchase price’ before any registrable transfer shall be executed and delivered, without any attempt being made in the Clause to distinguish or separate either the purchase price or the different subject-matters dealt with under the Agreement.

         

        In McInnes v. Inland Revenue (1934) S.C.424 a Scottish case, a man entered into a ‘feu-contract’ with reference to a plot of land in Scotland. Before the execution of the ‘feu-contract’ a house had been built on the land in pursuance of an agreement entered into between the purchaser and a company of builders in which the vendor held a controlling interest. The original offer of the land by the vendor to the purchaser which offer was accepted, was made on the same date as the building contract, that is, at a time when there was no building on the land.

         

        The Commissioner of Inland Revenue assessed the duty on the ‘feu-contract’ on the basis that the total consideration involved in the conveyance on sale included also the value of the house. On those facts the Court came to the conclusion that the assessment which covered both the ‘feu-duty’ capitalised and the price of the house was right.

         

        The gist of the Court’s decision appears in the judgment of Lord Morrison who said at p.432:

         

        “In this case there are two sets of documents, namely, the missives which are dated contemporaneously and which are part and parcel, in my opinion of one transaction. It seems to me that the effect of the missives is that the appellant bought a house and a site for it. That is the substance of the transaction, and a consideration of both sets of missives was necessary to ascertain the true consideration of the transaction. The value of the ground was 84/- and that was the consideration which the appellant gave for it. The value of the house was 630/-. It seems to me therefore that it is impossible to hold that this conveyance, which carries the right to both the site and to the house, is properly stamped with a stamp which covers only the price of the site.”

         

        In the present case parapharasing the above, I am firmly of the opinion that Arula by the Agreement purchased a sawmilling operation and the land on which it stood.

         

        For the foregoing reasons the assessment of the Commissioner of Stamp Duties is upheld and the Originating Summons is accordingly dismissed with costs to be taxed if not agreed.

         

        (Judgment for the Defendants).
  

Commissioner of Inland Revenue v Druavesi

        [1997] 43 FLR 150

         

        HIGH COURT OF FIJI ISLANDS

         

        COMMISSIONER OF INLAND REVENUE

         

        v.

         

        ATUNAISA B. DRUAVESI

         

        [HIGH COURT, 1997 (Scott J) 3 July]

         

        Appellate Jurisdiction

         

        Sentence- income tax- failure to supply information required by the CIR- appropriateness of conditional discharge- Income Tax Act (Cap 201) Penal Code (Cap 17) Section 44.

         

        Crime: Procedure- adjournment for sentence- when permissible- Criminal Procedure Code (Cap 21) Section 215.

         

        The Commissioner of Inland Revenue appealed against a conditional discharge imposed for failing to supply information under the Income Tax Act. Allowing the appeal the High Court re-emphasised that such a sentence which has to be used sparingly was wholly inappropriate for this type of offence. It also deprecated lengthy adjournments without good cause between conviction and sentence.

         

        Cases cited:

         

        Attorney General v. Hari Chand (1968) 14 FLR 245

        CIR v Patel (HAA 014 of 1994)

        CIR v Rubine (HAA 0079 of 1993)

        Halligan v Police [1955] NZLR 1185

        R v Esterling (1946) 175 LT 520

        State v Krishna Kewal (Lautoka Cr. App 54/92)

        Tipple v Police [1994] 2 NZLR 362

         

        Appeal against sentences imposed in the Magistrates’ Court.

         

        I.W. Blakeley for the Appellant

        No appearance by the Respondent

         

        Scott J:

         

        The Respondent having failed to provide the Appellant (the Commissioner) with returns of income for the years 1985, 1986, 1987, 1988 and 1989 as required by Section 44(1) of the Income Tax Act ( Cap 201 - the Act) the Commissioner on 12 May 1992 served a Section 50(1) notice upon him requiring compliance by no later than 2 June 1992.

         

        By April 1993 the Respondent had still not complied with the notice and accordingly he was charged with 3 offences of failing to supply information as requested by the Commissioner contrary to Sections 50(1) and 96 (1) of the Act.

         

        On 22 November 1993 the Respondent finally complied with the Section 50(1) notice, that is after a period of 180 days default. By Section 90 of the Act a defaulter is liable to a maximum penalty of $40 per day for each day of default. Given that the Respondent faced 3 charges he was liable if convicted, to a maximum penalty of $40 x 3 x 180 = $21,600. In view of the limitations imposed by Sections 7(b) and 12(2)(b) of the Criminal Procedure Code (Cap 21) absent a committal to the High Court under the provisions of Section 222 the maximum penalty faced by the Respondent was a fine of $2,000.

         

        On 29 November the Respondent pleaded guilty to the 3 charges. The following mitigation reproduced in full and as literally recorded was offered:

         

        “I would like to give reasons for the delay in submitting the tax return. I was employed by National Bank of Fiji from 1985 - 1992. The remand of employment by the Bank had kept me busy. The charge of portfolio and the events of 1987 put a lot of demand in my post. As a senior employee I have always kept my clients interest first at my expense. This is my first offence, I ask that consideration be given to my report job and that I am good citizen of the country. I am a member of Tikina Council, the Provincial Council. I am also a JP.”

         

        Having recorded the mitigation the Chief Magistrate “adjourned for sentence”. It was not until over 2 months and 3 adjournments later that the sentence was finally passed. This practice for adjourning for sentence for substantial periods of time is to be avoided. Section 215 of the Criminal Procedure Code is quite clear. It does not envisage adjournment:

         

        “The Court having heard both the Prosecutor and the Accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an Order against him according to law or shall acquit him or make an Order under the provisions of Section 44 of the Penal Code.”

         

        While a magistrate who wishes to consider the appropriate sentence, perhaps after consultation with his colleagues or following study of reported sentence decisions undoubtedly has the power to adjourn for a short period, say, 1 or 2 days and while even longer adjournments may be justified to enable relevant enquiries to be made or to obtain a social enquiry report there is nothing to be said in favour of long adjournments of the kind which occurred in this case and the practice of adjourning in such circumstances should cease (see R v Esterling (1946) 175 LT 520).

         

        In his sentencing remarks the Chief Magistrate first reproduced the mitigation which the Respondent had offered. He then continued as follows:

         

        “The court having considered the facts of the case, the nature of the offence, and the need to comply with the provisions of the Income Tax Act.

         

        The court having further taken into consideration the mitigating circumstances as outlined by the accused. The accused is an upstanding member of the community. Further having considered the accused plea of guilty and he is a first offender. The accused is a JP and a recently elected member of parliament.

         

        The court therefore having taken all these factors into consideration, and exercising its powers under section 44 of the Penal Code, Cap. No. 17 without proceeding to conviction order a conditional discharge for a period of twelve months (12) on condition that he pays court cost of $30.”

         

        On 31 March 1994 the Commissioner appealed against the sentence on the 2 grounds set out in full in the Petition which really amount to the proposition that the sentence imposed by the Chief Magistrate was, in all the circumstances; manifestly lenient and wrong in principle. In yet another perfect example of the lamentable inefficiency of the Suva Magistrates’ Court the record of the proceedings which could not reasonably have taken more than 3 hours to prepare took just under 3 years to reach the High Court.

         

        On 27 May the appeal was set down for hearing on 30 June. On 19 June the Respondent was served with the Notice of Hearing. On 23 June the Respondent, citing Parliamentary commitments and the wish to brief counsel sought an adjournment until the end of August. In view of the Court’s commitments the Respondent was advised that any application for an adjournment made on the Respondent’s behalf by his Counsel on 30 June would be considered. In the event there was no appearance either by the Respondent or by his Counsel. I proceeded to hear the appeal in the Respondent’s absence.

         

        The scale of seriousness of failing to comply with a Section 51 notice and the appropriate sentencing approach have been considered on a number of occasions including Attorney General v. Hari Chand (1968) 14 FLR 245 where the Chief Justice having referred to the gravity of the offence (a default period of a mere 53 days) increased the fine imposed five-fold; State v Krishna Kewal (Lautoka Cr. App 54/92) where the Court allowing the Commissioner’s appeal against a Section 44(1) discharge and imposing in its place a substantial fine labelled a discharge for this offence as inappropriate and most recently and comprehensively by Pain J in CIR v Patel (HAA 014 of 1994) and CIR v Rubine (HAA 0079 of 1993). In both these later cases the Section 44(1) discharge was set aside on appeal and fines imposed in lieu. In Rubine a substantial default period aggravated by a 5 year failure to furnish income tax returns was described as “serious offending demanding a conviction and realistic penalty”.

         

        Perhaps it is time to re-emphasize that the powers conferred by section 44(1) of the Penal Code should only be exercised sparingly (see Halligan v Police [1955] NZLR 1185) where the direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the Court has balanced all the public interest considerations as they apply in the particular case (see Tipple v Police [1994] 2 NZLR 362).

         

        I am satisfied that in his approach to sentencing this Respondent the Chief Magistrate erred. There was no reference to the published authorities. There was no reference to the seriousness of the offence. The mitigation which had been offered was uncritically accepted entirely overlooking first, that the offences with which the Respondent had been charged did not relate to the delay in furnishing income tax returns, secondly, that the “events of 1987” could have had no effect at all on the failure to comply with a notice issued in 1992 and thirdly, that the excuse that the Respondent worked for the National Bank of Fiji from 1985 to 1992 was incapable of amounting to even the beginnings of an excuse for failing to comply with the section 51 notice during the months December 1992 to November 1993 when he was no longer employed by the Bank. The fact that an accused is “an upstanding member of the community”, a JP and a Member of Parliament, that he has pleaded guilty and is a first offender does not give rise to an entitlement to a sentence which is quite simply wrong in principle.

         

        The Appeal succeeds. The sentence imposed is set aside. In view of the Respondent’s non appearance and not wishing to proceed to substitute sentence in his absence and without benefit of representations on his behalf this Appeal will be adjourned part heard to Wednesday 17 September at 9.30 a.m. for continuation. The Chief Registrar is requested to serve the appropriate Notices on the parties.

         

         

        17 September 1997

        SENTENCE

         

        These sentencing remarks are supplemental to my Judgment herein dated 3 July 1997.

         

        The theoretical maximum sentence for these offences amounts to $21,600 but on appeal from the Magistrates Court, as already pointed out in my Judgment this Court is restricted to a maximum fine of $2,000. I am not sure that the long period of failure to supply returns is an aggravating feature but the delay in complying with the Section 50 (1) notice, now recalculated at 412 days, certainly is.

         

        I taken into account the fact that the Respondent is a first offender and that he has pleaded guilty.

         

        Even though it in fact it turned out that large sums of money were not due by the Respondent to the Commissioner that does not excuse non-compliance with the law.

         

        I impose penalties as follows:

         

        Count 1 - 412 x $2       = $ 824.00

        Count 2 - 412 x $1       = $ 412.00

        Count 3 - 412 x $1       = $ 412.00

        Total                            =$1648.00

         

        The Respondent will have 3 months to pay, in default of which he will serve a sentence of 2 months imprisonment.

         

        (Appeal allowed; sentences varied).
   

Baljeet Singh v. Subindra Kaur

        [1997] 43 FLR 269

         

        HIGH COURT OF FIJI ISLANDS

         

        BALJEET SINGH

         

        v.

         

        SUBINDAR KAUR

         

        [HIGH COURT, 1997 (Lyons J) 3 October]

         

        Appellate Jurisdiction

         

        Evidence: Civil- recognition of foreign decree of divorce- comparison of handwriting by Resident Magistrate- examination of document not properly before the Court.

         

        A resident magistrate hearing a contested application for recognition of a foreign decree of divorce examined a document for the purpose of comparing handwriting and as a result of the examination made a finding of fact. On appeal the High Court HELD: (i) that although the evidence of an expert is not essential when hadwriting is to be compared, the issue between the parties was so serious that an expert should have been called and (ii) that a Court should not make use of a document not placed before it by the parties without affording counsel the opportunity to address the Court on the evidential value of the document.

         

        Cases cited:

         

        Arnold v Norris [1936] SASR 287

        Bater v. Bater [1950] 1 All ER 458

        Briginshaw v. Briginshaw 16 CLR 336

        Cavanett v. Chambers [1968] SASR 97

        Chiman Lal v. Pan Bai C.A. 48/81- FCA Reps 81/144

        C. Valentine v. Donnan C.A. 38/81- FCA Reps 81/157

        Gronow v. Gronow 144 CLR 513

        House v. R 55 CLR 505

        Jai Prakash v Savita Chandra ( C.A. 37/85- FCA Reps 85/156)

        Miller v. Ministry of Pension [1947] 2 All ER 372

        R v. O’Sullivan [1969] 2 All ER 237

        R v. Rickard (1919) 13 Cr. App. R. 140

        R v. Smith (1909) 3 Cr. App. 87

        R v. Tilley [1961] 1 All ER 406

        Shameem Mohammed v R 29FLR 155

         

        Appeal to the High Court from the Magistrates’ Court.

         

        S. Ram and V.P. Mishra for the Appellant

        A. Singh and G.P. Shankar for the Respondent

         

        Lyons J:

         

        This is an appeal from the Learned Magistrate’s decision of the Ba Magistrates’ Court of the 15th April 1997.

         

        Facts

         

        The Appellant (Baljeet) and the Respondent (Subindra) were married on the 10th January 1990. Shortly after marriage Baljeet left for the United States to take up residence. The initial plan was that Subindra would follow him after sorting out certain immigration matters.

         

        For one reason or another these plans did not eventuate. The parties became estranged and on the 11th December 1995 Baljeet was granted a Dissolution of the Marriage in the Supreme Court of California County Stanislaus, USA.

         

        On the 3rd February 1997, Subindra brought application for maintenance on her behalf under the provision of the Maintenance And Affiliation Act (Cap 52). One assumes that because of her marriage to Baljeet such application was made pursuant to Section 6 of the Act.

         

        The record is not exactly clear on how it came about, but it appears that Baljeet had returned to Fiji in late 1996 or early 1997 and married one Sharan Jeet Kaur.

         

        On the 3rd February, as well as filing for maintenance, Subindra filed a Notice of Motion seeking to prevent Baljeet leaving the country pending resolution of Maintenance Application. I pause to note that in paragraph 6 of Subindra’s Affidavit in support of the Notice of Motion, she alleges that the Police “got hold of him (Baljeet) for a possible bigamy charge.” Even if it be conjecture, I doubt one would be too hard pressed to guess who gave information to the Police, in respect of an allegation of bigamy, if indeed the Police had any interest in Baljeet. If they did, a simple check of the details of the marriage to Miss Kaur would have satisfied matters. I must say that, at first glance, the said Affidavit raises some questions as to the true motives of Subindra in bringing the Notice of Motion.

         

        Baljeet responded to the allegations as raised in the Affidavit filed on the 6th February. I shall return to this later.

         

        On the 4th February the Learned Magistrate granted an ex-parte order preventing Baljeet from leaving Fiji. It seems that his Passport was also ordered to be retained by the Court.

         

        On the 17th February the matter came back before the Court inter partes. The Learned Magistrate dissolved his previous ex-parte order, returned the Passport and allowed Baljeet to go to the United States. No doubt, the Learned Magistrate was aware of the Court of the Appeal’s ruling in Chiman Lal v. Pan Bai (C.A. 48/81- FCA Reps 81/144) and C. Valentine v. Donnan (C.A. 33/81- FCA Reps 81/157) where the Court expressed that the greatest caution should be used when restricting a person’s leaving of Fiji under the provisions of the Maintenance Act and, in the later case, where it ruled that it was beyond the jurisdiction of the Courts of Fiji to retain a foreign Passport. I understand that Baljeet in all likelihood possessed a United States passport.

         

        Be that as it may, the Learned Magistrate released Baljeet on the giving of two sureties, one of which was signed by one Gurdev Singh.

         

        On the 27th February 1997, Baljeet filed a Notice of Motion seeking a ruling that the application for Maintenance be struck out as the Court had no jurisdiction to entertain the matter by virtue of the California Divorce. The reasoning behind this application was that Section 6 only allows a married woman to claim maintenance. As Subindra was by now divorced, she, no longer being married, had no right to maintenance. (Although I do not have to rule on that point, I do refer to Halsbury 4th Ed Vol. 13 para 991 which, at first glance, appears to give some support to that reasoning).

         

        Baljeet further submitted that the divorce in California should be recognised pursuant to Section 92 of the Act.

         

        Subindra’s argument was that she had no knowledge of the divorce, having never been served with the divorce papers or the Decree Nisi . Hence, she argued, she was denied natural justice (i.e. - a right to be heard on the Divorce application) and thus the Court should invoke Section 92 (6) and refuse to recognise the foreign Decree from California.

         

        For his part, Baljeet, denied Subindra’s lack of knowledge. In his Affidavit of the 6th February he annexed what purport to be Affidavit of Service of Documents on Subindra signed by Gurdev Singh (court Record - page 17 and 18). He also says that the California court was given an address in Fiji to which it could post documents to Subindra -such documents being the Decree Nisi (see paragraph 7 on p.15 of the Record). Subindra responded to this by neither admitting nor denying that the address given was hers or that the Decree was in fact sent - (Para 5 page 28).

         

        On the 3rd April 1997 the Learned Magistrate heard the application on the papers. He called for and received written submissions. The Learned Magistrate called the parties before him again on the 14th April where he asked whether the Gurdev Singh who signed the Bail Bond surety was one in the same as the person who signed the service documents. Counsel for Mr. Baljeet said that he was.

         

        On the 15th April the Learned Magistrate handed down his decision dismissing the Appellant’s Notice of Motion of the 27th February. His Worship made no further ruling, save on costs, and ordered that the trial of the matter proper be adjourned to a later date.

         

        It is from this decision that Baljeet appeals.

         

        The Decision of the Learned Magistrate

         

        The Learned Magistrate’s ruling centres on Section 92(6) of the Act. His Worship ruled that the Registrar of Marriages acceptance of the California Decree pursuant to Section 38 of the Act was not binding on the Court. This is the correct view.

         

        The Learned Magistrate then discusses Subindra’s assertion that she was not served with the Divorce process and comes to the conclusion that she was not. To achieve this, the Learned Magistrate referred to the signatures on the service document (pages 17 and 18 of the Records) purported to be of one Gurdev Singh and compares these with the signatures of one Gurdev Singh on the Bail Bond Surety (p.36 of the Record). As I have said on the 14th April the Learned Magistrate sought and obtained confirmation from Baljeet’s Counsel, that it was in fact the same Gurdev Singh.

         

        On his comparison of the signatures, the Learned Magistrate found the following differences:-

         

        “I have very carefully perused the signatures in the documents mentioned above and I am of the view that the signatures in documents mentioned to (a) and (b) above are similar and appear to have been made by the same person. When I compare the signature on the document in (c) above (i.e. Bail Bond surety), I find that the signature on document (c) is very different to the signature on (a) and (b) despite the fact that I only have photocopies of (a) and (b).

         

        I find the following difference:

         

        i)          The letter g, s and h in document (a) and (b) are different to document (c);

         

        ii)         The dot on letter (i) is placed in different place in document (a) and (b) to document (c) and the length of the signature also appears to be different.

         

        Having observed the differences in the signature in the documents mentioned above, I am convinced that the signature in document (a) and (b) are not of Gurdev Singh.”

         

        The Learned Magistrate gained support for his contention from the fact that Baljeet put no material before the Court from Gurdev Singh in response to Subindra’s allegation that she had not been served. On p.75 of the Record the Learned Magistrate says:-

         

        “Now coming back to the denial by the Complainant that she was not served, I would have thought that in the face of such a categorical denial at least that should have provoked some response from the Respondent - at least there should have been an affidavit filed in reply by Gurdev Singh refuting such a serious allegation, but all the Respondent says is that he had the papers served through Gurdev Singh - see para.7 of his affidavit sworn on 11/02/97 - see Jai Prakash vs Savita Chandra, F.C.A. Civil Appeal No. 37/85, at page 3 of the cyclo-styled judgement where Fiji Court of Appeal states: “of course he did have to respond. In our view, the course events have taken and the consequences, if he did not respond, rendered it a matter of prudence that he should reply if indeed, he had a reply. And in the circumstances of the case in the absence of a reply, we hold the inference inescapable that what the Respondent has said to be true.”

         

        Quite obviously the Learned Magistrate, having found that the signatures on the service forms being not the signatures of Gurdev Singh, refused to accept the truth of the contents of those service documents. He thus held that Subindra had not been served and that she therefore been denied natural justice. He was therefore able to apply the provisions of Section 92 (6).

         

        The Arguments on Appeal

         

        The Appellant’s argument can be summarised as follows:-

         

        1.         The finding, being based on the difference in signatures, fail to meet the required burden of proof bearing in mind the seriousness of the allegation (the case cited was Briginshaw -v- Briginshaw 16 CLR 336.)

         

        2.         The finding was an improper exercise of judicial discretion in that the evidence of the Bail Bond Surety document was not properly before the Court and further, no opportunity was given to the Appellant as Applicant in the original application, to make submissions on the signatures.

         

        The Respondent’s argument can be summarised as follows:-

         

        1.         The Learned Magistrate’s finding was correct in that a proper exercise of his jurisdiction.

         

        2.         There was evidence of and notice of the Appellant’s fraudulent conduct in respect of the service documents. The Court should take notice that it is not certain the documents annexed to Baljeet Affidavit of the 6th February are in fact the document. They appear to come from a typing service called “Central State Typing Service.” It is also submitted that the absence of an attestation clause or a method of swearing the Affidavit as is found in most English based common law jurisdictions must raise suspicions about the authenticity of the service documents and hence the authenticity of claim that service had been effected.

         

        Ruling

         

        I can deal with the 2nd limb of the Respondent’s argument first, but before doing so, I must note that the decision appealed from was on an interlocutory application.

         

        No point was put to me that ordinarily interlocutory rulings are non-appealable, unless of course the ruling gives finality to the proceedings. Neither party pursued this point.

         

        As it stands, the Notice of Motion sought to put point to Subindra’s maintenance application. The Learned Magistrate ruled against the motion thus preserving Subindra’s application to another day. Arguably this did not put paid to the Appellant’s (Baljeet) case because he could come and argue the applicability of the other subsections and factors raised therein in Section 6. In reality though, it must be considered that, having lost the motion, Baljeet who was put in an extremely difficult position concerning the question of liability to pay maintenance. In effect, the later trial of Subindra’s application would most likely be. in the form of an assessment rather than an argument on liability. In that respect the dismissal of the Motion put an end to Baljeet’s case and implicitly meant that Subindra would succeed in all likelihood on the question of liability for maintenance - it being on a question of quantum that was left to be decided. In that sense, I consider the appeal to be properly before me.

         

        Anyhow, neither party raised the point and in the absence of any objection, I propose to proceed on the matters raised by this Appeal as if there were no bar to me so doing.

         

        Returning to the second point of the Respondent’s argument, I fail to see it as valid. This Court has no way of knowing if the documents of service are in proper form for the case in California. But, despite the difference in form from those in Fiji, it must be assumed to be correct. The Divorce was granted so it must be reasonably implied that all matters, including service, were acceptable to the Court in California. Merely because the form of the document is different from here, it is no ground for assuming that it is not what the Appellant says it is.

         

        Had the Respondent wished to raise that argument previously, then information of evidence in that respect should have been put before the Court by Subindra. The rule is simple:- the party which alleges the irregularity or impropriety of the document must put the evidence up to support it. There being no evidence that the documents are not the proper documents as to proof of service, it is reasonable to assume that in fact they are.

         

        The Learned Magistrate implicitly worked on that assumption - but what his Worship has found was that the documents were most likely not a true account of service, albeit that prima facie, the documents were in correct form.

         

        I now turn to consider the Learned Magistrate’s findings of fact regarding the service - which of course impacted on Section 92(6). In so doing, all the remaining arguments of both parties will be considered.

         

        The Learned Magistrate has made a finding of fact. His Worship as exercised his discretion when undertaking this task. When an Appellate Court approaches such a finding, it is not for the Appellate Court to merely supplant the Lower Court view with its view of the facts. That can only be done if the Appellate Court finds that the Lower Court’s assessment of the facts was plainly wrong or that it (the Lower Court) acted on a wrong principle (See House v. R 55 CLR 505 and Gronow v. Gronow 144 CLR p 519 per Stephen J. as he then was).

         

        As to the Learned Magistrate’s actual finding of the signature differences (and hence his application of Section 92 (6)), I am unable to come to any conclusion either way. All that was before the Learned Magistrate were the documents referred to and nothing else. I am far from a handwriting expert, particularly in the areas of signature which, I suspect, is a rather narrow and specialist field.

         

        Without in any way deciding the issue, I might say that the Learned Magistrate’s approach, in my view, was one fraught with pitfalls. I consider it reasonable to say that my experience in trials where handwriting evidence was in issue, the general rule emerges that the lesser the amount of writing to be assessed, the greater the difficulty in coming to an accurate assessment. Also, in my experience, assessment of signatures is a special and difficult area when I would think one should proceed into with the greatest of caution. It would seem to me, that the authorities take a similar view.

         

        The Learned Magistrate held that he was entitled to look at the signatures and come to an assessment notwithstanding the absence of expert witness. In effect he felt he could exercise his discretion and take a stab without such expert assistance. His Worship cited R v. Smith (1909) 3 Cr. App. p87 and R v. Rickhard (1919) 13 Cr App. R. 140 as authority for this.

         

        Indeed Smith & Rickards’ cases are authority that a Court can come to its own assessment on handwriting. But, with respect, the Learned Magistrate failed to take cognizance of the limitations of those cases put on the exercise of the discretion.

         

        Both cases, whilst accepting the exercise of the discretion existed, must be understood to have placed a cautionary restriction particularly when the findings to be arrived at by such review of the handwriting, had serious consequences.

         

        In both Rickard and Smith’s cases, the Courts considered it unsafe to allow the exercise of the discretion to assess the handwriting in the absence of the expert or supporting evidence, where the finding was the sole reason for supporting an allegation of criminal offences.

         

        I might also point out that later authorities such R v. Tilley [1961] 1 All ER 406 and R v. O’Sullivan [1969] 2 All ER 237 decided it was wrong for juries to be asked to compare handwriting without the assistance of an expert. (See also Shameem Mohammed v R 29FLR 155). I venture to comment that in civil cases where the judicial person is the arbitrator of the facts, if not incorrect, then it would likely be held that such judicial person should exercise extreme caution, in coming to comparative findings on handwriting in the absence of such expertise - particularly more so when the findings support a serious allegation.

         

        This is the very point raised by the Appellant. By finding that Gurdev Singh did not sign the service documents, the Learned Magistrate is, in effect, making a finding that whoever did was perjuring themselves and, by analogy, that Baljeet was probably involved in some deception of the California court. That is - either contemptuous or fraudulent activity. This is a serious allegation. The Learned Magistrate himself recognises this at p.75 of the record.

         

        Bearing in mind the seriousness of the allegation and any finding in respect thereof, I am directed to authority such as Briginshaw v. Briginshaw (Supra), Miller v. Ministry of Pensions [1947] 2 All ER 372 and Bater v. Bater [1950] 1 All ER 458. In those cases it was held that in a civil case such as this the standard of proof is on the balance of probability. The above cases further establish the principle that, whilst the standard of proof is on the balance of probability if a finding is to be made which is of a serious nature, then there is a greater preponderance of evidence needed to support it.

         

        On reading of the record and the authorities on this point, I hold the view that the serious allegations raised and the finding made, required a greater preponderance of evidence than was before the Learned Magistrate. This case required expert evidence or strong supportive evidence to enable a finding positive to Subindra’s allegations. Such evidence was not before the Learned Magistrate and he was operating on a wrong principle to proceed to make the findings he made in the evidence of such evidence, whether it had been expert evidence or ancillary supporting evidence.

         

        Even if I am incorrect on that issue, Counsel for the Appellant, Baljeet makes a far stronger point.

         

        Firstly, he submits was the bail bond surety properly before the Learned Magistrate in evidence? I doubt that it was.

         

        This was a civil case. Our system is an adversarial system. As such it is for the court to be the receiver of evidence, not the gatherer of it. In instant case, the Learned Magistrate went beyond the evidence properly before him and gathered up the bail bond surety himself and then used it as evidence. Neither party put that into evidence at the hearing nor mentioned it in their written submission. It should not have thus been considered by the Learned Magistrate. Courts can only act on evidence properly before them.

         

        I stress “properly” in the preceding paragraph for good reasons. I do not think that the use of the bail bond surety was, of itself fatal. The document was part of the overall court record although not strictly in evidence on the motion proper. As such the Learned Magistrate could take what is in effect judicial notice of it. What is of concern is the manner in which the document was used.

         

        As the Learned Magistrate himself said “There is no evidence before me or submissions made whether I should compare the signatures” (p.74). This is of vital concern. The Appellant was given no opportunity to submit or to present any evidence to meet the eventual findings.

         

        In Cavanett v. Chambers [1968] SASR 97, a Magistrate informed himself as to the effect of a certain blood alcohol reading upon the Defendant’s ability to drive, but then gave the Defendant no opportunity to comment.

         

        Bray C.J., when dismissing the appeal said:-

         

        “It is one thing to use the section [S.64 of the Evidence Act 1929] for the purpose of discovering or verifying objective facts or figures about which there can be no real dispute, such as historical or geographical data of an uncontroversial nature or mathematical tables of life expectancy or interest calculations. Cf Arnold v Norris [1936] SASR 287, though even there I think … the parties should be given notice of the Court’s intention and an opportunity to be heard on the result of its researches. It is quite another thing for the tribunal of its own motion to seek to inform itself out of court on a question of fact or opinion vital to the issue and by no means free from controversy. This is, of course, doubly objectionable if done without the parties having any opportunity to state their views on the specific authorities consulted. But in my view, even if they are offered this opportunity, the court should not embark on such investigations except by consent. It would he preposterous to suppose, for example, that in a claim for damages or worker’ s compensation where divergent medical opinions have been expressed by expert witnesses on each side, the court should be at liberty without consent to pursue independent inquiries of its own on the point through medical journals or text books not referred to by the witnesses.”

         

        (See also Cross on Evidence 3rd Australian Ed. p101 and 102.).

         

        The above situation commented on by Bray C.J. is fairly much what has happened here. The Learned Magistrate merely went into Court and satisfied himself that the Gurdev Singh who signed the Bail Bond Surety was one in the same as the person who signed the service documents. His Worship gave no indication as to why he wanted this information and gave the appellant no opportunity to comment on it. In so doing the Learned Magistrate has clearly failed to properly exercise his discretion. He has in effect denied the Appellant a right of properly putting his case.

         

        In respect of the last mentioned matter, in making his comments on the top of p.75, of the Record, I find that the Magistrate may have become confused himself as to the difference between the allegation of non-service made by Subindra and the matter pertaining to the signatures.

         

        As to the former, it was always Subindra’s obligation to prove the allegations she made. It was never Baljeet’s obligations to disapprove it. He had put forward his evidence that service had been affected. It was Subindra’s obligation to put forward evidence to disprove it. The reference to Jay Prakash v. Chandra (C.A. 37/85 - FCA Reps 85/156) is not applicable. In that case Mr. Prakash had, on the reverse side of the cheque, simply made an admission at odds with his defence. Thus it was clear obligation to explain the misunderstanding. His failure to do so was properly weighed against him. In instant case, Baljeet says that Gurdev Singh had served Subindra. There was no inconsistency in his evidence to be explained and any further Affidavit by Gurdev Singh would have, as the Appellant’s Counsel put it, merely repeated what Baljeet had said.

         

        Of course, had the Learned Magistrate invited submissions regarding signatures and not got any explanation from Gurdev Singh, then Prakash’s case would well have been of some significance.

         

        For all the above reasons, I consider the Learned Magistrate has erred in the exercise of his discretion and the appeal must be upheld.

         

        Accordingly the Learned Magistrate’s finding and orders of 15th April are vacated.

         

        I order the Respondent to pay the Appellant’s costs which I summarily assess at $175.00.

         

        (Appeal allowed; ruling of the Magistrates’ Court set aside).
 

Commissioner of Inland Revenue v. D.H. Bull

        [1997] 43 FLR 50

         

        HIGH COURT OF FIJI ISLANDS

         

        THE COMMISSIONER OF INLAND REVENUE

         

        v.

         

        DONALD HENRY BULL

         

        THE COMMISSIONER OF INLAND REVENUE

         

        v.

         

        WILLIAM JOHN BULL

         

        [HIGH COURT, 1997 (Fatiaki J) 18 February]

         

        Appellate Jurisdiction

         

        Income Tax - income earned overseas by resident of Fiji - absence of double taxation agreement- whether balance of income after payment of tax overseas subject to taxation in Fiji - Income Tax Act (Cap 201) Section 102 (b).

         

        The taxpayers who were resident in Fiji had paid withholding tax in Australia on income derived there. The Court of Review (Taxation) held that on the true construction of the Income Tax Act the whole balance of income remaining after the payment of tax was exempt from further taxation in Fiji. Allowing the appeal by the CIR the High Court HELD: that only that part of the income already paid in tax was exempt from further taxation in Fiji.

         

        Cases cited:

         

        A.M.P. Society v. C.I.R. [1962] NZLR 449

        Canadian Eagle Oil Co. Ltd. v. The King [1945] AC 119

        Colquhoun v. Brook (1889) 14 AC 493

        Coltness Iron Co. v. Black (1880) 6 AC 315

        Redbank Meat Works Pty Ltd v. C. of T (Q) (1944) 69 CLR 315

        Ronpibon Tin N.L. v. F.C. of T. (1949) 78 CLR 47

         

        Appeal to the High Court from the Court of Review (Taxation)

         

        I. Blakeley for the Commissioner of Inland Revenue

        F.G. Keil for the Respondents

         

        Fatiaki J:

         

        This is an appeal by the Commissioner of Inland Revenue (the ‘CIR’) against a decision of the Court of Review delivered on the 28th of April 1995 in which the Court upheld an appeal by the taxpayers against assessments of the CIR requiring each of the taxpayers to pay income tax in respect of interest income for the years 1987 to 1990, derived by each of the taxpayers from funds invested in Australia and in respect of which Australian Withholding Tax of 10% had already been deducted at source.

         

        The appeals to the Court of Review although separately numbered were dealt with in a single decision of the Court. The nature and source of the income in each appeal was identical and the CIR’s assessments were based on the same section of the Income Tax Act (Cap. 201). It is therefore convenient to adopt a similar approach to the CIR’s two appeals and render a single judgment.

         

        In the appeal before the Court of Review a Statement of Agreed Facts was filed in respect of each appeal and save for the calculation of the interest income earned in Australia and the tax paid thereon, was identical in all other respects. For the purposes of this appeal I gratefully adopt the convenient summary of the Court of Review where he states at p.37 of the record :

         

        “The agreed facts are that each of the Appellants earned income in Australia at a time where there was not a Double Taxation Agreement in force between Australia and Fiji.

         

        Withholding tax was charged and deducted in Australia on the whole of each income.

         

        The Commissioner does not dispute that this was ‘income chargeable with income tax’ within the meaning of those words in S.102(b) of the Act.”

         

        The Court of Review then summarises the relative position taken by the CIR as follows :

         

        “The Commissioner assessed each of the appellants on that amount of the same Australian income as remained after the tax imposed on it in Australia had been deducted on the grounds, that the words `to the extent that’ in S.102(b) were meant to include no more than the amount paid in tax.”

         

        and by the appellants as follows :

         

        “The appellants claim exemption in each case from Fiji tax under paragraph (b) of S.102 on the grounds that the

         

        whole of the income in question having been chargeable with income tax in Australia, a fact not denied by the Commissioner, and having furnished the correct evidence required by proviso (i) and there being no evidence that proviso (ii) applied, the whole of it was exempt income.”

         

        The Court of Review then sets out various submissions of both counsel for the parties and after referring to several cases states, at p.38 of the record :

         

        “Applying the principles set out above, that is, looking fairly at the language used, without any implications, intendment, or reading in, my interpretation is that the degree, dimension or scope of the exemption in S.102(b) extends to the part of the income (that is the `it’ in S.102(b)) that is `chargeable with income tax in that other territory’. That part of the income that is chargeable with income tax is exempt from tax in Fiji. That part of the income that is not chargeable with income tax is not exempt from tax in Fiji.”

         

        The Court’s decision was that :

         

        “The whole of each Appellant’s income, the subject of these appeals being chargeable and taxed in Australia, the whole of each is exempt from tax in Fiji.”

         

        The CIR now appeals against that decision of the Court of Review on the following two grounds :

         

        “1.     The learned Court of Review erred in law in holding that Section 102(b) of the Income Tax Act provided a total exemption from income tax in Fiji in respect of income earned by the respondents and taxed in Australia.

         

         2.      The learned Court of Review erred in law in failing to have regard to the provisions of Section 103 of the Income Tax Act when applying the provisions of Section 102(b).”

         

        I am grateful to both counsel for the comprehensive written submissions and photocopy authorities furnished for the assistance of the Court.

         

        It is common ground that the CIR’s appeals raises a single question of law for determination by this Court namely, the meaning and ambit of Section 102 (b) of the Income Tax Act Cap. 201 (‘the Act’). Section 102 is to be found in PART XIV of the Act entitled REBATES FROM TAX CHARGED and reads :

         

        “102. The tax chargeable in respect of income derived outside Fiji by a resident shall be abated or exempted as follows :

         

        (a)     in respect of income derived from a territory with whom arrangements have been made regarding relief from double taxation, relief shall be given in accordance with that arrangement;

         

        (b)     in respect of income derived from a territory with whom arrangements have not been made regarding relief from double taxation, such income shall be exempt from tax to the extent that it is chargeable with income tax in that other territory :

         

        Provided that -

         

        (i)      the taxpayer shall furnish evidence satisfactory to the Commissioner showing the amount of tax paid and the particulars of income ;

         

        (ii)     such income (shall) not be exempt if, under the law of that other territory, tax is deducted therefrom at source but such person has the right thereafter of making a return of that income and being assessed to tax thereon with relief in proper circumstances for the whole or any part of the tax already deducted at source and he does not exercise that right ; and a certificate purporting to be signed by an officer of the Taxation Department of that other territory shall be prima facie evidence that such a right exists and of the exercise or non-exercise thereof by the taxpayer.”

         

        It is convenient at this stage to set out the competing interpretations of the parties as appears in their written submissions on appeal. Counsel for the CIR submits as to ground (1) of the grounds of appeal :

         

        “... that when construed correctly section 102(b) operates as an abatement or exemption from tax after the income in

         

        question has been brought within the charging provisions of the Act. It does not operate so as to exclude the income referred to from those (sic) charging provisions.”

         

        In other words :

         

        “... when Section 102(b) is considered in its entirety rather than construing individual words its meaning is plain and unambiguous. It provides for an exemption from tax that is otherwise payable in Fiji to the extent of the tax chargeable overseas on the same income. It does not exempt that income from Fiji tax altogether.”

         

        As for the phrase ‘to the extent that it is chargeable with income tax’ counsel submits that its effect :

         

        “... involves consideration of whether the income, in whole or in part, is subject to overseas tax, and, how much tax has been paid.”

         

        In regards to the second ground, Counsel for the CIR complains that the Court of Review:

         

        “... gave no reasons for the conclusion ... that Section 103 did not apply to unilateral relief granted under Section 102(b).”

         

        Thereby ignoring the express wording of Section 103 itself and the fact that :

         

        “Section 103 appeared in the Fiji Act in 1974 at the same time Section 102 appeared and the old regime under Section 44 was replaced. That is consistent with moves in other jurisdictions such as New Zealand and the United Kingdom to move away from unilateral relief which provided total exemptions.”

         

        and the submission concludes by reasserting that :

         

        “... Section 103 does apply to 102(b) and the Commissioner was correct in the way he approached the taxpayers assessment i.e. he allowed them a credit against Fiji tax for the 10% tax paid in Australia. In short they were taxed as if they had received the income in Fiji.”

         

        Counsel for the taxpayer in seeking to uphold the decision of the Court of Review writes :

         

        “The contention of the Respondents is that S.102 deals with two separate matters and could easily be read as follows :

         

        A.        The tax chargeable in respect of income derived outside Fiji by a resident shall be abated :

         

        (a)        in respect of income derived from a territory with whom arrangements have been made regards relief from double taxation, the relief shall be in accordance with that arrangement.”

         

        and as a separate section

         

        B.         The tax chargeable in respect of income derived outside Fiji by a resident shall be exempted :

         

        (a)        in respect of income derived from a territory with whom arrangements have not been made regards relief from double taxation such income shall be exempt from tax to the extent that it is chargeable with income tax in that the (sic) territory : Provided - (etc).”

         

        In other words :

         

        “S.102(b) deals with what is referred to as `unilateral relief’ ...”

         

        and :

         

        “... merely restates the exemption provision from Fiji tax for income derived out of Fiji by residents of Fiji if taxed in that country which has been part of the Fiji income tax law since at least 1920.”

         

        This latter year is a reference to the position obtaining under Section 21 of the Inland Revenue (Income Tax) Ordinance 1920 which plainly exempted from income tax (subject to the Commissioner’s satisfaction), ‘income derived by a person resident in the Colony but not derived from the Colony’.

         

        In essence, counsel’s submission is that Section 102(b) is the present-day successor to Section 21 of the 1920 Ordinance and there has been no discernible change in the legislature’s intention to maintain the complete exemption of foreign income from local income tax (subject to certain conditions), despite the different wordings of the two sections.

         

        As for the phrase ‘to the extent that’, the taxpayers submission is :

         

        “(the phrase) must be read in the context in which (it) is used in particular with the word which follows, namely `it’. So as to read `to the extent that it’ has to be considered the word, `it’ can only mean and refers to the `income derived from a territory’ or `such income’ as used earlier in S.102(b).”

         

        and counsel submits in an obscure paragraph :

         

         

        “... the plain meaning of S.102(b) is that that part only of the income is exempt from Fiji tax, on which tax has been charged in Australia but that the part of that income is not exempt which has not been taxed or the income which has not been taxed at all or if the conditions of the provisos have not been complied with when (sic) Fiji tax applies. There is no need for the detailed provisions of S.103 to be applied to the circumstances existing under S.102(b).

         

        (my underlining)

         

        Having thus set out the opposing submissions of counsel for the CIR and the taxpayers, I begin my consideration of Section 102(b) by reminding myself of the proper approach that the Court should adopt in interpreting Section 102(b) which is plainly intended to provide unilateral relief against the incidence of double taxation which Lord Russell of Killowen described in Canadian Eagle Oil Co. Ltd. v. The King [1945] A.C. 119 at p.142:

         

        “(as) meaning ... that the same person pays tax twice on his income.”

         

        and which, in his lordships view :

         

        “... would, in default of express provision, no doubt be wrong.” (p.143)

         

        The approach I adopt is best summarised in the judgment of Lord Herschell in Colquhoun v. Brooks (1889) 14 A.C. 493 when he said at p.505 in adopting a passage from the judgment of Lord Blackburn in Coltness Iron Co. v. Black (1880) 6 A.C. 315 at p.330 :

         

        “`The object of those framing a Taxing Act is to grant to Her Majesty a revenue ; no doubt they would prefer if it were possible to raise that revenue equally from all, and as that cannot be done, to raise it from those on whom the tax falls with a little trouble and annoyance and as equally as can be contrived ; and when any enactments for the purpose can bear two interpretations, it is reasonable to put that construction upon them which will produce these effects.

         

        It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to show that the particular provisions ought not to be construed as it would be if considered alone and apart from the rest of the Act.”

         

        In this latter regard it is also well to bear in mind the provisions of Section 13 of the Interpretation Act (Cap.7) which provides :

         

        “When a written law is divided into chapters, parts, titles or other subdivisions the fact and particulars of such division and subdivision shall, with or without express mention thereof in such written law, be taken notice of in all Courts and for all purposes whatsoever.”

         

        In his submissions counsel for the CIR argues that the Court of Review not only ‘ignores the placement of Section 102 in the Act’, but also its interpretation of the section would be more consistent with the section appearing in Part IV Division 2 of the Act which is entitled : ‘Items of Income Not Liable to either Basic Tax or Normal Tax or Basic Tax and Normal Tax.’

         

        The submission if I may say so, has a good deal of force to it when one considers more closely the changes which were effected to the predecessor of Section 102(b) namely, Section 44 of the Income Tax Ordinance (Cap. 176) which originally contained two subsections.

         

        Subsection (1) was the immediate predecessor to Section 102(b), and subsection (2) dealt with the exemption from tax of what might be conveniently described as shipping profits.

         

        In respect of this latter subsection i.e. S.44(2) the legislature in 1974 enacted a new Section 18 which it then placed in Part IV Division 2 thereby clearly excluding such profits from the tax net.

         

        Needless to say subsection (1) of Section 44 could have been similarly treated by the legislature but this was not done. Instead, it was renumbered and relocated under a newly created part of the Income Tax Act entitled ‘REBATES FROM TAX CHARGED’. In this latter regard the Shorter Oxford Dictionary defines a ‘rebate’ as being ‘a reduction from a sum of money to be paid a discount ; also a repayment’.

         

        This meaning is further reinforced by the natural and primary meaning given by the Privy Council to the word ‘exempt’ in A.M.P. Society v. C.I.R. [1962] N.Z.L.R. 449 where in rejecting a submission that ‘exempt from taxation’ means ‘not subject to taxation’ the Privy Council endorsed at p.454 the Stipendary Magistrates comment (that) :

         

        “A company cannot be exempt unless, but for the exemption, it would have been liable.”

         

        (See also : Redbank Meat Works Pty.Ltd. v. C. of T(Q) (1944) 69 C.L.R. 315)

         

        In my opinion the word ‘exempt’ is similarly used in Section 102, that is to say in its natural and primary meaning. The foreign income of a resident taxpayer forms part of his ‘chargeable income’ in Fiji and is accordingly taxable.

         

        Of greater significance however are the changes that were effected by the legislature in the wording of Section 44 which, in my view, altered the primary focus and the manner in which double taxation relief would thenceforth be granted under the taxing Act.

         

        In particular, whereas under Section 44(1) it was the ‘(foreign) income’ that was ‘exempt from tax’ ; under Section 102 it is the ‘tax chargeable’ on foreign income that is to be ‘abated or exempted’.

         

        Furthermore under Section 44(1) the CIR had to be satisfied of only two things namely, the foreign derivation of the income and ‘that it is chargeable with income tax’ ; whereas under Section 102(b) the CIR must be satisfied not only as to the foreign derivation of the income and the absence of a double taxation agreement, but also, ‘the extent’ (not just the fact) to which such income ‘... is chargeable with income tax ...’

         

        In other words whilst Section 44 did not require the CIR to make a quantitative analysis of the tax chargeable, Section 102(b) does by virtue of the phrase, ‘to the extent that’ and the over-riding effect of the machinery provisions of Section 103 which in terms subjected ‘the relief granted by Section 102’ to its provisions.

         

        Both submissions also sought to rely on various legislative changes and practices that occurred in New Zealand (pre and post 31 March 1963) ; in Australia (pre and post 1987) and in the U.K. (pre and post 1950) which each claimed was supportive of the particular interpretation advanced. I am content however to confine my deliberations to the structure and wordings of Section 102 of the Income Tax Act (Cap. 201) and the legislative changes that were effected in 1974 by the Income Tax Act No. 6 of 1974 as providing the clearest and most reliable indicators of the legislature’s intentions.

         

        Much was also made in the submissions as to the effect and meaning of the change from : ‘... if (and so far as the Commissioner is satisfied ... that) it is chargeable with income tax in that country’. [Viz : Section 44(1)] to : ‘... to the extent that it is chargeable with income tax in that other territory’. [Viz : Section 102(b)]. Counsel for the taxpayers submits that the position remains unaltered, whereas Counsel for the CIR submits that the position (or ‘regime’) has changed from a complete exemption from tax of the foreign income to one of allowing a tax credit or exemption for any foreign tax paid.

         

        In seeking to resolve this difference in wording and interpretation, I observe at the outset that both provisos to Section 44(1) have been retained. I am also firmly of the view that the words ‘to the extent that’ in their natural and ordinary meaning, are words of limitation having a broader ambit than the word ‘if’ which serves to introduce in Section 44(1) at least, a single condition or qualification, namely, whether the foreign income ‘is chargeable with income tax’ ? If it is, then (subject to the Commissioner’s satisfaction) the income is ‘exempt from tax’ irrespective of the amount of foreign tax paid, and if not, then it is liable to be taxed in Fiji.

         

        Perhaps I can best illustrate my view of the change effected by the legislature’s adoption of the formula : ‘... to the extent that’ by referring to the judgment of the High Court of Australia in Ronpibon Tin N.L. v. F.C. of T. (1949) 78 C.L.R. 47 where the relevant Australian tax provision for the deduction of business losses and outgoings was changed by the removal of the words ‘not wholly and exclusively laid out’ and the substitution therefor, of the words ‘to the extent to which’.

         

        In a joint judgment, the High Court said at p.55 (ibid):

         

        “... there are very important differences between the operation which the present S.51(1) is framed to produce and the manner in which the former S.23(1)(a) and S.25 worked. Some of these differences it is desirable to mention. In the first place the principle expressed by the former S.25(e) has been abandoned. The principle was in the words of that provision, that a deduction should not in any case be made in respect of money `not wholly or exclusively laid out or expended for the production of assessable income’. Instead of imposing a condition that the expenditure shall wholly and exclusively be for the production of assessable income the present S.51(1) adopts a principle that will allow of the dissection and even apportionment of losses and outgoings. It does this by providing for the deduction of losses and outgoings to the extent to which they are incurred in gaining or producing the assessable income.”

         

        (my underlining)

         

        Needless to say, I do not accept the submission that despite the change in its structure and wordings, the meaning and effect of Section 102(b) remains substantially the same as that which prevailed under Section 44(1) of the Income Tax Ordinance (Cap.176).

         

        In conclusion I wish to say that the interpretation of Section 102(b) has not been an easy exercise, for had the legislature intended to maintain the former position in Section 102(b) as the taxpayers argue, it would have been a simple matter to have adopted the wording of Section 44(1), or employed words to the effect that foreign income : “... shall be wholly exempt from tax if it is chargeable to tax in that other country.” Equally, the interpretation propounded by the CIR would have been greatly assisted by the adoption of wordings similar to that in the post - 1963 Section 170(2) of the New Zealand Land and Income Tax Act 1954 (as amended), or words to the effect that foreign tax paid in respect of foreign income shall be allowed as a credit against any Fiji tax payable in respect of the same income. Unfortunately neither was done.

         

        The appeal is accordingly allowed with costs to the CIR.

         

        (Appeal allowed.)

         

        (Editor’s note: an appeal against this Judgment was dismissed by the Fiji Court of Appeal (majority decision) in 1988 (FCA Reps 98/154) and a final appeal was dismissed by the Supreme Court (majority decision) on 10 March 1999 (FCA Reps 99/542))
      

Commissioner of Inland Revenue v. Rajesh Prasad Maharaj

    [1997] 43 FLR 142

         

        HIGH COURT OF FIJI ISLANDS

         

        COMMISSIONER OF INLAND REVENUE

         

        v.

         

        RAJESH PRASAD MAHARAJ

         

        [HIGH COURT, 1997 (Scott J) 2 July]

        Appellate Jurisdiction

         

        Sentence- whether fines may be "concurrent "- Criminal Procedure Code (Cap 21)- Penal Code (Cap. 17).

         

        The Magistrates' Court imposed a number of fines for separate offences upon a single offender but purported to make the fines "concurrent". On appeal the High Court HELD: the concept of concurrence has no application to the payment of fines.

         

        No case was cited.

         

        Appeal against sentences imposed in the Magistrates' Court.

         

        I. W. Blakeley for the Appellant

        Respondent in Person

         

        Scott J:

         

        On 13 December 1993 the Respondent pleaded guilty to 13 counts of failing to furnish a tax return contrary to section 71 (c) of the Value Added Tax Decree 1991.

         

        On 14 February 1994 the Chief Magistrate sentenced the Respondent by imposing fines on him in respect of the 13 offences ranging between $150 and $300. Each fine carried a separate 6 months imprisonment default period but the sentences were specified to be concurrent. In other words the total amount payable by the Respondent was $300. Three days later the Commissioner appealed against the sentence.

         

        With lamentable inefficiency the record of appeal (which apart from 13 pages of photocopying only required the transcription of 2 or 3 pages of written notes - say, in all, 3 hours work) took almost 3 years to reach the High Court. This type of delay in the preparation of appeal records by the Suva Magistrates' Court is totally inexcusable and unacceptable, as has been pointed out many times before.

         

        In view of the delay Mr. Blakeley did not proceed with grounds of appeal 2 and 3 which involved quantum and mode of calculation. The only remaining question is whether fines imposed for separate offences can be made "concurrent".

         

        Mr. Blakeley filed a helpful and well-researched written submission for which I am grateful.

         

        So far as is relevant to this appeal the sentencing powers of a Resident Magistrate are contained in sections 7, 11 and 12 of the Criminal Procedure Code (Cap 21) and sections 28 and 35 of the Penal Code (Cap 17).

         

        As is clear from sections 12 and 28 a person sentenced at the same time to separate sentences of imprisonment for discrete offences must serve those sentences consecutively unless the Court orders them to be served concurrently. There is however no section in either Code specifically allowing or disallowing fines to be "served" concurrently. The closest seems to be section 28 (4) of the Penal Code which provides that a sentence of imprisonment in default of payment of a fine must be served consecutively to a former sentence. This means that, default periods associated with individual fines must be served individually.

         

        Mr. Blakeley told me that he had been unable to locate any authority on the point. He also told me that the practice of imposing concurrent fines (which had in any event been confined to this particular Magistrate) has now ceased.

         

        In my view the absence of authority on the question stems from the fact that upon reflection it must be seen that the notion of "serving" fines concurrently makes no sense since concurrence or running together can only apply to a sentence being served, not a fine being paid.

         

        In my opinion Magistrates' Courts do not have the power to order fines to be accumulated concurrently: fines imposed for discrete offences must be added to each other and the total sum ordered must be paid.

         

        If properly calculated the total fine imposed on the Respondent by the Chief Magistrate was $3,000 but the default period was, in view of section 28(4) an obviously excessive 6 1/2 years, far longer then the maximum of 9 months allowed by section 35(2) of the Penal Code. As however already noted the Appellant is content to let the final sum rest at $300 which was the highest single fine imposed and which has already been paid.

         

        The appeal is allowed. The sentences imposed on 21 January 1994 are set aside. In substitution fines of $24 will be imposed in respect of Counts 1 - 12 and $12 in respect of Count 13. Payment already having been made a default of payment period is not required. In view of the unique circumstances of this case the sentences now imposed cannot amount to any type of sentencing precedent.

         

        (Appeal allowed; sentences varied).

CML Assurance Society Ltd v. Prabha Shandil

        [1997] 43 FLR 209

         

        COURT OF APPEAL OF FIJI ISLANDS

         

        THE COLONIAL MUTUAL LIFE

        ASSURANCE SOCIETY LIMITED

         

        v.

         

        PRABHA SHANDIL

         

        [COURT OF APPEAL, 1997 (Ward, Thompson, Dillon JJA) 27 August]

         

        Civil Jurisdiction

         

        Estate- policy of life insurance- nominated beneficiary of policy- whether testamentary disposition without notice to insurer effective to revoke previous nomination- whether sum assured part of deceased’s estate- Insurance Act (Cap 217) Section 83.

         

        The executor of an estate notified the insurer that the deceased had changed the nominee of the benefit of a life policy by his will. On appeal from the High Court the Court of Appeal HELD: (i) that notification to the insurer by the policy holder is not necessary to render such a change effective (ii) although notification by the executor is not notice by the policy holder it constitutes sufficient warning to the insurer and (iii) that when a nomination has been made and the original policy holder and the life insured are one and the same then the sum assured is not part of the deceased’s estate.

         

        No case was cited.

         

        S. Parshotam for the Appellant

        R. Chand for the Respondent

         

        Judgment of the Court:

         

        On 1 January 1985 Atma Prasad Shandil (aka Satendra Prasad) took out a small life insurance with the appellant insurance company. The sum insured was payable on 1 January 1996 or on the earlier death of Atma Prasad Shandil and, by a special provision incorporated in the policy, the policy holder nominated his daughter, Lalita Chand, as the beneficiary.

         

        Atma Prasad Shandil died on 7 October 1992 and, as far as the appellant insurance company was aware, the insured sum became payable on that date to the nominated beneficiary. They had no record of any change or cancellation of the nomination and it is agreed no notice of any such alteration had been given.

         

        However, on 9 August 1992, shortly before his death, Atma Prasad executed a  will which included the provision:-

         

        “7.        I GIVE my life insurance cover policy with Colonial Mutual Life Insurance Company Limited together with all benefits accrued therewith to my grandson SHALENDRA PRASAD SHANDIL absolutely.”

         

        Following representations by Lalita Chand, the appellant advertised that the policy was lost as a first step to the issue of a special policy under section 75 but, on 21 December 1992, the solicitors for the respondent wrote and advised the appellants that they had the original policy. The respondent was married to the son of Atma Prasad Shandil and he had been appointed executor but he also died less than two months after his father. The respondent was executrix of her husband’s will and so became executrix of Atma Prasad Shandil’s will also. She appears in these proceedings as next friend of the policy holder’s grandson and beneficiary, Shalendra Prasad Shandil, under clause 7 of his will quoted above.

         

        Following further correspondence, her solicitor notified the bequest by a copy letter dated 19 January 1993 in the following terms:

         

        “We advise that the deceased as per his will gave his life insurance policy with Colonial Mutual Life Assurance with all benefits therein to his grandson SHALENDRA PRASAD SHANDIL absolutely. Thus we submit that this is his last will and testament in regards to the policy and we are of the view that this intention and gift of his supercedes any nomination made by him regarding the policy in favour of whosoever concerned.”

         

        They then invited the appellant’s views. On 18 March 1993 the insurance company replied with the opinion that the original nominee should still receive payment.

         

        Prior to that, on 2 February 1993, it appears the solicitors for the respondent had drawn up both an originating summons and ex-parte application for an interim order restraining the appellant from paying the sum insured. However, the court stamp on the documents show they were filed on 2 February 1994. We are not aware whether the year 1993 was a typographical error or whether there was a delay of a year before the documents were filed with the court. Whichever was the position, the application for an interim order was not heard until 27 May 1994 - almost three months after the application was filed. Curiously, in view of that delay, it was still heard ex parte and an injunction granted. Despite the usual order that a copy of the order and the documents be served within a week, it is agreed they were never served on the appellant or Lalita Chand as second defendant. Notwithstanding, judgment was given to the respondent on 26 August 1994 in default of appearance ordering the appellant to pay the monies under the policy to the plaintiffs within fourteen days.

         

        There appears to be no dispute that the first notification the appellant received of the proceedings was service of that judgment. On 7 March 1995, the appellant filed a summons to set aside and, on 28 July 1995, it was set aside. Five weeks later, notice of hearing of the original originating summons was filed and it was heard on 15 August 1996. There appears to have been some confusion as to the nature of those proceedings. Judgment was reserved to 27 August 1996 and headed “Interlocutory Judgment”. The first paragraph states it is an application to set aside the judgment of 26 August 1994 which had, of course, already been set aside. However the whole tenor of the judgment and the conclusions of the learned judge although not expressed as orders, suggest it was a final judgment on the originating summons and, indeed, on 13 November 1996, a judgment was drawn up on those terms by the appellant’s solicitors and sealed in the High Court.

         

        It is from that judgment this appeal lies on the following grounds:

         

        “1.       That the Learned Judge erred in law in wrongly interpreting the Section 83(2) and the definition of “policy holder” in Section 2 of the Insurance Act when he held:

         

        (a)        That the definition of “policy holder” in Section 2 of the Insurance Act extends to include the policy holder’s successors;

         

        (b)        That such successors may give notice to the Appellant of any changes to the person nominated as a beneficiary to a life policy under Section 83 (2) of the Insurance Act, after the death of the policy holder;

         

        (c)        That notice by such successor, namely the Plaintiff, to the Appellant of the change in the beneficiary nominated by the deceased as shown in his will dated 9 August 1992, constituted sufficient notification to the Appellant under Section 83(2) of the Insurance Act.

         

        2.         That the Learned Judge erred in law in directing the Appellant to pay of the said life policy to the 1st Plaintiff when the provisions of Section 83 (2) do not support a direction.”

         

        Section 83 of the Insurance Act (Cap.217) provides:

         

        “83.-(1.) The holder of a policy of ordinary life insurance may, when effecting the policy or at any time before the money secured thereby becomes payable, nominate a person or persons to whom it shall be paid in the event of his death:

         

        Provided that, where any nominee is a minor, it shall be lawful for the policy holder to appoint in the prescribed manner any person to receive the money in the event of his death during the minority of the nominee.

         

        (2)          A nomination under subsection (1) shall-

         

        (a)        be incorporated into the text of the policy; or

         

        (b)       be made by an endorsement on the policy; in which case written notice thereof shall be communicated to the insurer who shall record it in the register maintained under section 49(1)(a).

         

        Before the money secured by the policy becomes payable a nomination may be cancelled or changed at any time by another endorsement or by a will of the policy holder; and unless written notice of a cancellation or change has been given by the policy holder to the insurer, the insurer shall not be liable for any payment under the policy made to a nominee mentioned in the text of the policy or in the register of the insurer.

         

        (3)        The insurer shall acknowledge in writing to the policy holder that it has registered a nomination or a cancellation or change thereof, and may charge a fee not exceeding ten dollars for such registration.

         

        (4)        A transfer or assignment of a policy made in accordance with section 77 shall cancel a nomination:

         

        Provided that the assignment of a policy to the insurer, in consideration of a loan granted by the insurer on the security of the policy for less than its surrender value, or its re-assignment on repayment of such a loan, shall not cancel a nomination, but shall only affect the rights of the nominee to the extent of the insurer’s interest in policy.

         

        (5)        Where the nominee survives or, if there is more than one nominee, one or more of the nominees survive the person whose life is assured, the money secured by the policy shall be payable to him or to such survivor or survivors (as the case may be).

         

        (6)        Where the money secured by a policy becomes payable during the lifetime of the person whose life is assured or where the nominee dies or, if there is more than one nominee, all the nominees dies before that time, the money secured by the policy shall be payable to the policy holder or his estate, as the case may be.”

         

        It is accepted by both sides that a nomination made under this section may be changed by another endorsement or by a will of the policy holder. The appellant suggests that such a change will only be effective if it has been passed by the policy holder to the insurer by written notice before the money secured by the policy becomes payable. We do not accept that is the effect of section 83 (2).

         

        The subsection allows a change to or cancellation of a nomination at any time before the money becomes payable. By subsection (1), a person may only be nominated to receive the money secured in the event of the policy holder’s death. In the present case the life insured and the policy holder were the same person and the money became payable on his death and of course, the change was made before the money became payable.

         

        Subsection (2) prescribes how a nomination should be recorded and allows for a change or cancellation of the nomination. There is no specific provision for notification of such a change or cancellation. Clearly it is always better to be able to give the insurer notice of such change but we cannot read the subsection as imposing any such obligation nor that it is required before the change becomes effective. The last part of the second paragraph of subsection 2 is a protective provision to cover an insurer which, in good faith and unaware there has been a change or cancellation of the nomination because it has not been notified prior to the death of the policy holder, pays out to a nominee mentioned in the policy itself or in the register of issued policies. That is clearly the purpose of that part of the section and, with respect, it is good sense. The very nature of a testamentary disposition means it is often made at a stage where it would be impossible to communicate such a change before the testator’s death but he intends it to take effect. Similarly, many people making a will have good reasons to keep those provisions secret until after their death.

         

        Two ways are allowed by which a previously made nomination may be changed or cancelled; by an endorsement of the policy or by will. The essential differences between the two were clearly in the mind of the drafter of the Act. Thus when made by an endorsement, subsection (2) (b) requires written notice to the insurer and entry by the insurer in the register of issued policies. There is no such requirement for a change or cancellation by will of the policy holder.

         

        The appellant points out that subsection (3) obliges the insurer to give written acknowledgement to the policy holder that any change has been registered. That, counsel suggests, supports his contention such a change must be notified to the insurer. That would appear to be correct. Where there has been registration of a change, it should be acknowledged to the policy holder but, as we have already pointed out, there is no requirement to notify a change by a will before the death of the policy holder and so, in most such cases where the policy holder and the life insured are the same person, the insurer will not have been notified before the money becomes payable.

         

        As we have already mentioned, the section differentiates between the life insured and the policy holder. In the present case they are one and the same but that may not also be so. It must also be borne in mind that a nomination under section 83 is of a person who will receive the money only if the policy holder dies. If the policy holder is still alive when the life insured dies or if the policy becomes payable at the completion of its term whilst the policy holder is alive, the nomination has no effect. Subsection (6) for example, envisages such a situation.

         

        The question that needs to be answered in such a situation and in the present case is, whether, on the death of the policy holder, the definition in s.2 of “policy holder” extends to his successors and, if so who becomes the policy holder for the purpose of reporting any change or cancellation of a nomination on the death of the original policy holder?

         

        Policy holder is defined in section 2 of the Act:

         

        “Policy holder means the person who for the time being is the legal holder of the policy….”

         

        It is clear that, in the present case, the physical holder of the policy at the time it became payable was the executor. Counsel for the respondent has suggested that the policy and the benefit under it forms part of the deceased’s estate. Had the policy holder made no nomination under the policy, that would have been the case but, in any case where a nomination has been made before the money becomes payable and, as here, the policy holder and the life insured is one and the same, the money becomes payable at the moment of the policy holder’s death. It is his death that activates the nominee’s entitlement to the money and it is never, therefore, part of the deceased’s property.

         

        That is not to say that the executor has no part in the matter. His duty includes the implementation of the provisions of the will and, where the bequests include a change or cancellation of an earlier nomination under a policy of life insurance, it must be the duty of the executor to notify the insurer and the beneficiary. In most cases he will have physical custody of the policy as part of the deceased’s property and he also should declare that fact to the insurers. On receipt of notice from the executor, the insurance company would be wise to notify any person their records show has been named in the policy or on an endorsement and hold payment until the identity of the final nominee is established.

         

        From the judgment in the court below, it appears the appellant has already paid the money under the policy to the second defendant despite the clear advice from the respondent’s solicitors that they had been a change by the will of the policy holder and, possibly, despite an order by the court restraining it.

         

        On the death of the original policy holder, the legal holder of the policy is the nominee. The learned judge quoted from Halsbury’s Laws, Fourth Edition, Vol. 50 para 201 “the will or testament is the declaration … of the intention of the person making it with regard to matters which he wishes to take effect on or after his death”. The testamentary provision in this case gave the life policy to the grandson together with all benefits. At the moment of his death the benefit of the policy became payable to the nominee. He became the legal holder of the policy also. It is he who inherits the right to take legal action to secure the contract. As far as the executor is concerned the nominee is the beneficiary named in the will and he should be informed. On receipt of such information, he would be wise to notify the insurer immediately in writing and, once he has done so, the insurer would no longer have the protection of the latter part of Subsection (2). A prudent executor would also advise the insurer as was done in this case.

         

        The learned judge found the notification by the executor was notice by the policy holder. For the reasons given we do not consider it was and to that extent the appeal succeeds. We would, however, add that it was certainly sufficient warning to put the insurers on notice of a possible dispute and, in those circumstances, it was a rash step to proceed with payment to the second defendant. It would have been prudent to hold up payment until the matter was resolved in court as the respondent’s solicitors advised in their letter of 19 January 1993.

         

        With that exception, we consider the learned judge was correct in his judgment and the appeal is dismissed otherwise.

         

        At the hearing in the High Court, it appears counsel agreed that, should the court find for the first plaintiff, there should be no award of costs. Although the appellants have succeeded in part in this court, the finding of the court below in favour of the first plaintiff stands. In the circumstances we order that the appellants should pay two thirds of the respondent’s costs of the appeal.

         

        We would finally point out that the sealed Judgment orders payment of the proceeds of the life policy to the plaintiffs. This is clearly incorrect. The only person entitled under the policy is the first plaintiff and that was, in fact, the order the learned judge made. We therefore order that the sealed judgment be altered accordingly.

         

        (Appeal partly allowed.)

Davendra Bijay v. The State

        [1997] 43 FLR 144

         

        HIGH COURT OF FIJI ISLANDS

         

        DAVENDRA BIJAY

         

        v.

         

        THE STATE

         

        [HIGH COURT, 1997 (Tuivaga CJ) 16 July]

         

        Appellate Jurisdiction

         

        Sentence- domestic violence- Penal Code (Cap. 17) Sections 163 & 245.

         

        A first offender pleaded guilty to assaulting his wife and thereby causing her actual bodily harm. The Magistrates’ Court imposed an immediate sentence of 4 months imprisonment. On appeal the High Court HELD: that in all the circumstances the offence was eminently suitable for reconciliation, and that the Magistrate had virtually ignored established principles of sentencing. The sentence of imprisonment was set aside.

         

        No case was cited.

         

        Appeal against sentence imposed in the Magistrates’ Court.

         

        A. Kohli for Appellant

        Ms. L. Laveti for Respondent

         

        Tuivaga CJ:

         

        Appellant was on 2 June 1997 convicted on his own plea in the Labasa Magistrate’s Court of the offence of assault occasioning actual bodily harm contrary to section 245 of the Penal Code and sentenced to 4 months imprisonment. The particulars of the offence were that on 22 March, 1997 at Labasa appellant assaulted his wife, Uttra Wati d/o Bas Deo occasioning her actual bodily harm.

         

        In passing sentence the learned Magistrate noted appellant’s plea of guilty, that this was his first offence and that he and his wife had reconciled. The couple have three children, aged 14, 10 and 8. Appellant (37) was employed by Fiji Forest Industries Ltd. at Malau, Labasa.

         

        Appellant is appealing against his sentence on the ground (i) that the sentence failed to take into consideration relevant factors relating to the case; and (ii) that the sentence was harsh and excessive and wrong in principle having regard to all the circumstances of the case.

         

        On 6 June 1997 appellant’s counsel filed an application for bail pending appeal against sentence. The application for bail was supported by an affidavit from the appellant and one from his wife. In a 4 page Ruling on the application the learned Magistrate expressed his views on the affidavits in these terms:

         

        “I am in complete agreement with the contents of paragraphs 9 and 10 of Davendra Bijay’s affidavit that the Courts, which includes this Court, have always promoted reconciliation in domestic matters and that upon reconciliation, proceedings have been terminated and the accused ordered to pay costs.

         

        I am also in complete agreement with paragraph 12(3), (f) and (h) of the said affidavit that the children are attending school and that he is the sole breadwinner in the family and that he stands to lose his job as a result of which his family will suffer.

         

        I am not only in agreement, but I am most concerned and distressed, I may add, about the contents of paragraphs 7 and 8 of Uttra Wati’s affidavit that the family is suffering hardship and the children shattered and that the sentence could ruin her marriage and that the blame for her husband’s imprisonment is being put solely on her shoulders.”

         

        But after expressing those free sentiments the learned Magistrate refused the application for bail and set out fervently his reasons for refusing bail as follows:

         

        “However, strong voices have been raised recently in some forums that the public is most dissatisfied with the meagre sentences which are being imposed on offenders guilty of domestic violence and that the magistrates pay scant regard to gender sensitivity in such cases. It is being advocated that custom, tradition or culture should not be used as an excuse or reason for promoting reconciliation in matters of domestic violence and that a husband’s assault on his wife should be treated no different from a man assaulting any other woman in the street or outside a night club. In other words if reconciliation is not proper in the latter case then it is equally improper in the former.

         

        The Magistrates have been told that they should listen to the facts and sentence the offending husband in the same manner as in any other case of assault. They have been told that, and I quote, “whether the marriage breaks down is not your concern and that we are not social workers.” It has further been said that domestic violence should be treated as any other criminal offence and that, again I quote “we are not there to protect the family”. It has been said that the general public, women’s organisations and other NGO’s are unhappy with the lenient sentences, or no sentences passed by the Courts in matters of domestic violence. As pointed out above the advocates of such a view are not prepared to accept that bearing in mind the social and economic condition in this country and bearing in mind, maybe to a small extent, the tradition and culture in which the bulk of the rural population has been brought up, it is unwise to treat a husband and wife assault in the same manner as if the same person had committed a similar assault outside a night club. They are not prepared to accept that though the latter may be a clear case of no re-reconciliation and a custodial sentence, considering the social and economic conditions current in our society, such rigorous and indiscriminate application of the law in a husband and wife situation, particularly where there are children and the parties are prepared to reconcile, albeit after some coaxing, will undoubtedly bring about disastrous social and economic consequences. We are, for some reason, told that, that is none of our business.

         

        In the present case, in spite of the fact that this Court was fully conscious of the retrograde step it was taking, in the light of the standard set out above, it had no choice but to impose a custodial sentence of 4 months imprisonment because if anyone had subjected a woman to that kind of assault out in the street or outside a night club which resulted in injuries such as those received by Uttra Wati, a 4 month sentence would be somewhat on the lighter side.

         

        The Court was loath to apply the test set out above, that is, that an assault by a husand on his wife must be treated as an assault on anyone else and reconciliation, marriage breakdown or effect on children should not be taken into consideration by the Magistrates because they are not there to protect the family neither are they social workers.”

         

        It is clear that in refusing bail the learned Magistrate had allowed himself to become overly affected by peripheral sentiments against his own better judgment for justice based on his understanding of existing law in this country. Judicial officers are sworn to do justice according to law and to discharge their judicial function without fear or favour, affection or ill will. It seems clear that the learned Magistrate had let himself down and others concerned in the case by his undue preoccupation with polemical diversions. The concluding passage from the Ruling which is quoted below is, if I may with respect say so, somewhat lamentable in its lack of decisiveness and proper exercise of judicial authority:

         

        “I am firmly of the view that custodial sentence, if it threatens a breakdown of the marriage, or if there is a likelihood that such a move may adversely affect the welfare of the family, should be avoided.

         

        Unfortunately, the Magistrates are advised that it is wrong to adopt such an attitude and what they should do is to regard the offending husband in the same manner as if the victim of the assault was not his wife but a stranger and sentence him accordingly. As already mentioned, if the victim in a case such as this was a stranger, the assailant would have certainly gone to prison.

         

        I sincerely trust that this matter will not stop here and presently we may receive some guidelines as to whether cases of domestic violence are to be treated as any other case of violence irrespective of the effect it will have on the social and economic welfare of the other members of the family. Or whether the promotion of reconciliation is to feature more prominently and should be given more emphasis in a husband and wife situation than in other cases of violence which do not adversely affect the victim, his or her children and other members of the family.

         

        I am afraid that with a great deal of reluctance, I must disallow this application.”

         

        It was no surprise that when the bail application was renewed before me on 9 June, 1997 I had no hesitation in granting the application and ordered the appellant to be released from prison to await his appeal from home with his wife and children. Both appellant and wife were present on the hearing of the application when they confirmed again their reconciliation and promised there would be no further trouble in the future. Uttra Wati presented a picture of health and appeared none the worse her experience at the hands of her husband. Appellant was suitably warned that tougher measures would be taken if there should be any further recurrence of the problem. It was clear the couple were very concerned about their marriage and about their children whose welfare and future came dangerously close to being shattered. It would have happened if appellant had lost his job through poor judgment on the part of the court. The learned Magistrate took what appeared clearly to be an unorthodox approach to the sentencing process by virtually ignoring established principles of sentencing. Gender sensitivity is apt in a suitable case and context but it should not be allowed to unduly divert judicial officers from properly discharging their judicial function. That function requires them to judge every case according to its own particular circumstances. Or put another way each case must be assessed and evaluated on its true merits. One should not generalise and pluck pontifical sentiments from untested and unreferenced sources for sentencing purposes. This is important to safeguard against the making of artificial and unreal adjudication. Guidelines, as sought by the learned Magistrate are not helpful because of the widely varying circumstances of each case. The best guidance, as always, is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle.

         

        The appeal was heard on 20 June, 1997 and judgment was reserved to be given on notice later. That judgment I now proceed to give.

         

        The main ground of appeal is that the sentence of 4 months’ imprisonment imposed on appellant was harsh and excessive and wrong in principle having regard to all the circumstances of the case. Appellant was convicted under section 245 of the Penal Code on his own plea for assault occasioning actual bodily harm. The offence is within the category of cases in which the courts are encouraged to promote reconciliation between the affected parties. The relevant provisions are prescribed under section 163 of the Criminal Procedure Code which state:

         

        ‘163. In the case of any charge or charges brought under any of the provisions of subsection (1) of section 197 or of section 244 or of section 245 or of subsection (1) of section 324 of the Penal Code, the court may, in such cases which are substantially of a personal or private nature and which are not aggravated in degree, promote reconciliation and encourage and facilitate the settlement in an amicable way of the proceedings, on terms of payment of compensation or on other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.”

         

        From the undisputed facts in this case it is crystal clear that the case was eminently suitable for reconciliation. Reconciliation was in fact achieved through the parties’ own efforts and willingness to do so. The case was made unnecessarily complex by resort to irrelevant considerations. In these circumstances I have no hesitation in holding that the learned Magistrate had misconceived his proper role in this case and as a result had misdirected himself. His failure to discharge his judicial function properly prevented him from doing justice to the parties according to law. His failure to do so could have resulted in a serious miscarriage of justice.

         

        The appeal is allowed. Appellant has served several days in prison before he was released on bail, further punitive action is quite unnecessary. The sentence of 4 months’ imprisonment is set aside and the case terminated.

         

        (Appeal allowed; sentence varied).

Diners Club (NZ) Ltd v. Prem Narayan

        [1997] 43 FLR 299

         

        HIGH COURT OF FIJI ISLANDS

         

        DINERS CLUB (NZ) LTD

         

        v.

         

        PREM NARAYAN

         

        [COURT OF APPEAL, 1997 (Casey, Dillon, Sheppard JJA) 28 November]

         

        Civil Jurisdiction

         

        Contract- employment- summary dismissal with pay in lieu of notice- whether employer’s mistaken belief relevant to legality of the dismissal. Employment Act (Cap. 92).

         

        A company invoked a dismissal clause in the employee’s contract summarily to dismiss him with one month’s pay in lieu of notice. It was argued that the employer was in fact mistaken in its belief that it had adequate grounds for the dismissal and that accordingly the dismissal was unjustified. On appeal the Court of Appeal allowing the appeal and upholding the dismissal HELD: that in the absence of unfair dismissal legislation in Fiji the only questions are (a) whether the employer has, under the contract, a right to determine the contract and (b) whether it acted in accordance with the termination clause.

         

        Cases cited:

         

        Delaney v. Staples [1992] 1 AC 687

        In the matter of an Arbitration between African Association Ltd and Allen

                    [1910] 1 KB 396

         

        Appeal from the High Court to the Court of Appeal.

         

        B.N. Sweetman for the Appellant

        S.P. Sharma & S.J. Stanton for the Respondent

         

        Judgment of the Court:

         

        On 22 November 1995 the High Court at Suva (Pathik J.) gave judgment in favour of the respondent (Prem Narayan) in his claim for wrongful dismissal against his former employer Diners Club (N.Z.) Ltd. (the company) and awarded him $22,275.61 damages. The company appeals against the whole of that judgment.

         

        Mr Narayan was appointed Fiji Manager of the company from 6 August 1990, the conditions of his employment being set out in a letter dated 30 July 1990 containing a provision for termination reading:

         

        “Should you decide to resign from your position you will do so in writing to the Manager – Service Establishments Division giving one calendar months notice. Should the Company wish to terminate your employment at any stage, likewise once (sic) calendar month or the equivalent salary will be paid. Diners Club does however, reserve a right to amend or revoke these conditions should such a change be warranted by them.”

         

        (There was no change to these conditions)

         

        Following an interview with him on 24 October 1991 the company gave Mr. Narayan a letter of the same date complaining about his non-disclosure of the reasons for leaving his former employment and other matters, leading it to believe there had been a break-down in trust between them. The letter concluded

         

        “Therefore effective immediately you are dismissed from employment with Diners Club under the termination clause of your letter of appointment.”

         

        And a cheque was enclosed, comprising his current salary and allowance and 1 month’s salary ($1579.85) in lieu of notice.

         

        His Lordship rightly found that Mr. Narayan was employed on the terms and conditions set out in the letter of appointment, but came to the conclusion that he had been summarily dismissed, and that there was no justification for it in the reasons given by the Company. He relied on In the matter of an Arbitration between African Association Ltd and Allen [1910] 1 KB 396-400 where a provision in an employment contract gave the employers the right at their discretion to terminate the engagement at any time. Lord Alverstone C.J. considered that the proper construction to place on its language, bearing in mind that the agreement related to service abroad, was that the discretionary power could only be exercised after reasonable notice of intention had been given. Another member of the Court (Bray J) said at p 400 that an employment agreement of this nature confers no right on the employer, in the absence of misconduct, to terminate the employment without reasonable notice “unless the agreement contains clear words indicating a contrary intention.”

         

        Fiji does not have legislative provisions protecting employees from arbitrary or unjustified dismissal, as is the case in England, Australia and New Zealand. Accordingly the rights and liabilities of the parties in the present case fall to be determined in accordance with the proper construction to be placed on the termination clause. It differs from that in African Association and Allen in clearly giving the employer the power to dismiss on notice, or on payment in lieu thereof. In Delaney v. Staples [1992] 1 AC 687 at p. 692 Lord Browne – Wilkinson analysed the concept of payment in lieu of notice, identifying four categories. His second describes what happened in this case. It reads:

         

        “The contract of employment provides expressly that the employment may be terminated either by notice or, on payment of a sum in lieu of notice, summarily. In such a case if the employer summarily dismisses the employee he is not in breach of contract provided that he makes the payment in lieu.”

         

        We respectfully agree with this comment. An employer making the payment in the circumstances postulated is not in breach of contract. Indeed, we cannot see how the position could be otherwise in this case, since both parties agreed that the company could lawfully act in this way. We see nothing in the letter of appointment or in the circumstances of Mr. Narayan’s employment which could give rise to an implied term that the company should have adequate reasons for exercising its express power to terminate, and in any event this was not pleaded. Whether its reasons for doing so were adequate - or indeed, whether there were any reasons at all – could make no difference to the legality of its action.

         

        As best one can understand the argument put on behalf of the respondent, it was that Diners Club invoked the clause on a basis which was not established at the hearing. So far as the evidence established, it was thus wrong in taking the view which it did of the respondent’s conduct.

         

        Counsel submitted, in effect, that the trigger for the exercise of the clause was this mistaken belief on the part of Diners club. The trouble about this submission is that it ignores the fact that the termination clause, which is mutual, is available to be invoked by either party at any time. Neither is obliged to assign a reason for its invocation. Here a reason was assigned, but a proper analysis of the letter shows that the reason was given, not as a ground of the termination of the employment, but as an explanation for the invocation of the clause. The second part of the letter which refers to the clause plainly shows that the termination was not for misconduct but pursuant to the clause which it was Diners Club’s right to invoke.

         

        The only relevant issues in the case were whether the company had the right to determine Mr. Narayan’s employment in the way it did, and whether it acted in accordance with the termination clause. The answers to both these questions must be “yes” and this is sufficient to dispose of the appeal.

         

        Mr. Sweetman did not challenge his Lordship’s finding that the reasons given by the Company could not justify summary dismissal, if reasons had been necessary; but he submitted that even if the dismissal had been wrongful, the damages were excessive. They were based on his Lordship’s view that Mr. Narayan was entitled to 9 months’ notice of termination. With respect, we think this was an unduly generous period even though he had held a managerial position, bearing in mind that his service with the company lasted only about 15 months. If the matter had been at large, something in the order of 2-3 months would have been more appropriate. However, in view of the fact that the parties accepted 1 month’s notice as adequate in the letter of appointment, we cannot see how damages based on a longer period could be justified. The respondent received one month’s salary and could not have expected more by way of damages for wrongful dismissal, if that had been established.

         

        The appeal is accordingly allowed with costs to the appellant in this court, together with disbursements and expenses to be fixed by the Registrar. The judgment of the High Court of Fiji is set aside. In lieu thereof there will be an order that there be judgment for the appellant (the defendant in the High Court). The respondent is to pay the appellant’s costs of the proceedings in the High Court, together with its disbursements and expenses as fixed by the Registrar.

         

        (Appeal allowed; Judgment for the Appellant).

DPP v. Lisi Duikoro Burelevu

        [1997] 43 FLR 279

         

        HIGH COURT OF FIJI ISLANDS

         

        DIRECTOR OF PUBLIC PROSECUTIONS

         

        v.

         

        LISI DUIKORO BURELEVU

         

        [HIGH COURT, 1997 (Pain J) 14 October]

         

        Revisional Jurisdiction

         

        Sentence- imprisonment- whether court has power to suspend upon conditions- Penal Code (Cap 17) Section 29.

         

        The Magistrates’ Court imposed a sentence of imprisonment but suspended the sentence upon a number of conditions including repayment of the sum stolen by the offender’s husband and the performance of community service by the offender. The High Court HELD: that there is no jurisdiction to impose conditions on the suspension of a sentence of imprisonment.

         

        No case was cited.

         

        Review by the High Court of a sentence imposed in the Magistrates’ Court.

         

        Ms R Olutimayin for Director of Public Prosecutions

        Defendant in person

         

        Pain J:

         

        This is a review of prosecution No.251/89 in the Magistrates’ Court at Suva pursuant to Section 323 of the Criminal Procedure Code. It has been initiated by the Director of Public Prosecutions. This has been confirmed in Court by counsel from the Director’s office.

         

        On 8th February 1989 the defendant pleaded guilty to a charge of larceny by a servant. The case was then adjourned on 15 occasions for a variety of reasons. Finally, on 4th October 1989 the defendant was sentenced on the following terms:

         

        “The Accused is sentenced to 2 years imprisonment suspended for 3 years on the following conditions:

         

        1.         That the Accused’s husband who has agreed in writing to repay the amount totalling $19,701.80 to compensate the Government for the loss at the monthly instalment of $50 per month w.e.f. the end of October 1989 if instalments have not previously been deducted.

         

        2.         That should the Accused be employed in the future she will inform the Court accordingly for suitable deduction be made from her wages or salary to assist her husband in the recovery of the loss.

         

        3.         That if the husband ceased to be employed for any reason the Court to be informed of that fact for a reappraisal of the situation.

         

        4.         The instalments to be paid through the Court and from there to the Government.

         

        5.         The Accused will do 100 hours of community work with the Salvation Army who will make their report to the Court at the end of that time or sooner if the Accused does not perform.”

         

        Subsequently, the case was called in the Magistrates’ Court on 5th July 1991 and thereafter on a further 37 occasions between that date and 10th April 1995. This was primarily to monitor and enforce the payment of $19,701·80 to reimburse the Government for the loss.

         

        It is clear that the order made on 4th October 1989 for reimbursement of $19,701.80 has been treated and enforced over a long period as an order for payment of compensation under S.160(2) of the Criminal Procedure Code to a person who suffered loss as a result of the offence committed by the defendant.

         

        However, a close analysis of the order made by the learned Magistrate on 4th October 1989 shows that this is not so. It was expressly imposed as a condition of the suspended sentence of imprisonment in the same manner as the condition that the defendant undertake 100 hours community work. Moreover, a compensation order under S.160(2) of the Criminal Procedure Code could not be made against the defendant’s husband. Only the person convicted of the offence can be ordered to pay compensation. Further, the order that a “suitable deduction” be made from the salary of the defendant if she should be “employed in the future” is too vague to be enforceable. Finally, if it could be construed as an order for payment of compensation pursuant to S.160(2) it was wrong in principle because the defendant did not have the means to pay. She was not working and payment by instalments, even if made by per husband at the rate of $50 per month, would take an unconscionable period of 32 years 9 months to pay the sum $19,701.80.

         

        In my view the order made on 4th October 1989 could not be construed or upheld as a valid order for payment of compensation pursuant to S.160(2). I repeat that it was expressed to be a condition of the suspended sentence.

         

        In my view the order could not be enforced as a condition of the suspended prison sentence which it is expressed to be. Jurisdiction to impose a suspended sentence of imprisonment is given by S.29 of the Penal Code. This provides that when a Court imposes a sentence of imprisonment it may order that the sentence shall not take effect unless, during a specified period, the offender commits another offence punishable with imprisonment and the Court orders that the original sentence shall take effect. Section 29 contains no power for the original sentencing Court to impose any other conditions in relation to the suspension of the sentence of imprisonment.

         

        In this case, the learned Magistrate purported to impose conditions as to payment of compensation and undertaking community work upon the suspension of a prison sentence. He had no jurisdiction to do so. Those terms are ineffective and unenforceable. Moreover, if such terms could be imposed, they would only be valid for the period of the suspension of the prison sentence. That period expired on 4th October 1992.

         

        For the above reasons, I consider that the order of the learned Magistrate made on 4th October 1989 for payment of compensation of $19,701.80 was invalid and unenforceable, either as a condition of the suspended prison sentence under S.29 of the Penal Code (as it purported to be) or as an order for compensation under S.160(2) of the Criminal Penal Code.

         

        By memorandum dated 16th September 1997 the Director of Public Prosecutions drew the Court’s attention to S.325(5) of the Criminal Procedure Code. This provides that no proceeding for revision shall be entertained at the instance of a party who could have appealed the decision. The memorandum stated that the Director of Public Prosecutions could have appealed the decision of the learned Magistrate made on 4th October 1989 but failed to do so and is therefore precluded from initiating revision. Counsel at this hearing has confirmed these matters. However, it is submitted that the Court can nevertheless conduct a review on the basis that the matter has “otherwise come to its knowledge” under S.325(1). That is not what has happened. The record of the Magistrates Court was “called for” by the Director of Public Prosecutions and it is the Director of Public Prosecutions who has “reported” the matter to this Court. Both are specifically mentioned in S.325(1). Accordingly, sub-section (5) of S.325 applies and counsel concedes that the failure to appeal is a bar to revision at the instance of the Director of Public Prosecutions.

         

        In view of this, the fact that the original sentence has been completed as the period of suspension of the prison sentence has long expired and my finding that the condition for payment of compensation is unenforceable, it is inappropriate and unnecessary for the Court to make any orders. To do so might have the unfortunate consequence of requiring the $275 paid by the defendant to be refunded to her. That would be inequitable, particularly as the defendant has little prospect of paying the outstanding sum of over $19,000 and any civil action may now be statute barred. I have made it clear in this decision that the order of the learned Magistrate for payment of compensation is unenforceable. That will not affect any rights the complainant has to take further civil action for recovery of the balance owing if that course is available. The invalid order of the learned Magistrate would not be a bar to that action.

         

        In all the circumstances and for the reasons I have given, no orders are made on this revision.

Donald Pickering & Sons Enterprises Ltd v. Karim’s Ltd

        [1997] 43 FLR 41

        

        HIGH COURT OF FIJI ISLANDS

        

        1. DONALD PICKERING & SONS ENTERPRISES LTD

        trading as UNITED ENGINEERS

        2. UNITED MARINE (SOUTH PACIFIC) LTD

        

        v.

        

        1. KARIM’S LIMITED

        2. the vessel ‘BAINIVUALIKU’ (aka ZUBI)

        3. the vessel ‘SENIBIYAU’

        

        [HIGH COURT, 1997 (Fatiaki J) 6 February]

        

        Admiralty Jurisdiction

        

        Admiralty - action in rem - arrest of ships - whether right to arrest must be based on the existence of a maritime lien.

        

        The Plaintiffs who claimed not to have been paid for work done to 2 vessels obtained warrants for their arrest. The Defendant owner of the vessels sought the discharge of the warrants arguing that the Plaintiffs were not entitled to a maritime lien and hence were not entitled to arrest the ships. Dismissing the Defendants application the High Court examined the nature and origins of the admiralty action in rem and the Court’s jurisdiction to issue a warrant for the arrest of the res.

        

        Cases cited:

        

        Bankers Trust v. Todd Shipyard [1980] 3 All ER 197

        Harmer v. Bell (1850) 83 RR 43

        “The Anna H” (1955) 1 Lloyds Law Reps 11

        “The Banco” (1971) 1 Lloyds Law Reps 49

        “The Beldis” (1936) 53 Lloyds Law Reps 255

        “The Heinrich Bjorn” (1885) 10 P.D. 44

        “The M.V. Voseleai” 40 FLR 224

        “The Monica S” (1967) 2 Lloyds Law Reps 113

        

        Motions to discharge warrants of ship arrest.

        

        J. Howard for the Plaintiffs

        K. Buksh for the Defendants

        

        Fatiaki J:

        

        On the 23rd of January 1996 upon the ex-parte application of the plaintiffs this Court issued two warrants for the arrest of two vessels namely, the “Bainivalu” (aka Zubi) and the “Senibiyau” belonging to the defendant company.

        

        The plaintiffs are ship repairers and marine engineers who claim to be owed by the first defendant company various sums totally in excess of $39,000 for repairs, maintenance and interior works carried out on the two vessels including various items and fittings supplied to the vessels at the request of the owners representative, Mr. Karim Buksh. In essence the plaintiff’s claim is for monies due and owing to the plaintiffs for various worksì¥Á5@          

        ð¿

        P
        bjbjÏ2Ï2          

        %j­X­X

        Hÿÿÿÿÿÿˆ.......BFFFFbDB5(¶²²²²²²²²´'[1]¶'¶'¶'¶'¶'¶'$ë(R[1]=+^Ú'.
        ‑²²
        ‑
        ‑Ú'..²²ï'.'.'.'
        ‑º

        .².²´'.'
        ‑´'.'B.'p'..p'²¦
        °`]Ñá8ÂFÆ"&[1]p''$(05(p'›+ì$8[1]›+p'BB....›+.p' ²Húê.'ä¼ l

        ²²²Ú'Ú'BB

        F$'
        BBF[1]jurisdiction in an in rem action nor with the law concerning maritime liens.”

        

        

        and the submission concludes :

        

        “The plaintiff does not claim a lien. The plaintiffs right to an arrest warrant arises as a regular incident of Admiralty procedures in an in rem action.”

        

        I am indeed grateful for the comprehensive and helpful written submissions that were filed by both parties.

        

        The propositions advanced by the parties is quite simply stated but the resolution of the issue involves an examination of the nature and origins of an admiralty action ‘in rem’ and the court’s jurisdiction to issue a warrant for the arrest of ‘the res’.

        

        I begin by referring to a submission of counsel for the plaintiffs that the defence submission cites no authority for the proposition ‘... the right to arrest must be based on a maritime lien’. In this regard the judgment of the Privy Council delivered by Sir John Jervis in Harmer v. Bell (sub.nom. the “Bold Buccleugh”) (1850) 83 R.R. 43 contains the following ‘authoritative’ statement at p.55 :

        

        “A maritime lien is the foundation of the proceedings in rem, a process to make perfect a right inchoate from the moment the lien attaches ; and whilst it must be admitted that where such a lien exists, a proceeding in rem may be had, it will be found to be equally true, that in all cases where a proceeding in rem is the proper course, there a maritime lien exists, which gives a privilege or claim upon the thing, to be carried into effect by legal process. The claim or privilege travels with the thing, into whosoever possession it may come.” (my underlining)

        

        and later at p.56 the learned judge said :

        

        “This rule, which is simple and intelligible is, in our opinion, applicable to all cases.”

        

        Thirty years later in 1885, Fry L.J. delivering the judgment of the Court of Appeal in “The Heinrich Bjorn” (1885) 10 P.D. 44 said of the jurisdiction of the Court of Admiralty granted by an Act of 1840 (an early predecessor to the Administration of Justice Act 1956) :

        

        “... it must be exercised in the manner familiar to the Court of Admiralty and to all courts regulated by the civil law, either by the arrest of the person of the defendant if within the realm, or by the arrest of any personal property of the defendant within the realm, whether the ship in question or any other chattel, or by proceedings against the real property of the defendant within the realm.”

        

        Then in answering the question :

        

        “But if the material man may thus arrest the property to enforce his claim, how does his claim differ from a maritime lien ?”

        

        his lordship said at p.54 (ibid) :

        

        “The answer is, that a maritime lien arises the moment the event occurs which creates it; the proceeding in rem which perfects the inchoate right relates back to the period when it first attached : ... and the arrest can extend only to the ship subject to the lien. But, on the contrary, the arrest of a vessel under the statute is only one of several possible alternative proceedings ad fundandam jurisdictionem ; no right in the ship or against the ship is created at any time before the arrest ; ... it is available only against the property of the person who owes the debt ... ; The two proceedings, therefore, though approaching one another in form, are different in substance ; in the one case the arrest is to give effect to a pre-existent lien, in the other, the arrest is only one of several alternative modes of procedure, ...”

        

        Lord Watson in the House of Lords in affirming the above judgment in (1886) 11 A.C. 270 described an admiralty action ‘in rem’ at p.276/277 as being :

        

        “... a proceeding directed against a ship ... in which the plaintiff seeks either to have the res adjudged to him in property or possession, or to have it sold, under the authority of the Court, and the proceeds or part thereof adjudged to him in satisfaction of his pecuniary claim. The remedy is obviously an appropriate one in the case of a plaintiff who has ... a real interest in the ship or a claim or debt secured by a lien which the law recognises. We have been informed that under the recent practice of the Admiralty Court the remedy is also given to creditors of the shipowner for maritime debts which are not secured by lien ; and in that case the attachment of the ship, by process of the Court, has the effect of giving the creditor a legal nexus over the proprietary interest of his debtor, as from the date of the attachment.”

        

        Without in any way doubting the above practice his lordship then states :

        

        “The position of a creditor with a proper maritime lien differs from that of a creditor in an unsecured claim in this respect, - that the former, ... can proceed against the ship notwithstanding any change in her ownership, whereas the latter cannot have an action in rem unless at the time of its institution the res is the property of the debtor.”

        

        For his part Lord Fitzgerald criticised as “... shewen to be not well founded” the proposition (1) “that there was no proceeding in rem in the Admiralty Court save where there was a maritime lien” and (2) “that there was no procedure in that Court to found jurisdiction except where there was a maritime lien” and his lordship concluded at p.286 (ibid) :

        

        “It must now be taken as established that prior to 1840 the Court of Admiralty did exercise a jurisdiction in rem for the purpose of enforcing a claim against the owner though there was no maritime lien, and also in personam, in proper cases.”

        

        This right of an unsecured creditor to arrest a ship in an admiralty action ‘in rem’ was further refined in the judgment of the Court of Appeal in “The Beldis” (1936) 53 Lloyds Law Reps. 255 where it was :

        

        “Held : ... that an action in rem (unsupported by a maritime lien) could not be directed against property of the defendant other than that in respect of which the cause of action arose.”

        

        In that case the judgment of Scott L.J. is particularly instructive on the historical development of the jurisdiction of the Admiralty Court in an action ‘in rem’. His lordship also traces the ‘historical misconception’ amongst early 19th Century

        

        admiralty practitioners (and here I would include the defendant): ... that the ambit of the admiralty procedure in rem was co-terminus with the ambit of the maritime lien ; that where there was a maritime lien the right to proceed in rem existed, and where there was no maritime lien the right to proceed in rem did not exist.” This widely held belief was subsequently considered in “The Heinrich Bjorn” (op.cit) and “finally negatived as wholly erroneous”.

        

        It is also useful to refer to the judgment of Lord Esher M.R. in “The Cella” (1989) 13 P.D.82 which like the present case, involved an action in rem instituted by ship-repairers for sums due for repairs done on a ship.

        

        The learned Master of the Rolls in recognising the legitimacy of the arrest of the ship by the ship repairers despite the absence of a maritime lien, said at p.86 :

        

        “It is true that in respect of the repairs done by the plaintiff there was no maritime lien, but the Admiralty Division, nevertheless has jurisdiction over such a claim as this, and ... that jurisdiction may be exercised by proceeding in rem, as was done in this case. As regards a maritime lien the Admiralty Court, ... enforces it in an action in rem by seizing the ship and it does so in order to enable the person who alleges he has a right against the ship to realise that right. Now the jurisdiction given to the Admiralty Division by the Act in question can, as I have said, he exercised by an action in rem, that is to say, upon the production of a proper affidavit, a warrant of arrest is issued and under it the marshall may seize the ship, and the Court will adjudicate upon it. Possession is taken by the marshall in order that the ship may be sold, and that the right of the plaintiff may be satisfied out of the ship. These rights must exist before the ship is seized for the Court adjudicates upon the ship on the ground that it had jurisdiction to seize it and realise it for the plaintiff, on account of something which happened before the seizure, which in this case was repairing her.”

        

        Finally on this aspect reference may be made to the judgment of the Court of Appeal in “The Banco” (1971) 1 Lloyds Law Reps. 49 which post-dates the passing of the Administration of Justice Act 1956 (Imp) which Act contains the statutory admiralty jurisdiction of the High Court of Fiji (See : “The M.V. Voseleai” 40 FLR 224).

        

        In its judgment the Court of Appeal held that the provisions of Section 3(4) of the Administration of Justice Act 1956 served to extend the scope of the Admiralty court’s jurisdiction in an action ‘in rem’ to not only ‘the offending ship’ in respect of which the plaintiffs’ cause of action arose but also ‘any other ship in the same ownership’.

        

        In this case it is common ground that at all relevant times both arrested ships were beneficially owned by the first defendant company which had requested the various works and items supplied by the plaintiff companies to the vessels i.e. ‘the res’ was and is ‘the property of the debtor’ and further, that the monies owed by the debtor relates to ‘maritime debts’ which although undoubtedly incapable of giving rise to a maritime lien (See : Bankers Trust v. Todd Shipyard [1980] 3 All E.R. 197 per Salmon and Scarman L.JJ. at p.211j), nevertheless, I am satisfied from the above dicta that the plaintiffs’ action is not only competent but that the Court has the necessary jurisdiction and power to issue warrants for the arrest of both vessels in an action ‘in rem’ despite the non-existence of a maritime lien.

        

        If I should be wrong however, in the above analysis of the historical origins and ambit of the Admiralty, Courts jurisdiction to arrest a vessel in an action ‘in rem’ unsupported by a maritime lien, then the relevant provisions of the Administration of Justice Act 1956 (Imp) as applied to the High Court of Fiji puts paid to the defendant’s submission as to the Court’s jurisdiction.

        

        In this regard Section 1(1) of the Administration of Justice Act 1956 provides (as modified) :

        

        “The Admiralty Jurisdiction of the High Court of Fiji shall be as follows, that is to say, jurisdiction to hear and determine any of the following ... claims -

        

        (m)       any claim in respect of goods or materials supplied to a ship for her operation or maintenance.

        

        (n)        any claim in respect of the construction, repair or equipment of a ship or dock charges or dues ;”

        

        Plainly in my view the plaintiff company’s claims in the absence of any serious challenge to their nature, falls fairly and squarely within the above paragraphs, especialy ‘(n)’, and having been incurred in respect of the defendant company’s vessels, represents, in my view ‘maritime debts’ properly brought within the purview of the Courts admiralty jurisdiction.

        

        As for the form or mode in which such claims may be brought or taken by the plaintiff, Section 3(4) of the Administration of Justice Act 1956 relevantly provides:

        

        “In the case of any such claim as is mentioned in paragraphs (d) to (r) of Subsection (1) of section one of the Act, being a claim

        

        arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner ... of, or in possession, or in control of, the ship, the Admiralty Jurisdiction of the High Court ... may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in rem against -

        

        (a)        That ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person;”

        

        (my underlining)

        

        Willmer J. in the “St Elefterio” (1957) 1 Lloyds Law Rep. 283 speaking of the above subsection in an action brought where no maritime lien arose, said at p.287:

        

        “... that subsection, ... is a subsection introduced for the purpose of enlarging the Admiralty jurisdiction of the Court. ... In my judgment the purpose of the words `the person who would be liable on the claim in an action in personam’ is to identify the person or persons whose ship or ships may be arrested in relation to this new right ... of arresting a sister ship ... This action might or might not succeed if it were brought in personam ; But ... in the absence of any suggestion that the action is a frivolous or vexatious action, I am satisfied that the plaintiffs are entitled to bring it and to have it tried, and that, whether or not their claim turns out to be a good one, they are entitled to assert that claim by proceeding in rem.”

        

        (my underlining)

        

        (See : also the instructive judgment of Brandon J. in “The Monica S” (1967) 2 Lloyds Law Reps. 113 esp. at pp.118 to 131)

        

        More recently Hobhouse L.J. in discussing the relationship between the Admiralty jurisdiction ‘in rem’ and ‘in personam’ and in recognising the tripartite basis upon which an action ‘in rem’ could be founded said in “The Anna H” (1995) 1 Lloyds Law Reps 11 at p.19 :

        

        “The right being enforced in an action in rem is a right against the res. It may be a proprietary right; it may be a maritime lien ... ; or it may be an analogous `statutory’ lien where the ownership of the vessel at the time of the issue of the writ is relevant.”

        

        From the foregoing analysis I am satisfied that this Court following the jurisdiction of the old Court of Admiralty, has not only the jurisdiction to arrest a ship in an action ‘in rem’ without the support of a maritime lien and with the object of making the defendant put up bail or provide a fund for securing compliance with any judgment that the court may give against him; but further, that this Court has a statutory jurisdiction pursuant to the Administration of Justice Act 1956 (Imp) to entertain any action ‘in rem’ and to arrest a ship without there being a maritime lien, where the owner of the ship would have been liable had the claim been brought ‘in personam’ and where such claim falls within any of the several categories enumerated in Section 3(4) of the Act.

        

        The defendant’s motion is plainly predicated upon a fundamental misconception of this Court’s Admiralty Jurisdiction both ancient and statutory to arrest “the res” in an action “in rem” and accordingly is dismissed with costs to the Plaintiff.

        

        (Motion dismissed.)

Eroni Waqaitanoa v. The Commissioner of Prisons

        [1997] 43 FLR 245

         

        HIGH COURT OF FIJI ISLANDS

         

        ERONI WAQAITANOA

         

        v.

         

        1. THE COMMISSIONER OF PRISONS

        2. PUBLIC SERVICE COMMISSION

        3. ATTORNEY-GENERAL

         

        [HIGH COURT, 1997 (Pathik J) 26 September]

         

        Revisional Jurisdiction

         

        Judicial review - application for extension of time - principles governing - High Court Rules 1988 Order 53.

         

        Practice: Civil - application for extension of time - principles governing.

         

        The Applicant was granted leave to move for judicial review but failed to file the motion within 14 days as required by the Rule. He sought extension of the 14 day period. The High Court rejected the application. It HELD: (i) that the delay was unjustifiable, and (ii) that to allow a late filing would be detrimental to good administration. It also emphasised the requirement for despatch in processing public law litigation and the need for the Rules of Court to be obeyed.

         

        Cases cited:

         

        Anuradha Charan (C.A. 2/92- FCA Reps 93/661)

        Avery v. Public Service Apeeal Board (No. 2) [1973] 2 NZLR 86

        Gatti v. Shoosmith [1939] 3 All ER 916

        Jaswant Singh v. Peter Francis (C.A. 57/75- FCA Reps 75/130)

        Kenneth John Hart v. Air Pacific Ltd (C.A. 23/83- FCA Reps 84/317)

        Latchmi & Anr v. Moti & Ors (10 FLR 138)

        O’Reilly v. Mackman [1983] 2 AC 237

        R v. Dairy Produce Quota Tribunal ex parte Caswell [1990] 2 All ER 434

        R v. Institute of Chartered Accountants in England and Wales ex-parte

                    Andreou (ADM. L.R. Vol 8 557 19.3.96)

        R v. Stratford-on-Avon DC ex.p. Jackson [1985] 2 All ER 769

        Ratnam v. Cumarasamy [1964] 3 All ER 933

        Regalbourne Ltd v. East Lindsay District Council (1993 Adm. L.R. Vol. 6 102)

         

        Interlocutory application in the High Court.

         

        I. Fa for Applicant

        Ms. M. Sakiti for Respondents

         

        Pathik J:

         

        This is the Applicant’s Summons dated 23 August 1996 for an Order for leave to file Motion for Judicial Review under Or.53 R.5(4) of the High Court Rules out of time.

         

        Background

         

        On 20 February 1996 Pain J granted leave to the Applicant to apply for Judicial Review. The Chief Registrar had informed Messrs. Fa & Company that leave has been granted. The solicitors for the Applicant failed to file a motion within 14 days as required by the Rules [Order 53 r5(4)]. The reason given for this failure was that the clerk in the employ of Fa & Company, “due to inadvertence and oversight omitted to inform” the firm’s solicitors nor Ms Asenaca Uluiviti who had the personal conduct of this matter.

         

        The Summons for extension of time was filed on 16 September 1996.

         

        Affidavit in Response was filed 19 March 1997. The first Respondent filed an affidavit on behalf of the Respondents and stated that six months’ delay is unreasonable and unjustifiable. They say that three months after leave was granted a new appointment was made as the post was required to be filled immediately. the Respondents say that the granting of extension of time would be detrimental to good administration.

         

        Learned Counsel for the Respondents filed written submissions on 21 August 1997 and Mr. Fa for the Applicant filed his on 17 April 1997.

         

        Plaintiff’s submission

         

        It is Mr. Fa’s submission that the Respondents’ argument that there will be administrative chaos has no merit in relation to the Applicant’s current application because from the outset the 1st Respondent was put on notice that the Applicant would be challenging its decision to terminate his employment. Mr. Fa further submits that grant of leave normally operates as an immediate stay of proceedings. He further says that the delays are not “caused by the Applicant but rather by administrative problem in the Applicant’s Solicitor’s office and as such the Applicant should not be penalised for it.”

         

        Mr. Fa further submits that this application is made pursuant to Order 3 Rule 4 of the High Court Rules 1988. He says that the grounds relied upon as objection to the extension of time have no merit in relation to the present application.

         

        The Respondents’ contention

         

        While objecting to the application Ms. Sakiti, the learned counsel for the Respondents, submits that the only question for decision by the Court is whether the Applicant is statute-barred from commencing substantive judicial review proceedings.

         

        Ms. Sakiti says that delay of almost seven months is an unreasonable and unjustifiable delay. She disagrees with Mr. Fa and says that there is no real distinction between an application out of time for leave for judicial review and an application out of time to commence judicial review proceedings, the same reasons and principles ought to apply.

         

        She also contends that the grant of extension of time would be detrimental to good administration; the new appointment in this case was made three months after leave was granted and after the Applicant had failed to proceed within a reasonable time. She says that the Prison Service cannot and ought not be allowed to be kept in suspense as to time when the Applicant decides to commence his judicial review action. Counsel further submits that to allow proceedings to commence at this very late stage would also prejudice the rights of the present appointee who took the Applicant’s post on promotion.

         

        Consideration of the issue

         

        Rules

         

        Order 53 r.5 of the High Court Rules lays down the procedure to be followed and prescribes time limits after leave is granted for judicial review. It states:

         

        “5. - (1) When leave has been granted to make an application for judicial review, the application shall be made either by originating motion or by originating summons.

         

        (2)       The notice of motion or summons must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons must also be served on the court officer or registrar of the court and, where any objection to the conduct of the judge is to be made, on the judge.

         

        (3)       Unless the judge granting leave has otherwise directed, there must be at least ten days between the service of the notice of motion or summons and the day named therein for the hearing.

         

        (4)       A motion must be entered for hearing within 14 days after the grant of leave.”

         

        Solicitor’s fault

         

        It had taken the applicant about seven months to wake up from his slumber for the reasons given by his counsel. I find no merit whatsoever in any of the arguments. Mr. Fa asks why should the applicant suffer for his counsel’s fault or inadvertence. First of all, Court is not concerned with the manner in which counsel runs his practice, but he does owe a duty to his client to act diligently and not come up with the type of reasons advanced and expect the Court to grant him an indulgence. The applicant is himself at fault too. Why did he not check with his counsel as to the progress of his case.

         

        For the Applicant to succeed he has to give a good reason to enable the Court to exercise its discretion in his favour as stated below in the judgment of the Privy Council in Ratnam v Cumarasamy [1964] 3 All E.R 933 at 935:

         

        “The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation” (underlining mine for emphasis)

         

        Also in Jaswant Singh v. Peter Francis (C.A. 57/75- FCA Reps 75/130) Marsack JA refused extension of time when there was four weeks’ delay and stated “...can find no grounds for holding that good reasons for the delay have been shown” even when the Appellant’s solicitor was engaged in a Supreme Court criminal trial at the relevant time for filing appeal, he did not think that “the granting of an extension of time is required in the interests of justice”.

         

        In the case of Gatti v Shoosmith [1939] 3 All E.R 916 C.A. the failure of solicitors to take action, was considered. In his judgment, Lord Greene MR at 919 stated as follows on the factors to be taken into consideration by the Court in deciding how judicial discretion is to be exercised:

         

        “the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the court in exercising its discretion. I say `may be’ because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What I venture to think is the proper rule which this court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

         

        The discretion of the court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised.” (underlining mine for emphasis)

         

        The case before me is not one in which in my discretion leave ought to be granted as the delay has been far too long for no satisfactory reason. The rights and interests of the Respondents had to be considered as Marsack JA in Latchmi & Another v Moti & Others (10 FLR FCA 138) said:

         

        “In deciding whether justice demands that leave should be given, care must, in my view, be taken to ensure that the rights and interests of the Respondent are considered equally with those of the Appellant.”

         

        Application of Order 53 r 4

         

        A similar situation as in this case arose in the Court of Appeal case of R v Institute of Chartered Accountants in England and Wales ex parte Andreou (ADM.L.R. Vol 8 557 19.3.96) where counsel did not know that the Rules required the substantive application to be begun within 14 days of the grant of leave. There they proceeded with the substantive application almost four months out of time. Popplewell J refused the application, which then came before the Court of Appeal by way of an application for leave to appeal.

         

        The decision in Andreou (supra) is my answer to the Applicant in the application before me. I agree entirely with the arguments put forward by Ms. Sikiti and reject those of Mr. Fa. I ought to clear one misconception that Mr. Fa has; he says that grant of leave gives rise to an automatic stay; that is not so, for Or.53 r.3(ii) provides that if the court “so directs”, the grant of leave “shall operate as a stay of proceedings to which the application relates until the determination of the application or until the Court otherwise Orders”.

         

        On extension of time and the exercise of discretion in the requirements of public administration the following passage from the judgment of Sir Thomas Bingham, MR in Regalbourne Limited v. East Lindsay District Council (1993 Adm.L.R. Vol 6 102 at 111 to 112) is pertinent:

         

        “In this case the appellants seek to challenge the decision of a statutory tribunal. They did not comply with a clear and short time limit. In this context the reasonable requirements of public administration have a significance which is absent in ordinary inter partes litigation. By contrast, prejudice may assume a rather smaller significance. But most importantly, there is in this context a different statutory framework and the court must do its best to give effect to the intention of Parliament in the particular context before it. I would be reluctant to lay down a rule that in this context an application to extend time may never be granted in the absence of a satisfactory explanation for the delay. Had the learned Judge here decided, in the exercise of his discretion, to grant an extension of time, I question whether his decision could have been successfully challenged as unlawful. But he took the view that, on the facts here and in particular in the absence of a satisfactory explanation of the delay, he should not exercise his discretion to grant an extension. In my opinion, that decision cannot be impugned as contrary to law. The decision of the tribunal was final unless subject to appeal. Unless an appeal was initiated within the time limit there was no right to appeal. The Judge found no good reason to extend time.” (underlining mine for emphasis).

         

        Furthermore, the headnote to Regalbourne (supra) at 103 on the question of exercise of discretion is pertinent to the issue before me. It was held:

         

        “(1) In the absence of agreement, before the court will consider exercising its discretion to extend time under Ord.3, r.5, it will normally need to be satisfied that there is an acceptable explanation for the delay. Lawyers’ commitments or ignorance would be unlikely to amount to an acceptable explanation. (2) If such an explanation is found, then the risk of prejudice will be considered. (3) Where decisions of public law bodies are the subject of the application, the court will be reluctant to extend time because of the need for such bodies to know where they stand. (4) Per Sir Thomas Bingham, M.R: The dicta in Costellow v. Somerset Country Council [1993] 1 W.L.R. 256 at p.264 were not intended to apply to an application for leave to appeal out of time, or applications for extensions in relation to the decisions of statutory tribunals.” (emphasis added)

         

        The second point I wish to make is that Order 53 provides for a time limit within which an application for judicial review should be made and one does not have to resort to Order 3 r.4 as Mr. Fa has done in this case for leave to extend time. Order 53 r.4 deals with delay in applying for relief in an application for judicial review. It provides:

         

        “4. - (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant‑

         

        (a)        leave for the making of the application, or

         

        (b)        any relief sought on the application,

         

        if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.”

         

        Even if Order 3 r4 were to be applied the approach and the principles stated below in the Supreme Court Practice under Order 3 r.5 is relevant but this does not assist the Applicant on the facts before me:

         

        “The R.S.C. as to time have to be observed, and if substantial delay occurs without any explanation being offered, the Court is entitled, in the exercise of its discretion, to refuse the extension of time, e.g. to serve a notice of appeal from the master to the Judge in Chambers, even though the delay could be compensated for by costs and no injustice would be done to the other party (Revici v. Prentice Hall Inc. [1969] 1 W.L.R. 157) ... ord.3, r.5 is not to be used merely as an escape route where practitioners have not been prompt in dealing with cases (Smith v. Secretary of State for the Environment, The Times, July 6, 1987, C.A.).

         

        Moreover an acceptable explanation required more than a mere statement that the person in charge of the action forgot about it or was too busy to get on with it. An acceptable excuse such as illness will prompt a more sympathetic response to the application than if the omission is caused by neglect.”

         

        It is clear that even under Order 3 r.4 the Court will have to be satisfied with the explanation for the delay. In this regard Kennedy, L.J in Regalbourne (supra) at 110 said:

         

        “before the court will consider exercising its discretion to extend the time pursuant to Ord.3, r.5, it will normally need to be satisfied that there is an acceptable explanation for the delay. The fact that lawyers were unaware of the relevant time limit, or found it difficult to comply with the time limit because of other commitments such as a holiday or other work, is unlikely to amount to an acceptable explanation. If there is no acceptable explanation, the question of prejudice is unlikely to arise and, even if there is an acceptable explanation for the delay, the court may refuse to exercise its discretion to extend time if the delay is substantial or if to do so would cause significant prejudice to the respondent. In any event, as in the interests of good administration, the law requires that public law challenges to decisions of tribunals should be made within a limited time scale, the courts will always be reluctant to extend time in such a situation: see what was said by Mr. Justice Schiemann in Cartwright.” (emphasis added)

         

        He goes on to say at 110 (supra):

         

        “Obviously, if time is not extended, there is prejudice to the potential appellant because he or she loses his or her right to appeal and the prejudice will be greater if the intended appeal had good prospect of success. But in most cases that is unlikely to be of great weight. If the failure to appeal within the time allowed is due to neglect on the part of the potential appellant’s lawyers, such a litigant may have some redress against his own lawyers, but that again is not something with which the court is likely to be concerned when it is being asked to extend time.” (emphasis added)

         

        With the above passages in mind I find that in this case no satisfactory and acceptable explanation has been given as to why the application was not made within time. Even if the Court were to exercise its discretion in the Applicant’s favour the delay has caused great prejudice to the Respondents. What was held in Andreou (supra) is apt,

        namely:

         

        “Held: (dismissing the appeal): (1) The purpose of the procedure governing applications for judicial review is to provide a simplified and expeditious means of resolving disputes arising in the field of public law.

         

        (2) This purpose would be frustrated if the relatively leisurely and casual approach to time-limits which characterizes civil litigation in the field of private law were to be adopted in the field of public law.

         

        (3) Therefore, notwithstanding that the error had been entirely that of the applicant’s lawyers, (a) Popplewell, J had been right to dismiss the application for an extension of time within which to begin the substantive application for judicial review; and (b) the application for leave to appeal against that decision should also be dismissed.” (emphasis added)

         

        There Henry, L.J stated that Thomas Q.C. said that the reason put forward was “lawyer error” and that it was no fault of the applicant. Henry L.J said that “That is the explanation for the delay. It does not, in my opinion, and in the opinion of the trial judge, provide an acceptable reason for extending time”.

         

        Because of the great frequency with which applications for extension of time arise I would refer extensively to Henry L.J’s judgment where he deals particularly with the general principles applicable to pubic law vis a vis private law in identifying and in redressing public wrongs.

         

        In rejecting Thomas Q.C’s submission that Popplewell J should have considered the matter with “greater flexibility”; Henry L.J said this it was “plainly wrong for a number of fundamental reasons”. He said:

         

        “First that of general principle. Public law deals with the identification and redress of public wrongs generally in disputes between the citizen and the State or its institutions. It provides under Ord.53 a simplified and expeditious procedure which is essential to enable the Crown Office List fulfilling its purpose, while recognizing both the general importance of the issues at stake and the large numbers often potentially affected by them, and the necessity for an early resolution of them. If “normal” private law delays and private law’s relaxed attitude to rules and time-limits creep into the Crown Office List, then the delays in that list will build to the point that it can no longer properly perform the important public duty entrusted to it. Public law litigation cannot be conducted at the leisurely pace too often accepted in private law disputes. As has been pointed out in relation to the Woolf interim report on “Access to Justice”, what is wrong in private law is often not so much the time-limits for individual steps laid down, but the fact that they are routinely not enforced. This case may be an example of just such a bad habit. It would be clear to any lawyer that there must be a time-limit for service of the notice of motion for which leave had been given, and if time-limits in private law were routinely in force, then the next step for any lawyer would inevitably have been to look up that time-limit.”

         

        The Respondents raised the matter of prejudice to the rights of the Respondents and detriment to good administration (Order 53 r.4(1)) resulting from the long delay in making the application for judicial review further to the leave granted herein.

         

        As to how the delay provision has to be construed is stated by Aldous & Alder in their book Application for Judicial Review, 2nd Ed. at p.133 thus:

         

        “Leave should, therefore, only be refused in clear cases of unjustifiable delay. In Caswell itself leave was granted even though nearly two years had passed. In R v Comr for Local Administration, exp Croydon London Borough Council, Woolf LJ stated that the delay provisions should not be construed technically and should not be invoked strictly against an applicant who has behaved sensibly and reasonably. Nevertheless, an applicant delays at his peril.” (underlining mine for emphasis)

         

        I find that in this case there was an unjustifiable delay and the applicant did not behave sensibly and reasonably. Because of the long delay the position was filled by the Respondents. It will be prejudicial to the present holder if the application was granted. The delay on the applicant’s part was at his peril. On delay and its effect the following extract from the judgment of Ackner L.J. in R v. Stratford-on-Avon DC ex p. Jackson [1985] 2 All E.R. 769 is worth quoting which covers the provisions of Or. 53 r.4:

         

        “...we have concluded that whenever there is a failure to act promptly or within three months there is “undue delay”. The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

         

        Further on the aspect of delay and its prejudicial effect I refer to the following remarks of Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 at 28:

         

        “The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”

         

        Detriment to good administration

         

        Now I shall deal with the statutory ground, namely, whether in this case the granting of extension would be “detrimental to good administration”.

         

        There have been a number of authoritative pronouncements on the meaning and impact of this term. To begin with Lord Goff of Chieveley in R v Dairy Produce Quota Tribunal ex parte Caswell [1990] 2 All E.R. 434 at 441 had this to say:

         

        “In asking the question whether the grant of relief would be detrimental to good administration, the court is at that stage looking at the interest in good administration ... (which) interest lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision. Matters of particular importance, apart from the length of time itself, will be the extent of the effect of the relevant decision, and the impact which would be felt if it were to be re-opened.”

         

        The control of judicial review proceedings at an early stage is very important particularly in a case like the present. In this regard the Fiji Court of Appeal in

         

        Anuradha Charan (C.A. 2/92- F.C.A. Reps 93/661) said:

         

        “In a world of burgeoning bureaucracy and use of administrative powers by an increasing number of official bodies, judicial review is an essential means of redress. The special procedures are designed for a relatively straightforward and prompt determination of the case. We see an unfortunate and growing tendency by litigants to seek judicial review in cases suited to different proceedings and remedies and to submit ever more prolix documents for the court to consider. This is all too frequently matched by an apparent unwillingness of the court to take firm control of proceedings particularly at the early stages.”

        (emphasis added)

         

        Conclusion

         

        To conclude, the delay in making the application has been far too long and no satisfactory explanation has been given for it. In all the circumstances of this case, as discussed hereabove, the granting of application, in the words of Or.53 r.4 “would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”. I cannot see how even in the interests of justice I can grant the application. On this aspect I conclude with the following passages from the judgment of Richmond J in Avery v Public Service Appeal Board (No. 2) [1973] 2 NZLR 86 at 91 which are apt (which were approved by the Full Court of Fiji Court of Appeal in Kenneth John Hart v Air Pacific Ltd (C.A. 23/83- FCA Reps 84/317) in refusing leave to appeal out of time:

         

        “When once an appellant allows the time for appealing to go by then his position suffers a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court.

         

        The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal.”

         

        Further in his judgment at p.92 Richmond J said:

         

        “Mr. O’Flynn pointed out that this was a case of a solicitor’s error resulting in a short period of delay after the expiration of the ordinary time for appealing. That delay, he said, had not prejudiced anybody. No doubt there may be many cases where this type of argument might prevail upon the Court to grant leave. Clearly however the Court is not restricted to such considerations. The rules do not provide that the Court may grant leave if satisfied that no material prejudice has been caused by the failure to appeal in time. Everything is left to the discretion of the Court on the wide basis that leave may be granted in such cases as the justice of the case may require. In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would have on other persons involved.”

         

        In the outcome, for the above reasons I refuse the application for extension of time with costs against the Applicant to be taxed if not agreed.

         

        (Application dismissed.)

Estrella Trufil v. The Director of Immigration

        [1997] 43 FLR 1

        HIGH COURT OF FIJI ISLANDS

         

        ESTRELLA TRUFIL AND 6 OTHERS

         

        v.

         

        THE DIRECTOR OF IMMIGRATION

         

        [HIGH COURT, 1997 (Lyons J) 2 January]

         

        Revisional Jurisdiction

         

        Immigration-unlawful immigrant- stay of removal order pending disposal of litigation- Crown Proceedings Act (Cap 24) Section 15; Immigration Act (Cap 88) Sections 11, 14 & 15.

         

        The Applicants who were unlawful immigrants sought Judicial Review of a decision to remove them from Fiji. While dismissing the application the High Court emphasised that the mere fact that the applicants had commenced legal proceedings against their former employer afforded no ground for a stay of the Removal Order.

         

        Case cited:

         

        The Council of Civil Service Unions v. The Minister for the Civil Service

        [1984] 3 All ER 939; [1985] AC 374

         

        Motion for Judicial Review.

         

        P. Samusamuvodre for the Applicant

        Ms. G.Phillips for the Respondent

         

        Lyons J:

         

        On the 26th August 1995, the Applicants commenced proceedings for Judicial Review. The application for leave to apply was granted on the 26th August 1995 (ex-parte) and as such relief included an order for certiorari, the proceedings of the Respondent were stayed pursuant to the provisions of 0. 53 r. 3 (8) (a).

         

        By Notice of Motion filed the 12th September 1995, the Respondent opposed the Judicial Review and seeks a discharge of the stay incumbent in the grant of leave of the 26 August 1995.

         

        I will very briefly deal with the application for discharge of the stay as a preliminary matter.

         

        I decline to discharge the stay as applied for in the Notice of Motion. My reasons are identical with those in the matter of Cantila (43 FLR 6). That Decision will be delivered at the same time as this Decision as both of these matters were heard on the same day due to their similarity.

         

        In short my reasons are that I hold there is a distinction between injunctive relief and a stay and as there is such a distinction, section 15 of the Crown Proceedings Act (Cap. 24) (which relates to injunctions) does not preclude a stay being ordered against the Crown pursuant to RHC O.53 r.3 (8)(a).

         

        I turn now to the substantive matter of Judicial Review. I have the benefit of written submissions from the Applicants and the oral submissions of the Respondent.

         

        The Applicants are Phillipino nationals. All came to Fiji with the express intention of working for Ghimli Fashions Limited (GHIMLI).

         

        The Applicant Trufil came on a visitor’s permit which was later issued as a Work Permit conditional that she work for GHIMLI. Her services with GHIMLI were terminated before the Administrative matters attached to the Work Permit were completed.

         

        The Applicant Aquila entered on a Work Permit conditional that he be employed by GHIMLI and to be current until the 18th March 1995. Between the 7th March 1995 and the 15th March 1995, his services with GHIMLI were terminated.

         

        The Applicant Cruzada entered on a Work Permit that was conditional that he work for GHIMLI. The Permit was extended to include that he worked for Bloomtime Apparel (Fiji) Limited, a subsidiary of GHIMLI. This Permit was current until the 18th May 1996. Between the 7th and 15th March 1995, his services with Bloomtime and GHIMLI were terminated.

         

        The Applicant Cuarez first came to Fiji on a Work Permit. She left and then re-entered on the 10th March 1994 as a visitor. She then applied for a Work Permit. It was granted conditional that she worked for GHIMLI. It was valid until the 14th September 1996. Her services with GHIMLI were terminated in March 1995.

         

        The Applicant Macula originally entered Fiji in 1989 on a Work Permit which was extended until December 1994. She then left the country and returned on a Visitor’s Permit on the 16th February 1995. She stated that she was on a holiday. She was granted a Visitor’s Permit until the 16th June 1995. In fact she worked, contrary to her Visitor’s Permit, with GHIMLI. Her services were also terminated in March 1995.

         

        The Applicant Ocsan, was issued with a Work Permit to enter Fiji to work with GHIMLI. This Permit, conditional on her working with GHIMLI was valid until the 7th July 1995. Her services with GHIMLI was also terminated in March 1995.

         

        The Applicant Dalisay entered Fiji on a Visitor’s Permit on the 17th March 1994 and subsequently applied for and was granted a Work Permit conditional that she worked for GHIMLI. The application date was the 3rd May 1994. It was for two years. The Permit has never passed the administrative stage. Her employment with GHIMLI ceased in March of 1995.

         

        The termination of employment with GHIMLI is the subject of litigation in the High Court. The Applicants are all seeking damages from GHIMLI. The litigation has stalled.

         

        There is no doubt (in fact it is not disputed) that all the Applicants are, by virtue of expiry of their permits and the conditions attached thereto, unlawfully in Fiji. (Refer Section 14 of the Immigration Act (Cap 88)).

         

        As a result of that unlawful status, the Respondent moved in August 1995 to deport the Applicants pursuant to the provisions of Section 15 of the Immigration Act.

         

        Looking at the Applicants’ submission, I am not convinced of the merit of the application.

         

        The Applicants claim that the Respondent is acting outside the procedure in that the Applicants have now found new employment and should, as a matter of procedure, be granted further permit. This argument can quickly be disposed of. There is not a scrap of evidence before me to support it.

         

        The Applicants claim it is unfair that they not be able to stay in Fiji whilst litigation over their contractual claims are before the Court. I am not referred to any authorities specifically on this point and nor do I know of one. In my opinion it would be a mischief to create a precedent that would of necessity provide that, as of right, a litigant can remain illegally in a country until the litigation is complete (if ever). I do not consider it unfair that the Applicant, by admission being unlawfully in the country, should litigate from outside Fiji and re-enter for the purposes of the hearing. Such practice is common.

         

        The Applicants claim that the Respondent acted on an irrelevant consideration in deciding to deport the Applicants. This presumably relates to the deposition of Uday Nath (for the Respondent) that the slow payment by the Applicants (as litigants) of security for costs was a consideration taken into account by the Respondent when deciding to deport. With respect I do not see it that way. It is clear on the material before me that, as of the end of March 1995, the Applicants were unlawfully in Fiji and subject to a deportation order. By letter to GHIMLI of the 14th March 1995, the Respondent clearly evidenced its position in insisting that the Applicants leave Fiji.

         

        It is not being suggested, and nor should it be, that the Applicants have a legitimate expectation that a courtesy would and should be extended to enable them to remain in Fiji and continue to litigate. Even if argued, I do not see how the Applicants could be said to have had a legitimate expectation of an extension of the “grace period” (courtesy) as would suit the well known definition put forward by Lord Diplock in The Council of Civil Service Unions v. The Minister for the Civil Services [1984] 3 All ER 939;[1985] AC 374.

         

        Further, as I understand the Respondent’s material, the delay in litigation caused by the non-payment of ordered costs was considered in relation to a decision not to extend the courtesy, rather than as to whether or not to request the Applicants to leave Fiji.

         

        Bearing this in mind, I do not consider that the Respondents could be said to have extended a grace period to the Applicants so as to allow them to remain in Fiji to litigate the contract claims. As at the 14th March 1995, the decision had been made to request the Applicants to leave voluntarily. The letter of the 30th June 1995 and the 31st July 1995 to the Prime Minister and the Respondent respectively can be seen only as attempts to negotiate such as a grace period. I accept that the Respondent examined the request and declined it for the reasons of delay deposed to in paragraphs 19 to 24 of Mr. Nath’s Affidavit.

         

        Thus there had arisen no cause for the Applicants to expect anything other than the request for a grace period would be considered (which it was) and that, as prohibited persons (See Section 11(2) of the Act) they were required to leave Fiji.

         

        Turning to the allegation of bias, I accept that GHIMLI may well be biased as against the Applicants but I fail to find any evidence which would cause a reasonable person to conclude that the Respondent is, or is suspected of being, similarly biased. This submission is lacking in evidentiary support.

         

        I do not consider the Respondent has acted capriciously or unreasonably. This submission seems to revolve around the denial by the Respondent in not acceding to a request from the Applicant to remain in Fiji whilst litigating. This area has already been covered and I do not intend to repeat it.

         

        As for the submission that the Respondent acted in ignorance of an established and relevant fact. I confess to having some difficulty in understanding this submission. Even the oral submissions of Counsel in this matter failed to enlighten me. It appears to me that the Applicants are claiming that the Respondent has denied them their right to a reasonable legal remedy in some shape or form. I am unable to find what that refers to except to say that, if the Applicants are claiming that the Respondent are denying them a reasonable legal remedy as against GHIMLI, that does not appear the case. There is action pending before the High Court which has stalled through no fault of the Respondent. Similarly I don’t see how the Respondent has prevented the Applicants seeking their legal remedy through Judicial Review. In fact the opposite is the case. The Respondent has, throughout the conduct of this matter, actively assisted the Court and the Applicants in having the matter heard as quickly as possible. As I understand this submission, it is without evidentiary foundation.

         

        In general terms, and with greatest of respect to the Applicants, it appears to me that their submissions simply “throw the textbook” at the Court in what can be termed the “scatter gun” approach. The danger of this approach is that it so often denies proper focus on the Applicants’ strongest points and rather exposes the weakest.

         

        I dismiss the application for Judicial Review. As I have said I dismiss the application to discharge the stay order on the Notice of Motion but, as I have dismissed the application for Judicial Review, it is a consequence that a stay ordered on the 26th August 1995 is thereby discharged.

         

        I order the Applicants to pay the Respondent’s costs to be taxed if not agreed.

         

        (Motion for Judicial Review dismissed.)

Fiji Sugar & General Workers Union v. The Fiji Sugar Corporation Ltd

        [1997] 43 FLR 179

         

        HIGH COURT OF FIJI ISLANDS

         

        FIJI SUGAR AND GENERAL WORKERS’ UNION

         

        v.

         

        THE FIJI SUGAR CORPORATION LIMITED

         

        [HIGH COURT, 1997 (Pathik J) 4 August]

         

        Appellate Jurisdiction

         

        Employment- Sugar Industry- Sugar Industry Tribunal- whether tribunal has power to order a return to work- Sugar Industry Act (Cap 206) Sections 105, 117 & 123.

         

        Members of the Appellant union went on strike. The matter was referred to the Sugar Industry Tribunal which ordered the strikers to return to work pending the hearing and determination of the dispute. The Appellant union claimed that the Tribunal had no power to make such an order. Dismissing the appeal the High Court emphasised the very wide powers given to the tribunal including the power to order a return to work.

         

        Case cited:

         

        The Fiji Sugar & General Workers’ Union v. The FSC Ltd (Misc

                     App. No. 11/95)

        Fiji Sugar Corporation v. SMS Officers Assn. (C.A. 74/86-FCA Reps 88/89)

         

        Appeal to the High Court from Sugar Industry Tribunal.

         

        H. Nagin for Appellant

        B.N. Sweetman and R. Naidu for Respondent

         

        Pathik J:

         

        This is an appeal by the Fiji Sugar and General Workers’ Union (hereafter referred to as the “Union”) from the Decision of the Acting Sugar Industry Tribunal (hereafter referred to as the “Tribunal”) delivered on 25 July 1997 which ordered that “the members of the Union be ordered to return to work no later than 11.00 p.m. on Saturday 26th July 1997 pending the hearing and determination of the dispute.....”

         

        Grounds of Appeal

         

        The Grounds of Appeal as filed are:

         

        1.         That the Acting Sugar Industry Tribunal acted without jurisdiction as his purported appointment was contrary to the requirement contained in the Sugar Industry Act; and

         

        2.         That the Acting Sugar Industry Tribunal erred in law and exceeded his jurisdiction in ordering the Appellant’s members back to work.

         

        The first ground was withdrawn at the hearing which left the second ground for consideration and determination by the Court.

         

        Background to the case

         

        The Union members commenced strike action on 21 July 1997. It sent a letter of even date as follows to the Managing Director, Fiji Sugar Corporation Limited, Suva:

         

        “Due to the continuous poor Industrial Relations between the Union and FSC the Extraordinary General Meeting of the Union overwhelmingly passed to withdraw good will and activate the strike mandate and notice of strike to the Corporation and the Registrar of the Tribunal on the Occupational Health and Safety dispute.

         

        The Union now has directed to take a “no tolerance” position and demands that all OHS concerns raised in numerous meetings between the parties over a prolonged period be resolved prior to the employees returning to work. We also take note that you have refused to enter into talks on the welfare fund claim which is based on OHS concerns as advised to the Corporation earlier.

         

        The Union will be prepared to meet with you when you consider necessary.”

         

        On 24 July 1997 the Tribunal commenced his hearing of the dispute between the parties. The Hon. Senator C.D. Aidney was the Acting Tribunal. As stated in the Record of the proceedings of the Tribunal (p1) the “purpose of this inquiry is to hear and determine the grounds on which industrial action has been taken” (vide also Notice of Inquiry dated 22 July 1997 given pursuant to the provisions of section 105 of the Sugar Industry Act Cap. 206 (hereafter referred to the “Act”).

         

        An Order dated 24 July 1997 to the following effect was made by the Tribunal after the Industrial Commissioner had certified an “unresolved dispute” between the Union and the Fiji Sugar Corporation Limited (hereafter referred to as the “Corporation”):

         

        “Whereas the Industrial Commissioner has certified an unresolved dispute between the Fiji Sugar and General Workers’ Union [the “Union”] and the Fiji Sugar Corporation Limited [the “Corporation”] pursuant to Section 104 of the Sugar Industry Act;

         

        And whereas the Union claims against the Corporation that the Corporation has breached clause 5 of the Agreement dated 12 April 1991 which states:

         

        “A joint Union/FSC committee will jointly examine any submission by that union on health and safety concerns within a factory or work place and use their best endeavours to explore and recommend solutions. Both parties will fully co-operate with each other.”

         

        Now therefore it is ordered as follows:

         

        That the parties appear before the Tribunal in the Permanent Arbitrator’s Chambers at 2.30 p.m. on Thursday, 24 July 1997 for a hearing on the dispute.

         

        Dated at Suva this 24th day of July 1997.”

         

        On the same date a Decision as follows was given by the Tribunal:

         

        “Upon hearing Mr Felix Anthony, General Secretary of the Fiji Sugar and General Workers’ Union; and

         

        Upon hearing Mr Barrie Sweetman, Counsel for the Fiji Sugar Corporation Limited;

         

        on the issue set forth in the Notice of the Inquiry dated 22nd July 1997 to hear and determine the grounds upon which industrial action has been taken on the 21st July 1997

         

        I am satisfied that:

         

        i)          Notice was given on the 27th October 1993 by the Union in a letter addressed to the Industrial Commissioner; and

         

        ii)         Such notice is limited to the issues of Occupational Health and Safety and the employer’s non-compliance with the terms of Clause 5 of the Memorandum of Agreement dated the 12th day of April 1991 duly signed on behalf of the Fiji Sugar Corporation Limited and the Fiji Sugar and General Workers’ Union, and

         

        iii)        that no certificate of an unresolved dispute has been given by the Industrial Commissioner under Section 104 of the Sugar Industry Act Cap 206.

         

        Dated at Suva this 24th day of July 1997"

         

        Since the Union had filed this Appeal against the above Order, the Tribunal (Ratu Jone Madraiwiwi) had ordered on 29 July 1997 that “all proceedings in this dispute be stayed pursuant to Section 123(4) of the Act pending the determination of the said Appeal”.

         

        So much for the background to the case in so far as it is relevant to the issue before me. I shall now deal with the submissions of counsel.

         

        Union’s contention

         

        In short, it is Mr. Nagin’s submission that no one can take away the right of the Union to strike. The Union he says has complied with the provisions of section 98 of the Act which deals with restrictions on industrial action. He says that notice of strike was given as far back as 27 October 1993 (exhibit I) and on 21 July 1997 it wrote to the Corporation that it is going on strike (exhibit 2). The Union did go on strike on that date.

         

        Mr. Nagin referred the Court to the High Court case being Misc. App. No. 11 of 1995 between The Fiji Sugar and General Workers’ Union and the Fiji Sugar Corporation Limited (decision delivered on 19 March 1996) in which Pain J held as follows and stated:

         

        “For the reasons given the appeal must succeed on the ground contained in paragraph 1 of the Notice of Appeal. That is that the Tribunal erred in law in interpreting Section 98 (4) of the Sugar Industry Act to mean that the strike action by the Union was unlawful because it was not taken within 28 days of the date that notice of the proposed industrial action was given. In terms of the section, the strike action could not be taken until that period (or any extension thereof by the Tribunal) had elapsed. This strike action was taken after the 28 days had elapsed and there had been no extension of that time by the Tribunal. Therefore Section 98(4) provided immunity for the Union and its members.

         

        Accordingly the appeal is allowed. Pursuant to Section 123 (5) of the Sugar Industry Act the Tribunal’s decision declaring the industrial action taken by the Union’s members on 9th August 1995 to be illegal and directing them to return to work is quashed and is substituted by a decision declaring the industrial action to be legal.”

         

        Incidentally, Mr. Nagin did point out that this decision is the subject of Appeal to the Fiji Court of Appeal. He said that the appeal before this Court is purely on a question of law and not on moral rights. He says that in this case the Tribunal held the strike to be legal and therefore to order the workers back to work is beyond his jurisdiction. He argues that no such power, as contained in the Trade Disputes Act, exists under the Sugar Industry Act to declare the strike illegal. An express authority is required to do so.

         

        Mr. Nagin says that the Act does not empower the Tribunal to order workers back to work and to do so is inconsistent with the supreme law of Fiji. He says that s117 does not go so far as to allow such an order to be made as it should have been stated specifically.

         

        The appeal he says is under s123(1)(c) of the Act which provides:

         

        “123(1) Subject to subsection (2), any person or organisation bound by an award may appeal to the High Court against the award or any of the terms of the award on any of the following grounds -

         

        (a)        that the Tribunal had no jurisdiction or exceeded its jurisdiction in the matter to which the appeal relates;

         

        (b)        ....

         

        (c)        .....” (Underlining mine)

         

        Mr. Nagin says that the Court’s powers on appeal are contained in s123(5) and (6) which are as follows:

         

        “123(5) and (6)

         

        (5)        On hearing an appeal brought under subsection (1), the High Court may -

         

        (a)        admit further evidence and

         

        (b)       direct the Tribunal to submit a report to the Court with respect to any specified matter.

         

        (6)        On hearing an appeal brought under subsection (1) the High Court may -

         

        (a)        confirm, quash or vary the award appealed against;

         

        (b)       make an award with respect to the subject-matter of the award appealed against;

         

        (c)        set aside the award appealed against and order that a new hearing be held; or

         

        (d)       order a new hearing, without interfering with the award appealed against, as respects any other question.”

         

        The above is the sum total of the Appellant’s submission.

         

        Corporation’s Contention

         

        Mr. Sweetman began by saying that although Mr. Nagin says that we are here to argue law and not looking at morals the Act provides in s109 that the Tribunal “shall act according to equity, good conscience and the substantial merits of the case, without technicalities and legal forms”.

         

        He said that any strike is unlawful but s.98 provides immunity from prosecution provided certain conditions are fulfilled as required by the section. However the workers could still be ordered to go back to work. He said that he was present at the Tribunal hearing and as alleged nothing was said by the Tribunal that he did not have power to make such an order. Nor did Pain J in the case referred to say that the Tribunal had no power in that regard.

         

        The learned Counsel referred the Court to the Fiji Court of Appeal case Civ. Appeal No. 74/86 between Fiji Sugar Corporation and Sugar Milling Staff Officers Association (C.A. 74/86, FCA Reps 88/89) which dealt extensively with the Tribunal’s powers. There it says at p.3-4 that:

         

        “We find on the reading of the provisions of the entire Act and considering the scheme of the Act as a whole that the Act vests in the Tribunal amplitude of power which must be deemed to include the power of reinstatement. Section 117 of the Act under the heading Relief granted not limited to any relief claimed states:-

         

        “In making an award in relation to any proceeding before the Tribunal under this Act the Tribunal shall not be restricted to any specific relief claimed by any party in the course of the proceedings, but may include in the award any matter or thing which the Tribunal thinks necessary or expedient, in particular in the case of proceedings relating to an industrial dispute or to prevent further disputes.”

         

        The Court of Appeal goes on to say:

         

        “If the Tribunal is empowered to include in the award any matter or thing even if they do not arise from a specific relief or demand made by a party, a fortiori it has power to grant relief on a specific claim or demand made by a party.”

         

        Mr. Sweetman also quoted the Court as saying at p.6 in relation to Tribunal’s powers that “there is no reservation whatever of any kind”. (p.6).

         

        He further said that the Tribunal had powers under s105(1)(b) to make a provisional or interim award; and an “award” is defined in s2(1) of the Act to include “an award, order, finding or other decision of the Tribunal....”. The Tribunal in this case made an interim award which he is empowered to do. The said section 105(1)(b) provides:

         

        “105(1) The Tribunal may in relation to any proceedings with respect to an industrial dispute and any other proceedings before the Tribunal under this Act -

         

        (a)        ....

         

        (b)       make an award (including a provisional or interim award) relating to any or all of the matters in dispute or give a direction in pursuance of the hearing or determination

         

        (c)        ...... and

        .....

        (m)       generally to give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the dispute or any other matter before it.”

         

        Mr. Sweetman concluded by referring to s105(2) of the Act which provides, inter alia, that the tribunal have regard to the state of the national economy. Section 105(2) provides:

         

        “(2) In the hearing and determination of any proceedings before the Tribunal under this Act, the Tribunal shall -

         

        (a)        carefully and expeditiously hear, inquire and investigate the matters in dispute and all matters affecting the merits of the case and the just settlement of the matters in dispute; and

         

        (b)        where the matters in dispute affect the public interest, have regard to the state of the national economy and the likely affect on the national economy of any award that the Tribunal may make in the proceedings and to which the proceedings relate, with special reference to the likely effect on the level of employment within and outside the industry and the general level of wages and prices.”

         

        In conclusion he submitted that the said passages from the Fiji Court of Appeal judgment are sufficient to suggest that the Tribunal is “all powerful”; that it has very wide powers to deal with disputes. The crux of the matter is not whether the Tribunal was wrong but whether he had the power to order the Union members back to work. He says that the Tribunal had such powers thereby assisting in the orderly conclusion of disputes.

         

        Consideration of the Appeal

         

        I have given careful consideration to the submissions made by both counsel.

         

        The sole issue for Court’s determination is: Did the Tribunal exceed his jurisdiction when he made the Order for Union members to return to work pending the hearing and determination of the dispute?

         

        It is clear from Mr. Nagin’s submission that the Union is not at all going to budge from its stand, namely, that because Union members are on strike, to which they are entitled, no one can take that right away and order them back to work. In other words, he is saying, keep your hands off, so to say, as we are on strike. The whole tenor of his argument is what right has the Tribunal to Order the members back to work?; he says that not even the Minister responsible can do that; and he even went to the extent of submitting , that not even this Court has the jurisdiction to do that.

         

        In view of this stand by the Union, there is no room to manoeuvre. The situation boils down to this that the Union is sitting in a water-tight compartment and no one can do anything while the country is going to the dogs.

         

        It appears that the learned counsel is labouring under a misconception and misunderstanding of the law relating to strikes vis a vis the provisions of the Sugar Industry Act. One has to look at the strike in the light of those provisions and the powers given to the Tribunal. There is no doubt about the workers’ right to strike and that right cannot be taken away except that the strike is regulated, certain legislative provisions are there in the Act as in Section 98 under the caption “Restrictions on Industrial Action”. I shall deal with this aspect a little later in this judgment.

         

        Mr. Nagin’s argument would have held some water over a century ago when there was no machinery or no adequate machinery to settle disputes but not in this day and age. At this juncture I would like to refer to the following extract from a book by Lord Denning, The Road to Justice (published 1955) on the subject “The Right to Strike” at p.104 and, if I may say so, it would do well for union leaders and others in industries etc to pay heed to and which I consider pertinent to the issue before me and worth bearing in mind:

         

        “Anyone who looks about him today can see that disputes are not so often between employers and workmen but more frequently between one trade union and another trade union, or between a group of men and the union to which they belong. Strikes are frequent, both official and unofficial. As a result of these disputes many innocent people are injured. Many lose work and wages without any fault on their part. Others are put to great hardship and inconvenience. The whole community is struck at. It is all very well to talk of the right to strike, but I know of no law which gives any man or any group of men the right to strike at the community at large. It is nothing more nor less than a claim to a right to inflict suffering on innocent persons in order to gain your own ends. That is a state of affairs which cannot be tolerated in a civilised community. If two men should quarrel and come to fisticuffs in the street - or two gangs of men - so that the people in the neighbourhood are put in trouble and distress, we should all say at once that they should not seek to resolve their quarrels by coming to blows, but should take them before the courts of law. So also with disputes between unions or between a group of men and the union to which they belong. They should be resolved, not by force of arms or force of strikes, but by some impartial person or persons in whom the people at large have confidence. It is unthinkable that professional men such as doctors or teachers should so far forget their duty to the public as to go on strike: or even that farm workers should forget their duty to their animals. So also it should be with dockers or seamen who have an equally high duty to the community. So long as there is no impartial tribunal available, there may be no alternative. A strike may be the only way in which they can get justice. For over a hundred years that has been the case. It is the reason why we have recognized the right to strike as we have. But, at the present day, in a civilised community these trade union disputes should be settled by an impartial tribunal as a matter of course just as other disputes are settled by the courts.”

         

        How true are the words of Lord Denning today. His sentiments and views have now been incorporated in the form of legislation in Fiji. As he said, the continuance of the strike such as the present, “cannot be tolerated in a civilized community” in the light of the provisions of the Sugar Industry Act (Cap 206) which provides, inter alia, for the setting up of a Tribunal to settle disputes.

         

        The course expected by the Union as to the method to be adopted for the hearing and determination of the dispute will mean that the strike will be continued indefinitely with the Union being oblivious of its consequences; one of the dire consequences will be that the Nation will be brought down to its knees with crippling effect let alone killing the goose that lays the golden egg by forcing the Sugar Mills to be kept closed - and no doubt eventually the workers in the industry will be digging their own graves.

         

        My interpretation of the Act is, and I have no doubt about it, that to avoid this stand and this very type of situation which has arisen in this case that this far- reaching piece of legislation came into being to govern all aspects of the Industry and giving, inter alia, the Tribunal the widest possible powers about which I will have something to say a little later. The preamble to the Act is worth noting and it is as follows:

         

        “An Act to make provisions for the establishment of the Sugar Commission of Fiji, the Sugar Industry Tribunal, the Sugar Cane Growers’ Council and the mill area committees; for prescribing by a master award of the Sugar Industry Tribunal standards provisions governing the mutual rights and obligations of canegrowers and the Corporation; for determining the basic allotments of cane and the harvest quotas of cane and sugar; for promoting the efficiency and development of the Sugar Industry and the coordination of the activities of all sections of the Sugar Industry; and for promoting good relations between all sections of the Sugar Industry.”

         

        It is the Court’s function to interpret the relevant provisions of the Act to see if the power such as the one exercised by the Tribunal existed. That is the issue before me.

         

        At the outset as I have already said no one is taking away the Union’s right to strike. But it must not be forgotten that there are restrictions on industrial action (vide Part 8 of the Act in sections 97 and 98). A strike is an industrial action and is defined in Section 97(1)(a) of the Act. The Act makes adequate provisions not only restricting an industrial action but provides for its control. One of the ways in which the legislature has done this is by giving very wide powers to the Tribunal as outlined hereafter.

         

        Most of the powers are contained in s105. The Tribunal, inter alia; may “make an award (including a provisional or interim award)” or “give a direction in pursuant of the hearing and determination” (s105(1)(b)); generally give directions (referred to earlier) (s105(1)(m)).

         

        I have already referred to s105(2) which deals with matters in dispute affecting public interest when the Tribunal has to have regard to the state of the national economy.

         

        As to the extent of the Tribunal’s powers the Court of Appeal has in the said Civ. App. 74/86 dealt with quite extensively. Certain passages have already been referred to hereabove by Mr. Sweetman.

         

        In 74/86, although there is no specific provision in any of the sections pertaining to reinstatement, the Appeal Court held that the Act vests the Tribunal “amplitude of power which must be deemed to include the power of reinstatement”. Similarly, in the case before me he had ample power to make the order he did.

         

        Even s117 (quoted hereabove) provides that the Tribunal “shall not be restricted to any specific relief” but “may include in the award any matter or thing” which he thinks “necessary or expedient”. In fact as the Court says “this is a section which gives ample powers to the Tribunal to enable it to settle industrial disputes”

         

        As was the case in 74/86, the certificate of dispute here gives the Tribunal the jurisdiction to hear the dispute and he is obliged in law under s105 particularly, to hear and determine the dispute. The said s105(2)(a) provides:

         

        “(a) carefully and expeditiously hear, inquire and investigate the matters in dispute and all matters affecting the merits of the case and the just settlement of the matters in dispute;”

         

        In 74/86 in the case of reinstatement the court stated that “if it is necessary to order reinstatement in order to enable the just settlement of the matters in dispute, the Tribunal is required to order accordingly. It is a matter entirely for the Tribunal”. Similarly, by analogy in this matter the Tribunal had ample powers to make the Order it did although no specific words in so many words were used in any of the provisions of the Act. There is no need for specific power in that regard to be spelt out as the Appeal Court has said that “one also finds various other sections of the Sugar Industry Act by which powers are conferred on the Tribunal to intervene in crucial situations in other sphere when a crisis or impasse is reached”. This is one such case where the Tribunal should exercise the powers vested in him and he did it quite rightly and justifiably.

         

        On the Tribunal’s powers under the Act the Court concluded by stating that “there is no reservation whatever of any kind” and that “there is no limitation imposed by the Act on the Tribunal as to its powers of settling disputes in the interests of the Sugar Industry.”

         

        I agree entirely with Mr. Sweetman’s submissions on Tribunal’s powers and I hold that he had the necessary powers to make the Order which he made and which is the subject of this Appeal. I reject Mr. Nagin’s arguments altogether as devoid of any merits and unsupported by any authority; Pain J whose judgment was referred to did not decide on this issue and one cannot make the deductions which Mr. Nagin is making from that decision.

         

        To conclude, in the light of the provisions in the Act referred to hereabove and on the authority of Civ. App. (F.C.A.) 74/86 I hold that the Tribunal had ample powers to make the Order such as the present for members of the Union to return to work pending the hearing and determination of the dispute particularly with the view to the just settlement of the matters in dispute.

         

        For those reasons the Appellant fails in its second (the only) ground of Appeal and I hold that the Tribunal did not exceed his jurisdiction when he made the said Order for members to return to work.

         

        Therefore, the appeal is dismissed and under s123(6) of the Act I make the following Orders:

         

        (a)        I confirm the award appealed against except that the workers are now ordered to return to work by 11.00 p.m. Tuesday 5 August 1997 pending the hearing and determination of the dispute.

         

        (b)        I further order that the matter be now called before the Tribunal for mention at the Office of the Permanent Arbitrator on Wednesday 6 August 1997 at 10.00 a.m.

         

        (c)        The Order of Stay of Proceedings by the Tribunal dated 24 July 1997 is ordered to be uplifted to enable him to proceed to hear and determine the dispute.

         

        (d)        I award costs of the Appeal against the Appellant which is to be taxed unless agreed.

         

        Rider

         

        Finally, before I depart from this judgment, if you will allow me to say so, what I have said should not be taken as a win or loss for either party.

         

        The Union had the right to come to Court, it has made its point.

         

        As a former trade unionist and a Congress member (1961) I say this, that the workers have their own hopes and aspirations and they are entitled to fight for better working conditions and facilities and therefore it behoves the employers to give due and prompt consideration to their problems.

         

        I hope from now on good sense and reason will prevail on the part of the parties in all future deliberations with or without the assistance of the Tribunal bearing in mind the national interest.

         

        (Appeal dismissed).

Fiji Television Ltd v. Minister for Information, Broadcasting, Television & Telecommunications

        [1997] 43 FLR 164

         

        HIGH COURT OF FIJI ISLANDS

         

        FIJI TELEVISION LIMITED

         

        v.

         

        MINISTER FOR INFORMATION,

        BROADCASTING, TELEVISION

        & TELECOMMUNICATIONS

         

        [HIGH COURT, 1997 (Byrne J) 30 July]

         

        Revisional Jurisdiction

         

        Judicial Review- ministerial decision to revoke public broadcasting licence- whether interlocutory injunctive relief available to stay decision- whether serious question to be tried- High Court Rules 1988 Order 53.

         

        Less than 3 years after it was granted an exclusive licence Fiji Television was advised by the minister that he proposed to revoke the exclusivity provision. Fiji Television sought a stay of the revocation pending judicial review of the decision. Allowing the application and granting the stay the High Court HELD: (1) that the circumstances were sufficiently exceptional to warrant the relief being granted and (2) that there were serious legal questions of public interest to be tried.

         

        Cases cited:

         

        American Cyanamid v. Ethicon Limited [1975] A.C. 396.

        Campbell Discount Co. v. Bridge [1961] 1 Q.B. 445.

        Francome v. Mirror Group Newspapers Ltd. [1984] 1 WLR 892.

        Kaiseipo v. Minister of Immigration ( HBJ0025 of 1995S)

        M. v. Home Office [1993] 3 All E.R. 537; [1993] 3 WLR 433.

        NTN Pty Ltd. v. The State (1986) PNGLR 167.

        R. v. Inland Revenue Commissioners ex-parte Rossminster Ltd.

                    [1980] A.C. 952.

        Smith v. Inner London Education Authority [1978] 1 All E.R. 411.

        State v. Governor of Reserve Bank of Fiji ex-parte Reddy’s Enterprises

                    Limited - 36 FLR 168

        Taylors Fashions Ltd. v. Liverpool Trustees Co. (1982) 1 Q.B. 133.

        Wallis Son & Wells v. Pratt & Haynes [1910] 2 K.B. 1003.

         

        Interlocutory application in the High Court.

         

        J. Howard for the Applicant

        N. Nand and E. Walker for the Respondent

         

        Byrne J:

         

        Introduction and Background:

         

        This application for an interim injunction and judicial review raises important questions of public and constitutional law concerning whether an interim injunction can be granted against the Government of Fiji restraining it through, in this case, the Minister for Information, Broadcasting, Television & Telecommunications from unilaterally rescinding a contract freely entered into with another person (in this case the Applicant) on the grounds of public policy and that the contract is in breach of the Fair Trading Decree 1992.

         

        The contract here is a Licence, granted pursuant to Part II of the Television Decree 1992 to establish, operate and maintain a commercial television broadcast system for the purpose of providing free to air and pay television broadcast services to all points in Fiji. The Licence, which was effective from 1st July 1994, is an exclusive Licence for a period of 8 years (minimum) to 12 years (maximum), unless the Licence is revoked or suspended. The person granting the Licence was the former Minister for Information, Broadcasting & Telecommunications acting on behalf of the Government of Fiji. The public policy said to be involved is the recent policy of deregulation announced by the Minister for Finance in his Budget address to Parliament last year. I shall refer later in more detail to this policy when commenting on a letter dated 23rd May 1997 by the Respondent to the Applicant and an affidavit by the present Minister for Information, Broadcasting, Television & Telecommunications (“the Minister”) sworn and filed on the 18th of July 1997.

         

        The provision of the Fair Trading Decree which the Respondent alleges is contravened by the Licence is Section 27 which appears in Part III of the Decree under the heading “Restrictive Trade Practices”. Because of its importance to the present proceedings I set out in full Section 27:

         

        “Contracts, arrangements or understandings restricting dealings or affecting competition.

         

        1.         If a provision of a contract -

         

        (a)       is an exclusionary provision; or

         

        (b)       has the purpose, or has or is likely to have the effect, of substantially lessening competition, that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person.

         

        2.         A person shall not -

         

        (a)       make a contract or arrangement, or arrive at an understanding, if -

         

        (i)         the proposed contract, arrangement or understanding contains an exclusionary provision; or

         

        (ii)        a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

         

        (b)       give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision -

         

        (i)         is an exclusionary provision, or

         

        (ii)        has the purpose, or has or is likely to have the effect, of substantially lessening competition.

         

        3.         For the purposes of this section and section 28 “competition”, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a person that is a party to the contract,         arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any             body corporate related to such a person, supplies or     acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services.”

         

        Facts

         

        The following facts are not in dispute between the parties:

         

        Following the granting of the licence to the Applicant in what the Applicant describes as a form of “legislation by press release”, the Respondent first announced his intention with respect to this matter by a press release of 15th April 1997 which advised of the Government’s intention to issue a separate pay television licence to the joint venture known as Fiji Vision Limited.

         

        Clauses 2.1 and 2.2 of the licence read as follows:

         

        “2.1     This licence shall be valid for a period of fifteen years pursuant to Clause 16 of this licence.

         

        2.2       During the fifteen year validity period the licence shall,

         

        unless revoked or suspended be exclusive for a period of eight years and up to a maximum period of twelve years.”

         

        By a letter dated 18th April 1997, the Respondent gave notice of his intention to revoke the exclusivity provision contained in Clause 2.2 by writing a letter in the following terms to the Applicant:

         

        “I refer to the Television Broadcast Licence granted pursuant to Section 4 of the Television Decree 1992 and in particular to the term of the licence as provided in paragraph 2. Paragraph 2.2 provides that Fiji Television Limited is to have a 15 year licence, to be exclusive for a period of 8 years and up to a maximum period of 12 years. The proviso in paragraph 2 allows for revocation or suspension of this exclusive period. This is further reinforced in Section 8 of the Television Decree 1992.

         

        I have carefully given due consideration to the exclusivity provision in the licence and am mindful of the public interest and the provisions of the Fair Trading Decree 1992 on the issue of exclusivity and hence intend to revoke the exclusive provision in your licence.

         

        Therefore, in keeping with the requirement of Section 8(2) of the Television Decree 1992, you are given 14 days notice of my intention to revoke this condition as stated above.”

         

        On 28th April 1997 the Applicant protested at the purported notice of revocation and sought to present submissions to the Respondent. The Respondent allowed the Applicant seven days for this purpose, and submissions on behalf of the Applicant were lodged with the Respondent on 9th May.

         

        By a letter dated 23rd May 1997, the Respondent confirmed the revocation of the exclusivity of the licence in the following terms:

         

        “1.         I am satisfied that the exclusive provision in your licence is in breach of section 27 of the Fair Trading Decree.

         

        2.          I am satisfied that the exclusivity provision in the licence falls foul of Government’s policy. It is common knowledge that Government has embarked on a policy of de-regulation. General policy announcements to this effect was made in last year’s budget and discussed and agreed to in Cabinet. The policy entails liberalising the economy. The policy further includes the removal of protection on certain goods and services, reducing the range of goods currently under price control, and increasing the degree of competition where this is restricted in the economy, whether in public enterprises or in the private sector. The enhancement of competition is a key element in this policy. The policy is aimed towards the consumer. The public will be a beneficiary in that a wide range of products will be more affordable, the choice range will be bigger, better quality goods and the service will be more efficient.

         

        3.          On the issue of compensation, I do not see the need for me to meet with you as I do not propose to make any payment in that respect.

         

        Therefore, in exercise of the powers vested in me under section 8(1) of the Television Decree 1992, I revoke the exclusivity provision contained in paragraph 2.2 of the Television Licence dated 24 June, 1994. This therefore means that as from the date of this letter the 8 years exclusive period and up to a maximum of 12 years contained in your Licence is hereby revoked forthwith.”

         

        The Legislation:

         

        The grant of television broadcasting Licences is governed by the Television Decree 1992. By Section 3, the Government has the “exclusive privilege” of, inter alia broadcasting any “broadcast matter” by television in Fiji.

         

        The term “broadcast matter” is defined in section 3 to mean any signals transmitted by a television station for aural and visual reception. “Television station” is defined to mean a station which transmits broadcast matter by radio waves, wire or cable for reception by the general public through television broadcast receivers.

         

        Section 4(1) prohibits broadcasting without a Licence in the following terms:

         

        “No person shall broadcast any broadcast matter by television in Fiji except under or in accordance with a Licence granted under this Part.”

         

        Licences themselves are created under Section 4(3) and (4), which provide:

         

        “(3)      Every such Licence shall be in such form, and may contain such terms and conditions as the Minister may determine.

         

        (4)       In granting a Licence under this Part, the Minister may require the licensee to pay a premium for the issue of the Licence or such annual fee, rent or royalty as the Minister may determine.”

         

        By section 7, a Licence “shall be subject to such conditions as may be endorsed therein and shall, unless sooner revoked or suspended, be valid for a period not exceeding twelve years from the date of the granting or issue of such Licence” or such shorter period as may be specified in the Licence.

         

        By section 9 of the Decree, the Minister has the power to “suspend or revoke a Licence” where he is satisfied of the existence of one of the specified grounds, namely:

         

        -           the licensee has failed to pay an amount specified in the Licence;

         

        -           the licensee has failed to comply with the provisions of the Decree;

         

        -           the licensee is no longer a fit and proper person to hold the Licence;

         

        -           the licensee no longer has the financial, technical and management capabilities necessary to operate the broadcasting station;

         

        -           the licensee has failed to comply with a direction given by the Minister;

         

        -           the licensee has failed to comply with the conditions specified in the Licence;

         

        -           “it is advisable in the public interest, for a special reason, to do so”.

         

        Before suspending or revoking a Licence the Minister must give a notice of his intention, and allow the licensee to show cause why the Licence should not be suspended or revoked.

         

        The Applicant’s Licence:

         

        I repeat briefly what I said at the beginning: In 1994, the Applicant was granted a television broadcasting licence (“the Licence”). The final form of that Licence was submitted to the Applicant under cover of a letter from the Respondent’s Department dated 5 January, 1995. The Licence, by clause 20, was deemed to come into effect on 1 July, 1994.

         

        The operative part of the grant of the Licence is in the following terms:

         

        “Pursuant to section 4 of the Television Decree... there is hereby granted to Fiji Television Limited (“the company”) a Licence to establish, operate and maintain a television broadcast system for the purpose of providing by means of that system television broadcast services to any and all points within Fiji.”

         

        The terms “broadcast matter” and “television station” have the same definitions in the Licence as they do in the Decree: clause 1.

         

        I have already set out clause 2.

         

        Clause 16, which is referred to in clause 2.1, provides that the Minister may revoke the licence and any permission conferred on the licensee by the Licence in any of the following events:

         

        -           the winding-up of the licensee;

         

        -           the unauthorised transfer by the licensee of the Licence or any of the permissions granted under the Licence;

         

        -           the contravention of the Licence, and the licensee has failed to rectify such contravention after notice in that regard.

         

        The exclusive nature of the Licence for commercial broadcasting is reinforced by the provisions of Clause 10, which provides that nothing in the Licence shall affect the Government’s right to establish or cause to be established and operated any television system for:

         

        -           any Government purposes of a non-commercial nature, and

         

        -           experimental purposes of a temporary nature.

         

        Clause 3 provided for the payment by the Applicant of an annual Licence fee. This Licence fee is subject to adjustment - Clause 3.2.

         

        The services to be provided by the Applicant under the Licence were set out in Clause 4 in the following terms:

         

        “The Company shall provide one national free-to-air service and up to a maximum of four pay television channels.”

         

        Injunctive Relief:

         

        On 2nd June 1997, the Applicant filed its application for leave under Order 53 of the Rules of the High Court to apply for Judicial Review of the Respondent’s decision purporting to revoke the exclusivity of the Applicant’s Licence. At a brief interim hearing before me on 4th June, 1997 the learned Acting Solicitor-General very sensibly in my view informed me that the grant of leave would not be opposed. In my view this is realistic because I consider that this is an appropriate case for the grant of leave.

         

        Pending the hearing and determination of the Judicial Review proceedings, a date for which has not yet been fixed, the Applicant seeks interlocutory injunctive relief to restrain the Respondent from issuing or granting or giving effect to a decision to grant any Licence under the Decree to any person other than the Applicant.

         

        Although I suggested to counsel that, because leave was not opposed, I would grant a stay of the Respondent’s announced intention to issue another licence to Fiji Vision Limited, the Applicant preferred to proceed with its motion for an interim injunction and as that course was open to it, I did not demur.

         

        As usual when Mr. Howard and the Acting Solicitor-General appear in this Court I found their submissions to me which occupied a whole day most helpful.

         

        Mr. Howard first submits that this Court has jurisdiction to grant injunctions, including interim and interlocutory injunctions against Ministers and other officers of the State in judicial review proceedings - Kaisiepo v. Minister of Immigration Judicial Review No. HBJ0025 of 1995S - unreported decision of Pain J. of 8th February 1996. In that case Pain J. followed the benchmark decision of the House of Lords in M. v. Home Office [1993] 3 All E.R. 537, [1993] 3 WLR 433, in which the House of Lords made it clear that injunctions, both final and interim, have always been and still are available against Ministers and officers of Government empowered in their own names, although as Lord Woolf, who delivered the major speech on behalf of his brother Law Lords, said at p.564 (1993) 3 All E.R.; p.463 (1993) 3 WLR:

         

        “The fact that, in my view, the court should be regarded as having jurisdiction to grant interim and final injunctions against officers of the Crown does not mean that that jurisdiction should be exercised except in the most limited circumstances. In the majority of situations so far as final relief is concerned, a declaration will continue to be the appropriate remedy on an application for judicial review involving officers of the Crown. As has been the position in the past, the Crown can be relied upon to co-operate fully with such declarations.”

         

        The question I have to decide is whether the facts of this case as they are so far known constitute “most limited circumstances”, to enable the Applicant to be granted the relief it seeks.

         

        It was submitted to me by counsel for the Respondent that this Court should exercise great care in following M. v. Home Office on the ground that the Court should exercise the power given to it only in extreme circumstances because, he alleged, the grant of injunction is peculiar to immigration, and in particular to deportation cases and should be used as a last resort.

         

        I consider that statement too wide because although M. v. Home Office was an immigration case and urgent in the sense that an attempt was made, unsuccessfully as it transpired, to prevent deportation of M. from England to Zaire, I do not read the House of Lords saying in its decision that its parameters were to be so constrained.

         

        Although in practice both here and in England and no doubt elsewhere immigration cases will generally be those calling for urgent injunctive relief, nevertheless I consider there is no justification for so limiting the decision in M.

         

        Since the House of Lords pronounced its judgment in American Cyanamid v. Ethicon Limited [1975] A.C. 396 the decision has been recognised in common law countries where decisions of the House of Lords are followed as setting out the guidelines which are to be followed by Courts in deciding whether or not to grant interlocutory injunctions. These are that the Court must:

         

        (a)        be satisfied that there is a serious question to be tried; and

         

        (b)        to determine where the balance of convenience lies.

         

        It has been said that the real significance of the decision in American Cyanamid is that whereas previously a party seeking injunctive relief would fail if he could not establish a prima facie case, the House of Lords swept away this requirement and held that, in the case of prohibitory injunctions, an Applicant need establish only a real possibility of success, and not a probability. As the learned authors of Snell’s Equity 29th Edition 1990 remarked at p.661:

         

        “This meant that the balance of convenience, which had always been an important factor, became decisive in many more cases, since the initial hurdle in the plaintiff’s path had been lowered.”

         

        Lord Diplock who delivered the judgment of the House said at [1975] A.C. 406:

         

        “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need for the defendant to be protected against the injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at trial. The court must weigh one need against the other and determine where the balance of convenience lies.”

         

        Whilst in Francome v. Mirror Group Newspapers Ltd. [1984] 1 WLR 892 at p.898, Lord Donaldson M.R. said the phrase “balance of convenience” was unfortunate and he preferred the expression “balance of justice” because the business of the courts is justice, not convenience, nevertheless for practical purposes there is probably little difference. He then said, “We can and must disregard fanciful claims by either party”.

         

        In his submission Mr. Nand argued that in public law cases such as the present, the wider public interest needs to be weighed against that of narrow private individual rights and he referred me to the statement of Mr. Clive Lewis in his book Judicial Remedies in Public Law 1992 at p.205 that:

         

        “There is doubt as to the applicability of the American Cyanamid test to public law disputes as they are not like ordinary litigation. The Courts need to balance not only the interests of the immediate parties to the application but also the wider public interest in the matter.

         

        Doubt has also been cast on the applicability of American Cyanamid to cases where the dispute is one of law not facts. The rationale underlying the case is that disputed questions of fact ought not be resolved at the interlocutory stage......... Lord Diplock also stated that difficult questions of law should not be determined at the interlocutory stage. Most judicial review applications involve questions of law and cross examination is in any event rare. The Courts may therefore be less reluctant to come to a view on the merits of the case on the basis of affidavit evidence alone at an interlocutory stage in a review application.”

         

        I note here that Mr. Lewis’ book was published in 1992 before the decision in M. v. Home Office.

         

        In the 6th Edition of his Administrative Law at p.588 Sir William Wade refers to the English Crown Proceedings Act 1947 which is identical with the Crown or State Proceedings Act 1978 Cap. 24 of Fiji and criticises the fact that the Act forbids an injunction being granted against the Crown but allows the Court to make an order declaratory of the rights of the parties. It had been held in R. v. Inland Revenue Commissioners exp. Rossminster Ltd [1980] A.C. 952 that the Act authorises only a definitive order corresponding to a final injunction and not an interim order corresponding to an interim injunction. Sir William Wade says:

         

        “There seems to be no necessity for this narrow interpretation of the Act which is contrary to its policy of putting the Crown on the same footing as a private litigant.”

         

        The Applicant submits that there is a serious question to be tried and again, with commendable candour, Mr. Nand on p.7 of his written submission states:

         

        “In the present case it is without doubt that there are serious questions of law to be tried, which should done at the substantive hearing, after the Court has had an opportunity of hearing the views of the Minister for Information, Broadcasting, Television and Telecommunications.”

         

        He then says that once directions are given by this Court for the substantive hearing, the Minister will file an affidavit giving his reasons. This as I said at the beginning has now been done and the Minister gives his reasons in paragraph 7 of his affidavit. He first says that after receiving Fiji Television’s submissions, he took all relevant facts into consideration and in particular the Fair Trading Decree of 1992. He then says:

         

        “The Fair Trading Decree as the name suggests is designed to promote fairness in all trading practices. I am informed by my legal counsel that the exclusive nature of the licence is in breach of section 27 of the Fair Trading Decree. I took fully into account the submissions of Fiji Television Limited weighing as a value judgment the commercial interests of Fiji Television against the Government’s policy considerations and its impact on the wider public interest. In making my decision as the Minister responsible, I took into account all relevant matters pertaining to the issues to be considered. That in making my decision, I took into account that the policy is designed to attract investment, and restrictions such as exclusive licences would send wrong signals to potential investors. Furthermore, since the licence itself is in breach of the Fair Trading Decree, its continuation in that form would again send the wrong signals to potential investors, that the Fiji Government is not serious about enforcing its own legislation. With such matters in mind I revoked the exclusivity provision contained in paragraph 2.2 of the Television licence.”

         

        I agree that these are serious issues but in my opinion the list should be much longer. In my opinion this case gives power to raise for example the principle of unconscionability in that it seems arguable to me at least that here the Court is entitled to consider the conscience of the Respondent. In Campbell Discount Co. v. Bridge [1961] 1 Q.B. 445 at 459 the Court said that it was not part of the role of the Court to dissolve or vary contracts thought to be harsh on the basis of so-called equitable principles. It has been said that its role is to prevent the Defendant (in this case I substitute Respondent) from insisting on his strict legal rights, when owing to his behaviour it would be unconscionable or inequitable to allow him to do so - Taylors Fashions Ltd. v. Liverpool Trustees Co. [1982] 1 Q.B. 133 at pp 151, 152, 155 per Oliver J. (as he then was).

         

        Another serious question appears to me to be the apparent incongruity of the Respondent through its previous Minister granting the Applicant a Licence and accepting all fees payable thereunder even until now and then asserting, as the present Minister now does, that from the very beginning the Licence contravened the Fair Trading Decree.

         

        If the Court is later to accept the Minister’s claim that the Licence is contrary to the Decree then it seems that the only inference the Court can draw is that at all times, at least until the Minister’s letter of 23rd May 1997, the Respondent condoned such breach and arguably did nothing to dissociate itself from what it now claims is a clear breach of the law.

         

        The Acting Solicitor-General submits, quoting dicta by Lord Denning M.R. and Geoffrey Lane L.J. in Smith v. Inner London Education Authority [1978] 1 All E.R. 411 that public bodies should not be prevented from exercising public law powers unless the applicant can establish that the person or body is acting unlawfully. In the same case Browne L.J. said at p.422 that where the defendant is a public authority performing duties to the public one must look at the balance of convenience more widely and take into account the interests of the public in general to whom these duties are owed.

         

        I agree, with respect, but in my judgment the general public also has an interest in seeing that Ministers of State behave fairly at all times and not unreasonably. It seems to me arguable that the public here may consider that the Minister’s decision in revoking the Applicant’s Licence contradicts that principle. It would appear that until the Minister’s letter of 23rd May nothing had been heard of the Fair Trading Decree as far as this Licence was concerned.

         

        In NTN Pty Ltd. v. The State (1986) PNGLR 167 at 176 the late Chief Justice of Papua New Guinea, Kidu C.J. said:

         

        “I am astounded that the State, after entering into a contract which is very clearly worded, would now renege on it.”

         

        It is true that the facts of this case are different from those in NTN Pty Ltd but it seems to me at least arguable that the Respondent and the Government of Fiji is attempting to do here the very thing which Sir Buri Kidu condemned in NTN.

         

        It is also curious at least in my view that Papua New Guinea with a population of 4.9 million at its last census should have only one commercial television station whereas it is proposed that Fiji with a population of only 770,000 should be seriously considering having two such stations.

         

        When during argument I suggested to Mr. Nand that in the circumstances of this case it may have been prudent even if he were not legally bound to do so, for the Minister to have warned the public that the Government was about to invoke the Fair Trading Decree when the Applicant announced its intention to make a share issue to the public, Mr. Nand replied that in his view the onus was not on the Minister but on the company itself. This may be true and of course I make no final decision at this stage, but given the fact that the Minister must be regarded as the guardian of the public interest, it appears somewhat strange that the Minister should say nothing to the public as its guardian when he must have known that the Applicant was going to make a share issue.

         

        The Respondent submits that this Court should be very wary in making any finding, even an interim one, which questions the Minister’s discretion based on public policy and he reminds me of my decision in State v. Governor of Reserve Bank of Fiji ex-parte Reddy’s Enterprises Limited 36 FLR 168 - subsequently upheld by the Supreme Court. I make two comments on this. First, as I pointed out in argument the facts and the circumstances in the Reddy’s Enterprises case were noticeably different from those in the instant. In Reddy’s Enterprises the Governor of the Reserve Bank was concerned to retain as much currency in Fiji as possible as a consequence of the military coups of 1987 which I likened to the position in England in 1947 following the Second World War.

         

        As a general principle it must be accepted that the Courts will normally not interfere in matters regarding government policy but it seems to me arguable that the Courts may question the timing of the assertion and implementation of government policy in particular cases.

         

        In paragraph 7 of his affidavit previously quoted the Minister says:

         

        “Since the licence itself is in breach of the Fair Trading Decree, its continuation in that form would again send the wrong signals to potential investors, that the Fiji Government is not serious about enforcing its own legislation.”

         

        That may be true but I may be pardoned for wondering whether wrong signals to potential investors might not also be given if they were to come to know that this Government entered into a licence agreement granting exclusive rights to one person when it must have known that to do so contravened the Fair Trading Decree, yet less than 3 years later the Government alleged that not only the person to whom it granted the licence but also itself were at all times acting in breach of the Decree.

         

        Finally there is a particularly important serious question to be tried in my view in addition to those I have so far identified namely the fact that it appears by his letters of 18th April and 23rd May 1997 that the only basis on which the Respondent has purported to revoke the exclusivity of the Licence is by relying on Section 8 of the Decree. However Section 8 on its face only empowers the Respondent to “vary or revoke any of the conditions upon which the licence is granted...... or impose further conditions”.

         

        The Applicant submits that the exclusive quality of the Licence is not a “condition upon which the Licence” was granted, and is therefore not susceptible to revocation under Section 8. It is submitted that the word “condition”, when used in contract law is often synonymous with the word “term”, and the two are often used interchangeably. In the Decree, however it is submitted there is clear differentiation between the two words, they are both used in Section 4(3), yet Section 8 refers only to condition. In Wallis Son & Wells v. Pratt & Haynes [1910] 2 K.B. 1003 at 1012 Fletcher Moulton L.J. said that condition and term “go so directly to the substance of the contract or, in other words, are so essential to its very nature that their non-performance may fairly be considered by the other party as a substantial failure to perform the contract at all”. The Applicant says that it intends to argue at the trial that the word “condition” under Section 8 is used in this sense, i.e. it refers to the terms of performance imposed on the Applicant by the Licence, breach of which would give rise to a right in the Respondent to move for termination or, as here, revocation of the Licence.

         

        It is contended that this interpretation is reinforced by the following words in Section 8, namely that the Minister has the power unilaterally to impose further conditions. Therefore, it is submitted the grant of exclusivity is not a “condition” and cannot be revoked by Ministerial order.

         

        I agree that this too, is a serious question requiring further debate at the trial.

         

        Other such questions and issues are set out on pages 9 and 10 of the Respondent’s written submission such as,

         

        (a)        whether there is any evidence to show that the exclusivity provision in the licence was what led to the company establishing a television service in Fiji when it was the Government’s intention at the time to set up a television service with or without an exclusive licence;

         

        (b)       there is no evidence that $2m in capital was subscribed by the public and that the exclusive nature of the licence was what caused the public to subscribe;

         

        (c)        that the potential loss to the public will be millions of dollars as claimed by the Applicant.

         

        The remaining question is whether the Applicant would be adequately compensated by an award of damages if I were to refuse its application for an interim injunction. The material before me persuades me that arguably it would not. I am presently of the view that it may be impossible even to calculate such damages. The Applicant submits that if a competitor television station is allowed to operate the Applicant will most likely have to withdraw from the pay television market in which case the likely loss of value to individual shareholders on their shares cannot be adequately compensated by an award of damages or even calculated at this time. There is nothing in the present material to persuade me that the Respondent will suffer any loss if I preserve the status quo pending trial.

         

        It will be noted that the Minister in his letter of 23rd May stated that he did not see the need to meet with the Chairman of the Applicant to discuss the question of compensation because he said:

         

        “I do not propose to make any payment in that respect.”

         

        He may be right (he certainly appears very confident) but again in my view this is yet another serious question which must be tried.

         

        For these reasons I consider the Applicant is entitled to the interim relief which it seeks in its Notice of Motion of 3rd June 1997. I therefore order that pending the determination of the application for Judicial Review the Respondent be restrained from issuing or granting or giving effect to a decision to grant any licence under the Television Decree, 1992 to any person except the Applicant. Costs of this application will be in the cause.

         

        (Interlocutory injunction in favour of the Applicant).

Francisco Cantila v. The Director of Immigration

        [1997] 43 FLR 6

        HIGH COURT OF FIJI ISLANDS

         

        FRANCISCO CANTILA

         

        v.

         

        THE DIRECTOR OF IMMIGRATION

         

        [HIGH COURT, 1997 (Lyons J) 2 January]

         

        Civil Jurisdiction

         

        Immigration- unlawful immigrant- whether stay order available against the State pending Judicial Review of removal order- Immigration Act (Cap. 88) Sections 8, 11, 14 & 18; High Court Rules 1988 O 53 r 3 (80 (a).

         

        Judicial Review-availability of stay order against the State. Crown Proceedings Act (Cap 24) Section 15- High Court Rules 1988 O 53 r 3 (8) (a).

         

        The Applicant, whose permit to remain in Fiji had expired, sought Judicial Review of the order to remove him. The High Court dismissed the application on the merits and HELD: that the State is not exempt from a stay granted under the provisions of Order 53 of the High Court Rules 1988.

         

        Cases cited:

         

        Epeli Lagiloa v. PSC & Ors HBJ 16/1994S

        Estrella Trufil & Ors v. The Director of Immigration HBJ0013/95L

        Factortame Ltd & Ors v. The Secretary of State for Transport [1989] 2 All ER 692

        In Re M (M v. Home Office) [1993] 3 All ER 537

        R v. Secretary of State of Education & Science ex parte Avon CC [1991] 1 All ER 232

        Viktar Kaisiepo v. Minister of Immigration HBJ 25/1995S

         

        Samusamuvodre for the Applicant

        Ms G. Phillips for the Respondent

         

        Lyons J:

         

        On the 21st August 1995, the Applicant filed a Summons for Judicial Review in respect of the Respondent’s decision to compel his removal from the country.

         

        On the 17th August 1995, the Applicant was granted leave by me to bring the above summons.

         

        As a mandatory corollary to the granting of leave (as Certiorari was sought) I ordered a stay of proceedings until the final determination of this matter.

         

        The Respondent opposes the Judicial Review and by way of Notice of Motion filed the 30th November 1995, seeks to have the stay set aside.

         

        As the matter transpired, all issues raised herein were listed for hearing on the 3rd May 1996. At the same time the Judicial Review HBJ0013/95L (Estrella Trufil & Others v. The Director of Immigration) was heard due to the similarities in the applications. The judgment in TRUFIL’s case will be delivered separately although the reasons will bear upon such similarity.

         

        FACTS:

         

        The Applicant arrived in Fiji on the 13th February 1995. He originally entered the country on a visitor’s permit but admits that his intention in coming to Fiji was to work for GHIMLI FASHIONS LIMITED (GHIMLI) a garment manufacturer.

         

        On arrival in Fiji he was processed through Immigration and eventually was picked up from the Airport by a factory employee. He commenced work the following day.

         

        On the 20th March 1995 the Applicant was granted a work permit to work for GHIMLI, valid until 14th September 1996. In view of the fact that the Applicant entered Fiji on a visitor’s permit but with the express (and admitted) intention to work here, the granting of work permit could perhaps be seen as a most generous concession by the Respondent.

         

        Be that as it may, a dispute arose between the Applicant and his employer (GHIMLI) such that on the 31st July 1995 his services were terminated. On being informed of this, the Respondent took the view that the Applicant’s permit had thus expired due to the cessation of work, and sought to have him removed from the country. As I shall later reason, I consider this to be a correct assessment of the situation. At the very best for the Applicant, his right to reside in Fiji would have ceased, if not on cessation of the work, then on the 14th September 1996. The Applicant does not ascribe to this view and has remained in Fiji.

         

        The Applicant claims a dispute for unpaid wages with GHIMLI and presumably wishes to remain in Fiji whilst this is pursued. There is nothing in the material before me which would lead me to conclude that he has started court action in respect of this alleged claim.

         

        The first matter to be dealt with is the correctness of my decision to stay the original Decision of the Respondent to deport the Applicant pending resolution of this matter. This stay was incorporated in my Order of 17th August 1995.

         

        This issue centres on the effect of S.15 of the Crown Proceedings Act (Cap 24) as opposed to the mandatory ordering of a stay which springs from 0.53 r.3 8(a) of the High Court Rules. Leave having been previously granted by me to apply for Judicial Review, and such leave including an order for Certiorari, a stay of the proceedings under review must, by imposition of 0.53 r.3 8(a), must follow.

         

        The question is put thus: does the Court have a power to order a stay in proceedings where the Crown is the party effected by the stay order? It is argued that as S.15 Of the Crown Proceedings Act precludes injunctive orders against the Crown, then a stay under 0.53 r.3 (8) (a), being similar relief is similarly precluded.

         

        The argument in this aspect centres around whether a stay of proceedings is the same as an injunction.

        Events in this matter transpired to a point where, in the outcome of my decision on the substantive relief sought, it is probably unnecessary for me to consider this point. I do so for completeness and so as to contribute to the debate on this very point. Arguably this is probably an intellectual exercise and I will keep it brief. Perhaps the proper place to test my Decision of the 17th August 1995 is the Court of Appeal but, as I have said, events have by-passed that point.

         

        In respect of this discussion, Counsel have submitted to me the following decisions for my considerations.

         

        (i)      R v. Secretary of State of Education & Science exp. Avon cc (AVON) 1991 1 All ER 232.

         

        (ii)      Factortame Ltd & Others v. Secretary of State for Transport 1989 2 All ER 692.

         

        (iii)     In Re M (M v. Home Office) [1993] 3 All ER 537.

         

        (iv)     Viktar Kaisiepo v. Minister of Immigration (Suva) Judicial Review No. HBJ 25/1995S.

         

        (v)     Epeli Lagiloa v. PSC & Others (Suva) Judicial Review 16/1994.

         

        It is argued before me by counsel for the Respondent that the decision of FACTORTAME should be the preferred law in Fiji. In the House of Lords unanimously felt that, pursuant to English equivalent of S.15 of our Crown Proceedings Act, injunctive relief could not lie against the Crown. This the House of Lords extended to injunctive relief pursuant to the Supreme Court Act 1981 (UK) Section 31 (2) and the RSC Order 53 r. 1 (2) of the English Supreme Court Rules.

         

        The House of Lords further considered Rules 3 (10)(b)of 0.53.

         

        It is worthwhile to note that the House of Lords did not in the FACTORTAME case directly consider the stay of proceedings provided in 0.53 r.3 (1)(a) being the direct equivalent of our 0.53 r.3 (S)(a). This point was seized upon by the Court of Appeal in AVON’s case and, as shall be stated later, a distinction was drawn between a stay and an Injunction.

         

        Counsel for the Applicant argues that the case of Re M should be preferred. In that case the House of Lords reasoned that by S. 31 o f the Supreme Court Act, ( UK ) the legislature had provided for the provision of injunctive relief against all persons (including the Crown) in matters of Judicial Review. It is thus argued that Re H should be the preferred line of authority.

         

        Counsel for the Respondent argues that there is no equivalent to S.31 in Fiji Legislation and thus the FACTORTAME position should be preferred as to Re M, it being clearly distinguishable.

         

        With greatest respect to both counsel I hold the view that a close reading of both of the above decisions fails to properly address the distinction clearly drawn by the Court of Appeal in AVON’s case. Both FACTORMATE and Re M deal directly with injunctive relief. S.31 of the Supreme Act 1981 (UK) refers to Injunctive Relief. Lord BRIDGE in FACTORMATE discusses 0.53 3 (10)(b) which again refers to the injunctive relief provided for generally under 0.53.

         

        In Re M, again, injunctive relief is discussed but Lord WOLF in the leading judgment in that case hints at the distinction between stay and injunction pointed out by the Court of Appeal in AVON’s case. At p.564 Lord WOLF says:-

         

        “I am, therefore, of the opinion that, the language of section 31 being unqualified in its terms, there is no warrant for restricting its application so that in respect of Ministers and other officers of the Crown alone at the remedy of an injunction, including an interim injunction, is not available. In my view the history of prerogative proceedings against officers of the Crown supports such a conclusion.   So far as interim relief is concerned, which is the practical change which has been made, there is no justification for adopting a different approach to officers of the Crown from that adopted in relation to other respondents in the absence of clear language such as that contained in section 21(2) of the 1947 Act. The fact that in any event (my emphasis) a stay could be granted against the Crown under 0.53 r. 3 (10) emphasises the limits of the change in the situation which is involved.”

         

        This, to my mind, confirms the distinction and further confirms that Re M (and FACTORTAME) were discussing injunctions as opposed to a stay of proceedings.

         

        With respect to Counsel, I consider that they have blurred this distinction and that their argument should not have centred on injunctive relief but on the question of a stay order. To that end the reasoning of the Court of Appeal in AVON’s case (notably Lord Justice GLIDEWELL at p.285 - 286) is the leading authority and is the preferred authority in Fiji particularly as that decision relates precisely to the identical English equivalent of 0.53 r.3(S)(a). Even as a question of basic principal, the definitions of stay and injunction supports this distinction, (See HALSBURY 4th Ed. Vol 37 para 437 and Vol. 24 para 901 respectively.

         

        In my view Re M and FACTORTAME are clearly distinguishable in this instance from AVON and have little relevance to the specifics of the matter argued now before me.

         

        I accept immediately that they have a great deal of relevance to O.53 r.1 and O.53 r.3 (8)(b) if injunctive relief is the relevant relief.

         

        As I indicated, I am dealing here with leave which was granted to make an application to Judicial Review where part of the order sought for relief by way of both Certiorari and Prohibition and thus subrule 8 (a) is applicable and it was pursuant to that subrule that the stay of the 17th of August was made.

         

        Thus the application to set aside the stay order is dismissed and I move on to the substantive application for Judicial Review.

         

        In considering the application for Judicial Review I have carefully looked at the submissions put forward on behalf of the Appellant and consider them against the factual matters raised in both the Applicant and the Respondent’s Affidavit. With greatest of respect I am at a loss to find any area where the submissions raised cause for concern about the procedure adopted by the Respondent.

         

        Section 8(1) of the Immigration Act (Cap 88) provides the Permanent Secretary with power to issue work permits and at his discretion and to extend them but only in accordance with directions issued by the Minister. (Section 8 (2)).

         

        There is no doubt that the Applicant’s permit has expired either by cessation of the employment condition with GHIMLI or by the affluxion of time. There has been no extension. There is no evidence before me that the Respondent has failed to exercise his discretion to extend the permit (or that he should so exercise his discretion).

         

        The Applicant is clearly illegally in Fiji with a proper permit. As such he is here unlawfully. (See Section 14).

         

        As he is unlawfully in Fiji, he is also a prohibited immigrant pursuant to Section 11 (2)(a).

         

        Section 15 defines the deportation procedure and, without reading this provisions into this decision, I consider that there is no evidence before me to suggest that the Respondent has not complied with this section.

         

        It seems to me that the Applicant in arguing his plea to the Prime Minister (as annexed to his Affidavit) is, after some fashion, an appeal. Even if this was so, it does not help the Applicant. Section 18 (2) only allows the Permanent Secretary to grant person’s permission to stay in Fiji pending appeal if those persons are not prohibited immigrants. The Applicant is a prohibited immigrant and thus cannot avail himself of the Permanent Secretary’s discretion to remain in Fiji pending an appeal (if that is what the letter to the Prime Minister is meant to be). Thus it is not a question of the Respondent improperly exercising his discretion in this respect. The simple truth is that the Respondent is expressly excluded from acting on the Applicant’s behalf as is suggested.

         

        Quite frankly, I doubt there is a clearer case of a person’s transgressing the Immigration Act. The Applicant’s work permit has expired. The Applicant is a prohibited immigrant and unlawfully in Fiji. There is no provision in the Act to permit the Applicant to stay thus the Applicant can hardly say that he has “a legitimate expectation.” The only way the Applicant can obtain permission to stay in Fiji is, as I say to leave the country and to apply for re-entry.

         

        In respect of the submissions for and on behalf of the Applicant, I do not consider the Respondent has acted outside the procedure. In fact as I see it, it is the Applicant who is asking the Respondent to act outside the procedure and to grant him a permit to reside pending an “appeal” (as he would call it), when there is no power so to do.

         

        In respect of unfairness, I am not prepared to accept that the Immigration authorities should allow a person to reside and continue residing in Fiji pending litigation over another matter. As I say there is no material before me to suggest that the Applicant has even brought action in the High Court and it is my considered view that if I were to rule that as a general principle litigants can stay in a country whilst litigating, a substantial mischief could well be created.

         

        The Applicants submits that the Respondent should have taken into account the fact that an’ appeal had been made to the Prime Minister for assistance and that it was presumably unreasonable for the Respondent not to take this into account. As I have said, even if the plea to the Prime Minister were viewed as an appeal, the Applicant’s status is such that the Respondent is excluded from ‑granting him -permission to remain in Fiji.

         

        The Applicant has also submitted to me that the actions of the Respondent show bias and a denial of natural justice. Whilst the law on this point is recited in the submissions, I say, with the greatest of respect, that I am unable to find any credible link between the evidence and the law. There is no evidence before me on which I could draw any conclusion that the Respondent was biased towards the Applicant because of the dispute with GHIMLI and I decline so to do.

         

        Further the Applicants submits that the Respondent has acted arbitrarily and capriciously and unreasonably. But, save for repeating the law, the Applicant fails to poin.t me in any direction where the evidence supports this submission.

         

        Finally, this submission is put to me that the Respondent acted in ignorance of an established and relevant fact. Presumably this fact has something to do with the relationship between GMIMLI and the Applicant as relates to the pay dispute. I must confess to having some difficulty in understanding the submission in this respect for it is suggested that somehow or other Respondent has denied the Applicant his reasonable legal remedy, presumably against the former employer. I am unable to find any evidence of that, nor even the slightest suggestion in the material. The submission suggests that the legal remedy against the employer is being taken but it seems it has not. I fail to see how the Respondent is stopping him from doing that. In fact the Respondent, by abiding by the stay order has, de facto, given him time to remain here to seek that remedy sought in that Court case - whichever Court it is in.

         

        As I have said before, I am unable to find any evidence of a procedural irregularity such as would attract Judicial Review.

         

        For the above reasons I dismiss the application for Judicial Review.

         

        Further, as I have said, I consider that I had adopted a correct approach in granting the stay under 0.53 r.3 (a) and I decline to discharge that stay in respect to the Notice of Motion. I do readily concede, however, that leave for Judicial Review should not have (on further reflection) have been granted. On a closer view of the material, I consider that the Applicant’s case is so weak as to be non-existence.

         

        As I have said the application for Judicial Review is dismissed and as a corollary, the stay ordered on the 17th August 1995 lapses and is thus discharged.

         

        I order that the Applicant pay the Respondent’s costs to be agreed as or as taxed.

Iliesa Raiqili v. The State

        [1997] 43 FLR 13

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        ILIESA RAIQILI

         

        [HIGH COURT, 1997 (Townsley J) 22 January]

         

        Appellate Jurisdiction

         

        Sentence- damaging a religious temple. Penal Code (Cap. 17) Section 324 (1).

         

        The State appealed against a suspended term of imprisonment imposed in the Magistrates’ Court on an offender of previous good character who had pleaded guilty to damaging a religious temple. Allowing the Appeal the High Court HELD: that in all the circumstances including an absence of remorse and failure to pay for the damage caused the sentence imposed was manifestly lenient. Accordingly an immediate term of imprisonment was substituted.

         

        No case was cited.

         

        Ms N. Shameem (Director of Public Prosecutions) for the Appellant

        Respondent in person

         

        Appeal against sentence imposed in the Magistrates’ Court.

         

        Townsley J:

         

        The Respondent was convicted in Nausori Magistrates’ Court on 4 July 1996 on his own plea of Guilty of the following charge:

         

        Statement of Offence

         

        DAMAGING PROPERTY: Contrary to Section 324(1) of the Penal Code, Cap.17.

         

        Particulars of Offence

         

        ILIESA RAQILI, on the 4th day of July, 1996 at Vuniniudrovu, Nausori in the Central Division, wilfully and unlawfully damaged glass walls valued at $1,000, one (1) door glass valued at $100, and one (1) Hanuman concrete statue valued at $1,000, to the total value of $2,100, the property of Vuniniudrovu Ramayan Mandali Temple.

         

        The Magistrate sentenced the Respondent, (who was of clear record, aged 25 years, and a Methodist Church missionary) to 12 months imprisonment suspended for 2 years.

         

        The Magistrate was to be commended for the very relevant and meaningful admonishment he delivered to the Respondent.

         

        Police had earlier alleged that the Respondent had threatened he would do the same to other temples and sought an adjournment, and a remand in custody.

         

        The Magistrate decided to deal with the Respondent forthwith, and facts were read out to show that at 5 a.m. that very morning, the Respondent with a “mould” (according to the State a kind of hammer or mallet) damaged all the temple doors and smashed a concrete statue to pieces.

         

        When police questioned the Respondent, he told them that the Holy Spirit told him to damage the temples (plural) and the idols. He said he had destroyed the first temple, and he would destroy other temples. The damage had caused concern to the local Indian community.

         

        The Respondent is recorded as having admitted those facts, yet in a few short moments in mitigation he denied saying that “I will continue damaging the Indian temple.” He said “The God will pay them.”

         

        It should have been apparent to the Magistrate that he had a serious religious fanatic on his hands. His denial of intention to harm other temples did not have to be accepted.

         

        It may be appropriate to record here what the Respondent said before me when asked for argument as to why the State’s appeal should not be allowed against the suspension of his sentence, and why he should not serve the term of imprisonment imposed.

         

        He said “You can jail me or hang me (lower lip quivering) - it was written in the Bible.” I interjected, “Doesn’t the Bible teach love even for your enemy, do good to them that hate you, and so on?” The Respondent said, “The Old Testament I rely on - the 10 Commandments - no strange gods before me. The Lord tells me to tell them not to worship idols.” I asked: Any reason why you shouldn’t do the 12 months’ imprisonment? The Respondent said: “Only that the Lord answers my prayer everyday.” I asked: “What about paying the $2,100 to the people whose property you have damaged?” Respondent: “I don’t know anything about it.”

         

        There was thus no remorse, and no intention whatever of making reparation for his wrong, or even any admission that he had done any wrong.

         

        The fact that he was actually supposedly a full time missionary of the Methodist Church I regarded as an aggravating factor if anything, in that he would be spreading his message of hate and intolerance to others.

         

        I would hope that that Church would have withdrawn his credentials by now, and have helped him to get some psychiatric treatment while in gaol, pursuant to my recommendation.

         

        But to return to the law, and the State’s argument that to suspend the sentence was an error, and made the punishment manifestly inadequate.

        Ms Shameem, who appeared for the State, presented written submissions which were elegantly framed and quite unanswerable.

         

        I uphold them in their entirety and can only commend the sentencing Magistrate to read them, for his education in the law.

         

        Ms Shameem, in oral argument, stressed how serious the matter was by pointing to Section 298 of the Penal Code, where breaking and entering a place of divine worship and committing a felony therein carries a penalty of 14 years.

         

        The Respondent was fortunate, therefore, that what he did inside the temple was only a misdemeanour. It carried a 2-year maximum.

         

        The Magistrate talked of respecting the Respondent’s “beliefs”, but how can that be, when they amount to religious intolerance, and issue in violence, and distress to people of another persuasion?

         

        She made the very telling point that, if there had been merely an intent to steal in the temple, it would be more understandable than to deliberately attack and insult the religion of others.

         

        It went beyond a mere criminal offence, she argued and violated the constitutional rights of the worshippers at the temple.

         

        Ms Shameem went on to argue that previous good character could not account for the suspension of the sentence. That had already been allowed for in the reduction of the sentence from the maximum of 2 years imprisonment to 1 year.

         

        She referred to Thomas on “Principles of Sentencing” 2nd ed. p.199 where it is said that having no previous conviction would not warrant a suspension of a sentence, only a reduction in the head sentence.

         

        She also referred to the same text at p.174 for the proposition that in wilful damage cases, imprisonment is warranted where no significant mitigation existed (as is the case here).

         

        Ms Shameem argued there was strong public interest in the imposition of a custodial sentence in the present case.

         

        She said religion was an emotive subject in Fiji and given all the above factors, an immediate custodial sentence, without more, was called for.

         

        As to restitution, which Ms Shameem also pressed for, I felt that its failure to be paid, and the intransigence of the Respondent in not wanting to even know about it, was reflected in the 12 months’ immediate custodial sentence, and made it more appropriate, considering it is half the maximum penalty that can be imposed.

         

        The Court’s order was as follows:-

         

        The State’s Appeal is allowed. The Court is satisfied the Magistrate’s sentence was manifestly inadequate or lenient in suspending the custodial sentence for no good reason. The absence of remorse or any offer of restitution was a plainly aggravating factor.

         

        The Magistrate’s sentence is varied by deleting the suspension for 2 years so that the Respondent will go to gaol for 12 months. I would recommend psychiatric treatment.

         

        (Appeal allowed; sentence varied.)

In the matter of S (an infant)

        [1997] 43 FLR 292

         

        HIGH COURT OF FIJI ISLANDS

         

        IN THE MATTER of S. (An Infant).

         

        [HIGH COURT, 1997 (Bryne J) 24 November]

         

        Family Jurisdiction

         

        Family Law- adoption of infants- whether a regular visitor to Fiji is “resident” in Fiji- Adopiton of Infants Act (Cap 58) Section 6 (4).

         

        The Applicants who were former Fiji citizens now living in Australia wished to adopt an infant Fiji citizen resident in Fiji. The Applicants regularly visited Fiji and it was argued that this entitled them to be described as Fiji residents. The High Court, HELD: the concept of residency involves an element of permanent settlement for a forseeable period of time and not merely some temporary period or sojourn and accordingly the application failed.

         

        Cases cited:

         

        Adoption Application No. 52/1951 [1952] 1 Ch. 16.

        In Re Mackenzie [1941] 1 Ch. 69.

        In the matter of P (an infant) (CA 5/84L)

        Keserue v. Keserue [1962] 2 All E.R. 796.

        Levene v. Inland Revenue Commissioners [1928] A.C. 217.

        State v. Attorney-General of Fiji ex-parte Joseph Nainima HBJ0027 of 1995S

         

        A. Singh for the Applicants

        The Respondent- parent in person

         

        Byrne J:

         

        This is an application for adoption of a female child who was born on 1st August 1981. The application was referred to the High Court from the First Class Magistrate’s Court at Nausori sitting as a Juvenile Court, the learned Magistrate being of the opinion that although it was in the interest of the child that she be adopted by the Applicants, who are her uncle and aunt, he considered the adoption might be prevented because of the provisions of Section 6(4) of the Adoption of Infants Act. That sub-section states that an Adoption Order shall not be made in favour of any Applicant who is not resident in Fiji or in respect of any infant who is not so resident.

         

        There is no question that the infant is a resident of Fiji but the problem raised by the application is whether the Applicants can be said to be resident in Fiji. Like the learned Magistrate I should have no hesitation on the merits in acceding to the application but the question which confronts me in limine, like the learned Magistrate in Nausori, is whether I have the jurisdiction to do so. The evidence before the Court is contained in various affidavits, by the mother of the infant, by her brother, an Army Officer in Fiji, by the male Applicant and lastly by a Justice of Peace. From these affidavits the following facts emerge:

         

        The father of the infant died on the 29th of May 1992 at the age of 42.

         

        The infant is the only child left with the mother in Fiji. Her other daughter is married and lives in Australia where she is well settled.

         

        The mother is unemployed and depends on the Social Welfare Department and donations from her close family members. She receives $43.00 per month from the Social Welfare Department. She does not educate the infant because she has no funds to offer her any better education and a prosperous life, such as she believes her daughter will have if an Adoption Order is made in favour of the Applicants.

         

        She believes that the infant will be very happy with the Applicants as the mother’s elder daughter is married to the son of the male Applicant. She believes that the infant will be well looked after in Australia if an Adoption Order is made.

         

        The affidavit on behalf of the Applicants sworn by the male Applicant states that he was married to his wife at Korovou, Tailevu on the 4th of September 1965 when both he and his wife were aged 18 years.

         

        The Applicant and his wife became Australian citizens on the 3rd of September 1981. The male Applicant has assets in Australia valued at $426,000 consisting of a residence in a country town in New South Wales on 5 acres of land, farming plant and equipment and a motor vehicle. The Applicant is a businessman and has 5 children from his marriage all of whom are married.

         

        He is President of Prakash Ramayan Mandali of Australia and is also an active member of Hindu Religious Association, especially being a Vice-President of Shiri Sanatan Dharam Pratinidhi Sabha of Australia. The Brahman Purohit Sabha of Australia Inc. recommends the Applicant as a suitable father for the infant he and his wife wish to adopt.

         

        The Applicant is the Managing Director of Cape Bank Pty Ltd which is an import and export business. He and his wife have known the Applicant and her mother since 1992 and wish to adopt the child and take her to Australia where they will educate her and support her until she marries as they have no child living with them now.

         

        The Applicant finally states that since 1992 he has been travelling frequently to Fiji and staying with the infant with whom he says, she has maintained a good father and daughter relationship.

         

        It appears from his passport that since April 1992 the Applicant has come to Fiji numerous times and has been admitted as a visitor for periods of 4 months.

         

        The last affidavit is by a Justice of Peace who says that he has known the mother and her late husband since 1987 and has known the male Applicant since 1977. He too believes that the infant will have a prosperous future in Australia where she will be given education and a decent life.

         

        In his very comprehensive submission Mr. Singh has referred me to numerous authorities mainly dealing with the question of residence. Many of these authorities were referred to by Cullinan J. in his unreported judgment of the 2nd of November 1984 in the matter of P. (An Infant) Civil Appeal No. 5 of 1984. His Lordship there was considering an appeal from the refusal of the Magistrates’ Court at Sigatoka to make an Adoption Order on a ground which does not arise in the instant case, namely that the learned Magistrate considered the application before him was not bona fide but merely an attempt to circumvent the Citizenship Act.

         

        The learned Magistrate held that the Applicant child was on a visitor’s permit and as such not a resident within the meaning of Section 6(4) of the Act.

         

        Cullinan J. upheld the appeal against the Magistrate’s Order but in the course of doing so had to consider the case law relating to the phrase “resident in Fiji”.

         

        His Lordship pointed out that the word “resident” is not defined in the Adoption of Infants Act, although the term “residence” is defined by implication. His Lordship said, and I respectfully agree, that “residence” for the purposes of the Immigration Act is not determined by duration. He also said however, and again I respectfully agree, that for the purpose of that Act a holder of a visitor’s permit is not deemed to be a resident in Fiji.

         

        Like myself Cullinan J. first looked at Stroud’s Judicial Dictionary 4th Edition Volume 4 at pp.2358/2366, where a formidable if not bewildering body of authority is set out concerning the meaning of the words “reside”, “residence” and “resident”. From this it is clear that the words have different meanings in different contexts and in particular in different legislation. Thus for example in fiscal legislation the courts and legislatures have adopted artificial standards in determining what constitutes “residence”. His Lordship considered many of the authorities but, like myself considered the case of Re Adoption Application No. 52/1951 [1952] 1 Ch. 16 the most helpful in determining the question now before me. That case turned on the provisions of the English Adoption Act 1950 which was based on earlier legislation on which our Adoption of Infants Act (Cap. 58) is also based. Section 1(1) of the (1950) Act provided that an application for an Adoption Order could only be made by a person domiciled in England or Scotland. Section 2(5) of the 1950 Act however read so far as relevant:

         

        “(5) An adoption order shall not be made in England unless the applicant and the infant reside in England, and shall not be made in Scotland unless the applicant and the infant reside in Scotland.”

         

        The facts in Re Adoption Application No. 52/1951 were that the joint Applicants were ordinarily resident in Nigeria where the husband was employed in the Nigerian Colonial Service, returning to England his native country for three months leave in every fifteen months. Usually the couple stayed with his or her parents on leave, but they had recently purchased a house in England and intended to reside permanently there when his service in Nigeria terminated in the normal course after seven years. The couple made application for the adoption of an infant but as the husband was obliged to return to duty in Nigeria the application continued with the wife as sole applicant; she remained behind in England, her intention being to return to Nigeria taking the infant with her if the application were successful.

         

        Like Cullinan J. I found the very learned judgment of Harman J. (as he then was) which was delivered ex tempore particularly instructive on the question now before me. For example at p.22 he said:

         

        “Throughout the Act of 1950 residence in England or residence in Great Britain and residence abroad are contrasted as being two things which are the converse one of the other, and that seems to make it difficult to suppose that in this Act, unlike the fiscal Acts, a person may be resident in two places. For the purpose of the Income Tax Acts, if a person has two residences available to him and habitually resorts for more than temporary purposes to two jurisdictions, he may be resident in one place for part of the year and in the second place for another part; but that does not seem to fit the scheme of the Act of 1950.

         

        The crucial matter therefore is the construction of section 2(5) which prohibits an adoption order being made except in favour of an applicant who is “resident” in England.”

         

        His Lordship then quoted the remark of Lord Cave L.C. in Levene v. Inland Revenue Commissioners [1928] A.C. 217 at 222 who cited the Oxford English Dictionary, saying:

         

        “The word `reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning `to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place’.”

         

        I consider that passage most apposite to the facts of the instant case.

         

        Among the many cases cited by Mr. Singh was Keserue v. Keserue [1962] 2 All E.R. 796 which Mr. Singh relied on, mistakenly in my view, for the proposition that as little as four weeks presence in England constituted residence simpliciter. This is not what this case decided. It is true that the husband had come to England from Australia for approximately four weeks hoping to effect a reconciliation with his wife and in order to safeguard his position regarding the child of their marriage. Karminiski J. held that on those facts there was such residence in England to found a petition by the wife for judicial separation, since although the husband did not intend to reside permanently, he had come to England deliberately for the purpose I have mentioned. Accordingly His Lordship held that his residence in England was not merely casual or in itinere.

         

        Likewise in another case cited by counsel, In Re Mackenzie [1941] 1 Ch. 69 Morton J. held that an Australian woman, domiciled in Australia, who came on a visit to England in 1885, and shortly afterwards became of unsound mind, continued to live in England until her death 54 years later, remaining of unsound mind throughout that period, was ordinarily resident in the United Kingdom for the purposes of the Finance Act.

         

        That case however is clearly distinguishable on its facts from the present.

         

        Again I quote from Mr. Justice Harman in Adoption Application 52/1951. At p.23 referring to an argument by counsel for the Applicants that while the Applicants were on leave in England they were for the time being “resident” there, His Lordship said:

         

        “I should say they were for the time being staying here, and I do not think that is the same as being resident.”

         

        Later and towards the end of his judgment at p.25 His Lordship said:

         

        “The court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. Residence denotes some degree of permanence. It does not necessarily mean the applicant has a home of his own, but that he has a settled headquarters in this country. It seems dangerous to try to define what is meant by residence. It is very unfortunate that it is not possible to do so, but, in my judgment, the question before the court is in every such case whether the applicant is a person who resides in this country. In the present case I can only answer that question in the case of the wife by holding that she is not resident in this country; she is merely a sojourner here during a period of leave; she is resident in Nigeria, where her husband’s duties are, and whither, in pursuance of her wifely duties, she accompanies him. I do not think either of the applicants is resident in England at present.”

         

        Again it seems to me that this passage is also applicable to the facts of the instant case. I am satisfied that the concept of residency involves an element of permanent settlement for a foreseeable period of time and not some temporary period or sojourn, to use the word employed by Mr. Justice Harman. There can be no doubt in my judgment that on the evidence before the court the Applicants have established their roots in Australia for the foreseeable future and that any visits they may make to Fiji are simply stays for a particular time.

         

        I regret having to come to this conclusion but I consider that do otherwise would be to avoid the clear meaning of Section 6(4) of the Act.

         

        I was informed by counsel that Magistrates in the Magistrates’ Court in Suva if not else where are regularly making Adoption Orders in cases whose facts are for practical purposes similar to those in the instant case. If this be so then I consider they are acting wrongly and the practice should cease immediately. In my unreported judgment in HBJ0027 of 1995 The State v. Attorney-General of Fiji ex-parte: Joseph Nainima delivered on 21st October 1997 I remarked that it is the function of the Courts only to interpret the law but not to amend it. It may well be that Section 6(4) of the Adoption of Infants Act should be amended at least to provide that any former Fijian national now a naturalised citizen of a country with whom Fiji has always had a friendly relationship should be allowed to adopt an infant if that would be in the interests of the welfare of the child, such as I have no doubt is the case here. This is a matter to which I invite the attention of the authorities just as in England the Adoption of Infants Act was amended to alleviate the hardship caused by the interpretation given to the law for example by Mr. Justice Harman. His decision was criticised as “too narrow” by McClean in “The Meaning of Residence” 11 I.C.L.Q. 1153. Like Mr. Justice Cullinan, to my knowledge the judgment was never reversed but with due respect to Mr. McClean, I consider Harman J. was correct.

         

        It is possible that the Applicants may be able to adopt this child in Australia and I should see no harm being done if they were to consult the relevant authorities in New South Wales to see whether this is possible. In the circumstances however I have no alternative but to reject their application. Although this application was heard in Chambers because of the important question it raises I have delivered this judgment in open Court.

         

        (Application dismissed.)

Jai Wati v. Baswa Nand, Sohan Singh & FSC

        [1997] 43 FLR 289

         

        HIGH COURT OF FIJI ISLANDS

         

        JAI WATI

         

        v.

         

        BASWA NAND, SOHAN SINGH & FSC LTD

         

        [HIGH COURT, 1997 (Scott J) 21 November]

         

        Civil Jurisdiction

         

        Land- crop liens- whether lienee acquires interest in the land- whether an encumbrance- Crop Liens Act (Cap 226) Sections 3, 4 & 10 - Land Transfer Act (Cap 131) Section 30 (1).

         

        The High Court explained the effect that a mortgagee sale has on existing crop liens.  It pointed out that crop liens are not an encumbrance as defined by the Land Transfer Act but must be registered and may be searched.

         

        No case was cited.

         

        J. Singh for the Plaintiff

        A. Sen for the First & Second Defendants

        No appearance by the Third Defendant

         

        Scott J:

         

        This Action has raised two questions of law which the parties have by consent agreed, pursuant to Order 33 r 3 should first be answered. The questions are:

         

        “1)       Did the mortgagee’s sale under mortgage number 1297 expunge the two crop liens given by the first defendant to the second defendant under the provisions of Crop Liens Act Cap 226 and in particular the effect of Section 4 of the said Act; and

         

        2)         What is the effect of Sections 3 and 4 of the Crop Liens Act on liens given by the first defendant to the second defendant.”

         

        On 18 July a statement of agreed facts was filed as follows:

         

        1.         THAT the First Defendant Baswa Nand was a Lessee of native Land known as Waibogibogi Lot 19 having an area of 32 acres and which land was covered by cane contract 7357.

         

        2.         THAT on the 10th day of April, 1986 the First Defendant had executed a Mortgage in favour of Australia and New Zealand Banking Group Limited being Mortgage Number 1297 (annexure A of the Plaintiff’s affidavit) to secure certain advances.

         

        3.         THAT on the 30th day of January, 1991 the First Defendant had executed a Crop Lien in favour of Australia and New Zealand Banking Group Limited collateral to above Mortgage Crop Lien 91/206 (annexure B of Plaintiff’s Affidavit).

         

        4.         THAT on the 28th day of April, 1993 the First Defendant executed a Crop Lien in favour of  Sohan Singh being Crop Lien Number 93/1833 (annexure C of Second Defendant’s Affidavit).

         

        5.         THAT on the 27th day of July, 1993 the First Defendant gave a Crop Lien being crop Lien Number 93/1614 in favour of Second Defendant (annexure D of Second Defendant’s Affidavit).

         

        6.         THAT the Australia and New Zealand Banking Group Limited exercised its powers of sale under Mortgage Number 1297 dated 10th day of April 1986 and transferred the land and Sugar Cane Contract to the Plaintiff by transfer dated 25th day of May, 1995 under Transfer Number 1535 (annexure C of Plaintiff’s Affidavit).

         

        7.         THAT the Plaintiff is now the lessee of land in question and contract holder and the Second Defendant holds two Crop Liens over Farm Number 7357.

         

        Counsel for both parties also filed helpful written submissions  for which I am grateful.

         

        At the start it is important to be clear just what a crop lien  is and what it is not.  Section 3 (2) of the Crop Liens Act (Cap. 226-the Act) is as follows:-

         

        “The Lienee, whether the advance be made or the debt be incurred or the goods be supplied before, at or after the date of the agreement, shall from the date of the registration of the agreement as aforesaid have a preferable lien upon and be entitled to the whole of the crop or crops given as security, whether the same be then or be intended to be thereafter sown or grown and the produce thereof or the proceeds thereof if and when sold and converted into money and until the repayment of the advance or liquidation of the debt with interest (if any) the possession of the crop or crops and the produce or the proceeds thereof as aforesaid by the lienor or by any person or persons on his account of for his use or benefit shall, for all intents and purposes, be deemed to be the possession of the lienee.”

         

        A lien is “a charge or security or encumbrance upon property” (Black’s Law Dictionary) and Section 3 (2) means that the lienee in the case of a crop lien has a lien over crops produced by the lienor or on his behalf.  What the Section does not mean is that the creation of a crop lien results in the lienee obtaining any interest in the land on which the crops are grown.  A crop lien is not a profit a prendre and is not an encumbrance within the meaning of that term as it appears in the Land Transfer Act (Cap 131).

         

        Under Section 4 a crop lien is not extinguished by the sale of the land “whereon the crop or crops is or are growing” but of course the only crops which are subject to the lien are those crops “the produce or proceeds” of which are the lienor’s or “any person or persons on his behalf”.

         

        A crop lien once created has to be registered (Section 10) and a copy kept by the Registrar of Deeds (Section 3 (1)).  The register may be searched under the provisions of Section 30 (1) of the Land Transfer Act.  The crop lien either expires by reason of satisfaction i.e. repayment of the loan (Section 6 (2)) or by  effluxion of time i.e. 5 years after its creation (Section 6 (1)).

         

        In my view the answer to the questions posed is as follows: On 25 May 1995 when the land was sold the First Defendant’s debt to the Third Defendant was discharged and with it the mortgage and the crop lien dated 30 January 1991.  As provided by Section 4 of the Act the sale of the land did not affect the two crop liens held by the Second Defendant and accordingly all such crops planted by or on behalf of the First Defendant as were awaiting harvest at the time of the sale continued in “the possession of the (remaining) lienee” - the Second Defendant - who was entitled to their proceeds.

         

        Once the crop which was standing on the land at the time of sale  had been harvested the remaining lienee, the Second Defendant, lost all further interest in the crops produced on the land for the simple reason that the following crops planted upon it were planted not by the former lienor but by the Plaintiff and therefore were not crops produced by the former lienor “on his account or for his use or benefit”.

         

        An intending purchaser of land should always have a search made under the provisions of Section 30 (1) of the Land Transfer Act in order to avoid purchasing land, chattels upon which (including crops) may be the subject of a lien or other charge or encumbrance.

         

        Whether the Third Defendant has paid the proceeds of cane planted  by the Plaintiff to the Second Defendant is not clear.  If it has then it has done so in error.  In any event it will be noted the two remaining liens in favour of the Second Defendant expire on 28 April and 27 July next.

         

        (Ruling delivered on preliminary issues.)
 

Mohan Lal v. Nairirileka Land Purchase Co-op. Soc. Ltd

        [1997] 43 FLR 75

         

        HIGH COURT OF FIJI ISLANDS

         

        MOHAN LAL

         

        v.

         

        NAIRIRILEKA LAND PURCHASE

        CO-OPERATIVE SOCIETY LIMITED

         

        [HIGH COURT, 1997 (Pathik J) 14 March]

         

        Civil Jurisdiction

         

        Practice: Civil- non- service of writ - whether appearance by Defendant after expiry of the writ amounts to a waiver of the requirements for due service- High Court Rules 1988 - Order 10.

         

        The Plaintiff commenced proceedings and obtained an interlocutory injunction ex parte. Over 12 months later and after the writ had expired the Defendant sought to have the action struck out on the ground that it had not been served with the writ. The High Court granted the Defendant’s application and HELD: that the Defendant’s voluntary appearance after the writ had expired did not amount to a waiver of the requirement for due service.

         

        Cases cited:

         

        Pike v. Michael Nairn & Co. Ltd [1960] 2 All ER 186

        Sheldon v. Brown Bayley’s Steel Works Ltd [1953] 2 All ER 894

        The Gniezno [1967] 2 All ER 738

         

        Interlocutory application in the High Court.

         

        A. Kohli for the Plaintiff

        V. P. Ram for the Defendant

         

        Pathik J:

         

        This is the defendant’s Motion for an Order striking out this action on the ground that the Writ of Summons which was issued on 12 October 1995 herein has not been served on the Defendant (the “Society”) within 12 months after the said date.

         

        Background

         

        In support of the motion, Raj Kumar, the Chairman of the Society, filed an affidavit stating, inter alia, that the Society which is registered under the provisions of Co-operative Societies Act Cap 250, (the “Act”), is by virtue of section 9 of the Act a corporate body and has had its registered office at Muanidevo Indian School, Dreketi, Macuata since 1969. The Society denies ever having been served with the Writ of Summons.

         

        Mr. Kohli for the Plaintiff submits that the Society was served with the Order for injunction in this action and therefore by now “appearing” (through this application) the Society was aware of the Writ and therefore it has “waived service”. He said that the Writ was not served at the registered Office of the Society but at Government’s Co-operative Society Office at Nasea, Labasa.

         

        Mr. Kohli is saying that the Society waited till the writ expired before making this application. He is asking the Court to extend the time for Writ of Summons if Court finds that it was not served at the registered office.

         

        Mr. Ram submits that upon search it would have been revealed to the Plaintiff where the registered office of the Society was and is. He said that there was no application to extend the life of the writ. In the circumstances there was no alternative but to apply to Court to have the writ struck out.

         

        Consideration of the issue

         

        The Applicant/Defendant is saying that this action should be struck out because the writ has expired and also that it has not even been served on it.

         

        It is not in dispute that the Writ of Summons was not served at the registered office of the Society as required by law.

         

        From the affidavit of the said Raj Kumar it is clear that the first intimation he had of any proceedings against the Society was when an Order of injunction was served personally on him on or about 21 August 1996 in Labasa Town. Whereupon the Society sought legal advice and it was advised by its solicitors after search that, inter alia, a Writ of Summons had been issued by the Plaintiff.

         

        The Writ was issued on 12 October 1995 and it is required to be served within 12 months after the said date. The Society knew about the Writ before it expired. The injunction Order reads as follows:

         

        “....that the Defendant and/or its servants and/or agents or members be restrained from deviating from the original scheme plan approved for Stage 2 until further Order with liberty to apply on three days notice and all papers together with the sealed order be served within 4 days on or before 25 August, 1996.” (underlining mine for emphasis)

         

        No doubt, if it wanted, the Society could have made an application to dissolve the injunction but instead on 16 October 1996, after the expiry of the Writ, it makes the present application. That is the Society’s prerogative.

         

        In these circumstances and on the facts of this case Mr. Kohli argues that the Society had waived the requirement of service of Writ although it was done after the expiry date when it made the present application. I do not agree. In this regard Mr. Kohli relies on the case of The Gniezno [1967] 2 All E.R 738 to which he made reference in his submission but that case does not assist him on the point he has raised.

        The law

         

        Provisions as to service of originating process are contained in Order 10 of the High Court Rules and in Or.10 r.7 it is stated that “this rule shall have effect subject to the provisions of any Act and these Rules and in particular to any enactment which provides for the manner in which documents may be served on bodies corporate”.

         

        The defendant is a Society registered under the Act. Upon registration it becomes a body corporate “by the name under which it is registered, with perpetual succession and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings, and to do all things necessary for the purpose of its constitution” (Section 9).

         

        The Society shall have an address “to which all notices and communications may be sent” (section 12).

         

        The question for the Court’s determination is whether the action could be struck out on the facts outlined hereabove. The case of The Gniezno (supra) is authority for certain proposition, namely, whether there can be appearance without service before expiry of writ and appearance after expiry; and it is pertinent that I refer to various relevant passages from the judgment in that case in this regard for the purpose of deciding whether to strike out the action or not.

         

        In The Gniezno (supra), Brandon J discusses the effect of appearance to a writ governed by R.S.C. Or. 12 r.1 and R.S.C. Or 10 r.1(3). He is of the view that there could be “appearance by a defendant without there having previously been due service of the writ on him ... at any rate while the writ is current for service” (at p.743-744 underlining mine for emphasis). He derives support for this in the case of Pike v. Michael Nairn & Co. Ltd [1960] 2 All E R at p.186 where Cross J said:

         

        “The service of the process of the court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant, therefore, has always been able to waive the necessity of service and to enter an appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him.”

         

        Referring to the above passage Brandon J concluded by saying that “... that is the correct statement of the law which I ought to follow”. He went on to say (at p.744):

         

        “Looking at the matter as one of principle, it seems to me that a defendant ought to have the right to enter a voluntary appearance in this way so that in any case where an action is hanging over him he may take steps to have it dismissed. Under the present rules there is no obligation to serve a writ earlier than within twelve months, and even then a plaintiff may, if he shows cause, obtain a renewal of the writ ex parte. In this way a defendant may have an action, the existence of which is known to him, hanging over him for a very considerable period. It seems to me desirable in principle that a defendant, faced with such a situation, should be able to obtain some finality.” (underlining mine for emphasis)

         

        Brandon J concluded by saying that “... in principle a defendant can appear voluntarily to a writ which has not been served on him, anyhow while the writ remains valid for service” (at p.745).

         

        In the case before me the defendant could have done the same as the writ was still valid for service when the Society came to know that there was an action but it chose not to do so.

         

        The next question that arises is “Is it open to the defendant to appear where the writ has expired?”.

         

        Brandon J discussed the case of Sheldon v Brown Bayles’s Steel Works Ltd [1953] 2 All E.R 894. There he referred to the following passage from the judgment of Denning L.J. in Sheldon at p.897 in the matter of service of an expired writ:

         

        “If it was an irregularity, then the irregularity was waived by the unconditional appearance. But if it was a nullity, then it could not be waived at all. It was not only bad, but incurably bad. In determining the question, it is important to notice that, even after twelve months have expired, the writ can be renewed. This is not done under R.S.C., Ord. 8 r.1, for that only permits renewal before the twelve months have expired. It is done under R.S.C., Ord. 64, r.7, which is the general rule permitting enlargement of time ... Now, if a writ can be renewed after the twelve months have expired, that must mean that it is not then a nullity. There are other reasons, too, why the writ cannot be considered a nullity. Suppose a defendant, who is served after the twelve months, deliberately enters an unconditional appearance and goes to trial. It may be that it is a case where no statute of limitation avails him and he does not think it worth while to object to the service of the writ, because he knows that it would only mean the issue of a fresh one. Could he thereafter turn round and say that all the proceedings were void on the ground that the writ was a nullity? Clearly not. That shows that the service out of time was only an irregularity which could be waived.” (underlining mine for emphasis)

         

        Brandon J said (at p.746) that the said Court of Appeal decision:

         

        “..... binds me to hold that an expired writ is still a writ, although it is not available to the plaintiff for service to the defendant if the defendant chooses to take the point. On the other hand, the defendant can, if he likes, waive the point. In that case the service of an expired writ will be good service. If a defendant can waive the right to complain of a writ being served on him out of time, I do not see in principle why he should not also be entitled to waive the requirement of service itself not only while the writ is current, but also after it has expired.” (underlining mine for emphasis)

         

        Brandon J goes on to say:

         

        “The essential point seems to me to be that the requirements in the rules relating to service are requirements made for the protection or benefit of the defendant, and that, because of that, if the defendant wishes to waive any of those requirements, he can do so. It is clear from Sheldon’s Case that a defendant can accept service of an expired writ although the plaintiff could not impose service of it on him. I cannot see why, if a defendant can appear voluntarily before the twelve months have elapsed, he is not also entitled to do so after the twelve months have elapsed.” (underlining mine for emphasis)

         

        The Society did not appear voluntarily; even after the 12 months elapsed. Again, that was its prerogative.

         

        Conclusion

         

        In this case I find that there was no service of the Writ of Summons at all. The Plaintiff has disobeyed the Order of the Court in not serving “all papers” (which includes the Writ) as he was ordered to do so by 25 August, 1996. The Plaintiff obtains an order for injunction and sleeps on it without taking any further steps in the action. It is an abuse of the process of the Court to do so in this case. The Society cannot be expected to file a Statement of Defence without knowing what the Plaintiff’s claim is in the absence of service of the writ. The fact that the Society has made this application cannot be deemed to be waiver of service by any stretch of the imagination and not even under The Gniezno (supra). In the outcome, for the reasons given the application to strike out the action is granted with costs against the Plaintiff to be taxed if not agreed.

         

        (Application granted: action struck out.)

Penaia Bale Daruna & Ilisoni Mekemeke v. The State

        [1997] 43 FLR 113

         

        HIGH COURT OF FIJI ISLANDS

         

        PENAIA BALE DARUNA & ILISONI MEKEMEKE

         

        v.

         

        STATE

         

        [HIGH COURT, 1997 (Pathik J) 21 May]

         

        Appellate Jurisdiction

         

        Sentence- shop breaking entry and larceny- relevance of mitigating factors- Penal Code (Cap. 17) Section 300 (a).

         

        After convicting them the Resident Magistrate passed sentences of imprisonment on the 2 appellants. Allowing appeals against sentence the High Court stressed the utility of sentencing remarks containing specific reference to the mitigating factors advanced by the accused and taken into account by the Court before passing sentence. Where it appeared that mitigating factors had not been taken into account it could be inferred that the sentencing discretion had not been properly exercised.

         

        Cases cited:

         

        Sharda Prasad v. State (Crim. App. No. 4/96)

        Sultan v. Svikart (1989) 96 FLR 457

         

        Appeal against sentences imposed in the Magistrates’ Court.

         

        Appellants in person

        Ms. L. Laveti for the State

         

        Pathik J:

         

        On 5 March 1997 the appellants were convicted and sentenced in the Labasa Magistrate’s Court by Magistrate Moses Fernando Esq., on their own plea of the offence of shop breaking entering and larceny contrary to section 300(a) of the Penal Code.

         

        The particulars of offence were that between 25 February 1997 and 26 February 1997 the appellants with another broke and entered the Lakshmi Office Service Shop and stole from therein certain items and cash to the total value of $3741.00 the property of Latchmaiya Naidu s/o Nagaiya.

         

        Upon their conviction each appellant was sentenced to 18 months imprisonment. The suspended sentence imposed on First Appellant on 28 June 1996 was activated to be served consecutive to this sentence.

         

        The appellants appeals are against the severity of sentence.

         

        The first appellant says that the sentence is “too much” compared to other serious cases. He says that bulk of the items have been recovered and that he is a first offender.

         

        The second appellant says that all items have been recovered. He admitted that he has two previous convictions.

         

        The learned State counsel submitted that only items worth $1889 have been recovered. She said that both have previous convictions and that custodial sentence is warranted. However, she submits that the sentence meted out is on the higher side bearing in mind the mitigating factors about which the Magistrate says nothing before sentencing. In these circumstances she feels that a reduction in sentence will not be inappropriate.

         

        Bearing in mind the facts of this case, the appellants’ guilty plea and the recovery of half the stolen items, consideration should have been given to these mitigating factors. Whether that was done or not cannot be gathered from the record for there it is merely stated that “breaking into shops and house are becoming more and more common in the area now. In my view both accused deserve custodial sentence. Each accused sentenced to 18 months imprisonment”.

         

        The said sentencing remarks, in the absence of any reference to the mitigating factors, give the impression that it was only the prevalence of the offence that was taken into account before the sentence was passed.

         

        Although there is no legal requirement, and knowing how busy the Magistrates are, it would be a good practice to put in a relatively small compass that mitigating factors have been taken into account in sentencing, rather than leaving the accused to guess whether that was done or not. This procedure will assist the appellate Court as well if there is an appeal and it will also help the accused to decide whether to appeal or not. A lot of cases which come on appeal are based on the ground that the sentence is harsh and excessive and mitigating factors have not been taken into account.

         

        The appellate Court will not intervene unless it is shown that there is some reason for concluding that the sentencing discretion was improperly exercised. (Sultan v Svikart (1989) 96 FLR 457 at 458-459). For apparently disregarding the mitigating factors I would say that the Magistrate’s sentencing discretion was wrongly exercised. It also appears likely that the magistrate placed some weight on the appellants’ prior record vis a vis the mitigating factors. However, it is unnecessary to speculate as to how the sentence was determined for the fact that mitigating factors were not taken into account its excessive nature is manifest establishing error. This court is therefore free to interfere with the sentence. Ms. Laveti referred the Court to the case of Sharda Prasad s/o Mathura Prasad v State (Crim. App. No. 4/96) in which Fatiaki J said that although a custodial sentence was merited, “however, in the absence of any record by the learned trial Magistrate that he had taken into consideration the appellants’ plea of guilty, this court is able to mitigate the sentence by a small reduction”.

         

        In the outcome, on the facts and circumstances of this case and for the above reasons, the sentence is accordingly reduced to 15 months’ imprisonment in the case of each appellant with effect from 5 March 1997. The first appellant’s activation of suspended sentence is not disturbed. Subject to such reduction in the sentence the appeal is dismissed.

         

        (Appeals partly allowed; sentences varied).
 

The Permanent Secretary for PSC & Anr v. Epeli Lagiloa

        [1997] 43 FLR 303

         

        COURT OF APPEAL OF FIJI ISLANDS

         

        THE PERMANENT SECRETARY FOR PUBLIC SERVICE COMMISSION
        & THE PERMANENT SECRETARY

        FOR EDUCATION

         

        v.

         

        EPELI LAGILOA

         

        [COURT OF APPEAL, 1997 (Casey, Dillon, Sheppard JJA), 28 November]

         

        Civil Jurisdiction

         

        Administrative Law- public service- applicability of principles of natural justice to disciplinary proceedings- Public Service Commission (Constitution) Regulations 1990, Regulation 41.

         

        Public Service- applicability of rules of natural justice to disciplinary proceedings- Public Service Commission (Constitution) Regulations 1990, Regulation 41.

         

        The High Court ordered certiorari to issue to quash the dismissal of a public servant. On appeal the Court of Appeal substantially dismissed the appeal and examined the relevant regulations. It emphasised that where a disciplinary charge is denied or when it is proposed to impose punishment then the rules of natural justice require that the public servant be given an opportunity to be heard.

         

        Cases cited:

         

        Associated Provincial Picture Houses Ltd v. Wednesbury Corporation

                    [1948] 1 KB 223

        Cooper v. Wandsworth Board of Works [1863] 14 C.B. (N.S.) 180

                    143 E.R. 414

        Durayappah v. Fernando [1967] 2 A.C. 337

        Heatley v. Tasmanian Racing and Gaming Commission (1977)

                    137 CLR 487

        Ridge v. Baldwin [1964] A.C. 40

        Salemi v. MacKellar [No. 2] (1977) 137 CLR 396

        Twist v. Randwick Municipal Council (1976) 136 CLR 106

         

        Appeal to the Court of Appeal from the High Court.

         

        S. Kumar for the Appellants

        I. Fa for the Respondent

         

        Judgment of the Court:

         

        This is an appeal from a judgment of the High Court of Fiji (Pathik J) delivered on 28 June 1996. The orders against which the appeal is brought were entered on 10 July 1996. The orders were that certiorari go to quash the decision of the Public Service Commission to dismiss the respondent to the appeal (the applicant at first instance) from service with the Government of Fiji from 29 June 1994 and that the respondent be reinstated forthwith on full salary and be paid arrears of salary from the date of termination to the date of reinstatement. There was also an order that the appellants (the then respondents) pay the respondent’s costs of the action.

         

        Hereafter the first appellant will be referred to as “the Commission” and the second appellant as “the Education Department”.

         

        The dismissal was purported to be made pursuant to the provisions of regulation 41 of the Public Service Commission (Constitution) Regulations 1990 (“the Regulations”). The Regulations were made pursuant to s.157 of the Constitution (1990). Section 126 of the Constitution established the Commission.

         

        Regulation 41 is headed “Major offences” and is as follows:-

         

        “41.-(1) If a Permanent Secretary or Head of Department, or any officer acting properly with the authority of the Permanent Secretary or Head of Department has reason to believe that an officer of his Ministry or Department has committed a disciplinary offence which the Permanent Secretary or Head of Department regards as a major offence (or one of a series of minor offences which should be treated as a major offence) he shall charge the officer with having committed the alleged offence and shall forthwith serve the officer with a written copy of the charge against him and the particulars of the alleged offence in which event the following provisions of this regulation will apply.

         

        (2)        The officer charged shall by notice in writing be required to state in writing within a reasonable time to be specified in such notice whether he admits or denies the charge and shall be allowed to give the Permanent Secretary or Head of Department an explanation if he so wishes.

         

        (3)        Where an officer fails to state in writing under sub-regulation (2) whether he admits or denies the charge, he shall be deemed to have admitted the charge.

         

        (4)        The Permanent Secretary or Head of Department shall require those persons who have direct knowledge of the allegation to make written statements concerning it.

         

        (5)        The Permanent Secretary or Head of Department shall forthwith forward to the Commission the original statements and relevant documents and a copy of the charge and of any reply thereto together with his own report on the matter and the Commission shall thereupon proceed to consider and determine the matter.

         

        (6)        If the truth of the charge is admitted by the officer concerned, or if the Commission after consideration of the reports and documents submitted to it under sub-regulation (5) and after such further investigation or inquiry as it considers necessary is satisfied as to the truth of the charge it may after taking into account the service record of the officer impose any of the penalties specified in regulation 51.

         

        (7)        If any charge is established under the provisions of this regulation and the Commission is satisfied that any act, omission or default involved in that finding resulted in ascertained or assessable damage to property or loss to the Government of Fiji the Commission may recommend to the Permanent Secretary for Finance that, in addition to any penalty that may lawfully be imposed under regulation 51 recovery of an amount not exceeding the amount of such damage or loss be effected by the Minister responsible for Finance under the powers vested in him by virtue of section 63 of the Finance Act, 1981.

         

        (8)        Where the Commission is not satisfied as to the truth of the charge it shall appoint a disciplinary tribunal in accordance with regulation 44.”

         

        There are other relevant regulations. Part V in which regulation 41 is found is headed “Discipline”. Regulation 36 provides for disciplinary offences. Relevantly it provides that an officer commits a disciplinary offence for the purpose of disciplinary proceedings who is guilty of any improper conduct in his official capacity, or of any other improper conduct which is likely to affect adversely the performance of his duties or is likely to bring the Public Service into disrepute or be prejudicial to the conduct of the Public Service; see regulation 36 (t).

         

        Regulation 37 provides that an officer who has alleged to have committed a disciplinary offence is liable to disciplinary proceedings in accordance with procedure prescribed in the regulations. Regulation 40 provides for minor offences and, as mentioned, regulation 41 for major offences. It is to be observed that the provisions of regulation 41(8) require the Commission, where it is not satisfied as to the truth of the charge mentioned in regulation 41(1), to appoint a disciplinary tribunal in accordance with regulation 44. That regulation provides for the appointment of disciplinary tribunals. Regulation 44(1) says that, where an officer charged with an alleged disciplinary offence denies the charge, and the Commission is not satisfied in terms of regulation 41 (8) as to the truth of the charge, the Commission shall appoint a disciplinary tribunal to hear the evidence and find the facts. Provisions are made in regulation 44 (2) for the constitution of a tribunal. Regulation 44(4) provides that it shall be the duty of every officer appointed under the regulation, to hear the evidence, find the facts and make a report to the Commission within 28 days, or within such extended time as the Commission may approve. Regulation 45 provides for witnesses and regulation 46 for the procedure at a hearing. The hearing is to be held in private. Evidence may be takes on oath or affirmation. The officer shall be summoned to appear at the hearing and shall be given full opportunity to defend himself. The officer is entitled to be assisted in the presentation of his case and is entitled to cross-examine witnesses called in support of the case against him. No documentary evidence shall be adduced against the officer unless he has previously been supplied with a copy thereof or been given access thereto.

         

        In the present case the provisions of regulation 41(8) were not invoked because the Commission was apparently satisfied as to the truth of the charge. The charge was notified to the respondent by a letter dated 11 February 1994. The letter was signed by Mr. Naidu as Permanent Secretary for Education, Science & Technology. Mr. Naidu said that it had been brought to his attention by the Dawasamu Old Scholars Association of Dawasamu that the respondent had misappropriated $10,000 of the Association’s funds and converted them to his personal use some time between 1984 and 1993. The letter referred to the fact that Mr. Naidu had a copy of a judgment dated 29 November 1993 from the Magistrates’ Court in Suva ordering the respondent to pay $10,000 to the Association together with $60.00 costs. The letter said, “As such you have committed an offence under Public Service Commission [Constitution) Regulations, 1990 in which you have converted the trust money kept under your custody to your personal use”

         

        Mr. Naidu said that he had decided to institute disciplinary proceedings against the respondent for committing a major offence under regulation 41 of the regulations. The charge was then detailed and was in the following form:-

         

        “That you, Mr. Epeli Lagiloa, whilst being a civil servant in the teaching profession with the Ministry of Education, Science & Technology committed an offence under Regulation 36(t) of the Public Service Commission (Constitution) Regulations, 1990 in which you betrayed the trust placed in you by Dawasamu Old Scholars Association and converted the Association’s ten thousand dollars ($10,000) kept under trust in your custody to your personal use. You have thus displayed an improper conduct which is likely to affect adversely the performance of your duties and is likely to bring the Public Service into disrepute or be prejudicial to the conduct of the Public Service.”

         

        The letter continued with a reference to regulation 41(2) of the Regulations and pointed out that the respondent was required to state in writing within 14 days of receipt of the letter whether he admitted or denied the charge. He was told that he was able to give such explanation as he thought would enable proper consideration to be given to the charge made against him. Reference was also made to regulation 41 (3). He was told that if he failed to state in writing whether he admitted or denied the charge then, pursuant to that regulation, he would be deemed to have admitted it in which case one or more of the penalties specified in regulation 51(1) of the regulations might be imposed upon him by the Commission. Regulation 51(1) (a) provides that one of the penalties that may be imposed is “dismissal, that is termination of appointment”.

         

        The respondent replied to Mr. Naidu’s letter on 22 February 1994. He thus replied within the period of 14 days provided for in the regulation. In his letter, he acknowledge receipt of the letter of 11 February 1994 and said that he wished to enlighten Mr. Naidu on “a few points” in the hope that the charge laid against him would be put into proper perspective. He said that he had not committed a criminal offence as alleged in the letter. He said that the Association came under the jurisdiction of the “vanua” of Dawasamu, “and apparently sir, my vanua clearly understands that I have not misappropriated the inflated $10,000” of the Association’s funds. He said, however, that he wished to bring to Mr. Naidu’s notice that he had used $2,000 of the Association’s funds to pay for an operation upon his daughter in New Zealand in 1990. He said that this had not been done secretly but had been done in full consultation with his “vanua which later endorsed” his full repayments.

         

        The respondent said that he would like to state that as President of the Association, he fully understood his obligations to the people because of his standing within his community. He said that he felt that he had done nothing to betray the trust of his people. He also said that his action in helping his daughter had been a matter of life and death. The next line, which is at the bottom of the first page of the letter appears to be missing from the photocopies of the letter in the appeal books and from the exhibit itself which is also a photocopy.

         

        On the next page, the letter continued, “All the same, the ‘vanua’ of Dawasamu in fully observing the grounds of my action fully accepted my intention of using the money, accepted my traditional apologies, endorsed and witnessed my promise to repay the outstanding money. These are all stated in the attached letter of Ratu Peni V. Waqa, the traditional head of the vanua of Dawasamu to the magistrate court, Suva and this so far has given the needed consolation that my family and I rightly deserve”. The respondent said that he wished to bring to Mr. Naidu’s notice that all along during his career he had always tried to bring repute to the teaching profession and to the communities which he had served. He concluded by saying that he had not “indulged” his family or himself in any criminal conduct and wished to caution Mr. Naidu in the implementation of any disciplinary action simply because of its implications.

         

        The letter from the Ratu does not appear to have been tendered.

         

        It is to be observed that the respondent denied that he had misappropriated the $10,000 referred to in the charge. He gave an explanation of how he came to use $2,000 of the Association’s money for a particular purpose and referred to the fact that this had been done with the knowledge of the vanua.

         

        It is common ground that the respondent heard no more of the matter until he received a letter dated 29 June 1994 from the Secretary for the Public Service. Under a heading “Dismissal”, that letter said that the Commission at its meeting held that day had considered the charges against the respondent and had decided that he should be and was thereby dismissed from the Service in accordance with s.51(1)(a) of the regulations.

         

        One of the questions which this appeal raises for decision is whether the provisions of the regulations which follow regulation 41(2) were observed by the Commission. Reference was made in the correspondence to regulation 41(3) which provides that, where an officer fails to state in writing whether he admits or denies the charge, he shall be deemed to have admitted the charge. It was submitted on behalf of the appellants that the respondent had not denied the charge. But, in our opinion, a fair reading of the letter written by the respondent on 22 February 1994 discloses that he did in fact deny the charge. He said, “I have not misappropriated the inflated $10,000 of the Dawasamu Old Scholars Association’s Fund”. It is true that he goes on to speak of the use by him of the $2,000 of the Association’s Funds in circumstances which have been mentioned. He made it clear that this had been referred to the vanua and that arrangements were in place for the money to be repaid. In the remainder of the letter he denied any criminal or other improper conduct. There may be a question whether this was a correct view of the matter but it was clear from the terms of the balance of the letter that the respondent was not admitting the charge. He contended that he had not engaged in any improper conduct. The case therefore was not a case within regulation 41(3). He was not to be deemed to have admitted the charge because in substance he had denied it.

         

        Regulation 41(4) required the Permanent Secretary or Head of Department to require those persons who had direct knowledge of the allegation to make written statements concerning it. So far as the evidence discloses, no such written statements were called for and the provisions of regulation 41(4) were not observed. In written submissions made on behalf of the appellants, counsel said that, having before it the complaint, the disciplinary charge, the respondent’s reply and the judgment of the Suva Magistrate’s Court the Commission was satisfied as to the truth of the charge and “to comply with regulation 41(4) would have prolonged their decision”.

         

        Counsel for the appellants said that the Education Department had complied with regulation 41(5) and forwarded to the Commission the original statements and relevant documents together with a copy of the charge, the respondent’s reply and its own report on the matter. The first appellant thereafter proceeded to consider and deliberate on the matter. In passing we mention that it is not clear to us what statements are being referred to. Certainly it was common ground that no statements were served on the respondent. There is, of course, no express requirement in the Regulations that that be done. That is a matter to which we shall return. The Commission decided the matter and under regulation 51(1)(a) of the Regulations dismissed the respondent. Counsel submitted that the appellants had adequately followed the procedures that were required to be followed.

         

        In the course of his reasons for judgment, the primary judge said that the respondent had begun his civil service career as an assistant teacher in 1970. At the time of his dismissal he held the post of Acting Vice Principal at the Lautoka Teachers College. He was promoted to the post on 24 March 1994 after serving for about 24 years. The offence with which the respondent was charged was understandably treated as a major offence. It involves serious allegations against him. The termination of the respondent’s employment has had grave implications for him and for his family.

         

        Objectively speaking, the respondent, notwithstanding the terms of his letter written in answer to the charge which was served upon him has not been given any opportunity of cross-examining witnesses whose evidence was relied upon by the Commission, giving evidence himself, calling other witnesses or making any submissions or explanation other than that which is contained in his letter. It seems clear enough, and this emerged in the course of the submissions or counsel for the appellant, that the Commission and the Education Department regarded the matter as foreclosed by the judgment which was obtained against the respondent in the Magistrates’ Court. That was why, so it would appear, the Commission was of the view that it was unnecessary to refer the matter to a disciplinary tribunal pursuant to the provisions of regulation 41(8). As we have concluded, however, the respondent’s letter was a denial of the charge. This is plain on a fair reading of it. Importantly, the respondent denied having misappropriated the Association’s funds. Neither the Commission nor the Education Department was a party to the judgment which was recovered and could only have known about the circumstances which led to its being entered on the basis of information given to them by others.

         

        We have referred to the fact that no statements were served upon the respondent. We are uncertain whether statements were in fact obtained. We were told in the course of the hearing of the appeal that the Department had prepared a report which had gone to the Commission. The report was accompanied by other documents but was regarded as confidential. It has never been shown to the respondent and it was not tendered during the hearing at first instance. Accordingly, we have no knowledge of the contents of it and are only aware that it exists because of what counsel told us. As mentioned during the hearing, the report could have been tendered by the Commission at the hearing, assuming it were relevant, on a confidential basis. If it were appropriate for the Court to have done so, an order that the confidentiality of the report be preserved could have been made so that its contents would only have been known to the parties and their legal representatives. Each of them would then have been under an obligation to maintain its confidentiality. We emphasise that, not having the report before us, we have had to decide the case as if no such report existed. There is no other course which we can follow.

         

        Regulation 41 confers a number of tasks and duties upon the Secretary of the Department and the Commission. The Secretary must charge the officer whose conduct is being called into question by notice in writing. It must require the officer to state within a reasonable time whether he admits or denies the charge. Regulation 41(4) provides that the Secretary of the Department is to require those persons who have direct knowledge of the allegation made against the officer to make written statements concerning it. That provision appears to apply whether an officer admits or denies the offence and irrespective of whether he answers the charge. The regulation does not say that statements will only be required in cases where there is an admission. In this case that is by the way because there was no admission. The statements and relevant documents must then be forwarded to the Commission which is obliged thereupon to proceed to consider and determine the matter.

         

        The duties of the Commission involve it in determining whether it is satisfied as to the truth of the charge in which case it may act. But it is to be noted that regulation 41(6) provides that it may only do this after it has made such further investigation or inquiry as it considers necessary. In the present case it appears that it did not think it was necessary, firstly because it regarded the letter written by the respondent as an admission of guilt and secondly because of the existence of the judgment. If the Commission is not satisfied as to the truth of a charge it is obliged, pursuant to regulation 41(8), to appoint a disciplinary tribunal in accordance with regulation 44.

         

        Counsel for the appellants approached the matter on the basis that the statute having been complied with, the Commission was well entitled to take the course which it did. In particular he asserted that the Commission was not bound to hear the respondent on the question whether the charge had been made out or, in the event that it found that it was, on the question of the appropriate penalty to be imposed. This approach overlooks well known authority on the principles which apply to the construction of statutes such as this. Some of the authorities are referred to by Gibbs J in Salemi v. MacKellar [No. 2] (1977) 137 CLR 396, a decision of the High Court of Australia. His Honour said (at 419):-

         

        “There is nothing technical about the principles of natural justice. It is sometimes said, or suggested, that those principles apply only to proceedings which are judicial or quasi-judicial, or where there is a duty to act judicially. To state the rule in that way seems to me to be unduly restrictive and misleading. It is at least clear that when the power which is being exercised is a statutory one, it is not necessary to be able to find in the words of the statute itself a duty to hear the party affected or otherwise to act judicially. To repeat the well-known words of Byles J in Cooper v. Wandsworth Board of Works [1863] 14 C.B. (N.S.) 180 at p. 194; 143 E.R. 414 at p. 420], “although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature”. As Lord Reid said in Ridge v. Baldwin [[1964] A.C. 40, at p.76], it may be possible “to infer a judicial element from the nature of the power” in the case.

        ………………………

         

        The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf. Durayappah v. Fernando [1967] 2 A.C., 337 at p. 350)”

         

        In similar vein is the dictum of Barwick C.J. in Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487. The Chief Justice said (at 491):-

         

        In Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106, I described the action of the court when deciding that the repository of the power was so bound to observe natural justice as a process of supplementing the legislation where the court was of opinion that such a course was not inconsistent with the terms of the statute. More recently, in Salemi v. MacKellar [No. 2] [Salemi’s case), I have emphasised that the court’s function in this connection is to construe a statute by which the power is granted and to educe the qualification of the power by construction of the statute. The court thus, if it is of opinion that the statute properly construed does require, though not expressly but implicitly, the observance of natural justice, does supplement the express language of the statute by effecting the qualification of the grant of power.”

         

        In our opinion, there can be no doubt that, upon the proper construction of the Regulations, the rules of natural justice apply in relation to the exercise by the Commission of at least some of its powers under regulation 41. It must be remembered that it is setting in train a procedure whereby a member of the service may be found to be guilty of a major offence and punished accordingly. In the present case the Commission was dealing with an officer who, so far as the record discloses, had not been guilty of any previous misconduct and who had been in the service of the Department of Education for 24 years. The Commission apparently agreed with the Department that the respondent had not denied the charge, and accordingly, was deemed by regulation 41(3) to have admitted it. That of course was a fundamental error which in essence goes to the heart of what was done by the Department and the Commission in the case. Then the Permanent Secretary of the Department does not, at least so far as the evidence discloses, appear to have obtained statements from those with direct knowledge of the allegation or indeed from anyone else. The Commission did not require them. That was another breach of the provision but, in some circumstances, that may have been overlooked because one would be inclined to give the provision a directory construction which would mean that a failure to comply with it might not lead to invalidity if there were circumstances which existed to suggest that there would be no purpose in obtaining such statements. But that is not this case.

         

        So the Commission came to its task with only the letter written by the respondent in answer to the charge before it, took the view that the charge was admitted in the letter, approached the matter by regarding the judgment which had been obtained as reinforcement for this view and proceeded to determine that the respondent was guilty. That being its view, it had a second task which was to determine what penalty should be imposed. Again the respondent was not given an opportunity of being heard. As mentioned, he heard nothing between the time of his letter denying the charge and the receipt by him of the letter notifying him that he had been dismissed.

         

        The applicable provision is so much of regulation 41(6) as provided that, if the Commission after consideration of the reports and documents submitted to it under subregulations (5) and after such further investigation or inquiry as it considers necessary, is satisfied as to the truth of the charge it may proceed to the imposition of a penalty. In our opinion the Commission, if it were minded to take this course was bound to give the respondent an opportunity of being heard both on the question whether or not the charge had been established and on the question of penalty. The words to the effect that the Commission was bound to afford the respondent an opportunity of being heard are not to be found, at least expressly, in the regulation. But in accordance with the principles expounded by the judges in the two passages which have been cited, the law required the Commission to administer its statute on the basis that the rules of natural justice applied.

         

        It is appropriate to mention at this point that, before the hearing of the appeal commenced, the Commission sought leave to lead fresh evidence. The evidence went to the question whether the respondent had in fact misappropriated moneys from the Association. Having heard argument on the question, we announced that we had decided to dismiss the Commission’s notice of motion dated 5 September 1997 because the evidence which was sought to be led was irrelevant to the question which we had to decide. It needs to be clear that the task of a Court in a matter such as this is not to determine the merits or substance of the matter. The Court’s task is to see whether or not a public body such as the Commission has proceeded regularly, that is according to law. If it has not, the Court will set aside what has been done. But the Court, although it may find it useful to know the background of the matter, is not concerned to determine merits. That is not its province. Its province in the review of administrative action is to ensure that proper procedures have been followed and applied.

         

        The evidence which was sought to be led would have opened up the merits of the case. Not unnaturally the respondent had filed evidence in reply. It may be observed that the evidence which was led on behalf of the Commission and the respondent establishes that the judgment so strongly relied upon by the Commission has since being set aside by consent. The reason why it was set aside is not entirely clear from the material which is before us and it is not  material for us to consider it other than to say that it would indicate that there is a substantial difference between the Commission and the respondent on the issue. The position is not clear cut.

         

        It would seem to us that this was a case which called for the appointment of a disciplinary tribunal pursuant to regulation 41(8). There are provisions in regulation 46 concerning the procedure which is to be followed by the disciplinary tribunal. Quite plainly the tribunal is to proceed judicially. The rules of natural justice are provided for expressly in that regulation. But the respondent was not entitled to a tribunal unless the Commission decided that one should be appointed. That gave it a very substantial degree of power and provides in itself a reason why the Commission was obliged to proceed with caution taking care to see that the respondent was treated fairly.

         

        Another matter that needs to be noted is that, if a matter proceeds as this one has, the Commission is in danger of becoming prosecutor and judge in its own cause. It is not as if it stands above the Department of Education and determines the matter objectively. It takes over once the matter is referred to it and decides what to do. That is an added reason why caution should have dictated the appointment of a tribunal and not action by the Commission itself particularly in the absence of opportunity being afforded to the respondent to put his case on either the question of guilt or of penalty.

         

        The learned primary judge approached this matter somewhat differently from the way that we have. Eventually he came to the conclusion that it was a case where the principles in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at 233-234 applied. We do not think the matter is satisfactorily approached by the application of principles developed from that case. We would rather say that the order for certiorari made by the primary judge should not be disturbed because it is plain on the face of the material we have that the Commission has not proceeded regularly and according to law. That is because the respondent was not afforded the opportunity of being heard.

         

        It remains to deal with the last ground of appeal which challenged the jurisdiction of the Court to make an order for reinstatement. We agree with counsel for the appellants that this order was inappropriate. The question of reinstatement would arise if the respondent had been dismissed. But the decision of the Commission that he be dismissed is, for the reasons we have given, null and void and of no effect. No doubt his Lordship wished to make it clear that the respondent had not been dismissed and continued to be entitled to be employed by the Education Department and to be entitled to the salary and other emoluments of the office which he held. We understand that the respondent has been paid up to date. We make it clear that that should continue unless there is some disturbance of the existing situation by, for example, further proceedings taken by the Department and brought to the Commission. In the meantime, however, the employment has continued unaffected by the purported action of the Commission.

         

        In the circumstances the orders made by his Lordship should be varied by omitting the order for reinstatement and, in lieu thereof, ordering that it be declared that the respondent’s employment was not determined by the decision of the Commission made on 29 June 1994 and has continued since that date.

         

        The appeal should otherwise be dismissed and the respondent should have his costs of it. Counsel for the respondent sought an order that those costs be paid on the indemnity basis. It was submitted that the appeal was so clearly misconceived that it should never have been brought. We may have had some sympathy for that view if it had not been necessary to set aside the order as to reinstatement. Although it was only a small part of the argument, that in itself justified the appeal. The costs will therefore be on the usual party and party basis.

         

        In the result the orders of the Court are:-

         

        1.         The orders made by the High Court on 28 June 1996 be varied by omitting so much thereof as ordered the reinstatement of the respondent (the applicant in the High Court) and substituting therefor a declaration that the respondent’s employment was not determined by the decision of the Commission made on the 29 June 1994 but has continued since that date unaffected by the Commission’s decision.

         

        2.         The appeal be otherwise dismissed.

         

        3.         The appellants pay the respondent’s costs of the appeal.

         

        (Appeal partly allowed; order of the High Court varied).
 

Prem Chand v. the State

        [1997] 43 FLR 217

        HIGH COURT OF FIJI ISLANDS

         

        PREM CHAND

         

        v.

         

        STATE

         

        [HIGH COURT, 1997 (Pathik J) 28 August}

         

        Appellate Jurisdiction

         

        Sentence- domestic violence- Penal Code (Cap 17) Section 245.

         

        The Appellant was sentenced to 6 months imprisonment after pleading guilty to a “bad case” of domestic violence. The Parties having reconciled, the High Court, allowed the appeal and ordered the release of the Appellant who had already served 7 weeks in prison. The Court also imposed a further suspended term of imprisonment and reminded the Appellant of his duty to respect his wife.

         

        Cases cited:

         

        Divendra Bijay v. State ( 43 FLR 144)

        Mosese Gaunavou v. State (Crim. App. No. HAA0011/96S)

         

        Appeal against sentence imposed in the Magistrates’ Court.

         

        Appellant in Person

        Ms. A. Driu for Respondent

         

        Pathik J:

         

        On 7 July 1997 the appellant was on his own plea convicted of the offence of assault occasioning actual bodily harm on his wife contrary to section 245 of the Penal Code and was sentenced to six months’ imprisonment by Magistrate Moses Fernando Esq. at Magistrate’s Court Labasa.

         

        The appeal is against severity of sentence.

         

        The appellant is 28 years old and has two children aged 3 years (daughter) and a son 5 years old. He told this Court that he has now reconciled with the complainant who is his wife.

         

        As the learned Magistrate has stated when sentencing him, this was a very bad case of domestic violence. The injuries inflicted covered various parts of the body.

         

        The wife wants the appellant to be released from prison and requests the Court to give him a suspended sentence of imprisonment. She says that she finds it very difficult to look after the children and that she is not even wanted at her brother’s home. She said that if freed the husband will be able to harvest cane and earn some income to support them.

         

        The learned State Counsel submitted that the fact of reconciliation at the time of sentencing was not before the learned Magistrate. She submits that if reconciliation is accepted the sentence could be varied by a long suspended sentence bearing in mind the extensive nature of the injuries inflicted on the wife.

         

        I find this to be one of the worst types of domestic violence to come before the Court. The learned Magistrate has quite rightly imposed an immediate custodial sentence. This kind of behaviour will not be tolerated by the Courts. The appellant should realize that the fact that the complainant is his wife does not give him a licence to assault her and inflict injuries on her and then expect leniency from the Courts. He has to be given an appropriate sentence.

         

        Recently the Honourable the Chief Justice had occasion to hear an appeal in the domestic violence case of Divendra Bijay v State (43 FLR 144). That was a case where reconciliation was effected but the learned Magistrate did not approach it the way he should have. Now that the fact of reconciliation is before this Court each case should be judged on its own facts and as the Chief Justice in Divendra Bijay (supra at p.6 to 7) said “each case must be assessed and evaluated in its true merits” and that “the best guidance, as always, is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle”.

         

        Now, putting on my hat of a marriage officer, I must say that it is quite obvious that when the appellant assaulted his wife he had forgotten the marriage vows which he took when he went through the religious ceremony of marriage. The taking of sacred vows is called in Hindi Pani-Grahana and Pratijyna and this is done with the right hand of the bride clasped by that of the bridegroom. One of the vows is the “taking of the seven steps” called Sapta-Padi towards the end of the marriage ceremony. With a knot tied between the clothing of the bride and the bridegroom to indicate fusion of two hearts and the union of two different families, the bride and bridegroom take seven steps symbolising entry into married life. As they take each step they invoke the blessing of God for: food and nourishment, strength, wealth, education and knowledge, children, health and love and friendship. Thus the bride and bridegroom are no longer two independent beings but one integrated personality united by firm resolve to supplement and complement each other in every aspect of life. For a successful marriage you two have to move together in the same direction like the wheels of a chariot. You cannot have the wheels going in different directions.

         

        I think I have said enough to bring home the point for the benefit of the appellant and others minded to deviate from the right path.

         

        The appellant has served about seven weeks of his sentence and now realizes how tough the prison life is and now he wants his wife to come to his rescue by having him released. Seeing her own difficulties and the plight of the appellant on the one hand and those of the children on the other, she is a brave and forgiving woman willing to take him back with a warning from the Court that he should “live like a husband”. Those sentiments are typical of an Indian woman. According to Hindu Religion women should be respected in society and a society which does not respect them is heading towards its downfall. I will tell the appellant a bit of history. It was Swami Dayanand Saraswati, the founder of Arya Samaj Organisation in India on 10 April 1875, who brought Indian women out of bondage when women were regarded as chattels and fit to be trampled upon. That is what you the appellant have done in this case. Swamiji gave equal right to women as men.

         

        To conclude, I have digressed a little by not sticking strictly to legal principles but I feel that for you as an Indian some of these Indian customs and traditions should be followed and the society’s norms and expectations cannot be ignored if there is to be peace and happiness in one’s married life. What I have said above should have far-reaching influence on those who fall foul of the good and accepted practices in one’s matrimonial life.

         

        The following words of Chief Justice in Mosese Gaunavou and State (Crim. App. No. HAA0011J.96B) are pertinent and I would apply them here:

         

        “It is always a concern for the court to try and help any family experiencing domestic difficulties to resolve its problems as much as possible. It is for that reason that this court believes that it would be in the best interest of this family if the appellant, the man of the house in this case, is not kept away from his family for too long.”

         

        In the outcome, bearing in mind the fact of reconciliation and the wife’s plea, I consider that the appellant has already served sufficient time in prison. He has paid for the folly of his ways and has as a consequence inflicted long enough punishment on his two infant children.

         

        Bearing in mind the interests of the children and the need for the father to be with his family, I vary the sentence by setting it aside and substituting it with a sentence of 9 months’ imprisonment suspended for 18 months. The appellant is explained his liability. He is now ordered to be released from Prison forthwith.

         

        (Appeal allowed; sentence varied).
 

Ram Binod & Savitri Ram v. Ratu Joseph Mae Ratumaitavuki

        [1997] 43 FLR 220

         

        HIGH COURT OF FIJI ISLANDS

         

        RAM BINOD & SAVITRI RAM

         

        v.

         

        RATU JOSEPH MAE RATUMAITAVUKI

         

        [HIGH COURT, 1997 (Fatiaki J) 9 September]

         

        Appellate Jurisdiction

         

        Contract- oral agreement for sale and purchase of land- whether deposit refundable by vendor after purchaser’s failure to complete.

         

        The vendor of a property retained a deposit paid to him by a prospective purchaser who failed to complete. Subsequently the property was sold for a higher price than that agreed between the parties. The Magistrates’ Court ruled that the deposit should be refunded. On appeal the High Court HELD: (i) there was no concluded contract (ii) the onus of showing a right to retain the deposit rested on the vendor and (iii) that in all the circumstances it would be unconscionable to allow the vendor to retain the deposit.

         

        Cases cited:

         

        Baylis v. Bishop of London (1913) 1 Ch. 127

        Carruthers v. Whitaker and Anr [1975] 2 NZLR 667

        Casson v. Robertys (1862) 135 RR 571

        Chillingworth v. Esche (1924) 1 Ch. 97

        Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd

                    [1943] AC 32

        Hall v. Burnell (1911) Ch. D. 55

        Howe v. Smith (1884) 27 Ch. D. 89

        Martin v. Finch [1923] NZLR 570

        Palmer v. Temple (1839) 48 RR 568

        Soper v. Arnold (1889) 14 A.C. 429

        Stockloser v. Johnson (1954) 1 QB 476

         

        Appeal against Judgment entered in the Suva Magistrates’ Court.

         

        V. Kapadia for the Appellants

        A.R. Matebalavu for the Respondent

         

        Fatiaki J:

         

        This is an appeal against the judgment of the Suva Magistrates’ Court delivered on the 14th of September 1995 in which the appellants (the defendants below) were ordered to refund to the respondent (the plaintiff below) the sum of $12,500 paid pursuant to an oral agreement which fell through (to adopt the expression used throughout these proceedings).

         

        The sole ground of appeal in the petition is as follows:

         

        “THAT the Learned trial magistrate erred in law and in fact in granting judgment for the Plaintiff/respondent as it was against the weight of the evidence adduced at the trial.”

         

        In considering this appeal it is necessary to set out the critical parts of the trial magistrate’s judgment which are as follows after briefly setting out the evidence of the plaintiff and the defendant : (pp.32 to 34 of the record) :

         

        “The question to be considered is whether the $12,500.00 paid by the plaintiff should be refunded or not.

         

        It is admitted that there is no writing whatsoever to evidence any agreement regarding the deposit.

         

        The receipt issued by the defendants has nothing in it to show whether the deposit was not refundable.

         

        The two agreements have not been signed or executed hence the two draft agreement of sale and purchase are of no avail. They are not agreements and they cannot be used to decide this issue.

         

        The Defendant in evidence said he told the plaintiff that he will not refund the deposit if the sale fell through. On the words of the defendant the plaintiff said : ‘I will take the house in a couple of weeks and no worry.’ If this was the plaintiff’s reply then I cannot hold that those words of the plaintiff meant the plaintiff agreed with the defendant that the deposit will not be refunded.

         

        The plaintiff had no where in his evidence said that he agreed to the deposit being forfeited in the event of the sale falling through.

         

        On all the evidence taken into account I hold that the plaintiff had at no time agreed that the deposit will be forfeited in the event of the sale falling through for whatever the reason. Under these circumstances are the defendants entitled to keep the plaintiff’s money? The answer is no.

         

        The deposit must be refunded. In this case there is no evidence at all that the defendants has suffered any loss or damage by the sale to the plaintiff falling through.

         

        In fact the defendants have made a profit. The land had been sold for $138,000.00 or $13,000 more than what they would have got from the plaintiff.

         

        There is no evidence whatsoever to show the defendants were unable to sell the property to another offeror as the property was being held for the plaintiff. There is also no evidence that the plaintiff suffered any loss or damage by the delay that was caused for the sale of the property.

         

        The evidence is to the contrary. The defendants as soon as they realised that the plaintiff was not going to purchase obtained permission from the Lands Department and sold the property to the present owner at a large profit.

         

        In all the circumstances in this case and all the evidence taken into consideration I am satisfied that the defendants have no right to withhold the deposit and the full amount must be refunded to the plaintiff. The defendants cannot unjustifiably withhold the deposit. It will be a case of the defendants enriching themselves unconscionably.”

         

        It is plain from the above excerpts that the trial magistrate based his decision on two main grounds, firstly, the absence of any agreement between the parties as to what was to happen to the deposit should the contract fall through ; and secondly, the equitable doctrine of unjust enrichment.

         

        As to the first ground, Counsel for the appellants submits that the trial magistrate “(fell) into error in holding that the deposit must be refunded because the receipt does not state that it is non-refundable” and also in “(holding) that there was nothing expressly in writing stating that the deposit will be forfeited.” Counsel based his submissions on the common law of deposit which in counsel’s view, is quite clear.

         

        In this latter regard the Court was referred to several authorities including the leading case of Howe v. Smith (1884) 27 Ch.D.89 ; Soper v. Arnold (1889) 14 A.C. 429; Hall v. Burnell (1911) Ch.D. 55 ; Martin v. Finch (1923) N.Z.L.R.570 and Lowe v. Hope [1969] 3 All E.R. 605. For present purposes however it is sufficient to refer to the convenient summary of the law relating to deposits in Vol. 34 of Halsburys Laws of England (3rd edn.) which reads :

         

        “A deposit paid under a contract of sale serves two purposes ; if the sale is completed it counts as part payment of the purchase-money, but primarily it is security for the performance of the contract, and it is usual to provide expressly that, in the event of the purchaser failing to observe the conditions of the contract, the deposit shall be forfeited to the vendor. Such a provision, however, is not necessary, and, unless the contract taken as a whole shows an intention to exclude forfeiture, the vendor is entitled, by virtue of the purpose of the deposit if the contract goes by the default of the purchaser to retain it as forfeited ...”

         

        It is clear from the above and from dicta in the cases cited, that subject to the existence of a binding agreement and in the absence of express provision, forfeiture of a deposit in a contract of sale that has fallen through is dependant upon a finding that the contract goes by the default of the purchaser.

         

        This is also clear from what was said by Cotton L.J. in Howe v. Smith (op.cit) which was a case in which the written contract contained no clause at all as to what was to be done with the deposit if the contract was not performed, at p.95:

         

        “In order to enable the vendor (to retain the deposit), in my opinion there must be acts on the part of the purchaser which not only amount to delay sufficient to deprive him of the equitable remedy of specific performance but which would make his conduct amount to a repudiation on his part of the contract.”

         

        Counsel for the respondent whilst not necessarily disputing the correctness of the law advanced in the submissions of the appellants’ counsel, nevertheless submitted that the law must be related to the facts of the case and any issues arising therefrom must be determined, in the absence of express provision, according to the intention of the parties to the contract, which, in this instance, was to be reduced into writing but for various reasons, never eventuated.

         

        In this regard Lord Denman C.J. said in Palmer v. Temple (1839) 48 .R.R. 568 at p.573 :

         

        “... in the absence of any specific provision, the question whether the deposit is forfeited depends on the intent of the parties to be collected from the whole instrument.”

         

        In similar vein in Howe v. Smith (op.cit) where the nature of a deposit was considered and the right of the purchaser to the return of it was rejected, Bowen L.J. said at p.97 :

         

        “The question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is to be done with the money deposited. We have to look at the documents to see what bargain was made.”

         

        What then was the intent of the parties or the conditions of the contract that dealt with the deposit in this case ? The evidence before the trial magistrate comprised a receipt (Exhibit 2) issued by the defendants (appellant) which reads, in part :

         

        “being for Deposit to the house at 26 Laucala Bay Road.

         $125,000.00. Balance $112,500.00"

         

        The language of the receipt clearly describes the payment as a ‘Deposit’ and the ‘Balance’ figure suggests that it is also intended as part-payment of the purchase price and therefore might be said to fall within the classic mould of money paid as a deposit and in part-payment of the purchase price.

         

        There was also the oral evidence of the defendant (at p.26) that at the time of receiving the money, he had somewhat prematurely “... told the plaintiff that the deposit will not be refunded”, to which the plaintiff replied, “I will be taking the house in a couple of weeks and no worry.”

         

        Then there was the oral evidence of the plaintiff (at p.16) that he “paid a sum of $12,500 as deposit ...” which he “understood it was a deposit for house pending finalisation of (his) father’s Estate” and later in cross-examination he said (at p.18) : “I paid the deposit so that the defendant could sell the property to me.”

         

        On the basis of that evidence the trial magistrate held “that the plaintiff (respondent) had at no time agreed that the deposit will be forfeited in the event of the sale falling through for whatever reason.” In the light of the law as earlier discussed however, that was not a finding that the trial magistrate was entitled to make insofar as he considered the reason for the contract falling through was irrelevant.

         

        Not only does the finding fail to take into account the legal nature of a deposit as an earnest or guarantee for the fulfilment of the contract but more seriously, it ignores the dictum of Bowen L.J. in Howe v. Smith (op.cit) when his lordship said at p.98 :

         

        “It is quite certain that the purchaser cannot insist on abandoning his contract and yet recover the deposit, because that would be to enable him to take advantage of his own wrong.”

         

        The reason or cause of a contract falling through is plainly a relevant consideration that fundamentally affects the right of an innocent party to either forfeit or recover any deposit paid and cannot be ignored. Unfortunately in this case it was ignored by the trial magistrate and as a consequence no material findings were made by him in that regard.

         

        The result of this appeal is not concluded however, by either the trial magistrate’s manifest error in law or by his serious omission flowing therefrom, nor in my view, am I required to deal with that rather vexed question upon which the parties and counsel seriously differ. I say this because of the nature of the submissions of counsel for the respondent on appeal.

         

        In counsel’s submission, the present case is not one concerning a deposit paid pursuant to a binding written agreement which made no provision for either its forfeiture or repayment in the event of the contract falling through as in the authorities cited by counsel for the appellants, instead, after referring to the legal requirement that a contract relating to the sale of land must be evidenced by some writing, counsel in his submission writes :

         

        “In this case -

         

        (a)        no binding contract existed between the parties ; and

        (b)        (there was) no written memorandum or agreement between the parties that the deposit shall be non-refundable.”

         

        More particularly, counsel referred to the unsigned Sale and Purchase agreements (Exhibits D3 and 4) as not only evincing an intention on the part of the parties to reduce their agreement into writing but more importantly, the fact that neither agreement was signed despite having been exchanged by the parties, confirms that they had not reached any consensus as to the terms of a binding Sale and Purchase agreement. In counsel’s words : “Accept the purchase price finalised and deposit paid but anything else was not agreed.”

         

        In effect, counsel’s submission is that the evidence merely discloses that the parties were still at the negotiations stage or at most had orally agreed some basic terms which were to be incorporated into a binding written contract executed by them and therefore, in the absence of a such a contract, there was no actual or enforceable agreement between the parties, and accordingly, the respondent was entitled to the refund of his deposit which counsel described in his submissions to the trial magistrate (at p.29) as ‘merely (a) holding deposit’.

         

        In Carruthers v. Whitaker and Anor [1975] 2 N.Z.L.R. 667 the New Zealand Court of Appeal in rejecting the existence of a concluded contract for the sale of land in that case where the Sale and Purchase Agreement was only signed by the purchaser

         

        “Held : Where parties are proposing to enter into a contract the manner in which it is to become binding must be gathered from the intentions of the parties express or implied. In a contract for the sale of land there is a well-known common and customary method of dealing in a document signed by both the vendor and the purchaser. Normally in such contracts the inference is that the above method is contemplated by the parties.”

         

        Having carefully considered the evidence ; the trial magistrate’s findings and the submissions of counsel, I am firmly of the view that the trial magistrate’s ultimate conclusion was correct but for slightly different reasons, and I prefer and uphold the submissions of counsel for the respondent.

         

        In my view the present case under appeal is distinguishable from the authorities cited by counsel for the appellants insofar as those cases concerned binding agreements in writing which had fallen through as a result of the purchaser’s default.

         

        The situation in this case is more akin to that in Casson v. Roberts (1862) 135 R.R. 571 which concerned a parol contract for the sale of freehold land, where the headnote reads :

         

        “Where there is no contract or no contract which can be enforced, the purchaser is entitled to a return of his deposit even though the vendor is able and willing to complete the sale, unless an express or implied agreement to the contrary is established.”

         

        In rejecting the defendant’s claim that the deposit had been forfeited in consequence of the purchaser’s non-completion of the purchase, Romilly M.R. said at p.572:

         

        “Where it is necessary to ascertain who is to blame for the non-performance of an agreement when the Court is asked to determine whether a deposit paid ought to be returned, it must necessarily do so in a manner most unsatisfactory. When a deposit is paid by a purchaser to a vendor the presumption is, that it is paid on behalf of the purchaser, and that he was to obtain the benefit of it on the completion of his purchase : in fact, that it was made in part discharge of the purchase-money. An agreement certainly might be made that the deposit should be forfeited in case the purchase should not be completed, but this must either be expressed or clearly implied from the contract itself. It had in many cases, from the terms of the contract, and even from its silence, been held that a forfeiture must be inferred. There is, however, no authority which holds that the deposit must be considered as forfeited in the absence of any agreement whatever, or one which could neither be enforced at law nor in equity.”

         

        In my considered view the evidence and the trial magistrate’s findings in this case are capable of supporting the conclusion that the parties had merely agreed to enter into a binding written Sale and Purchase Agreement and accordingly, the payment in this case may be described, in the words of Sargant L.J. in Chillingworth v. Esche (1924) 1 Ch. 97 at p.115 :

         

        “... as being an anticipatory payment intended only to fulfil the ordinary purpose of a deposit if and when the contemplated agreement should be arrived at.”

         

        Warrington L.J. in the same case said of the deposit paid in that case at p.112:

         

        “Then it is said that unless the consequence of the payment of the deposit amounts to a guarantee to complete the purchase the payment of it is perfectly futile. I do not agree, because the purchaser by payment of a deposit shows that he means business. The purchaser has not bound himself, but in order to show a definite intention he is willing to part with money, and run the risk of the vendor spending the money and being unable to return it if negotiations are broken off. The purchasers contend that this is a deposit paid in anticipation of a final contract and nothing more. That seems to me to be the true view.”

         

        For his part Pollock M.R. in rejecting the vendor’s entitlement to retain the deposit said at p.107 (ibid):

         

        “... I think the onus of showing a right to retain (the deposits) rests on the vendor, ... the authority for it is to be found in Baylis v. Bishop of London (1913) 1 Ch.127 at p.140 where Hamilton L.J. said `the question is whether it is conscientious of the defendant to keep the money, not whether it is fair for the plaintiff to ask to have it back’, and in the cases of `money had and received’ in the old forms of pleadings one of the allegations was that the purchaser had lost the use of the money.”

         

        If I should be wrong however in my assessment of the evidence in this case, and therefore must assume that a concluded and binding Sale and Purchase agreement existed between the parties, then I turn to consider the second ground on which the trial magistrate based his decision, namely, unjust enrichment.

         

        The trial magistrate cited no authority for his conclusion in this regard other than to say : “It will be a case of the defendants enriching themselves unconscionably.” The modern view of the doctrine of unjust enrichment may be traced to the judgment of Lord Wright in Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] A.C. 32 where his lordship said at p.61 :

         

        “It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money or some benefit derived from another which it is against conscience that he should keep.”

         

        There are also the dicta of Denning L.J. in Stockloser v. Johnson [1954] 1 Q.B. 476 when he said at pp.489/490:

         

        “It seems to me that the cases show the law to be this : ... (2) But when the money is paid as a deposit (which is equivalent to a forfeiture clause), then the buyer who is in default cannot recover the money at law at all. He may, however, have a remedy in equity, for, despite the express stipulation in the contract, equity can relieve the buyer from forfeiture of his money and order the seller to repay it on such terms as the court thinks fit. That is, I think, shown clearly by the decision of the Privy Council in Steedman v. Drinkle [1916] 1 A.C. 275, where the Board consisted of a strong three, Viscount Haldane, Lord Parker and Lord Sumner.”

         

        and later his lordship said :

         

        “Two things are necessary : first, the forfeiture ... must be of a penal nature, in the sense, that the sum forfeited must be out of all proportion to the damage, and secondly, it must be unconscionable for the seller to retain the money.”

         

        Sommerville L.J. for his part said at p.485 (ibid) :

         

        “I think that the statements of the law in the cases to which I will refer indicate a wider jurisdiction. I think they indicate that the Court would have power to give relief against the enforcement of forfeiture provisions, although there was no sharp practice by the vendor, and although the purchaser was not able to find the balance. It would, of course, have to be shown that the retention of the instalments was unconscionable, in all the circumstances.”

         

        In the present case as to the ‘things’ enunciated by Denning L.J. (op.cit) the trial magistrate said :

         

        “In this case there is no evidence at all that the defendant has suffered any loss or damage by the sale to the plaintiff falling through. In fact the defendants have made a profit ... $13,000 more than what they would have got from the plaintiff”

         

        and later he said :

         

        “There is no evidence whatsoever to show the defendants were unable to sell the property to another offeror as the property was being held for the plaintiff. There is also no evidence that the plaintiffs (sic) suffered any loss or damage by the delay that was caused ... The evidence is to the contrary.”

         

        Given those findings, I am satisfied that the trial magistrate was entitled to and correctly concluded that in all the circumstances were the defendants to retain or forfeit the plaintiff’s deposit : “It will be a case of the defendants enriching themselves unconscionably.”

         

        The appeal is accordingly dismissed with costs to the respondent.

         

        (Appeal dismissed).
 

Ram Swamy & Adi Narayan v. Padma Wati

        [1997] 43 FLR 80

         

        COURT OF APPEAL OF FIJI ISLANDS

         

        RAM SWAMY & ADI NARAYAN

         

        v.

         

        PADMA WATI

         

        [COURT OF APPEAL, 1997 (Tikaram P) 9 April]

         

        Civil Jurisdiction

         

        Appeal- whether a single Judge of Appeal has power to grant leave to appeal to the Supreme Court- Constitution 1990, Section 117 (2) - Supreme Court Decree 47/1991.

         

        A party intending to appeal to the Supreme Court sought leave to appeal from a single Judge of Appeal. It was HELD: that notwithstanding the governing Decree the provisions of the Constitution required leave and any associated stay pending appeal to be obtained from the full Court of Appeal.

         

        Case cited:

         

        Fiji Public Service Association v. The Registrar of Trade Unions & Anor - (Civ. App.32/90)

         

        Interlocutory application in the Court of Appeal.

         

        C.B. Young for the Appellants/Applicants

        H.A. Shah for the Respondent

         

        Tikaram P:

         

        On 28 February 1997 the Fiji Court of Appeal consisting of Sir Maurice Casey, Ward and Hillyer JJ.A. dismissed an appeal by the 1st and 2nd Appellants against the decision of the Lautoka High Court whereby Sadal J. ordered that they deliver vacant possession or the land they were occupying, to the Respondent Padma Wati (the Original Plaintiff). The Appellants now wish to appeal to the Supreme Court against the decision of the Fiji Court of Appeal. They have come to a single judge seeking the following two Orders -

         

        (1)       Leave to appeal to the Supreme Court; and

         

        (2)       The Judgment of Mr. Justice Sadal in Civil Action No. 547 of 1982 delivered on the 3rd day of November, 1995 ordering the Appellants to deliver vacant possession of the land they are occupying at Qeleloa, Nadi and the Judgment of the Court of Appeal delivered on the 28th day of February, 1997 dismissing the Appellants’ Appeal with costs to the Respondent be stayed pending the final determination of the Appellants’ Appeal to the Supreme Court.

         

        The first question that requires determination is whether a single judge has power to grant leave to appeal to the Supreme Court. In Fiji Public Service Association v. The Registrar of Trade Unions & Anor – (Civil Appeal No. 32 of 1990), (Judgment published 21 December 1992) I considered this very issue and came to the conclusion that a single judge had no such power having regard to the provisions of Section 117(2) of the 1990 Constitution. I held that the expression “in the opinion of the Court” must be construed to mean the full Court of Appeal. I came to this view notwithstanding the specific provisions of Section 12 of the Supreme Court Decree 1991 (Decree No. 47 of 1991) which read as follows:

         

        “12.     A single judge of the court shall have power and jurisdiction:

         

        (a)       to determine any application to the Court for leave to appeal in any case under any provision of law;

         

        (b)       generally in respect of any appeal pending before the Supreme Court, to make such order and to give such other directions as he shall consider the interests of justice or circumstances of the case require:

         

        Provided that any order, direction or decision made or given in pursuance of this section may be varied, discharged or reversed by the Court when consisting of three judges which may include the judge who made or gave the order, directions or decisions.”

         

        I also held that the constitutional provision must prevail over any conflicting or inconsistent subsidiary legislation.

         

        Mr. Young, Counsel for the Appellants, has strongly submitted that I have taken too restrictive a view of the constitutional provision. He has cited N.Z., Australian and English cases in support of his argument and has urged that I deal with the leave to appeal application on the merits.

         

        I am not persuaded that the framers of the Constitution intended a single judge to have power to deal with an application for leave to appeal. I adhere to the ruling I gave in the Public Service Association’s Case wherein I dealt with the matter in some detail. Even if I am in error on the question of jurisdiction it is not mandatory for a single judge to determine an application for leave if he is of the opinion that it is desirable that the application should be dealt with by the full Court, i.e. by a Court consisting of at least 3 judges. The facts, circumstances and issues involved in this case make it eminently desirable that the leave application should be dealt with by the full Court.

         

        As a matter of historical interest the following provisions of the Supreme Court Appeal Rules (No. 2) 1988 made under Judicature Decree 1988 (although now repealed) are not without significance -

         

        11.-(1) Every application for leave to appeal under section 19(2)(a) of the Judicature Decree shall be made to the Court of Appeal by notice of motion supported by an affidavit setting out the reasons why leave should be granted on the ground that the question involved in the appeal is one that, by reason of its great general or public importance or otherwise ought to be submitted to the Supreme Court.

         

        (2) If leave is granted pursuant to sub-rule (1) above, the Court of Appeal under the hand of the presiding judge shall issue to the applicant a certificate to that effect.”

         

        I draw particular attention to the words “under the hand of the presiding judge” appearing in 11 (2) above.

         

        Having regard to the conclusion that I have reached I am of the view that the stay application should also be dealt with by the full Court. It is to be noted that the stay application is seeking a stay “pending the final determination of the Appellants’ Appeal to the Supreme Court.” The stay application is inextricably linked with the leave application and is indeed dependent on its outcome.

         

        What then is the fate of the stay application in the interim period? As I am not able to deal with the primary application the interest of justice demands that I make an interim order to preserve the status quo in respect of the possession order.

         

        Consequently I make the following orders -

         

        1.         The application for leave to appeal is adjourned for hearing before the full Court at 9.30 am on 21 May 1997.

         

        2.         The stay application is also adjourned to the same date and time for determination by the full Court.

         

        3.         Execution of the possession order is stayed until 9.30 am on 21 May 1997.

         

        4.         Applicants’ Counsel to deliver to the Court of Appeal Registry 3 extra copies of his written submissions together with 3 extra copies of his list of authorities, within 14 days.

         

        5.         Costs of this application to be determined by the full Court.

         

        (Applications adjourned to the full Court.)
 

Seng Mi Commercial Co. v. John Y. Singh & Co. Ltd

        [1997] 43 FLR 66

         

        HIGH COURT OF FIJI ISLANDS

         

        SENG MI COMMERCIAL COMPANY

         

        v.

         

        1. JOHN Y. SINGH & COMPANY LIMITED

        2. JOHN YOGENDRA SINGH

         

        [HIGH COURT, 1997 (Fatiaki J) 6 March]

         

        Civil Jurisdiction

         

        Practice: Civil- mareva injunction- writ ne exeat regno- principles governing their grant.

         

        The Defendants sought to set aside a mareva injunction and a writ ne exeat regno which had been granted against them ex parte. Dismissing the application the High Court emphasised the relevance of prima facie evidence of fraud, and explained the purpose of the orders made and the principles governing their grant.

         

        Cases cited:

         

        A v. C [1981] 1 QB 956

        Al Nahkel for Contracting and Trading Ltd v. Lowe [1986] 1 All ER 729

        Bayer A.C. v. Winter & Ors [1986] 1 All ER 733

        Bekhor Ltd v. Bilton [1981] 1 QB 923

        Chartered Bank v. Daklouche [1980] 1 All ER 205

        Felton v. Callis [1968] 3 All ER 673

        Girdhar Lal Raniga v. Merchant Bank of Fiji 39 FLR 181

        Jackson v. Sterling Industries Ltd (1987) 162 CLR 612

        Leslie Redvers Martin v. BNZ and FDB (Civ. Appeal No. 73/84)

        Littlewoods Mail Order Stores v. IRC [1969] 1 WLR 1241

        Ninemia Corp. v. Trave Schiffahrts [1984] 1 All ER 398

        Patterson v. B.T.R. Engineering (Aust.) Ltd. (1989) 18 NSWLR 319

        Robert Rogers v. Pacific Hotels & Development Ltd Civ. Action 1132/85

        Third Chandris Shipping Corp v. Unimarine [1979] 2 All ER 972

        TSB Private Bank International S.A. v. Chabra [1992] 1 WLR 231

        WBC v. Satish Chandra Civ. Action No. 356/91

         

        Application to set aside mareva injunction and writ ne exeat regno.

         

        D. Sharma for the Plaintiff

        H. Lateef for the Defendants

         

        Fatiaki J:

         

        On the 17th January 1997 this Court granted ex-parte against the defendants a Mareva injunction and also issued a Writ Ne Exeat Regno against the second defendant preventing him from leaving the Court’s jurisdiction. The facts of the case may be briefly outlined for present purposes.

         

        The plaintiff company is a Korean company which entered into an agreement with the 1st defendant company to purchase trochus shell blank buttons for the Korean market at an agreed price of $US97,825.70. It is common ground that the plaintiff company paid the purchase price to the 1st defendant company through a Letter of Credit redeemed at the 1st defendant company’s account at the A.N.Z. Bank, Marks Street Branch in Suva. It is also common ground that the container which was sent by the 1st defendant company in fulfilment of the plaintiff company’s order arrived in Pusan, South Korea and when opened was found to be empty.

         

        In its Statement of Claim the plaintiff company amongst other things :

         

        ‘Alleged that the defendants acted fraudulently in stripping the plaintiffs container and sending an empty container to the plaintiff.’ [para : 12(h)]

         

        and further that :

         

        ‘Without the second defendant the plaintiff’s claim against the first defendant would be futile as the company is only a shell company.’ (para.16)

         

        and the plaintiff company seeks to recover the full purchase price paid, a Mareva injunction and an order restraining the second defendant from leaving Fiji.

         

        In its affidavit dated 16th January 1997 in support of the injunctive relief, the plaintiff company’s local authorised agent deposed inter alia :

         

        ‘The second defendant is the principal shareholder of the first defendant and was the person who was engaged in all material dealings with the plaintiff.’ (para.4)

         

        ‘(that) The defendants had tried to blame the shipping agents. However the Shipping Agents records confirms the deliberate fraud that was perpetrated by the Defendants in this matter.’ (para.16)

         

        and further :

         

        ‘That the second defendant and his family are planning to migrate to United States and that they are likely to go at any moment.’ (para.17)

         

        The factual background of the case is that the plaintiff company claims to be the victim of a fraud which it infers was master-minded by the second defendant. It has placed before the Court affidavit evidence which constitutes ‘a good arguable case’ that a fraud has been committed, though, whether such a fraud may hereafter be proved depends upon the effect of the evidence given at the trial of the action.

         

        Based on the above circumstances this Court granted the plaintiff company a Mareva injunction limited to the sum of $US98,000 and issued a Writ Ne Exeat Regno conditional upon the 2nd defendant surrendering his passport and any other travel documents and air tickets that he might have to the High Court.

         

        In this latter regard it is common ground that pursuant to the Court’s order the second defendant was stopped by immigration officials from leaving the country on the 18th of January 1997 i.e. the day following the issue of the Writ ne exeat Regno.

         

        On 24th January 1997 the defendants issued an inter partes motion seeking the dissolution of the Mareva injunction and the discharge of the Writ Ne Exeat Regno.

         

        The affidavit of the second defendant in support of the motion if I may say so, lacked simple commercial transaction details, was evasive and sought to deny any responsibility or any knowledge of, or indeed, any inclination to find out how a full container that was despatched by the defendant company to local shippers in fulfilment of the plaintiff company’s order arrived empty in Pusan, South Korea. He does not deny however that payment has been received by the 1st defendant company or that he was the person engaged in all material dealings with the plaintiff. [See : paras 4 and 8]

         

        In this regard in the Ninemia Corp. v. Trave Schiffahrts [1984] 1 All E.R. 398 Mustill J. relevantly observed at p.409 :

         

        “The judge who hears the proceedings inter partes must decide on all the evidence laid before him. The evidence adduced by the defendant will normally be looked at for the purposes of deciding whether it is enough to displace any inferences (of danger of dissipation) which might otherwise be drawn from the plaintiff’s evidence. But I see no reason in principle why, if the defendant’s evidence raises more questions than it answers, and does so in a manner which tends to enhance rather than allay any justifiable apprehension concerning dissipation of assets, the Court should be obliged to leave this out of account.”

         

        Mr. Lateef for the defendants in moving the motion prefaced his submissions by stating that he did not propose to address the merits of the plaintiff company’s claim, in particular, the very serious allegations of fraudulent dealings made against the defendants. He made 5 submissions which may be summarised as follows :

         

        (1)     Counsel doubted the authority of Mr. Cheong Chang Han to act for the plaintiff company or give an undertaking in damages on its behalf ;

         

        (2)     There was no evidence that the defendants’ assets were being dissipated or transferred out of the courts jurisdiction or being otherwise dealt with so as to render them ‘judgment-free’ ;

         

        (3)     There is no evidence that the first defendant company is being wound up or will cease operations in the absence of the second defendant ;

         

        (4)     The effect of the court’s Mareva order was improperly to provide security for any money judgment the plaintiff company might obtain or recover against the defendants ;

         

        (5)     The plaintiff company has no cause of action or claim against the second defendant and accordingly the writ ne exeat regno was improperly issued against him.

         

        In essence defence counsel questions the correctness on principle of the Court granting the Mareva injunction and the writ ne exeat in the absence of sufficient supporting evidence or proper grounds for the same.

         

        I can deal briefly with counsel’s fifth submission concerning the issuance of the writ ne exeat regno in the absence of a cause of action. In this regard Megarry J. laid down in Felton v. Callis [1968] 3 All E.R. 673, basing himself on Section 6 of the Debtors Act 1869 (U.K.), four conditions or requirements which had to be first satisfied before the writ could be issued. These are :

         

        ‘(i)The action is one in which the defendant would formerly have been liable to arrest at law, (ii) A good cause of action for at least £50 is established, (iii) There is probable cause for believing that the defendant is about to quit England unless he is arrested, (iv) The absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action.’

         

        Section 6 of our Debtors Act (Cap.32) however, is far less stringent in its requirements than its U.K. counterpart. It merely requires the Court to be satisfied that the defendant in any action for the recovery of a sum exceeding $10 is ‘about to abscond’, which, according to the Shorter Oxford Dictionary, means ‘to hide oneself ; to go away hurriedly and secretly’.

         

        In the present case the plaintiff company’s writ seeks to recover almost $US98,000 from the defendants including the second defendant who, it is averred, is ‘the principal shareholder of the First Defendant and was the person who was engaged in all material dealings with the Plaintiff’, and, given the 1st defendant’s corporate structure, the plaintiff company says that he was undoubtedly the brains behind the defendant company which was a mere facade or mask behind which the second defendant was hiding and which counsel urges the Court should pierce. [see : Littlewoods Mail Order Stores v. I.R.C. [1969] 1 W.L.R. 1241 per Lord Denning M.R. at p.1254]

         

        In light of the plaintiff company’s affidavit evidence and the urgency of the

         

        application, I was satisfied that the plaintiff company had an arguable claim against the second defendant, and further, that the presence of the second defendant in the country was necessary for the service of the plaintiff’s claim upon him, and further, to prevent him from absconding.

         

        If I should be wrong however in the issuance of the writ ne exeat regno then there is no doubt in my mind that this Court has the necessary power and jurisdiction to issue an injunction restraining the second defendant from leaving the country and requiring him to deliver up his passport on the ground that they are necessary and reasonable orders which are ancillary to the due performance of the Court’s function of protecting the plaintiff’s rights to a Mareva injunction pending the hearing of the action. [see : Bayer A.C. v. Winter and Others [1986] 1 All E.R. 733]

         

        That this Court has the necessary jurisdiction and power to grant both the Mareva Injunction together with the writ Ne Exeat cannot now be doubted. (see : W.B.C. v. Satish Chandra Civil Action No. 356 of 1991; Robert Rogers v. Pacific Hotels & Development Ltd. Civil Action No. 1132 of 1985; Leslie Redvers Martin v. B.N.Z. and F.D.B. Civil Appeal No. 73 of 1984 ; Girdhar Lal Raniga v. Merchant Bank of Fiji 39 FLR 181 and Al Nahkel for Contracting and Trading Ltd. v. Lowe [1986] 1 All E.R. 729) in which it was

         

        “Held : The court had jurisdiction to issue a writ ne exeat regno in support of a Mareva injunction in order to prevent a defendant from leaving the jurisdiction with assets in order to frustrate a lawful claim before the Court.”

         

        However it is not so much the Court’s jurisdiction which is in doubt, rather counsel raises the established parameters within which the particular jurisdiction is exercised and in particular, counsel drew the Court’s attention to the decision of the High Court of Australia in Jackson v. Sterling Industries Ltd. (1987) 162 C.L.R. 612 where the Court :

         

        “Held : When an order for the preservation of assets goes beyond simply restraining the defendant from disposing of specific assets until after judgment it must be framed so as to come within the limits set by the purpose for which it can properly be intended to serve. That purpose is not to create security for the plaintiff or to require a defendant to provide security as a condition of being allowed to defend the action against him, but to prevent a defendant from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the Court by depriving a plaintiff of the fruits of any judgment obtained in the action.”

         

        It was also held in that case :

         

        “per incuriam ... as a general proposition, it should now be accepted ... that a Mareva injunction can be granted if the circumstances are such that there is a danger of the defendant absconding, or a danger of his assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that a successful plaintiff will not be able to have his judgment satisfied.”

         

        The order that was set aside in that case however, differed fundamentally from that which this Court granted ex-parte in so far as it actually required the defendant : ‘to provide security in the sum of $3,000,000 ...’. No such requirement is imposed in this instance.

         

        Needless to say I cannot accept that the Court’s orders offended any of the parameters set out in the above case. The traditional or accepted form of a Mareva order was described by Robert Goff J. in A. v. C. [1981] 1 Q.B. 956 at p.959 as being :

         

        “... in a very wide form ; it restrains the defendant from removing from the jurisdiction or otherwise disposing of or dealing with any of his assets within the jurisdiction ... save as in so far as such assets do not exceed in value the sum of the plaintiff’s claim.”

         

        Nor in my view, and contrary to defence counsel’s submissions, does the Court’s order have the improper effect of granting or securing to the plaintiff company, a fund against which it may enforce any judgment it may eventually obtain. Quite plainly it does not.

         

        Nevertheless it is of assistance to recall the observations of Ackner L.J. in Bekhor Ltd. v. Bilton [1981] 1 Q.B. 923 when he said of a Mareva injunction at p.941 :

         

        ‘It provides a limited exception to the general rule that the court will not normally grant an injunction to restrain a defendant from parting with his assets so that they may be preserved in case the plaintiff’s claim succeeds.’

         

        and later at p.942 :

         

        ‘... The Mareva plaintiff, who has satisfied the guidelines ... and in particular who has provided adequate grounds for believing that there is a risk of the defendant’s assets being removed before the judgment or award is satisfied, is in a privileged position ...’

         

        In Chartered Bank v. Daklouche [1980] 1 All E.R. 205 where fraud had been pleaded as a cause of action against the defendant husband alleging inter alia that he was part of a conspiracy to defraud his creditors, Lord Denning M.R. in extending the Mareva injunction in that case against both husband and wife said at p.208 :

         

        “It is very easy to transfer money from one bank to another at a moment’s notice.”

         

        and later at p.210 the learned Master of Rolls said :

         

        “The law should be that there is jurisdiction to grant a Mareva injunction, even though the defendant may be served here. If he makes a fleeting visit, or if there is a danger that he may abscond or that the assets or moneys may disappear ... a Mareva injunction can be granted.”

         

        Eveleigh L.J. for his part in supporting the course of action endorsed a passage in Kerr on Fraud and Mistake (7th edn.) where the learned author wrote :

         

        “Civil courts have an original and inherent jurisdiction to relieve against every species of fraud not being relief of a penal nature ... Deeds, obligations, contracts ... may be the instruments to which parties resort to cover fraud, ... but none of such devices (and here I would include a sham company) or instruments will be permitted by a Court of Equity to obstruct the requirements of justice.”

         

        (See also : TSB Private Bank International S.A. v. Chabra [1992] 1 W.L.R. 231)

         

        There is no merit in defence counsels submissions (4) and (5) which are accordingly dismissed.

         

        As for submissions (2) & (3), Lord Denning M.R. said in Third Chandris Shipping Corp. v. Unimarine [1979] 2 All E.R. 972 at 985 :

         

        “The plaintiff should give some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied ... No one should wish any reputable foreign company to be plagued with a Mareva injunction ... But there are some foreign companies whose structure invites comment ...”

         

        In the same case at p.987 Lawton L.J. said :

         

        “... an affidavit in support of a Mareva injunction should give enough particulars of the plaintiff’s case to enable the Court to assess its strength and should set out what enquiries have been made about the defendant’s business and what information has been revealed including that relating to its size, origins, business domicile, the location of its known assets and the circumstances in which the dispute has arisen.”

         

        In this latter regard counsel for the plaintiff company forcefully submitted that upon the second defendant’s own admission the first defendant company ‘has always run the business on overdraft facilities and has no funds to transfer out’. Counsel then highlighted the apparent speed with which, within a fortnight of the plaintiff company’s payment of almost $US98,000 cash into the defendant company’s bank account, the money appears to have vanished into thin air.

         

        A search of the Companies Office also reveals that the first defendant company is a private family company with two paid up dollar shares held by the second defendant and his wife and in which the second defendant’s three sons and a daughter are employees and directors.

         

        In light of the foregoing counsel for the plaintiff company submits with some force that the second defendant is not a mere shareholder of the 1st defendant company, he is in effect its managing director and the father and husband of the family members that comprise the employees of the 1st defendant company and therefore the defendant company may be described as an ‘alter-ego’ of the second defendant.

         

        The second defendant for his part produced a Financial Statement of the 1st defendant company for the year ending 30 June 1996 and an opinion from his bankers, but, as counsel for plaintiff company points out, the accounts are unaudited and cannot be said to present a true and fair view of the company’s financial position, and the bank’s opinion is expressly couched in terms denying responsibility on the part of the bank or its officers.

         

        Furthermore and despite the seemingly sound trading position that the 1st defendant company’s accounts appears to present, plaintiff’s counsel submits there is no denying the second defendant’s sworn admission that the company ‘has always run the business on overdraft facilities’ and ‘all (of the defendants assets) are secured by various securities to the Bank’.

         

        In considering this aspect of the Mareva equation, I have also been much assisted by the observations of the Court of Appeal (N.S.W.) in Patterson v. B.T.R. Engineering (Aust.) Ltd. (1989) 18 N.S.W.L.R. 319 where the Court Held :

         

        “(2)      It would be undesirable to endeavour to formulate a precise definition of the standard of proof required to establish the existence of (a danger that by reason of the defendant absconding, the plaintiff, if he succeeds, will not be able to have his judgment satisfied) ; however it is not appropriate to use the test that the Court only intervenes if there is more than a usual likelihood of such a danger.

         

        (3)        Evidence which is relevant to establish a prima facie case may be considered in determining whether there is a danger of the type required.

         

        (4)        Accordingly, where a prima facie case has been established that a defendant fraudulently misappropriated a large sum of money, that evidence could be relied upon to infer that if such sum was still under the control of the defendant, he would not preserve it for the plaintiff should he be successful in the action.”

         

        In particular, Gleeson C.J. said in his judgment at p.325 :

         

        “The present is not a case in which a plaintiff who claims simply to be an unsecured creditor seeks to prevent a dissipation of assets which have no connection with the claim in question. This is a case in which the plaintiff claims that the defendant, making use of a corporation controlled by him, fraudulently misappropriated a large sum of money which, if it is still under the control of the appellant, would be quite likely to constitute, directly or indirectly, the bulk of his assets.”

         

        I am more than satisfied that similar observations may be made in this case against the defendants including the second defendant and accordingly the applications to dissolve the injunction and set aside the writ ne exeat regno are refused with costs to the plaintiff.

         

        (Applications dismissed.)
 

Shipbuilding (Fiji) Ltd v. Brian Murphy & Sarl Tahitian’s Shipbuilders

        [1997] 43 FLR 83

         

        HIGH COURT OF FIJI ISLANDS

         

        SHIPBUILDING (FIJI) LIMITED

         

        v.

        BRIAN MURPHY (as receiver and manager

        appointed for DONALD PICKERING &

        SONS ENTERPRISES LTD)

         

        &

         

        SARL TAHITIAN’S SHIPBUILDERS

         

        [HIGH COURT, 1997 (Fatiaki J) 10 April]

         

        Civil Jurisdiction

         

        Practice: Civil - application to dissolve interlocutory ex parte injunction- relevance of and principles to be applied when disclosure alleged.

         

        Conflict of laws - contractual licence to occupy- contract governed by non Fiji law - whether High Court of Fiji has jurisdiction to prevent eviction of licencee.

         

        A party claiming to be a contractual licencee obtained an interlocutory injunction ex parte preventing his eviction from premises said to be occupied pursuant to the contract. The licensor sought to have the injunction set aside. Dismissing the application the High Court HELD: (i) that the High Court of Fiji had jurisdiction to prevent the eviction notwithstanding that the contract was governed by foreign law and (ii) that although there had been material non disclosure by the Plaintiff the Court had a discretion to decide whether or not to extend the injunction further.

         

        Cases cited:

         

        Bank of Mellak v. Nikpour (1985) FSR 87

        Brinks - MAT Ltd v. Elcombe [1983] 3 All ER 188

        Dormeil Freres v. Nicolian Ltd [1988] 3 All ER 197

        London Borough of Hounslow v. Twickenham Garden Developments Ltd [1970] 3 All ER 326

        R v. Kensington Income Tax Commissioners [1917] 1 KB 486

        Verrall v. Great Yarmouth B.C. [1980] 1 All ER 839

        Winter Garden Theatre (London) Ltd. v. Millenium Productions Ltd [1947] 2 All ER 331

         

        Interlocutory applications in the High Court.

         

        D. Sharma for the Plaintiff

        R. Naidu for the Defendants

         

        Fatiaki J:

         

        On the 17th of February 1997 this Court granted ex parte to the plaintiff company an interim injunction restraining the defendants “... from levying distress ... or from re-entering the premises (Shed No. 11) occupied by the plaintiff ...”

         

        The injunction was further made conditional upon the payment into Court of the sum of $18,957.99 being the amount demanded in a letter of the second defendant company for reimbursement of rental and other charges paid in relation to the premises occupied by the plaintiff company.

         

        By inter partes summons dated the 17th of March 1997 the defendants now seek the dissolution of the above injunction on the following grounds :

         

        (a)        lack of jurisdiction ;

        (b)        absence of a valid cause of action;

        (c)        material non-disclosure ; and

        (d)        changed circumstances viz. cancellation of the contract.

         

        It is necessary to refer to some of the factual background in order to gain some meaningful understanding of the case. Very briefly this case has its origins in a ship-building contract entered into by a Tahitian organisation (ACP) and a Fiji ship-building company (United) in November 1994 and later amended in 1995 and 1996.

         

        As part of its efforts to facilitate the building of the vessels United entered into a tenancy agreement to lease a suitable premises (Shed No.11) belonging to the Ports Authority of Fiji (PAF) situated at Walu Bay in Suva. In August 1996 United went into receivership and the 1st defendant was appointed its receiver.

         

        Subsequently, through a novation agreement dated 13.9.96 the ship-building contract which was originally entered into between United and ACP, was to be continued to completion by the second defendant company Sarl Tahitian’s Shipbuilders (STS) ‘... as though (STS) had originally contracted with ACP in terms of the contract ...’

         

        Furthermore and in terms of a Schedule C to the novation agreement United entered into a deed granting STS :

         

        “... a licence to occupy the premises (leased from PAF) for the exclusive purpose of performing the works prescribed by the Contract ... on condition that (STS) ... perform and observe all the agreements and conditions contained in the Tenancy Agreement as though (STS) were the tenant thereunder including ... United agreement to pay rental.”

         

        Finally on 1st October 1996 by an agreement entitled Amend No. 03/96, ACP or its nominee STS entered into a subcontract with the plaintiff company Ship Building Fiji Limited (SFL) to build the remaining vessels in terms of United’s original contract. Article 6 of this latter contract expressly provided inter alia :

         

        “SFL agrees to pay for additional costs, specifically the actual cost of rental on the shipbuilding facility currently operated by United Engineers (i.e. PAF’s shed) to complete vessels No. 92 and No. 93 ...”

         

        By letter dated 30th September 1996 a representative of STS wrote to SFL in the following relevant terms :

         

        “I hereby grant you authority to commence work on the vessels, known as the Tahiti Project. If final agreement between (SFL) and (STS) is not reached you agree to vacate immediately at the request of (STS), the premises leased by (United) from (PAF).”

         

        It is sufficiently plain from the correspondence subsequently exchanged between representatives of the SFL and STS that from the outset problems were encountered with two aspects of the contract between SFL and STS ; on SFL’s part, concern was raised with STS as to SFL’s rights ; liabilities and legal status in relation to its occupation of the premises in which it was constructing the vessels namely, PAF Shed No. 11 ; and, on the part of STS, concern was raised as to the provision of a satisfactory performance guarantee by SFL in terms of Clause 1 of a contractual letter dated 30th September 1996 executed by STS and SFL on 1st October, 1996 (the ‘guarantee letter’). Furthermore the seeming inability or unwillingness of the parties to amicably resolve these two issues has resulted in a hardening of attitudes culminating in STS’s letters of 16th January 1996 and 6th February 1997 to SFL threatening inter alia ‘... to consider its legal alternatives’ and demanding ‘... all work should cease and SFL should vacate the premises,’ respectively. So much then for the background to the case. I turn next to consider in greater detail the various grounds urged by the defendants in seeking the dissolution of the ex parte injunction.

         

        Jurisdiction & cause of action :

         

        In this regard counsel for the defendants submits that the Court has no jurisdiction in the proceedings since the plaintiff is ‘bound by a contract subject to the laws of French Polynesia’ and counsel drew the Court’s attention to Art 14 of United’s original contract with ACP which deals with Arbitration ; and Art 2 of the General Conditions applicable to EEC-funded contracts which provides that :

         

        “The Law of the Contract shall be the law of the state of the Contracting Authority unless otherwise stated in the Special Conditions.”

         

        Counsel for the plaintiff company submits, however, that there is no contract in existence between STS and SFL in so far as Amend No. 3/96 is an agreement strictly entered into between ACP and SFL but in any event the agreement is prima facie void ab initio being in direct contravention of Art 7.5 of the General Conditions which expressly prohibits contractual relations between the Contracting Authority and sub-contractors and in the event that that is so, counsel submits that the appropriate conflict of laws rule is that the contract is governed by the law of the territory where the premises is situated and/or where the contract is being or to be performed which, in both instances, is Fiji.

         

        Suffice it to say that without necessarily accepting the submissions of counsel for the plaintiff company, I reject the arguments of defence counsel. The particular and limited nature of the dispute in this case namely, SFL’s right to occupy the premises in question is nowhere expressly dealt with in either Amend No. 3/96 or in United’s original Contract nor for that matter, in STS’s Novation Agreement. True enough Art 6 of Amend No. 3/96 indirectly refers to the premises but other than setting out an obligation on the part of SFL to pay for the rental, does not expressly authorise SFL’s occupation of the premises.

         

        That right (if any) is traceable in large part to STS’s letter of 30th September 1996 (op. cit at p.3) and as counsel for the plaintiff company submits, it is a right that was granted in Fiji, relates to a Fijian licensee, refers to premises situated in Fiji and owned by a Fijian statutory Authority.

         

        Professor Dicey in his leading work concerning the conflict of laws states the applicable rule with regard to immovables in the 4th edition of his work in the following terms at p.353 :

         

        “The common law has avoided all difficulties by a simple and uniform test. It declares that the law of the situs shall exclusively govern in regard to all rights, interests, and titles in and to immovable property. Of course, it cuts down all attempts to introduce all foreign laws, whether they respect persons or things or give or withhold the capacity to acquire or dispose of immovable property. All questions concerning the property in immovables including the form of conveyance are decided by the lex situs”.

         

        The jurisdiction question in my view may be further tested by asking the question how can a Court in French Polynesia lawfully order vacant possession of land situated in Fiji ? and even if it could (which I very much doubt), how could such an order be enforced ? Whatever might be the answer to that rather vexed question I am satisfied that this Court has jurisdiction on this rather limited question. What then is the legal status of the plaintiff company’s occupation of the premises in question ?

         

        The 1st defendant’s affidavit dated 19th March 1997 para.14 describes SFL as being ‘... no more than STS’s licensee in Shed No. 11' and later at para.33 : ‘The defendants say that SFL is nothing more than a mere licensee’.

         

        It is not entirely clear what is meant by a mere licensee but if it may be equated with a bare licensee then with all due regard to such a view I cannot agree. In my considered opinion the plaintiff company was a contractual licensee with a contractual licence to occupy the premises.

         

        In London Borough of Hounslow v. Twickenham Garden Developments Ltd [1970] 3 All E.R. 326 Megarry J. said at p.333 :

         

        “The threefold classification of licences is well known. There are licences coupled with an interest, contractual licences, and bare licences.”

         

        and then at p.337 in considering the nature of the particular licence granted in the case before him his lordship said (in words that are, with slight variations, equally applicable to the present case before me) :

         

        “... in this case the contract is one for the execution of specified works on the site during a specified period which is still running. The contract confers on each party specified rights on specified events to determine the employment of the contractor under the contract. In those circumstances, I think there must be at least an implied negative obligation of the borough not to revoke any licence (otherwise than in accordance with the contract) while the period is still running, just as in Hurst’s case there was an implied negative obligation not to revoke the licence until the performance had concluded.”

         

        and later on the same page his lordship cited the observations of Lord Uthwatt in Winter Garden Theatre (London) Ltd. v. Millenium Productions Ltd. [1947] 2 All E.R. 331 at p.343 where he said :

         

        “The settled practice of the courts of equity is to do what they can by an injunction to preserve the sanctity of a bargain. To my mind, as at present advised, a licensee who has refused to accept the wrongful repudiation of the bargain which is involved in an unauthorised revocation of the licence is as much entitled to the protection of an injunction as a licensee who has not received any notice of revocation ...”

         

        and Megarry J. continues :

         

        “the case of building operations is really a fortiori a cinema performance, because it must be obvious to all from the outset that far more is involved in the building contractor moving his equipment on to a site, hiring his labour, making his subcontract and so on and then in putting a stop to all operations, than is involved in a member of a cinema audience, going in, sitting down and then getting up and leaving.”

         

        The final citation I wish to read from the judgment of Megarry J. is to be found at p.343 where the learned judge summarises :

         

        “... the position relating to contractual licences as follows :

         

        (1)     A licence to enter land is a contractual licence if it is conferred by a contract ; it is immaterial whether the right to enter the land is the primary purpose of the contract or is merely secondary.

         

        (2)     A contractual licence is not an entity distinct from the contract which brings it into being, but merely one of the provisions of that contract.

         

        (3)     The willingness of the Court to grant equitable remedies in order to enforce or support a contractual licence depends on whether or not the licence is specifically enforceable.

         

        (4)     But even if a contractual licence is not specifically enforceable the Court will not grant remedies in order to procure or aid a breach of the licence.”

         

        The learned judge then added ‘four points’ of which I need only refer to the second and third - where he says at pp.343/344 :

         

        “... in the light of the Winder Garden Case I find it difficult to see how a contractual licensee can be treated as a trespasser so long as his contract entitles him to be on the land ; and this is so whether or not his contract is specifically enforceable.”

         

        and :

         

        “Third, there may be another road to the irrevocability of a licence, namely, the doctrine of a licence acted upon.”

         

        In similar vein is the more recent judgment of Lord Denning M.R. in Verrall v. Great Yarmouth B.C. [1980] 1 All E.R. 839 where he said at p.844 :

         

        “Since the Winter Garden case, it is clear that once a man has entered under his contract of licence, he cannot be turned out. An injunction can be obtained against the licensor to prevent his being turned out. ... So I hold that the observations in Thompson v. Park are no longer good law. I agree with what Megarry J. said about them in London Borough of Hounslow v. Twickenham Garden Developments Ltd.”

         

        Taxed with the judgment of Megarry J. in the Hounslow case defence counsel sought to rely on that part of the express wording of the STS letter (op.cit at p.3) which reads : “If final agreement between (SFL) and (STS) is not reached you agree to vacate immediately at the request of (STS), the premises leased by (United) from (PAF).” Counsel’s rather simplistic submission on this aspect is that by STS’s letter of 6th February 1997 such a ‘request’ was made and in terms of the above sentence, SFL was obliged to ‘vacate (the premises) immediately’. I cannot agree.

         

        The making of ‘the request’ is conditional upon no final agreement being reached between the parties (as to what is not known) nor is there a time frame or limit imposed in the letter when such agreement must be reached. But in any event the very next day, 1st October, 1996, Amend No. 3/96 and the guarantee letter were executed by the relevant parties. In this latter regard I am satisfied despite counsel for the plaintiff’s submissions to the contrary, that a binding final agreement has been concluded between the parties and accordingly the outlet sought to be invoked by defence counsel in his submissions was no longer available to STS as from 1st October, 1996. A fortiori where the plaintiff company was allowed to remain on the premises performing an unconcluded contract for over 4 months.

         

        In the light of the above there is no doubt in my mind that the plaintiff’s claim against the 2nd defendant company, although it might have been more clearly drafted, nevertheless, raises serious issues to be tried. Grounds (a) ; (b) & (d) are accordingly dismissed. I turn next to deal with the defendant’s remaining ground (c).

         

        Material Non-Disclosure

         

        In this regard defence counsel forcefully submits that the plaintiff company in seeking the ex parte injunction was in serious breach of its duty to make the fullest and frankest disclosure of all material facts both favourable and unfavourable to its application. (per Donaldson L.J. in Bank of Mellak v. Nikpour (1985) F.S.R. 87 and per Warrangton L.J. in R. v. Kensington Income Tax Commissioners [1917] 1 K.B. 486 at 509)

         

        In particular defence counsel submits that the plaintiff company in its application, failed to disclose the existence of a binding contract between itself and STS viz Amend No. 3/96 and the guarantee letter and accordingly the ex parte injunction ought to be discharged in limine. This defence counsel submitted was ‘trite law’.

         

        In my view however, upon an application inter partes to dissolve or discharge an ex parte injunction the Court has the opportunity and the duty to examine the entire matter anew upon the basis of all the affidavits and submissions placed before it at the inter partes hearing and may, in exercising its discretion afresh in the matter, dissolve, vary, suspend or extend the ex parte injunction and may even grant a fresh injunction as in its discretion appears just.

         

        I am fortified by the observations of Browne-Wilkinson V.C. in Dormeil Freres v. Nicolian Ltd. [1988] 3 All E.R. 197 where the learned Vice Chancellor said at p.199 :

         

        “... if, in the circumstances existing when the matter comes before the Court inter partes justice requires an order continuing the ex parte injunction or the grant of a fresh injunction, such an order can be made notwithstanding the earlier failure to make such disclosure. Moreover, there is authority that, contrary to the law as it was originally laid down, there is no absolute right to have an ex parte order obtained without due disclosure set aside : there is a discretion in the Court whether to do so or not.”

         

        In considering this ground I am also guided by the headnote to Brinks - MAT Ltd. v. Elcombe [1983] 3 All E.R. 188 which contains the following relevant passage dealing with non-disclosure in ex parte applications :

         

        “Whether a fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issue to be decided by the judge on the application. The fact that the non-disclosure was innocent, in the sense that it was not known to the applicant or that its relevance was not perceived, is an important, but not decisive, consideration in deciding whether to order an immediate discharge. However the Court has a discretion notwithstanding proof of material non-disclosure which justifies the immediate discharge of an ex parte order, to continue the order or to make a new order on terms.”

         

        Ralph Gibson L.J. in his judgment at pp.192/193 (ibid) enumerated no less than seven relevant principles of which the second reads :

         

        “(ii) the material facts are those which it is material for the judge to know in dealing with the application as made ; materiality is to be decided by the Court and not by the assessment of the applicant or his legal advisors.”

         

        In the light of the above, the non-disclosure complained of by defence counsel, namely, the failure to disclose the existence of a binding contract between the parties is in my considered opinion not material to the narrow ambit of the plaintiff company’s claim. Indeed the disclosure of Amend No. 3/96 only serves to reinforce that view in so far as it is common ground that Amend No. 3/96 nowhere expressly authorises or spells out or deals with the nature of the plaintiff company’s legal right to occupy the premises in question.

         

        In all the circumstances I am firmly of the view that the injunction ought to be continued against the second defendant company until the final determination of the action. To that extent the defendant’s application is dismissed. In so far as the first defendant is concerned, as presently advised and pleaded, I am not at all satisfied that the plaintiff company has any cause of action against him and accordingly the injunction is discharged in respect of the first defendant who is sued in his capacity as the receiver and manager of United. The parties having both partially succeeded in this matter there will be no order as to costs.

         

        Finally, by way of further directions the plaintiff company is ordered to file and serve on the defendants within 14 days an amended Statement of Claim which complies with the requirements of Order 18 of the High Court Rules.

         

        Thereafter the action is to follow its normal course.

         

        (Application partially allowed; injunction against second defendant extended until further order).
 

State v. Davendra Singh

        [1997] 43 FLR 257

         

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v

         

        DAVENDRA SINGH

         

        [HIGH COURT, 1997 (Pain J) 29 September]

         

        Criminal Jurisdiction

         

        Evidence: Criminal- admissibility of post mortem report- whether CWM Hospital a “business”- whether an authority established under the provisions of an Act- whether report compiled in the course of business- Evidence Act (Cap 41) Sections 2 (1) & 4.

         

        In the course of a criminal trial the prosecution sought to adduce a post mortem report, the maker of which had left Fiji. The High Court HELD: that the report was admissible in evidence since: (i) the CWM Hospital is a business within the extended definition contained in Section 2 (1) of the Act and (ii) the report was a record of that business within Section 4.

         

        Cases cited:

         

        Bramwell v. Lacy (1878-79) 10 Ch D 691

        Commissioner of Taxation v. Bank of Western Australia Ltd

        Commissioner of Taxation (Commonwealth) v. Silverton Tramway

                    Co. Ltd (1953) 88 CLR 559

        Commissioner of Taxation v. State Bank of New South Wales Ltd

        Federal Commissioner of Taxation v. Silverton Tramways Co. Ltd

                     (1953) 88 CLR 559

        Hills Ltd v. University Hospital Board of Governors [1956] 1 QB 91

        Myers v D.P.P. [1965] AC 101

        Portman v. Home Hospital Association (1884) 27 Ch D 81

        R v. Crayden [1978] 2 All ER 700

        R v. TJW [1989] 1 Qd R 108

        R v. Wood (1983) 76 Crim. App. R 23

        Renmark Hotel Inc. v. Federal Commissioner of Taxation (1949) 79

                    CLR 10, 18

        Seatainer Terminals Ltd v. The Federal Commission of Taxation

                    (1979) 79 ATC 4622

        Smith v. Australian National Line and Commonwealth

        Top of the Cross Pty Ltd v. Federal Commissioner of Taxation

                    (1980) 80 ATC 4617

         

        W. Clarke for the State

        A. Gates for the accused.

         

        Pain J:

         

        The Court has heard evidence and submissions relating to the admissibility of certain items of evidence. An urgent decision is needed as the assessors have now been absent for virtually a whole week. I have carefully considered all the evidence, legal submissions and numerous authorities cited. I have come to a clear decision on the various issues but with the time constraints it has not been possible to prepare a comprehensive judgment dealing with every argument and authority on all matters. However, all have been considered and taken into account.

         

        The admissibility of the Post Mortem report and the additional evidence from Dr. Krishna were argued with other matters on a pre-trial application. In my decision of 17th September 1997 I dealt at some length with these issues and reserved my final ruling until further information and argument was provided. I do not intend to repeat what I have already said. That earlier decision should be considered with and deemed a part of this final ruling.

         

        There were originally 5 matters for determination by the Court. However, during the voir dire hearing counsel advised that they had reached agreement over the production of CWM Hospital Clinical records. Also State Counsel, in view of the very unsatisfactory evidence of the proposed witness, abandoned an attempt to have that evidence admitted as a dying declaration of the deceased. Rulings are required on the admissibility of 3 items of evidence. The post mortem report, the additional witness, Dr. Krishna and the caution statement.

         

        Admissibility of Post Mortem Report

         

        The State advanced 4 grounds for the production of this document in evidence. As a business record under the Evidence Act, as a public document, under the Court’s interest jurisdiction and at common law.

         

        The argument for admission under the Evidence Act is based on Section 4 of the Act (Cap. 41) which states:

         

        “4.       In any criminal proceedings where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, on production of the document, be admissible as evidence of that fact if -

         

        (a)       the document is, or forms part of, a record relating to any trade or business and compiled, in the course of that trade or business, from information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with in the information they supply; and

         

        (b)       the person who supplied the information recorded in the statement in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, or cannot reasonably be expected (having regard to the time which has elapsed since he supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information he supplied.”

         

        Also important is an extended definition given to the word “business” by Section 2(1) which states :

         

        “2(1) In this Act –

         

        “business” includes any public utility or undertaking carried on by any city of town council or by any other board or authority established under the provisions of any Act, and any of the activities of the Permanent Secretary for Posts and Telecommunications”

         

        The record of the Preliminary Inquiry shows that the post mortem examination of the deceased was conducted at in the Pathology Dept. at CWM Hospital by Dr. Alera who was employed in that Department as a consultant pathologist.

         

        The State submits that details of Dr. Alera’s findings on the post mortem examination, as recorded in his post mortem report, is a statement tending to establish those facts. That report is a record relating to the business of CWM Hospital compiled in the course of that business from information supplied by Dr. Alera who had personal knowledge of the matter. Dr. Alera is no longer in Fiji and the post mortem report is therefore admissible pursuant to Section 4 of the Act.

         

        The defence submits that the CWM Hospital is not a “business” within S.4 of the Act. The extended definition of “business” in S.2 does not include a Government Department. The post mortem report was compiled for a Police Investigation and not for the business of the hospital.

         

        Some preliminary issues can be quickly dealt with. The pre-requisite in section 4(b) that the person who supplied the information is “beyond the seas” has been satisfied. The evidence of Mr. Wilkinson, Deputy Director of Public Prosecutions (and presently acting Director) and Mr. Auld proved conclusively that Dr. Alera has left Fiji, is residing in the Phillippines and is refusing to answer any communications. It is beyond dispute that the entries made in the post mortem report constitute a statement by Dr. Alera in a document which tends to establish facts. Those facts are the observations and findings of Dr. Alera on his post mortem examination of the body and he could have given direct oral evidence of them. Further, that information in the report was supplied directly by Dr. Alera who had personal knowledge of it. None of these matters has been challenged by the defence.

         

        The issues for determination are therefore whether :

         

        1.         The post mortem report is a record relating to a “business” within S.4 of the Act, and

         

        2.         Whether it was compiled in the course of that business.

         

        The special provisions in S.4 of the Act and this use of the word “business” have their origins and are based upon the 1965 Criminal Evidence Act of England. That Act was passed in response to the House of Lords decision in Myers v D.P.P. [1965] AC 101 that the records of a car manufacturer showing serial numbers allocated to mass produced vehicles was inadmissible hearsay. It can be safely assumed that such records would have been rendered admissible by the Act as business records. Apart from that guide the word business in both the English and Fiji Acts is given its ordinary meaning. That is, a person’s regular occupation profession or trade.

         

        In this and other fields of law there has been some conflict as to whether a hospital is a “business”. For instance, in Bramwell v Lacy (1878-79) 10 Ch D 691 it was held that a hospital was a “business” in terms of a restrictive covenant in a lease prohibiting the lessee from carrying on any business. The Court said “It is in reality an apothecary’s business ... whether for profit or not is immaterial”. Similar decisions were given in Portman v Home Hospital Association (1884) 27 Ch D 81 and Hills Ltd v University Hospital Board of Governors [1956] 1 QB 91. However, in R v Crayden [1978] 2 All ER 700 the Court of Appeal held that a national health service hospital was not a “business” within the 1965 Criminal Evidence Act of England because it provided a health service and did not have a commercial connotation. Another case cited in argument was R v TJW [1989] 1 Qd R 108. In that case the Royal Women’s Hospital in Brisbane was held to be a business for the purposes of a comparable criminal evidence Act. However, that was because it came within the extended definition of business as being carried on by a statutory authority.

         

        Clearly there is some doubt as to whether CWM Hospital would be a “business” within the ordinary meaning of that word in S.4 of the Evidence Act. This argument was not pressed by counsel.

         

        The issue that the Court has been asked to determine in this case is whether CWM Hospital is a “business” within the extended definition contained in Section 2(1) of the Evidence Act.

         

        This part of the Evidence Act relating to admission of business records was enacted in 1965. It is clearly based on the English Criminal Evidence Act of the same year. Section 4 providing for the admissibility of such evidence is identical to Section 1 of the English Act.

         

        The extended definition of business in S.2(1) has clearly been enacted to include certain enterprises that might not otherwise be aptly described as ‘businesses’. It enlarges the meaning of that word as used in Section 4. Again, the extended definition is based on the English Act but it has been further extended. The English provision included “any public transport, public utility or similar undertaking carried on by a local authority and the activities of the Post Office”. Public Transport has been excluded from S.2(1) of our Act but a public utility or undertaking has been extended to include one carried on by any board or authority established under the provisions of any Act. The activities of the Post Office has been changed to the activities of the Permanent Secretary for Posts and Telecommunications .

         

        The issue for determination in this case is whether CWM Hospital is a “public utility carried on by an authority established under the provisions of any Act”.

         

        A “public utility” is the provision of an amenity or service for the public at large. It might include such a wide variety of undertakings as the provision of a port container terminal (Seatainer Terminals Limited v The Federal Commission of Taxation (1979) 79 ATC 4622), the provision of an electricity supply (Rich J in Renmark Hotel Inc. v. Federal Commissioner of Taxation (1949) 79 CLR 10, 18) and the provision of accommodation and entertainment at an airport for travellers and air crew (Top of the Cross Pty Ltd v Federal Commissioner of Taxation (1980) 80 ATC 4617). However, it is not necessary to define its limits. Perhaps the best known and widely recognized public utilities are in the fields of education and health. Schools and hospitals, especially those provided by the State, are undoubtably public utilities in this country. The purposes, functions and amenities of CWM Hospital in Suva and the services it provides for the public are well known. I have no hesitation in holding it to be a public utility. If confirming authority is required it can be found in the case of R v TJW (Supra - from which I have also drawn the other examples mentioned above). Shepherdson J held that the Royal Women’s Hospital in Brisbane in so far as it relates to the public wards, in terms of patients in its public capacity, was a public utility within comparable evidence legislation. In my view CWM Hospital and particularly its Pathology Department which inter alia conducts post mortem examinations, is providing a service of great public importance that is available to the public at large. It is a public utility.

         

        The next question to be determined is whether the public utility of CWM Hospital is carried on by an “authority established under the provisions of any Act” in terms of Section 2(1) of the Evidence Act.

         

        CWM Hospital does not have its own empowering Act. It is governed by the Public Hospitals and Dispensaries Act (Cap. 110). This applies to all public hospitals which are defined as hospitals “maintained out of public funds” (Section 2). In terms of Section 6 of the Act the responsibility for the government and management of public hospitals is vested in the Minister of Health who is empowered to make regulations in that behalf. These are the Public Hospitals and Dispensaries Regulations (Cap 110 Subsidiary Legislation). Regulation 4 empowers the Permanent Secretary for Health to “exercise general control and supervision over the organisation and management of all public hospitals”. Finally, Section 2 of the Act creates a position of medical officer in charge who is a “medical officer appointed by the Permanent Secretary to supervise and control the management of a public hospital”.

         

        Thus the hierarchy for the control and management of all public hospitals starts with statutory responsibility being given to the Minister of Health under the Act. By Regulation, general control and supervision has been delegated to the Permanent Secretary for Health. Further, delegation is made by the Permanent Secretary under the Act by appointment of a medical officer in charge to a particular hospital.

         

        This authority reposed in the Minister of Health to control public hospitals is confirmed upon his appointment by the President. He is assigned responsibility (inter alia) for the conduct of the “business of medical services” and responsibility for all written law regulating that business including the Public Hospitals and Dispensaries Act (See for example Legal Notice No.74 in Fiji Republic Gazette Supplement No.27 of 1996). A further illustration of the Minister’s authority in respect of the conduct of a public hospital is contained in S.10 of the Public Hospitals and Dispensaries Act. The Board of Visitors appointed for the hospital is required to report to the Minister on the state and condition of the hospital.

         

        Applying this situation of control of public hospitals to the extended definition of business in S.2(1) Evidence Act it can be said that the Government has enacted legislation for the control and management of public hospitals. It could have provided for individual hospitals to be run by a Board which is common in some other countries (and compare by way of example the Pharmacy and Poisons Board created by S.5 of the Pharmacy and Poisons Act Cap 115 and the Board of Directors of the Reserve Bank created by S.9 of the Reserve Bank of Fiji Act Cap 210). In terms of S.2(1) of the Evidence Act that would have been a Board established under the provisions of an Act to run the Hospital. However, the Government determined not to create such hospital Boards. Instead it chose, by the provisions of the Public Hospitals and Dispensaries Act, to vest the control and management of public hospitals in the Minister of Health, to be exercised through the Permanent Secretary for Health and the Department of Health. Counsel for the State argues that, in terms of S.2(1) of the Evidence Act, the Public Hospitals and Dispensaries Act established an authority (i.e. the Minister) to run the Hospital.

         

        The question to be determined, therefore, is whether the Minister (and through him the Department) can be established as an “authority” under S.2(1)of the Evidence Act. Counsel relied on two Australian authorities extracted from a computer data base for which he was unable to give conventional law reports citations. These are Commissioner of Taxation v Bank of Western Australia Limited and Commission of Taxation v State Bank of New South Wales Limited (judgment 15.12.95 of the Federal Court at Sydney) and Smith v Australian National Line and Commonwealth (Judgment 27.8.96 of the Supreme Court of Western Australia).

         

        It is not possible for me to review these decisions in detail. The Commissioner of Taxation v Bank of Western Australia concerned the liability for payment of sales tax. One of the issues was whether State controlled banks were “authorities”

         

        within the meaning of that word in an exemption provision. Smith v Australian National Line and Commonwealth concerned the determination of preliminary questions of law on a personal injury action. One of the issues, in relation to a Limitation Act defence, was whether the first defendant, a State shipping line, was a public authority.

         

        It will be sufficient for me to quote an observation from each case regarding the ordinary meaning of the word “authority”:

         

        In Smith v Australian National Line and Commonwealth Ipp J cited with approval the words of Dixon CJ in Commissioner of Taxation (Commonwealth) v Silverton Tramway Company Limited (1953)88 CLR 559 (565):

         

        “The word ‘authority’ has long been used to describe a body or person exercising power or command. No doubt this has come about by a transfer of meaning from the abstract conception of power or command to the body or person possessing it” (emphasis added).

         

        In Commissioner of Taxation v Bank of Western Australia Ltd., Hill J. said:

         

        The word “authority” is an ordinary English word. It signifies a body which has the right or power to exercise authority or command. It is an example, as Dixon CJ observed in Federal Commissioner of Taxation v Silverton Tramways Company Limited (1953) 88 CLR 559 at 565, of a word the meaning of which has come about by a transfer of meaning from the abstract concept of power or command to the body or person possessing it. The Macquarie Dictionary (2d ed) contains the following relevant definitions :

         

        “1. The right to determine, adjudicate, or otherwise settle issues or disputes; the right to control, command or determine. 2. a person or body with such rights.”

         

        Generally, then, an “authority” is the person or body in whom particular authority or power is vested. It does not require formal legislative investiture with the title of authority. It is the function of exercising authority that is important and not the name given to the person or body exercising it. It can be a single person, a common occurrence in some areas such as licensing.

         

        When “authority” is interpreted in this way the Minister of Health can be an authority within the extended definition of business in Section 2(1) of the Evidence Act. There is no reason for the interpretation to be restricted because the Government has chosen to keep the control of such an important public utility as a hospital within the purview of one of its Ministers and his Department.

         

        The provisions of Section 2(1) of the Evidence Act do not exclude the appointment of such an authority. The original English version included only public utilities carried on by a local authority and the activities of the Post Office. A local authority is a more embracing term in England than in Fiji. Such a restriction on public utilities would have been inappropriate for Fiji where most of public utilities are provided by Government. The definition was extended to include public utilities carried on by any other board or authority which left the way clear for the inclusion of authorities which are the agencies of the Government.

         

        I do not see, as suggested by the defence, that the retention of the activities of the Permanent Secretary for Posts and Telecommunications as a third category of public utility affects the interpretation of the other two. The clear intention was that whether or not all the activities of the Permanent Secretary for Posts and Telecommunications were a public utility within the section, all were to be included within the definition of business.

         

        I am satisfied that the Minister of Health is the authority established under the provisions of the Public Hospitals and Dispensaries Act to manage and control the CWM Hospital. It is not unique to appoint a Minister as an authority. The Minister of Immigration is, for example the authority for the hearing of appeals under S.18 of the Immigration Act (Cap 88).

         

        In my view CWM Hospital is a business within the extended definition in S.2(1) of the Evidence Act. The post mortem report is a record of that business within Section 4.

         

        The final matter for determination is whether the post mortem report was completed in the course of that business of CWM Hospital.

         

        The defence submits that the post mortem report was not compiled by the pathologist at CWM Hospital in the course of the business of the hospital. It was compiled for the purposes of this Police investigation. A parallel is drawn with the decision in R v Wood (1983) 76 Criminal Appeal R 23. In that case it was held that computer printouts prepared by a firm LSM regarding the chemical analysis of metals which involved complicated calculations programmed through a computer were not admissible under the Evidence Act. They had been prepared for the prosecution of the appellant to show that the chemical composition of metal found in his possession corresponded to the chemical composition of parts of a consignment of metals stolen from LSM. (The computer printouts were, however, admissible as an item of real evidence).

         

        The situation in the present case is quite different. The Pathology Department is an integral part of CWM Hospital. The provision of pathological services is an essential part of the hospital’s business. That includes post mortem examinations and I suspect that the hospital provides the only facility for this public service in Suva. They are part of the everyday work of the Department whether for an Inquest, a police investigation or the hospitals own purposes. The post mortem examination in this case was conducted on the body of a patient who died in CWM Hospital. The report is expressed to be issued under Section 6 of the Inquests Ordinance 1967 (now the Inquests Act Cap 46) which requires a post mortem examination in cases of sudden or unnatural death. Further, if a patient dies in hospital from unknown or uncertain causes the hospital would be expected to perform a post mortem examination to ascertain the cause of death if the relatives agree.

         

        Having regard to all the circumstances, I have no hesitation in holding that the post mortem report in this case was compiled in the course of the business of CWM Hospital, Pathology Department.

         

        I have now dealt with all the issues raised on the admissibility of the post mortem report under Section 4 of the Evidence Act. For the reasons I have given, I rule that the report is admissible under that section.

         

        It is not necessary for me to rule on the other grounds submitted for production of the report.

         

        There is, however, one qualification to be made. It relates to a matter that was referred to in general terms by counsel but was not made the ground for any specific submission. That is that, in terms of Section 4, the document is only admissible as evidence of a fact in respect of which direct oral evidence could be given. In my view the clinical findings of Dr. Alera on post mortem examination of the deceased as set out in his report are facts about which he could have given direct oral evidence. However, his opinion as to cause of death is not a fact. It is an expert opinion which he could have given in oral testimony. However, it is not a fact but an opinion. It cannot be admitted under the provisions of S.4 of the Evidence Act. Of course, that does not prevent another medical expert from giving his opinion of the cause of death based on the findings on post mortem examination contained in the report.

         

        Admissibility of Evidence of Dr. Krishna

         

        The contents of my earlier decision of 17.9.97 in relation to the calling of Dr. Krishna as an additional witness pursuant to S.288 of the Criminal Procedure Code remain relevant and pertinent. I will not repeat them.

         

        The change since that earlier decision was given is that a brief of the evidence of Dr. Krishna has now been provided by the prosecution. It is not as extensive as the prosecution memorandum of 11th September 1997 foreshadowed. He refers to the hospital clinical roles of the deceased and counsel have confirmed that there is no objection to that. He also mentions the epileptic fit of the deceased in hospital and death being certified at 11.20 p.m. These matters are included in the proposed testimony of Dr. Kumar who is to give direct evidence of them. Dr. Krishna’s brief then sets out the findings on post mortem examination. I have now ruled the report of those findings to be admissible. Finally, Dr. Krishna is to give evidence of his opinion in relation to those findings and, presumably, cause of death. That evidence would have been given by the pathologist Dr. Alera if he was available.

         

        There are a number of special facts and circumstances leading up to the State giving notice of its intention to call additional medical witnesses. I have already canvassed these at some lengths in my earlier decision. What I said in relation to the circumstances under which the prosecution determined to call Dr. Veilogavi and Dr. Kumar apply equally to Dr. Krishna. A final decision on the calling of Dr. Krishna was deferred because no statement of his proposed evidence had been provided. This has now been done but there was further unavoidable delay caused by the serious illness of a member of Dr. Krishna’s family. The evidence to be given by him is simply a substitution for evidence that would have been given by others, particularly the pathologist Dr. Alera. The nature and content of that evidence is included in the record of the Paper Preliminary Inquiry. The defence would have been aware from that record of the intention of the prosecution to call such evidence.

         

        I have given careful consideration to the unusual facts of this case and to the criteria set down in Section 288 of the Criminal Procedure Code. Having regard to the nature of Dr. Krishna’s evidence and the time when and circumstances under which the prosecutor became acquainted with it and determined to call him as a witness, I am satisfied that the defence has received reasonable notice.

         

        I rule that Dr. Krishna can be called as a witness for the prosecution at this trial.

         

        Admissibility of the Caution Statement

         

        The record of the Preliminary Investigation for this case includes a deposition by a Police officer, Uday Chand.

         

        “He stated that he interviewed the accused on 26th December 1994 from 8.30am to 1010am. The accused refused to sign that record of interview. The original notes of the interview were produced at the Preliminary Investigation and form part of the record.”

         

        Uday Chand has since died. The prosecution therefore intends to call another policeman Maha Ram to give evidence that he was present and witnessed the statement and to produce the statement as an exhibit.

         

        I have already ruled that Maha Ram can be called as an additional witness pursuant to S.288 of the Criminal Procedure Code.

         

        The defence object to the admissibility of the caution statement. The ground submitted is that Maha Ram was not present when the interview took place and therefore cannot produce the record of that interview.

         

        That is the only ground of objection. During the course of the voir dire hearing counsel for the accused confirmed on several occasions that the ruling on admissibility depends on the factual issue of whether Maha Ram was present during the interview. If he was then the record of interview can be produced by him. If he was not, then he cannot produce the document.

         

        The only witnesses on this issue have been Const. Maha Ram for the State and the Accused for the defence. The Court must determine the respective credibility of these two witnesses in determining whether or not the State has proved that Maha Ram was present and is therefore able to produce the document.

         

        I do not need to review the evidence of these two witnesses at length. Maha Ram said that at 8.30 am on 26th December 1994 he was completing a 24 hour shift at Samabula Police Station. He only needed to write up his dockets and then he would go home. However, he was instructed by Uday Chand to witness the caution interview. This took place in a small crime office. Uday Chand and the Accused were seated at a table. Uday Chand asked questions and wrote down the answers given by the accused. Maha Ram said that he sat at another table in the room. He said that he watched the interview and did his dockets. He sometimes got up walked to the door and smoked a cigarette. He was in the room at all times. The Accused was asked to sign and refused. Maha Ram was the asked by Uday Chand to sign as a witness. This was done after each page of the interview was completed. Maha Ram said that after the interview was completed he finished his dockets handed them to the Crime writer and signed off.

         

        The Accused gave very brief evidence. He said that during the interview he and Uday Chand were the only persons in the room. Nobody else was there and nobody came in during the interview.

         

        Both these witnesses were extensively cross-examined.

         

        It is not possible for me to deal with every facet of the evidence given by each witness. Some apparent inconsistencies have been highlighted. Recollections of minor details will be dimmed after the lapse of time. The issue is one of credibility. It is not a matter of misunderstanding or faulty recollection. Either Maha Ram was present or he was not.

         

        On the basic element of credibility I was most impressed by Maha Ram. There was no subtlety or evasiveness about his testimony. In some ways he was quite ingenuous. His testimony was convincing. For instance, his natural umbrage came through very strongly when it was suggested to him that his signatures were applied some time after the interview and he said “Thats not true”.

         

        In comparison the Accused’s testimony and demeanour was not impressive.

         

        Not only was Maha Ram a credible witness but there are other matters that support his testimony. I mention just a few. Having just completed a 24 hour shift he would not be expected to be wanting to stay on longer at the Police Station. He would normally have completed his dockets and left about 9.30am. Instead he did not complete his duties until 12.30pm. Something must have happened to keep him at the station until that time. Further, he made entries in

         

        his notebook which included an entry after the completion of the caution interview. The Accused refused to sign when the initial question was put to him of which language he wished to have the interview recorded in. It would have been customary to have a witness, but if there was not one, Uday Chand would have realized at that early stage that one was necessary. If, as suggested by the defence, he had waited until the end of the interview to find one, Maha Ram would no longer have been at the station. It is again most significant that he did not finally leave the station until 12.30pm.

         

        I do not find it necessary to elaborate further. Suffice it to say that I accept the evidence of Maha Ram and reject that of the Accused.

         

        Accordingly the objection to the production of the record of caution interview by Maha Ram is dismissed

         

        (Editor’s note: an appeal against these rulings was dismissed by the Court of Appeal on 14 May 1999- FCA Reps 99/217.)
 

State v. Dr. Jinadasa Ilangasinghe ex-parte Mehboob Raza & Anr.

        [1997] 43 FLR 115

         

        HIGH COURT OF FIJI ISLANDS

         

        STATE

         

        v.

         

        DR. JINADASA ILANGASINGHE

         

        ex parte

        MEHBOOB RAZA and TAMARA JAYATILLEKE

         

        [HIGH COURT, 1997 (Tuivaga CJ), 28 May]

         

        Revisional Jurisdiction

         

        Contempt of Court- necessity for due process- Penal Code (Cap. 17) Sections 136 (1) (h) & (m).

         

        Magistrates’ Courts- complaints against Resident Magistrate- how properly to be dealt with.

         

        A number of legal practitioners presented a petition against a Resident Magistrate to the Chief Magistrate. The Resident Magistrate then convicted two of them of contempt of court without a hearing or other notice to them. Quashing the convictions the Chief Justice reminded all concerned of the need to respect long accepted rules of ethics, etiquette and procedure for the future avoidance of such unedifying events.

         

        Case cited:

         

        Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141

         

        Motion for judicial review.

         

        H. Nagin with S. Sharma for the Applicants

        D. Singh for the Respondent

         

        Tuivaga CJ:

         

        This is an application for judicial review of the Ruling made on 10 December, 1996 by Resident Magistrate Dr. Jinadasa Ilangasinghe (hereafter called “the learned Magistrate”) in which he held that both applicants committed acts of contempt against his court contrary to section 136( 1 )(h) and (m) of the Penal Code.

         

        It is not disputed that the Ruling was prepared and delivered by the learned Magistrate without any notice being first given to the applicants about the adjudication in the Ruling. It is a fact that both applicants were taken by surprise when this Ruling was delivered.

         

        This application arose from circumstances that were most unedifying, to say the least.

         

        Applicant Mehboob Raza, barrister and solicitor, was counsel for the family in the inquest proceedings (Inquest No. 5/95) which was assigned to the learned Magistrate in the ordinary course of court business. Applicant Tamara Jayatilleke, barrister and solicitor, was counsel for the defendant in the criminal proceedings (Criminal Case No. 1313/95) which was also assigned for trial before the learned Magistrate. Both applicants did not want their cases to be dealt with by the learned Magistrate and had been quite active in their attempts to get the cases removed to another Magistrate. The two cases had brought to the fore the difficulties that had been simmering for sometime in the relationship between the applicants and the learned Magistrate. Those difficulties were not helped when the applicants organised a petition which was signed by 17 lawyers including the applicants. The petition dated 13 September 1996 was addressed to the Chief Magistrate and was in these terms:-

         

        “Re: Dr. Jinadasa llangasinghe

         

        We, the undersigned members of the Fiji Law Society, feel obliged to address you concerning the abovenamed Resident Magistrate.

         

        We do so out of a deep sense of responsibility to our profession as lawyers and as officers of the court. We believe that the magistrate in question has made it extremely difficult if not impossible for lawyers to properly and effectively discharge their duties as counsel for a variety of reasons. This has resulted in the erosion of confidence of the members of the profession and seriously calls into question the administration of justice in this learned Magistrate’s court.

         

        We do not level this allegation against the Magistrate lightly and would be only too happy to amplify on the reasons for the same in a meeting with yourself.

         

        For the present we write to request that effective immediately all our cases listed before the said Magistrate be reallocated to another Magistrate as we feel constrained to advise you that henceforth we do not wish to appear before the said Magistrate in any cause or matter.

         

        We trust that you will take appropriate action in the matter.”

         

        With respect, the petition brought no credit to the signatories inasmuch as their joint action paid no regard to the rules of court ethics and etiquette which had been built into the justice system to ensure the smooth transaction of court business. Every trained lawyer should know that there are proper and accepted ways of dealing with procedural problems affecting every case. Because lawyers who signed the petition did not reflect more earnestly on their professional responsibilities and duty to the courts we get this sorry state of affairs. The spectacle reflected poorly on everyone involved. That aside, it was clear that the applicants had somehow developed a distinct antipathy towards the learned Magistrate. It was this antipathy which had caused them to seek the removal of their cases from the learned Magistrate to whom those cases were properly assigned. It is a matter of concern that the applicants saw nothing distasteful in their lobbying unashamedly to have their cases reassigned to another Magistrate.

         

        In a letter dated 10 October 1996 to the Chief Magistrate entitled “Re: Dr. Jinadasa Ilangasinghe” applicant Mehboob Raza wrote at length in terms which were heavily critical of the learned Magistrate’s judicial style and personality. Suffice it is to refer to the first paragraph of the letter which reads:-

         

        “The writer wishes to express his concern in no uncertain term regarding the capability of the abovenamed Magistrate to discharge his duties impartially, worthy of any Magistrate who has sworn to discharge such duties.”

         

        and the penultimate paragraph which states:-.

         

        “The above observations are noted with deep concern whether the abovenamed Magistrate is a capable person to discharge his duties honourably and impartially. If the solicitors finding it lacking, then what chance has an unrepresented accused before him.”

         

        Another lawyer, Suruj Prasad Sharma who was also involved in the campaign against the learned Magistrate, also wrote to the Chief Magistrate to express his views about the learned Magistrate’s capability and attitude. His letter dated 8 October 1996 headed “Re: Dr. Jinadasa Ilangasinghe” reads in part as follows:-

         

        “In all these cases, the writer on account of derogatory and hostile remarks of Dr. Ilangasinghe has been forced to withdraw as Counsel in the best interests of the client - as further representation by the writer would have been detrimental to my standing as a Barrister & Solicitor and prejudicial to the client concerned. Often as a result of withdrawal the clients incoming solicitor have experienced similar difficulties and prejudices.

         

        I am now convinced in the belief honestly held by a number of my colleagues that the learned Magistrate has a number of shortcomings and which include:-

         

        i)                 that there is a demonstrable lack of knowledge and appreciation of trite principles of law and practice in particular pertaining to the rules of evidence; principles of evidence; onus of proof, burden of proof,

         

        ii)                that there is a perceived outward hostility towards lawyers who make it plain that the preconceived views held by the Magistrate is not only untenable but outwardly erroneous;

         

        iii)                the arrogant attitude and impatience displayed towards Counsel and accused persons;

         

        iv)               the lack of understanding and appreciation of difficulties of Counsel with simultaneous engagements in the High Court or Fiji Court of Appeal;

         

        v)                lack of understanding of the private practice generally;

         

        vi)               making comments and asking questions prejudicial to the defence and giving the outward appearance of being pro prosecution;

         

        vii)               reportedly discussing cases and giving advice to prosecutors in Chambers in the absence of accused and Counsel;

         

        viii)              reportedly frequenting the offices of the Director of Public Prosecutions.

         

        I have as a former colleague and as a practising lawyer raised these issues directly with Magistrate in Chambers earlier this year in the hope that there would be some improvement in the forseeable future. Regrettably, this has not been the case. The details of that meeting I will not document but needless to say the foregoing points encapsulate in summary form the issues that I had raised.”

         

        Subsequently a meeting was arranged which is described in applicant Mehboob Raza’s affidavit at paragraph 5 as follows:-

         

        “5.     That because of the continuous problem faced by the other Counsels a petition was sent to the Chief Magistrate and on or about 22 October 1996 a meeting was held with the Chief Magistrate, Dr. Ilangasinghe together with solicitors Mr. Suruj Prasad Sharma, Mr. Tevita Fa, Mr. Haroon Lateef, Ms. Tamara Jayatilleke and myself. That at that meeting specific allegations were outlined with full particulars by all the solicitors present and Dr. Ilangasinghe was given an opportunity to explain and respond to the allegations.”

         

        Given the circumstances described and all the goings-on directed at the learned Magistrate, one can understand if the learned Magistrate’s reaction was one of umbrage over what he probably perceived as an undeserving campaign of hostility against him.

         

        The problems that had arisen between the applicants and the learned Magistrate could have been avoided if everyone had acted strictly objectively and professionally in the interest of the judicial system. With some reluctance I must say that the Chief Magistrate and the learned Magistrate were not entirely free from blame for the sorry state of affairs that had occurred. I feel certain they could have helped to resolve the problem if they had taken decisive action in what should have been a straightforward procedural matter. It got out of hand because the question of transferring cases from one magistrate to another was treated somewhat loosely or rather informally when proper observance of court procedures and practice was called for. Both judicial officers concerned in this matter should have required all applications for transfer of cases to be dealt with by motions and affidavit. This would have allowed the merit of each application to be properly examined and ruled upon. This would have allowed an aggrieved person from any such ruling to take the matter further on appeal and thereby vindicate the integrity of the legal process and the judicial system. Apart from this there was also the well-established court procedure enabling an application to be made calling on a magistrate to disqualify himself or herself from taking on a case upon proper cause being shown. The appeal process was there to ensure further judicial scrutiny of controversial issues. The importance of following proper court procedure and practice cannot be overemphasized as the circumstances disclosed by the present case clearly demonstrate.

         

        As regards the allegations of incompetence and misconduct against the learned Magistrate, these also could have been directed to follow proper channels which in this case would be through the well-established disciplinary procedures administered by the Judicial and Legal Services Commission. It was clearly quite inapt for those allegations to have been directed to the Chief Magistrate who lacked the disciplinary powers to act positively and effectively in the matter. It was against this background of hostility against him that had no doubt prompted the learned Magistrate to exercise his judicial power and issued his Ruling on 10 December 1996, the subject of this application. No one except the learned Magistrate had known beforehand about the preparation of that Ruling. As it turned out the Ruling adjudged the applicants guilty of the offence of contempt of court. The applicants were not given any notice about the likelihood that those findings would be made against them nor any opportunity given to them to contest the findings. The Ruling which ran into 21 pages dealt with extensively with the procedure for transferring cases within the magistracy and concluded with the findings that the applicants had committed acts of contempt within section 136 (1) (h) and (m) of the Penal Code.

         

        The question may well be asked why the learned Magistrate decided to exercise his judicial power to make those findings in the manner he did. It is possible he may have been actuated by his concern and disappointment over the persistent hostility of the applicants and other lawyers towards him and towards the performance of his duties. Be that as it may, and much as one may understand his difficulties, it was however no reason for him as a judicial officer to adopt a modus operandi in his Ruling that was contrary to law. In these circumstances I would have to agree with the general sentiment expressed somewhat loosely in the grounds for judicial review filed in support of the application which were as follows:-

         

        “(i)       That the said Ruling of the said learned Magistrate is null and void and of no effect on the basis that the learned Magistrate failed to accord to the Applicants procedural fairness by determining their guilt without any or any real opportunity to present their answer and defence to the charge as found proved beyond reasonable doubt pursuant to s136(h)(m) of the Penal Code Cap 17.

         

        (ii)        That the said Ruling of the said learned Magistrate is void and in excess of the jurisdiction conferred upon the learned Magistrate under the Magistrates Court Act, Cap 14, the Penal Code; Cap 17 and the Criminal Procedure Code, Cap 15, thereby rendering it a nullity;

         

        (iii)       That the said Ruling of the said learned Magistrate is null and void in that it is based on alleged factual premises which fails to identify with precision or at all the precise acts or conduct of the Applicants which gave rise to the finding of contempt;

         

        (iv)       That the learned Magistrate acted in bad faith by his clear abrogation of the Rules of Natural Justice in his determination to charge and hear the proceedings and publish his Ruling as he did;

         

        (v)        That the reasons given in the Ruling are tantamount to no reasons on account of it literally being festooned with the learned Magistrate’s pre-occupation to make arbitrary, capricious, unfair, unreasonable, irrational and malicious findings with respect to the Applicants such findings having no basis in fact or law and thus in excess of jurisdiction such to render them a nullity;

         

        (vi)       That the said learned Magistrate erred in law in his interpretation of the relevant provisions of the Magistrates Court Act, Cap 14, and the Penal Code, Cap 17;

         

        (vii)      That the said learned Magistrate erred in taking into account irrelevant considerations and failing to take into account relevant considerations;

         

        (ix)       That the said learned Magistrate was actuated by malice and/or bias and/or had predetermined the matter pertaining to the Applicants;

         

        (x)        That the said learned Magistrate had acted contrary to the legitimate expectations of the Applicants.

         

        As regards the present application the court is not concerned with the merits of the Ruling itself. It is concerned only with the manner, that is, the decision-making process by which the learned Magistrate arrived at his findings in his Ruling. In my view it was mainly in that respect that the learned Magistrate misdirected himself in his adjudication against the applicants. He breached the rules of natural justice by not giving proper notice to the applicants of his intended action as encapsulated in his Ruling. Nor did the learned Magistrate accord the applicants any opportunity to defend themselves against his findings which were clearly adverse to their interests. The learned Magistrate was under a legal duty to afford them such an opportunity. The essence of judicial review is to ensure that the decision-making process by a court or tribunal was done according to law. Basic to this concept is the requirement that every person who becomes the subject of judicial or administrative scrutiny must be accorded procedural fairness. As was said in the case of Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141 at 143:

         

        “It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he had been subjected ...............”

         

        In these circumstances I do not think the applicants had in fact received procedural fairness in the hands of the learned Magistrate. His adjudication was clearly ultra vires i.e. beyond his jurisdiction when he made his findings of contempt against the applicants.

         

        It seems clear also that the learned Magistrate’s Ruling fell foul of the principle of legality. This principle requires as a fundamental condition of justice that every court or tribunal must act according to law when adjudicating on issues affecting a person’s rights and liabilities. The learned Magistrate’s peremptory approach to his findings was unlawful in that he did not follow proper procedures when adjudicating the issues already referred to. The learned Magistrate purported to have based his findings on section 136(1)(h)and (m) of the Penal Code. If that was the case, then the matter should have gone to the police in the first place to investigate and if probable cause was shown to lay charges under the section. No court can have jurisdiction to adjudicate a criminal cause without the charges against a defendant being first formally laid by the appropriate authorities. It is only in the exceptional situation where breaches of section 136(1)(h) or (m) had been committed in the view of the court, that is, in the presence of the court may a court take peremptory action over any such alleged breaches. On the facts of this case the latter situation was not in issue. It follows and I would hold that the Ruling relating to the findings of contempt against the applicants was misconceived as they failed to comply with legal requirements for such adjudication.

         

        For the reasons I have given, this application for judicial review must succeed. The learned Magistrate’s findings that the applicants committed acts of contempt against his Court cannot be sustained and will therefore be quashed. It is ordered accordingly. There will be no order for costs.

         

        (Application for judicial review granted: findings of the Magistrates’ Court quashed).
 

State v. The NLC & Anr ex-parte Ratu Akuila Koroimata

        [1997] 43 FLR 102

         

        HIGH COURT OF FIJI ISLANDS

         

        STATE

         

        v

         

        THE NATIVE LANDS COMMISSION AND

        RATU JEREMAIA NAITAUNIYALO NO. 2

         

        ex-parte:

        RATU AKUILA KOROIMATA

         

        [HIGH COURT, 1997 (Byrne J) 23 April]

         

        Revisional Jurisdiction

         

        Constitution- customary law- whether decision of Native Lands Commission subject to judicial review. - Constitution (1990) Section 100 (4).

         

        In a preliminary ruling the High Court HELD: that when it was intended to allege that the Native Lands Commission had reached a decision in breach of the rules of natural justice section 100 (4) of the 1990 Constitution was no bar to leave to move for judicial review of the decision being granted.

         

        Cases cited:

         

        Ratu Isireli Rokomatu Namulo v. Native Lands & Fisheries Commission & Ors -HBJ 0002 of 1995L

        Ratu Nacanieli Nava v. Native Lands Commission & Anr Civ. App. No. 55/93 - (FCA Reps 94/490)

        Ridge v. Baldwin [1964] A.C. 40.

         

        Application for leave to move for judicial review in the High Court.

         

        T. Fa for the Applicant

        S. Rabuka for the First Respondent

        K. Vuataki for the Second Respondent

         

        Byrne J:

         

        The Applicant seeks judicial review of a decision of the Native Lands Commission dated 15th July 1994 relating to the position of the Turaga Tui Lawa of Yavusa Lawa in the Village of Yaro.

         

        A dispute had arisen between the Applicant and the Second Respondent as to who should hold this title and the matter was referred to the Native Lands Commission for its decision under Section 17(1) of the Native Lands Act Cap. 133.

         

        Numerous affidavits have been filed on behalf of the parties, the drafting of which, particularly in the case of those filed by the Applicant, leaves much to be desired. All too frequently they contravene Order 41 Rule 5 of the Rules of the High Court in that they do not contain only such facts as the deponents are of their own knowledge able to prove but rather are in many instances argumentative and too often also contain submissions on the law. This is not the first time I have had to comment adversely on affidavits in clear breach of Order 41 Rule 5. I have also commented adversely in the past on affidavits which are not phrased in acceptable English but use the vernacular. A classic example of this appears in paragraph 12 of the affidavit of the Applicant sworn on the 16th of May 1995 in which the Applicant denies the right of the First Respondent to make the Second Respondent a Chief under the custom of Malolo Island. As to this the Applicant says “It is not on”. Presumably this is intended to mean that the Commission had no such right but the use of the slang expression does nothing to enhance the dignity of the law or the depth of the Applicant’s vocabulary or, as I think more than likely, that of his counsel.

         

        The burden of the Applicant’s complaint is that when the First Respondent sat at Sigatoka on 30 June 1994 to decide who should hold the title of Turaga Na Tui Lawa it denied the Applicant natural justice by not giving him an opportunity to comment on two letters purportedly signed by the Applicant, the Second Respondent and other persons.

         

        The letter of the 19th of April 1983 is addressed to the Commissioner, Native Lands Commission, Ministry of Fijian Affairs, Suva and contains four paragraphs. A copy of this letter is annexed to the affidavit of Nacanieli Nabukavou, Senior Assistant Commissioner of Native Lands Commission sworn on 23rd of August 1995 and obviously drafted in the Attorney-General’s Chambers, Suva.

         

        As the First Respondent did not provide an English translation for this letter I have had one prepared by a senior Fijian Officer of this Court which, omitting relevant parts, reads as follows:

         

        “With regard to the position of Head of the Mataqali Ketenimasi, Yavusa Lawa of Yaro, which was discussed on 28/3/83 at Yaro. They have installed Serupepeli Natau, who is sixth in line, (the youngest) according to our Register of descendants of the Tokatoka Nabukelevu.

         

        Since Akuila Koroimata is still alive and he being the rightful holder of the title, which was taken away from him for base motives and rivalry, I request that you give him his share of the lease as Head of the Mataqali as it is his rightfully since he is a true descendant.

         

        Ratu Jeremaia Matai’s position is confirmed as he is officially registered by you. He is also to receive his share as Head of the Mataqali Ketenimasi, of the Yavusa Lawa, of Yaro. He is also a rightful descendant.

         

        We are requesting that you consider the matter very deeply, so it would not disrupt our sacred Chieftainship, for the love of money and changes brought about by time. Your assistance will be highly appreciated.”

         

        The important paragraph for present purposes is the third but the First Respondent also relies on a letter of the 18th of May 1983 no copy of which has been annexed to any affidavit so far filed on behalf of any of the parties. According to the Applicant he was one of the signatories to this letter which he says contains the phrase Na Tui Turaga (our Chief), referring to the Second Respondent.

         

        According to the Applicant the First Respondent concluded that the inclusion of the Applicant’s name showed that he supported and accepted the Second Respondent as his Chief. The Applicant denies this.

         

        As to the letter of the 19th of April the Applicant denies that the signature bearing the name Akuila Koroimata is his signature and argues that by failing to invite him to comment on both these letters the Commission committed a breach of the rules of natural justice.

         

        In the affidavit of Nacanieli Nabukavou of 23rd of August 1995, commenting on the claim by the Applicant that he was not aware that these letters were going to be relied on by the Respondents, Mr. Nabukavou says simply that “This is a lame excuse”. He also says that the whole purpose of the inquiry conducted by the Commission was to determine from such letters and other oral evidence whether the Applicant or his opponent the Second Respondent were to be established as the Tui Lawa.

         

        There is no doubt in my judgment that the Applicant and the Second Respondent gave evidence at the hearing of the Commission on 30th June 1994. Whilst it is only fair to say even at this stage that I have serious reservations about the claim made by the Applicant against the Commission, nevertheless in my judgment a clear issue of fact arises in this case which is referred to in paragraph 50 of Mr. Nabukavou’s affidavit of the 23rd of August 1995. He there deposes that opportunities were available to the Applicant at the hearing to ask for correspondence to be produced after the Respondent had informed the parties of its existence.

         

        Both Respondents relied on the decision of the Court of Appeal in Civil Appeal No. 55 of 1993 Ratu Nacanieli Nava v. Native Lands Commission and the Native Land Trust Board dated 11th November 1994 and a subsequent decision of Lyons J. delivered on 4th December 1995 in Judicial Review No. HBJ0002 of 1995L Ratu Isireli Rokomatu Namulo v. Native Lands & Fisheries Commission and Four Others. Both judgments rely on Section 100(4) of the 1990 Constitution which reads:

         

        “(4)        For the purpose of this Constitution the opinion or decision of the Native Lands Commission on

         

        (a)       matters relating to and concerning Fijian customs, traditions and usages or the existence, extent, or application of customary laws; and

         

        (b)       disputes as to the headship of any division or sub-division of the Fijian people having the customary right to occupy and use any native lands, shall be final and conclusive and shall not be challenged in a court of law.”

         

        In Nava’s case the Court held that Section 100(4) precluded the questioning in any Court of law including the High Court of any decision or opinion given by the Native Lands Commission concerning Section 17(1) of the Native Lands Act relating to any dispute as to the headship of any division or sub-division of the Fijian people having the customary right to occupy and use any native land under the Native Lands Act.

         

        Purporting to follow Nava’s case Lyons J. held that the Court of Appeal held that the process of judicial review is totally excluded by Section 100(4) - see p.5 of the unreported judgment.

         

        With great respect to my learned brother I do not take the Court of Appeal to be saying in Nava’s case that all decisions or opinions of the Native Lands Commission are not subject to judicial review. I cannot bring myself to believe that the Court intended to say that even where a decision of the Commission was tainted by the most obvious bias or failure to accord the parties a fair hearing such decision was not reviewable by the superior courts of this country.

         

        So to hold would in my view fly directly in the face of what Lord Reid said in Ridge v. Baldwin [1964] A.C.40 at p.80:

         

        “Time and time again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Wood (1874) LR 9 Ex.190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.”

         

        It must be observed that in Nava’s case there was no allegation of failure by the Commission to follow proper procedures. The question simply was which of two contesting brothers should be held to be the principal Chief in the Vanua Vidilo. After the hearing the Commission appointed neither of the two contestants but an outsider in an acting capacity to give the two principal contestants more time to prepare themselves for the position of leadership that awaited them in the future. (Nava’s case p.4 of Court of Appeal judgment.)

         

        In my judgment therefore the Applicant’s counsel is correct when he says at p.19 of his submission of the 22nd of November 1996 that a decision or opinion of the Native Lands Commission would only qualify for protection under Section 100(4) (a) and (b) of the Constitution if it is not taken in breach of the principles of natural justice. Whether or not such principles have been breached in the present case is a question of fact which can only be decided after a hearing. I therefore intend to allow evidence to be called on the matter raised by the First Respondent in paragraph 40 of the affidavit of Nacanieli Nabukavou of the 23rd of August 1995 on the question of whether the Commission drew the attention of interested parties to the existence of the letters dated 19th April 1983 and 18th May 1983. If I am satisfied that it did then it seems to me that the Applicant may well have to fail in his application for judicial review.

         

        As to this however at this stage of course I express no concluded opinion. I shall fix a date for the hearing of such evidence on the delivery of this ruling.

         

        (Preliminary ruling in favour of the applicant).

         

        (Editor’s Note: - an appeal against this ruling was dismissed by the Fiji Court of Appeal on 13 November 1998 - FCA Reps 98/455).
 

State v. Neori Tavakaturaga Qoli

        [1997] 43 FLR 195

         

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        NEORI TAVAKATURAGA QOLI

         

        [HIGH COURT, 1997 (Pain J) 11 August]

         

        Criminal Jurisdiction

         

        Crime: procedure- DPP’s power to file further information- assault occasioning actual bodily harm- jurisdiction of the High Court to try - Criminal Procedure Code (Cap 21), Section 4- Penal Code (Cap 17) Section 245.

         

        The DPP filed a second information alleging a lesser offence than that with which the accused had originally been charged. The High Court HELD: (i) that there was no objection to a fresh information being filed although the prosecution would have to elect with which information it wished to proceed and (ii) that the High Court had unfettered jurisdiction to try any offence whether or not that offence was within the jurisdiction of a Magistrates’ Court.

         

        Cases cited:

         

        R v. Croydon JJ ex parte Dean [1993] 3 All ER 129

        R v. Munro (1993) Cr. App. R. 183

         

        Preliminary ruling in the High Court.

         

        J. Auld & Ms. R. Shafiq for the State

        J. Maharaj for the Accused

         

        Pain J:

         

        The Appellant was committed for trial on a charge of manslaughter. An information for that offence was laid by the Director of Public Prosecutions.

         

        Last week the Director of Public Prosecutions filed a further information. This is headed up “Amended Information by the Director of Public Prosecutions”. It charges the Accused with the offence of assault occasioning actual bodily harm contrary to S.245 of the Penal Code.

         

        Prior to the Accused being arraigned, counsel for the Accused has objected to the trial proceeding on this new charge. As we are waiting to commence the trial an immediate decision is required. Counsel were not able to submit any direct authority on the issue raised. In the limited research I have had time to do I have ascertained what I believe is the correct legal position. However, I have not been able to prepare a fully reasoned judgment.

         

        This filing of a second information by the Director of Public Prosecutions is not unique. It is frequently done, usually as in this case, alleging a lesser offence than the original charge. There is no express statutory authorisation for this procedure but it is a common practice that has been regularly permitted in this Court. Furthermore, in my view it is a procedure that is authorised by the Common Law.

         

        Counsel for the Accused submitted that the procedure is equivalent to the laying of a new information. If that is so, I consider there is nothing wrong with that. There is no statutory prohibition against it. At Common Law there is no rule or practice which prohibits two indictments being in existence against the one Accused at the one time (in this respect see particularly R v Munro (1993) 97 Cr. App. R. 183). Of course, the prosecution could not proceed on both indictments and both indictments could not be tried together. The prosecution would need to elect to proceed on one only. The Court has power to stay the other indictment (See R v Munro (supra) and generally such cases as the R v Croydon Justices ex parte Dean [1993] 3 All ER 129).

         

        It has also been submitted by counsel for the Accused that the High Court has no jurisdiction to try this charge of assault occasioning actual bodily harm. It is said that it must be heard in the Magistrates’ Court. That is not so. The High Court has unlimited jurisdiction to try any offence under the Penal Code. This is specifically stated in S.4 of the Criminal Procedure Code. It is further reflected in the First schedule to that Code which designates the offences triable by Magistrates “in addition to the High Court”. However, that is now subject to the provisions of the Electable Offences Decree 1988 which restricts a defendants entitlement to elect to be tried in the High Court to those offences prescribed in the schedule. However, the jurisdiction of the High Court remains unfettered.

         

        Accordingly an offence under S.245 of the Penal Code would ordinarily be tried in the Magistrates’ Court and the defendant would have no right to elect trial in the High Court. However, that does not affect the jurisdiction of the High Court to try for that offence if it considers it appropriate to do so.

         

        It may be a ground for objection that inadequate notice of the new charge has not been given. If this has caused prejudice to the accused an adjournment would be the usual remedy.

         

        However, the defence earlier opposed an adjournment of the original charge and that application by the prosecution was refused. This is a lesser charge on exactly the same facts. The interests of justice require that it should be heard without delay. If required, I will need to hear further from the defence on this point.

         

        My ruling is that the prosecution is entitled to proceed on the information dated 6th August 1997 alleging the offence of assault occasioning actual bodily harm under S.245 of the Penal Code.
   

State v. The Permanent Arbitrator ex-parte FEA

        [1997] 43 FLR 123

         

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        THE PERMANENT ARBITRATOR

        ex-parte

        FIJI ELECTRICITY AUTHORITY

         

        [HIGH COURT, 1997 (Fatiaki J) 12 June]

         

        Revisional Jurisdiction

         

        Judicial review- procedure- requirement for particularity in Form 32 Statement- necessity for adequately detailed supporting evidence- High Court Rules 1988 O 53 r 3 (2).

         

        In the course of dismissing an application for leave to move for judicial review the High Court stressed the importance of pleading grounds for review with adequate particularity and the need for the supporting affidavit to contain sufficient detail so as to enable the Court to determine whether the applicant had presented a prima facie case.

         

        Case cited:

         

        R v. IRC ex parte Nat. Fed. of Self-Employed and Small Business Ltd. [1982] A.C. 617

         

        Application for leave to move for judicial review.

         

        A. Patel for the Applicant

        S. Kumar for the Permanent Arbitrator

        V. Naidu and J. Udit for the Union

         

        Fatiaki J:

         

        This is an opposed application for leave to issue judicial review proceedings against an Award No. 12 of 1996 of the Permanent Arbitrator delivered on the 11th of October 1996.

         

        It concerns a trade dispute between the Fiji Electricity and Allied Workers Union (‘the Union’) and the Fiji Electricity Authority (‘the Authority’) which had been referred for settlement, by the Permanent Secretary for Labour and Industrial Relations (‘the Permanent Secretary’) acting pursuant to Section 5A subsection 5(a) of the Trade Disputes Act (Amendment) Decree No. 27 of 1992 (‘The Decree’).

         

        It is undisputed that the trade dispute arose over the dismissal of nine apprentices who had completed their five year contracts of apprenticeship with the Authority. It is also common ground that the successful completion of the contracts of apprenticeship occurred at different times and termination by the Authority occurred several months after such completion. Furthermore although none of the apprentices were permanent employees of the Authority, all were members of the Union at all relevant times.

         

        The dispute was primarily concerned with the status of the apprentices during the period between the successful completion of their respective contracts of apprenticeship and their termination by the Authority. The periods with which the Permanent Arbitrator was concerned with were : slightly over 3 months in the case of 1 apprentice ; over 5 months in the case of another apprentice ; and over 7 months for the remaining seven apprentices.

         

        The terms of reference by the Permanent Secretary generally :

         

        “... (referred) the said trade dispute to the Permanent Arbitrator over the employer’s action to terminate (the) employment of Union members who had successfully served their apprenticeship contract and had been in employment beyond their 3 months probationary period for settlement.”

         

        At the hearing of the reference the Permanent Arbitrator received preliminary submissions from the Union and the Authority and thereafter evidence was produced by the parties and comprehensive final submissions were provided.

         

        The Authority’s position is conveniently summarised in the following paragraph taken from p.3 of the Permanent Arbitrator’s decision which reads :

         

        “The Authority has adopted the position that the provision relating to apprentices ... allowed an apprentice’s term of employment to continue while the Authority came to a decision. There was no mandatory obligation on the Authority to provide permanent employment. Further there was a discretion as to whether to upgrade and absorb (“it will consider”) apprentices as permanent employees. Clause 12 had to be interpreted in the light of an apprentice’s contract coming to an end and the subsequent contract conferring permanent employee status then taking effect upon the Authority exercising its discretion to offer an apprentice a permanent position.”

         

        The Union on the other hand contended in its final written submission :

         

        “... that the termination of employees was unfair, and wrong, and that they be reinstated as tradesman with full wages and benefits.”

         

        This position which is ostensibly based on custom and practice over many years, is somewhat akin to confirmed permanent employment upon successful completion of contract of apprenticeship.

         

        In a closely reasoned 8-page decision delivered by the Permanent Arbitrator he ruled :

         

        “that the Authority’s decision to terminate the employment of union members who had successfully served their apprenticeship contract and the three month probationary period under the parties collective agreement was contrary to its terms and the said members are to be compensated at tradesman’s rates with effect from the respective dates on which the said probationary period expired (as calculated from the formal completion of their respective apprenticeships) to the date of this award but there will be no order for reinstatements.”

         

        In its application for leave to issue judicial review the Authority has advanced no less than six grounds on which it claims the Permanent Arbitrator erred. These are :

         

        “(a)      the learned first respondent acted ultra vires the provisions of the Trades Disputes Act.

         

        (b)        the learned first respondent had not exercised his discretion judicially having regard to the relevant circumstances.

         

        (c)        the learned first respondent took irrelevant matters into account when exercising his discretion.

         

        (d)        the learned first respondent did not take relevant matters into account when exercising his discretion.

         

        (e)        the learned first respondent’s said award was made beyond his jurisdiction.

         

        (f)         that there is an error of law on the face of the record.”

         

        I must confess that in the absence of particulars or any details in the supporting affidavit, the grounds as drafted, are of little or no assistance in directing the Court’s attention to any prima facie vitiating error that may have occurred either in the course of the hearing of the reference or in the actual award of the Permanent Arbitrator.

         

        It might very well be that all of the grounds advanced are recognised as good and sufficient grounds to warrant the grant of a prerogative writ, but that alone is no reason to indiscriminately advance them all in an application for judicial review, unless of course, they are clearly evidenced in the supporting affidavit or demonstrated by counsel’s submissions. This form of pleading (for want of a better expression) which is fast becoming the norm in applications for judicial review is unacceptable, unhelpful and often duplicitous. For instance, what is the difference (if any) between grounds (a), (b) & (e) ? or between grounds (b) & (d)?, and what ‘irrelevant matters’ did the Permanent Arbitrator take into account?

         

        Indeed when the application for leave was argued before me in chambers, counsel for the applicant, without referring specifically to any of the above grounds, merely stated that the Permanent Arbitrator’s award contained an illegality and was also irrational in a ‘Wednesbury’ sense. The error of law was said to arise in the Permanent Arbitrator’s reference to other general clauses in interpreting Clause 12 of the Collective Agreement.

         

        In R. v. IRC ex parte Nat. Fed. of Self-Employed and Small Business Ltd [1982] A.C. 617, Lord Diplock said at p.642, 643 :

         

        “The need for leave to start proceedings is not new ... Its purpose is to prevent the time of the court being wasted ... with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

         

        In this regard Order 54 r.3(5) of the High Court Rules requires the Court in exercising its discretion at this threshold stage to direct its mind “(to) ... the materials then available (to see whether) it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed”. (ibid at p.644)

         

        This necessarily implies a corresponding duty on counsel not only to draft their grounds with particularity out also, to ensure that there is some supporting affidavit evidence to enable the Court to form on the papers, a prima facie view favourable to the applicant seeking leave. Needless to say in the absence of such materials the Court is constrained to order an inter partes hearing of the application for leave as occurred in this case.

         

        Having regard to the above it is not at all surprising that the application for leave was vigorously opposed by counsel for the Permanent Arbitrator as well as the Union. More particularly State Counsel submitted that the application raised no arguable case for a judicial review and was a disguised appeal against a decision which, in terms of Section 5A subsection 5(b) of the Decree, “... shall be binding on the parties to the dispute”.

         

        As for the so-called ‘error of law’, State Counsel submitted that the Permanent Arbitrator’s terms of reference required him to examine more than just Clause 12 of the Collective Agreement insofar as the reference to a probationary period necessarily entailed an examination of Clause 6(c). Furthermore Clause 12 itself contained a lacuna insofar as there is no time-frame provided, within which the Authority is obliged to ‘consider upgrading and absorbing (qualified apprentices) as permanent employees’.

         

        How then, counsel forcefully argues, can it be said that the Permanent Arbitrator’s fixing of a limitation period within which the Authority must make a decision to permanently employ or terminate its qualified apprentices, is either illegal, irrational or unreasonable ? and how can the adoption of 3 months which is the length of the probationary period provided for in Clause 6(c) of the Collective Agreement, be considered either arbitrary, irrelevant, or ultra vires?

         

        Furthermore the Permanent Arbitrator has himself provided reasons in his decision for filling the lacuna and for his choice of 3 months, where he writes at p.4 :

         

        “The Tribunal has some doubts about the Authority’s approach. It confers all the advantages on the Authority and makes little attempt to harmonise both the provisions of the apprenticeship contract with the collective agreement and provisions within the collective agreement itself.”

         

        later at p.5 he states :

         

        “Furthermore the Authority omitted to explain the relationship between Clause 6(c) and Clause 12. The latter makes reference to the Authority giving consideration to upgrading and absorbing them (i.e. qualified apprentices) as permanent employees. If one were to give effect to Clause 6(c) on the basis that the apprentices were now fully qualified, the three months probationary period provided the time in which the Authority had to decide on their future. This would be sufficient response to the Authority’s assertion that the time it had under Clause 12 was open-ended.”

         

        Then finally and again at p.5 the Permanent Arbitrator states :

         

        “The apprenticeship contract and the terms of the collective agreement co-exist quite happily, if the probationary period under the latter (i.e. the 3 months) is treated as the time the Authority has in which to make up its mind over the apprentices fate. Otherwise it becomes an open-ended arrangement which favours the Authority and allows it to dispense with the apprentices at its own convenience. An unacceptable situation because the Authority would have had the benefit of the apprentices expertise at a fraction of the cost ... The advantage of this interpretation is that it allows effect to be given to that part of Clause 12 which confers discretion (and by implication time) upon the Authority to make a decision.”

         

        For his part counsel for the applicant could only state in reply, that the Permanent Arbitrator’s award had the effect of imposing remuneration rates payable to permanent employees in circumstances where the Authority had under Clause 12 of the Collective Agreement, no obligation to provide permanent employment to the employees concerned.

         

        But as the learned Permanent Arbitrator said at p.7 of his decision :

         

        “The simple answer to that is that some sense has to be made of the situation where the apprenticeship contract persists by implication, a probationary period (of 3 months) now applies and the Authority has some time in which to determine if the apprentices are to be given permanent employment. This last aspect adequately explains why it is appropriate the apprentices were to be paid at that level for those three months.”

         

        For the foregoing reasons the application for leave to issue an application for judicial review against the Permanent Arbitrator’s Award No. 12 of 1996 is refused with costs to be taxed if not agreed.

         

        (Leave to move for judicial review refused).
 

State v. PSC ex-parte Sevuloni Nasalasala

        [1997] 43 FLR 283

         

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        PUBLIC SERVICE COMMISSION

         

         ex-parte

        SEVULONI NASALASALA

         

        [HIGH COURT, 1997 (Fatiaki J) 14 November]

         

        Revisional Jurisdiction

         

        Judicial review- delay in applying for relief- application to file further evidence- application to amend statement- High Court Rules 1988 Order 53 r 3 (4) & 4.

         

        An applicant for leave to move for judicial review had not explained his delay in applying for relief. He sought to file further evidence and also sought to amend his supporting statement. The High Court dismissed both the applications and the application for leave. It stressed the importance of complying with the time-table laid down by the rules when applying for judicial review and explained the principles governing applications to amend the supporting statement.

         

        Cases cited:

         

        R v. Institute of Chartered Accountants in England & Wales ex parte

                    Andreou (1996) 8 Admin LR 557

        R v. Stratford-on-Avon DC ex-parte Jackson [1985] 1 WLR 1319

        Regal Bourne Ltd v. East Lindsay District Council (1994) 5 Admin L.R. 102

         

        Application for leave to move for judicial review.

         

        S. Matawalu for the Applicant

        S. Kumar for the Respondent

         

        Fatiaki J:

         

        On the 7th of September 1993 the applicant was appointed on a probationary basis as a temporary relieving Clerical Officer in the Forestry Department, Lautoka. He was subsequently transferred to the Accounts Section of the Ministry of Health in Suva where he remained working as Cashier until he took his annual leave in October 1996.

         

        I digress in order to point out here that whilst lengthy probationary periods (in this case in excess of 3 years) may be an administrative convenience, it is, in my opinion, a contradiction in terms. It provides almost no security to the probationer, lends itself to nepotism and who is more, having regard to the time-frames envisaged in Regulations 21 to 25 of the PSC (Constitution) Regulations 1990, may be ultra vires and therefore of doubtful legality.

         

        Be that as it may, during the applicant’s absence on leave, internal inquiries revealed short-falls in revenue allegedly received by the applicant but unaccounted for. The matter was reported to the Police and after necessary investigations were conducted the applicant was charged with the offence of Larceny by Servant on 8th November, 1996.

         

        The applicant resumed work on 31st December, 1996 and despite the pending criminal charge against him, was permitted to continue working, ostensibly to enable the Department to recover some of the revenue which he had allegedly misappropriated.

         

        On 7th January, 1997 the applicant pleaded guilty to the criminal charge in the Suva Magistrates’ Court and was conditionally discharged without conviction under Section 44(1) of the Penal Code (Cap. 17). No appeal has been lodged against the magistrate’s order.

         

        Steps were thereafter taken by the Permanent Secretary for Health to have the applicant interdicted from service, but after some correspondence with the applicant’s solicitor, nothing eventuated. Finally, by letter dated 20th March 1997 the Public Service Commission (PSC) annulled the applicant’s probationary appointment “... due to your conviction by the Court for a criminal offence of larceny by servant”.

         

        Regulation 21 of the PSC (Constitution) Regulations 1990 provides :

         

        “Except as otherwise provided in this Part, an officer on first appointment to the Public Service shall be required to serve on probation for a period of one year:

         

        Provided always that the Commission may at any time in writing, confirm or annul the appointment to the Public Service of a probationer.”

         

        On 5th April 1997 the applicant through his solicitor, advised the Commission that contrary to the reason ascribed: “... (he) was (conditionally) discharged without conviction ...” and the letter demanded his immediate reinstatement.

         

        On 11th June 1997 after seeking legal advice, the Commission advised the applicant that “... (its) decision to annul (the applicant’s) appointment is in order and therefore stands”.

         

        Four months later on 21st October 1997 the present application for leave to issue judicial review was filed based upon the following two grounds :

         

        (1)       The reason relied upon by the PSC to annul the applicant’s appointment was erroneous in fact and in law since the Magistrate’s Court did not enter a conviction against the Applicant but it discharged him without conviction on the condition that he did not reoffend within 12 months from the day of sentencing. As the applicant did not reoffend within 12 months of the date of sentencing, the Applicant’s discharge had been confirmed.

         

        (2)       The charge of larceny by servant arose from circumstances under which the Applicant was instructed by his superiors to carry out duties which he as clerical officer was not authorised to perform by the Finance Regulations.”

         

        It will be seen at once that no ground was advanced suggesting a breach of the principles of natural justice nor is it suggested that the decision was ‘Wednesbury’ unreasonable. In simple terms, without doubting the Commission’s power to annul probationary appointments, the applicant says that his appointment was wrongly annulled for an improper or incorrect reason and is therefore null and void.

         

        If I may say it is difficult to imagine a more technical and unmeritorious ground than that advanced in (1) above, based as it is, upon a strict legalistic analysis of what occurred in the Magistrates’ Court criminal proceedings and predicated on the legal technical meaning of the word ‘conviction’. As for ground (2) above, I have no hesitation in saying that nothing therein raises a sufficient basis for judicial review.

         

        State Counsel opposes the grant of leave on two grounds :

         

        1.         That there has been an inordinate delay in bringing this application to Court ... ; and

         

        2.         That the applicant was never denied Natural Justice and hence the decision of the Commission is not unreasonable.

         

        In light of the State’s grounds for opposing leave, the application was listed for argument before me on 5th November 1997 and Notice of Opposition was ordered to be served on the applicant’s solicitors on or before 24.10.97. This was done.

         

        Despite the ten clear days given to the applicant, no affidavit explaining the inordinate delay was filed nor was any attempt made to amend or add to the two grounds already advanced in the application for leave to issue judicial review.

         

        Indeed, when these failures were highlighted to counsel at the hearing, he made an oral application for a short adjournment to enable the applicant to file an affidavit. In similar vein, but this time, at the reply stage, counsel for the applicant orally sought leave to amend the grounds to include a breach of natural justice based upon the Commission’s alleged failure to hear the applicant before annulling his appointment.

         

        Not surprisingly, State Counsel opposes both oral applications which would have further prolonged the delay, and more so, of an application, which counsel submits, is doomed to failure.

         

        At the conclusion of the hearing I refused counsel’s oral application to file an affidavit explaining the delay.

         

        The strictness with which the Courts approach time-limits in judicial review proceedings was recently reaffirmed in R. v. Institute of Chartered Accountants in England and Wales ex-parte Andreou (1996) 8 Adim L.R. 557 (loose leaf) where the Court of Appeal (U.K.) in refusing leave to appeal against a refusal to extend time to begin judicial review proceedings :

         

        “Held: (1)         The purpose of the procedure governing applications for judicial review is to provide a simplified and expeditious means of resolving disputes in the field of public law.

         

        (2)       This purpose would be frustrated if the relatively leisurely and casual approach to time-limits which characterises civil litigation in the field of private law were to be adopted in the field of public law.

         

        (3)       Therefore, notwithstanding that the error had been entirely that of the applicant’s lawyers (the judge) had been right to dismiss the application.”

         

        (See also : per Sir Thomas Bingham M.R. in Regal Bourne Ltd. v. East Lindsay District Council (1994) 6 Admin Law Rep. 102)

         

        In my view it would have been clear to any experienced counsel that the present application for judicial review was being commenced outside the time-limit imposed by the High Court Rules, and consequently, some reason, excuse or explanation ought to have been deposed in the affidavit in support of the application for leave if counsel was seriously minded to avoid the discretionary consequences provided for in Order 53 r.4(1). Counsel can not assume that the Court will always adopt a lenient approach to late applications for judicial review or that an adjournment will be automatically granted on request and in the face of opposition.

         

        In this regard Order 53 r.4 of the High Court Rules provides :

         

        4.-        (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant -

         

        (a) leave for the making of the application, or

         

        (b) any relief sought on the application,

         

        if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration.

         

        (2)        In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.”

         

        It is clear from the chronology of events traced earlier and considering relief (b) sought by the applicant, that “... there has been undue delay in making (the) application for judicial review ...”

         

        In R. v. Stratford-on-Avon DC ex-parte Jackson [1985] 1 W.L.R. 1319, Ackner L.J. said of the meaning of ‘undue delay’ in the context of the U.K. equivalent of Order 53 r.4, at p.1325 :

         

        “... we have concluded that whenever there is a failure to act promptly or within three months there is undue delay (and) even though the Court may be satisfied ... that there is good reason for that failure nevertheless the delay, viewed objectively, remains `undue delay’. The Court therefore retains a discretion to refuse to grant leave ...”

         

        A fortiori when no reason or excuse has been given or advanced by way of explanation for the undue delay.

         

        I turn next to consider counsel’s oral application to amend the grounds upon which the application is based and which counsel submits raises an important and simple issue of law, namely, whether a probationer in the Public Service is entitled to be heard before his probationary appointment is annulled by the PSC?

         

        Order 53 r.3(4) gives a discretion to the Court hearing an application for leave to allow the applicant to amend or add to the grounds specified in the Statement filed in support of the application “... on such terms, if any, as it thinks fit”. Clearly amendment of the grounds for judicial review is not a matter of right.

         

        In my view in considering whether or not to exercise its discretion to allow an amendment under the above sub-rule, the Court is obliged, amongst other factors, to consider the following :

         

        (1)        The nature of the amendment sought ;

         

        (2)        Whether or not the amendment would or should have been obvious to the applicant or his professional advisors at the time of commencing the proceedings;

         

        (3)        The grounds upon which the amendment is sought and the explanation for its earlier omission ;

         

        (4)        Whether or not the amendment, if granted, will entail the filing of additional or supplementary affidavit(s) ; and

         

        (5)        Whether or not the application is opposed.

         

        Quite plainly the proposed amendment, if supportable, does raise a substantive issue of natural justice, in particular, breach of the audi alteram partem rule.

         

        State Counsel for his part disagrees that the proposed amendment is sustainable, and submits that a probationer in the Public Service does not have a right to be heard before the annulment of his appointment which, in accordance with Regulation 21 of the PSC (Constitution) Regulation 1990, (op.cit at p.3 above) can occur ‘at any time’.

         

        In counsel’s submission the nature of the applicant’s probationary appointment is such that the onus lay on the applicant during the probationary period to demonstrate his suitability for permanent appointment to the Public Service and by his own admission in the Magistrates’ Court proceedings, to having committed a serious criminal offence of dishonesty in the handling of government revenue, counsel submits, the applicant unequivocally demonstrated his unsuitability for permanent appointment.

         

        Given the above, counsel submits that no useful purpose would be served in allowing an amendment which is doomed to fail in an application which is already out of time and which would be seriously detrimental to the effectiveness and efficient administration of the Public Service.

         

        Having carefully considered the matter I have come to the firm conclusion that, in all the circumstances, leave to apply for judicial review ought to be refused.

         

        The application is accordingly dismissed.

         

        (Application dismissed).
  

State v. PS for Education & Anr ex-parte Divendra Bijay

        [1997] 43 FLR 91

         

        HIGH COURT OF FIJI ISLANDS

         

        STATE

         

        v.

         

        PERMANENT SECRETARY FOR EDUCATION,

        WOMEN & CULTURE

        AND

        THE ATTORNEY-GENERAL OF FIJI

         

        ex parte

        DIVENDRA BIJAY

         

        [HIGH COURT, 1997 (Pathik J) 15 April]

         

        Revisional Jurisdiction

         

        Judicial Review- public service- whether a decision to interdict a public servant without pay is a reviewable decision- Public Service Commission (Constitution) Regulations 1990 Regn. 36.

         

        The Applicant who was a teacher was interdicted without pay after being charged with a disciplinary offence arising from a romantic liaison with one of his pupils. He applied for leave to move for judicial review of the decision to interdict him and to interdict him without pay. The Public Service Commission opposed the application on the ground that the decision which it has sought to impugn was not “final”. The High Court granted leave and HELD: the rules of natural justice apply to a decision to interdict without pay.

         

        Cases cited:

         

        Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223

        Australian Broadcasting Tribunal v. Bond & Ors (1988) 94 ALR 11

        Birss v. Secretary for Justice [1984] 1 NZLR 513

        Dixon v Commonwealth (1918) 55 FLR 34, 44

        Edelsten v. Health Insurance Commission & Ors (1990) 96 ALR 673

        Forster v. Jododex Aust. Pty Ltd (1972) 127 CLR 421

        IRC v. National Federation of Self Employed and Small Businesses [1982] AC 617

        John v Rees [1970] Ch 345, 397

        Vaillancourt v The King [1927] Exch CR 21

         

        Application for leave to move for judicial review.

         

        A. K. Singh for the Applicant

        S. K. Baiju for the Respondents

         

        Pathik J:

         

        This is an application by Divendra Bijay (the “applicant”) for leave to apply for Judicial Review under Or.53 r 3 of the High Court Rules 1988 and for an order that the grant of leave shall operate as a stay of proceedings to which the application relates including “stay of the decision of the Permanent Secretary for Education Women and Culture” (the “Respondents”).

         

        The applicant was on February 1997 formally charged pursuant to Regulation 41(1) of the Public Service (Constitution) Regulations, 1990 (the “Regulations”) for committing a major offence under Regulation 36. The charge reads as follows (annexure I of Applicant’s affidavit):

         

        “THAT you, Mr Divendra Bijay (TPF 55269), whilst employed by the Ministry of Education, Women and Culture, as a Teacher (TE08) at Korociriciri Indian School, did commit a disciplinary offence within the meaning of Regulation 36(t) of the Public Service Commission (Constitution) Regulations, 1990 in that you entered into a romantic and sexual relationship with one Miss Rolini Lata Prasad (f/n Gaya Prasad), formerly a student of your school and presently a student at Suva Sangam High School, commencing with a romantic liaison with her when she was a Form 3 student at Vunimono High School and leading to you having sexual intercourse with her when she came to stay with you and your mother last year, your conduct being improper which is likely to bring disrepute to the Public Service.

         

        In accordance with Regulation 41(2) of the Public Service Commission (Constitution) Regulations, 1990 you are required to state in writing within fourteen days from the date of receipt of this memorandum whether you admit or deny the charge. You may also provide in writing such explanation as you think will enable proper consideration to be given to the charge laid against you”.

         

        I decided to hear the application inter partes as provided under Or 53 r 3(3)(ii).

         

        The applicant filed an Affidavit in Support and the Respondents filed one opposing leave and stay.

         

        Both counsel made written and oral submissions.

         

        Background

         

        The applicant is a school teacher. He graduated from Lautoka Teachers College on 28 November 1991 and was posted to Korociriciri Indian School, Nausori on 20 January 1992. At that time he was teaching Class 5 and Rolini Lata (referred to as “Rolini”) was a student in class 6.

         

        Subsequently during his teaching career they fell in love with each other. I do not propose to go into details as they are all contained in the applicant’s affidavit, suffice it to say that eventually after a lot of struggle and opposition from Rolini’s parents consent for them to get married had been given by the time this application came on for hearing.

         

        The said charge was served on the applicant on 5 February 1997. The next day he was informed in writing of his interdiction in the following terms:

         

        “Pursuant to the disciplinary charge laid against you by the Permanent Secretary for Education, Women & Culture vide his memorandum CPF 55269K of 05/02/97 Public Service Commissioner Hector R Hatch has acting in accordance with the powers delegated to him by the Public Service Commission decided that you should be and you are hereby interdicted from the service forthwith without salary in accordance with Regulation 42 of the Public Service Commission (Constitution) Regulations, 1990.

         

        During the period of your interdiction you shall not have access to any official premises and shall not remove, destroy or add to, or cause to be removed, destroyed or added to, any official document, instrument or matter.

         

        Whilst under interdiction you shall not leave Fiji without the permission of the Public Service Commission.

         

        The interdiction will remain in force throughout the time it takes to conclude the determination of the charge laid against you”.

         

        On 7 February, Mr. A. Singh for the applicant sent a facsimile stating, inter alia, that an application for Judicial Review is being prepared and that the said charge is defective. He also complained that the applicant has not been paid his wages which were already due.

         

        On 6 March 1997 in reply to the applicant’s counsel’s request to reconsider the decision to interdict without salary the first Respondent replied that it “has not been acceded to by Commissioner Hector R Hatch” on the ground that it would be inappropriate for him to do so as the matter is presently before the High Court.

         

        The applicant was charged by police for the offence of defilement but because of insufficient evidence, on the direction of Director of Public Prosecutions, the charge was withdrawn and the learned Magistrate acquitted the applicant under s.201 of the Criminal Procedure Code.

         

        After his acquittal on 25 March, Rolini was given consent to marry and Mr. Singh says that they are about to get married.

         

        As a result of this sudden interdiction without pay the applicant says that he is facing a lot of problems. Unless reinstated he and his family will be homeless as he was the sole breadwinner. His parents together with his handicapped sister were dependent on his income for rent payments. He has no other source of income. The applicant’s commitments include loan of $2535.00 from Fiji Teacher’s Union, Native Land Trust bill of $717.50, Telecom Fiji Limited bill of $248.00 and payment to Courts; he has also purchased a block of land for $10,680 and paid $1600.00 as a deposit but he is required to pay $150.00 per month for the balance purchase price.

         

        Reliefs sought

         

        The reliefs sought are set out in the applicant’s application. These include (a) an order of certiorari to remove the said decision of the first Respondent made on 6 February 1997 into this Court, (b) to quash the decision of 6 February 1997 by the first Respondent interdicting the applicant without any salary, (c) an order reinstating the applicant and (d) a stay of proceedings until the determination of this application or until this Court otherwise orders.

         

        Respondents’ Grounds of opposition

         

        The Respondents oppose the application on the grounds that: (a) the application is premature; there is no formal decision which may be susceptible for judicial review, (b) there are other avenues for the applicant to address the grievance, (c) the applicant has failed to show in his affidavit the reasons for illegality, unreasonableness or procedural impropriety and (d) opposition to stay is because it will be detrimental to the good administration of the Department of Education.

         

        Applicant’s case

         

        Mr. A. Singh contends that the first Respondent on the direction of the Public Service Commission (the “Commission”) interdicted the applicant from service without pay and that this is an administrative decision which is amenable to Judicial Review by the Courts under Order 53.

         

        He says that this is a proper case for the grant of leave as it is a decision which has an impact on the applicant and it relates to his livelihood. He says that the exercise of power was unfair on the applicant. He further submits that the Respondents have breached the provisions of the Fiji Constitution and section 123 of the Criminal Procedure Code in that he is being punished twice for the same alleged offence.

         

        Consideration of leave application

        Availability of Judicial Review

         

        Under the procedure known as the “Application for Judicial Review” a person is enabled to challenge an administrative act or omission by applying to the High Court either for one of the prerogative Orders of mandamus, prohibition or certiorari, or in appropriate circumstances, a declaration or an injunction or damages.

         

        In this case there is no doubt that the Applicant has sufficient interest in the matter to which this application relates (Or 50 r 3(5)) to entitle him to apply for a judicial review of the first Respondent’s decision.

         

        Leave required

         

        Leave of the Court must be obtained before any substantive application is made for judicial review (Or 53 r 3(1)).

         

        Here applicant has identified the decision that is being complained of and the relief that he is seeking.

         

        On an application for leave, apart from (a) the time limit within which an application should be made and (b) the applicant showing that he has sufficient interest, it has also to be shown (c) that there is an arguable case and the reason for the need for it has been stated by Lord Diplock in the House of Lords case of IRC v National Federation of Self Employed and Small Businesses [1982] AC 617 at 642 to 643 thus:

         

        “The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities could be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

         

        “The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the Court were to go into the matter in any depth at that stage. If on a quick perusal of the material then available, the Court thinks that it discloses what might turn out to be an arguable case in favour of granting the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.”

        (underlining mine for emphasis)

         

        I have given serious consideration to the forceful submissions by both counsel because of the importance of the issue to the parties. By the end of the hearing I had reached a clear view as to how I ought to rule. I am of the firm view that there is an arguable case.

         

        I therefore hold that this is a proper case in which leave ought to be granted.

         

        Meaning of Decision

         

        Because Mr. Baiju has strongly argued that this was not a final ‘decision’ which fell within the purview of Or 53 and therefore not amenable to judicial review, I shall consider this aspect which is very much pertinent to the application for leave.

         

        On the affidavit evidence before me I find this is to be a clear cut case of a decision having been made by an administrative tribunal to interdict the applicant without pay forthwith and without having given him the opportunity of being heard. Not only that, the Respondents had even deprived him of the salary he had already earned at the time of interdiction. What could be the reason for that has not been explained to this day as if to say inflicting interdiction was not bad enough that they had to ruin him further by depriving him of his already earned salary.

         

        Subject to what I say hereafter, I am not required on the application for leave to decide on the substantive action, but it appears from the affidavit evidence that the Respondents (including the Commission) decided to interdict the applicant because they thought that the applicant’s alleged conduct was so disgraceful that he should be dealt with in the manner they did in the public interest.

         

        Mr. Baiju submits, inter alia, that the interdiction is not a final decision to make it susceptible to judicial review. He says that the decision to interdict applicant is merely a step in between the process leading to a final decision. In support of that he refers to Regulation 42(1)(a)(b) which states:

         

        “Where there have been instituted against an officer:

         

        (a)       disciplinary proceedings in respect of a major offence; or

         

        (b)       criminal proceedings,

         

        and where the Commission is of the opinion that the public interest requires that that officer should forthwith cease to perform the functions of this office, the Commission shall interdict him from such performance.”

         

        On the authorities, it is my view that this regulation merely gives the Commission the power to interdict in the public interest. There is no procedure laid down as to how the Commission has to go about before interdicting.

         

        I would like to observe at this stage that although the interdiction memorandum came from the first Respondent and not from the Commission as required by Reg. 42 it was nevertheless the decision of the Commission as a member of the Commission directed this to be done.

         

        It is my view that the decision does not have to be final in the sense stated by Mr. Baiju. Without in any way giving the semblance of deciding on the substantive matter it appears that in this case it was a decision of such a grave nature with drastic consequences to the applicant that it was incumbent on the first Respondent and the Commission not to throw overboard the principles of natural justice although the procedure to be followed when interdiction is contemplated is not spelt out in Reg. 42. (Birss v Secretary for Justice [1984] 1 NZLR 513).

         

        In support of his argument, particularly as to decision lacking in finality, Mr. Baiju relied completely on Edelsten v Health Insurance Commission and Others (1990) 96 ALR 673 which is a decision of the Federal Court of Australia. There Northrop and Lockhart JJ at 681 said that “the question of what is a reviewable decision under the Judicial Review Act has been considered in many cases by this court both at first instance and on appeal and most recently by the High Court in Bond which is an authoritative exposition of the essential nature of such a decision”.

         

        I find that Edelsten has no bearing on the facts of this case. The decision there was based upon the specific provision of the Administrative Decisions (Judicial Review Act 1977 (the ADJR Act) and we do not have such comparable provision under our High Court Rules. In Australia Broadcasting Tribunal v. Bond and Others 94 ALR 11, Mason CJ dealt extensively with the meaning of the word “decision” at p.22 et seq. and he considered it in the light of the legislative provisions pertaining to the case before the Court.

         

        Nowhere in Order 53 Rules is there a mention of ‘final’ decision. The Rules provide for a review of administrative action relating to “judgment, order, conviction or other proceedings” (Or 53 r3(5) or “judgment order, decision or other proceedings” (Or 53 r.3(2)(a)(i); and the grant of relief is not confined to granting of relief in respect of ultimate decisions. Mason CJ at p. 23 said:

         

        “The jurisdiction extends to questions in issue in pending proceedings: cf Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421, per Gibbs J at 438. The existence of this jurisdiction, which antedated the ADJR Act, suggests that the concept of a reviewable decision is not limited to a final decision disposing of the controversy between the parties”. (underlining mine for emphasis)

         

        He goes on to say at p.23:

         

        “..... a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accordingly be described as a decision under an enactment”.

         

        The above-quoted passage by Mr. Baiju from Mason CJ’s judgment has no application and relevance to the facts and circumstances of this case as I am not concerned with any statutory provisions here.

         

        That the decision in the case before me is reviewable, is wholly supported by the said New Zealand Court of Appeal decision in Birss (supra).

         

        I therefore reject Mr. Baiju’s argument that the interdiction was merely a ‘step along the way’ and is not final and therefore not reviewable at this stage, that is, it is premature, has no merit whatsoever. What more finality one needs, if one is needed, than for the Commission to interdict without pay. The applicant is doomed for ever and I cannot possibly imagine him ever being reinstated with this kind of decision based presumably on the fact that he fell in love with a student and allegedly defiled her from which he has, subsequent to interdiction, been acquitted by the Nausori Magistrates’ Court.

         

        For these reasons I find that there are no merits in the grounds of opposition advanced by the learned counsel for the Respondents to enable me to refuse leave.

         

        The relevant legal principles

         

        I do not want to give the impression that I am dealing with the substantive issue in this application for leave, but I cannot avoid touching on it because of what has been said in Birss (supra) in a similar situation involving suspension which, on appeal, was held to be invalid.

         

        I have already stated above the circumstances leading to the interdiction. The point to note is that right on the heels, to wit, the next day, after serving the disciplinary charge, the memorandum interdicting is handed to the applicant by the first Respondent.

         

        The procedure relating to charging an officer for a disciplinary offence is set out in Reg. 41(1). He is, inter alia, given time, in this case 14 days, to reply “if he so wishes”. Without waiting for a reply the interdiction is imposed on him possibly because Reg.42 allows that to be done. Be that as it may, on the authority of Birss (supra), in appropriate cases, “rules of natural justice and fairness prima facie applied to suspension from office without salary” (underlining mine for emphasis). In fact, in my view the principles involved on the issue before me is to be found in this case. In view of what I propose to say, in the light of Birss, it appears that an opportunity for hearing must be given when contemplating interdiction without pay in appropriate cases. Because, I base my decision to grant leave on Birss, I state below the headnote to that case to complete the picture. The headnote reads:

         

        “The appellant was a senior probation officer employed by the Department of Justice. In May 1982 he was notified by the Secretary for Justice of various charges which had been made against him under s 58 of the State Services Act 1962. Nineteen months later without any immediate prior notice the appellant received a notice from the Secretary for Justice directing that he was to be suspended from duty with effect from the date of receipt of the notice. The suspension was with pay until the expiry of the appellant’s period of annual leave and then to be without pay. The appellant sought judicial review of the Secretary for Justice’s decision. In the High Court his application for review was dismissed and he appealed.

         

        Held: The State Services Act contained no provisions which specified the procedure to be observed in reaching a decision to suspend. In the absence of any clear expression of a contrary legislative intent, the rules of natural justice and fairness prima facie applied to suspension from office without salary. What natural justice required in a particular case must be determined in the light of the facts of that case. It did not necessarily follow that notice and an opportunity to be heard must be given in every case where suspension was in contemplation. The nature of the charge and the exigencies of the moment might perhaps call for immediate action. But, in this case, having worked for 19 months after the charges had first been made against him, the appellant was entitled to notice that suspension was under consideration. He should also have been given an opportunity to submit arguments against the contemplated suspension. The Secretary of Justice, as a senior officer entrusted with the power of suspension, must be prepared to consider and weigh carefully arguments which the officer at risk might raise against the exercise of the power. The appeal was allowed and the suspension of the appellant was declared invalid (see p 517 line 34, p 522 line 37, p 523 line 22).” (underlining mine for emphasis)

         

        The rationale of the decision in Birss is relevant here. Whereas in Birss the appellant continued to be employed for nineteen months after charges were laid against him and then notice suspending him was given, here interdiction took place a day after laying the charge and while police were still inquiring into the applicant’s involvement with Rolini with the intention of charging him. In this case the question is whether “the nature of the charge and the exigencies of the moment” (the words of Richardson J in Birss at p.517) called for immediate action. That can only be decided on the hearing of the application for judicial review after the granting of leave herein.

         

        Regulation 41 governs the institution and consideration of disciplinary charges, but the provisions governing interdiction are short. Talking of suspension and natural justice, Richardson J in Birss at p.516 said:

         

        “In this case it is suspension, not dismissal, which is at stake. How should it be characterised in the statutory context? In Vaillancourt v The King [1927] Exch CR 21, 25 Audette J observed: “What does suspension mean, if not suspension of work which carries with it suspension of the right to wages?... Does not this amount to dismissal?” And more recently in John v Rees [1970] Ch 345, 397 Megarry J expressed the same view: “...suspension is merely expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office.” While the equating of suspension and dismissal may be debated the observations serve to emphasise two important features that suspension and dismissal have in common: in each case the officer is deprived of his entitlement to perform his duties in the Public Service so long as the suspension or dismissal stands; and in each case (where suspension is without salary) the officer is deprived of his entitlement to salary until the charges against him are determined. In those major respects a decision to suspend without salary inevitably and adversely affects the rights and reasonable expectations of a permanent officer of the Public Service.”

         

        The fact that Reg. 42 is couched as it is, does not exclude or modify the rules of natural justice and it is so stated by Richardson J in Birss at p.517 thus:

         

        “On the general issue in Dixon v Commonwealth (1918) 55 FLR 34, 44, the Federal Court of Australia (Bowen CJ, Deane and Kelly JJ) took the view that the fact that the relevant statutory power is in the form of a power to suspend pending inquiry does not import any general exclusion or modification of the rules of natural justice which are prima facie applicable to a statutory power adversely to affect the rights, property or legitimate expectations of another. Like the State Services Act 1962, the Act there contained no provisions specifying the procedure to be observed in reaching a decision to suspend. Having regard to the adverse effects on the officer - loss of entitlement to perform his duties and of salary - and to the likelihood that it would have profound emotional, social and financial effects on him, in the absence of any clear legislative intent to the contrary the rules were applicable in respect of that decision.”

         

        For these reasons, it seems that in the absence of any clear expression in Regulation 42, the rules of natural justice and fairness apply to interdiction from teaching without salary. I cannot see how the applicant can be deprived of the opportunity to challenge the quality of the decision in this case under Order 53. The locus classicus on this aspect of judicial review is the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223. That case involved the question of exercise of discretion and the Master of Rolls stated the criteria affecting decision thus:

         

        “the Court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account.”

         

        He then went on to observe:

         

        “...once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again I think the Court can interfere.”

         

        In this case even after the applicant’s counsel wrote to the first Respondent regarding reinstating him and about payment of full salary the reply was negative because they said that the matter is before the Court. In the meantime the applicant, to use the words of Richardson J at p.517, “loses his right to work in his chosen career, he suffers the stigma of suspension from duties and unless and until the Commission rules otherwise he is deprived of the financial support provided by his salary.”

         

        To conclude, for the above reasons leave to apply for judicial review is granted. In an appropriate case, it seems the interdiction could be held invalid on the authority of Birss but because the Respondents might have evidence which could turn the scales in their favour and also because of uncertainty in my mind whether, at this stage, declaring the interdiction invalid is possible under the Rules, I have decided not to grant the stay as prayed but I order that there be a speedy hearing. I am prepared to give an early date for it. Before departing, I would observe at this stage, that with developments such as the acquittal of the applicant and his impending marriage to Rolini almost on the eve of the hearing of this application for leave, the Respondents may not have been able to give serious consideration to the decision in the light of these changed circumstances as far as the applicant is concerned. For that reason I grant liberty to the parties to apply to Court generally for directions.

         

        The costs are to be costs in the cause.

         

        (Leave granted to move for judicial review.)

         

        (Editor’s note: on 12 September 1997 the motion for judicial review was dismissed. The Court held: (1) that the application for judicial review was premature and (ii) that the respondents had acted fairly and properly.)
    

State v. The Supervisor for Elections ex-parte Wadan Lal Narsey

        [1997] 43 FLR 197

         

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        THE SUPERVISOR OF ELECTIONS

        ex-parte:

        WADAN LAL NARSEY

         

        [HIGH COURT, 1997 (Fatiaki J) 14 August]

         

        Revisional Jurisdiction

         

        Constitution- elections- registration of voters- application for registration out of time refused by Supervisor of Elections- whether discretion properly exercised- Constitution (1990) Sections 41 (2) & 50 - Electoral (Registration) Regulations 1991 Regns 6 (2) & 6 (3).

         

        The applicant wished to stand in a forthcoming by-election but failed to register as a voter within the period stipulated by the Supervisor of Elections. The Supervisor rejected his application for late registration. The High Court examined and explained the relevant statutory provisions and HELD: that in all the circumstances the Supervisor’s discretion had miscarried and accordingly his decision to refuse the late registration would be quashed.

         

        Cases cited:

         

        Butadroka v The Attorney-General & Anr Civ. Action 214/92

        Julius v. Bishop of Oxford (1880) 5 A.C. 214 (HL)

        Padfield and Ors v. Minister of Agriculture 7 Ors [1968] AC 997

        Practical Shooting Institute (NZ) Inc. v. Commissioner of Police [1992]

                     1 NZLR 709

        R v. County Licensing (Stage Plays) Committee of Flint ex-parte Barret

                    [1957] 1 All ER 112

         

        Motion for judicial review.

         

        H. Nagin for the Applicant

        J. Apted for the Respondent

         

        Fatiaki J:

         

        On the 5th of August 1997 this court delivered a Preliminary Ruling granting to the applicant an order for certiorari to quash a decision of the Supervisor of Elections. On that occasion the court reserved to itself the opportunity to deliver detailed reasons for its decision. This I now proceed to do.

         

        On the 24th of February 1997 the Honourable Harilal Manilal Patel a well-respected and highly regarded member of the legal profession was found dead at his home in Toorak, Suva. He was at the time the sitting member in the House of Representatives for the Suva City Central Indian Constituency (the Suva City Constituency). He had won the seat on a National Federation Party (NFP) ticket and had occupied it since 1992. With his death, the seat became vacant.

         

        On the 24th of March 1997 the Acting President issued a Writ of Election commanding the relevant Returning Officer for the Suva City Constituency to hold a by-election to fill the vacant seat. The Writ was made returnable ‘on or before the 3rd day of October, 1997’ and fixed the 25th of August 1997 as the nomination day and the period ‘between the 26th day of September and the 27th day of September, 1997’ as the polling days should one prove necessary.

         

        In terms of the Writ the Returning Officer had slightly over 6 months in which to conduct the election ; 5 months in which to prepare the necessary roll and accept nominations ; and thereafter, one month in which to hold a poll. Such were the time constraints within which the respondent was obliged to perform his duties and functions.

         

        No period for the registration of voters was provided for in the Writ nor, on my reading of the Electoral (Conduct of Elections) Regulations 1992, is one required to be held prior to an election.

         

        That is not to say however, that the holding of a voter registration period is, subject to the annual registration required in terms of Regulation 6(1), entirely at the discretion of the Supervisor of Elections. It is not, and the respondent very properly concedes in his written submissions “... that in a proclaimed democratic society like Fiji some fundamental or basic right to vote must exist whether or not it is expressly provided in the Constitution” and furthermore : “It is conceded that a right (to register) must exist in some form and to some extent because otherwise the right to vote becomes meaningless.”

         

        In my considered opinion the right to register as a voter is fundamental to our parliamentary system of government and is implicit in a number of Constitutional provisions including Section 41(2) ; 49(1) ; 50(1) and 53(1) which envisages amongst other functions of the Electoral Commission, ‘the registration of voters for the election of members of the House of Representatives ...”

         

        Similarly, the right to vote is of the very essence of democracy and our parliamentary electoral system in which members of the House of Representatives are “... elected from among persons who are registered on (a) roll of voters ...” In my view, such a right is implicit in Section 41(2), and explicit in Section 50 of the 1990 Constitution. Furthermore and contrary to the respondent’s submission, the use of the word ‘entitled’ in the latter section does not belie the existence of the constitutional right, it is merely a convenient expression which recognises that there is no mandatory requirement that the right must be exercised.

         

        As for the “right to be a candidate” in parliamentary elections (to borrow the respondent’s terminology) in addition to what this Court said in Butadroka v. The Attorney General and Anor. Civil Action 214 of 1992, this right is implicit in the requirements of Sections 41(3) to (6) and is fortified by Sections 42(3) to (5) where the expressions : ‘stand for election’ ; ‘stand as a candidate’ and ‘stand as a candidate for election as a member of the House of Representatives’ appear.

         

        That is not to say however that there can be no control or regulation of the above rights. Parliamentary elections would prove unmanageable and chaotic in the absence of some form of organisation or regulatory process, but the supremacy of the Constitutional provisions and the rights derived thereunder means that the regulations, devices and procedures that are put in place must necessarily safe-guard and promote those rights.

         

        Registration procedures should therefore, within the available resources, impose the least possible burden upon voters consistent with the achievement of two primary objectives namely, facilitating the enrolment of qualified voters and safe-guarding against the registration of unqualified voters.

         

        Despite the absence of a requirement to hold a voter registration period, and perhaps seizing the opportunity to undertake an overdue nation-wide registration of voters, the respondent in the exercise of powers contained in Regulation 6(1) of the Electoral (Registration) Regulations 1991 published a general Notice in the Fiji Republic Gazette of the 3rd of April 1997 :

         

        “... calling upon every person who is duly qualified to be registered as a voter on a Parliamentary electoral roll and who is not already so registered to apply (Between April 7, 1977 and April 25, 1977) to the registration officer of the constituency in which you ordinarily reside to be registered as a voter ...”

         

        At this stage it need only be observed that Regulation 6(2) of the Electoral (Registration) Regulations 1991 empowers the respondent, in his discretion : “(to) allow a registration period for a particular constituency only” ; Secondly, the Notice calling for applications to register as voters was primarily aimed at qualified persons who are “not already registered” and who presumably are desirous of participating in the electoral process ; and Thirdly, the respondent decided for reasons that need not concern the court at present “... to update all the electoral rolls, rather than only the Indian electoral roll for the Suva City Central Indian Constituency”.

         

        In this latter regard Section 41(4) of the 1990 Constitution relevantly provides for the election of 27 members of the House of Representatives ‘... from among persons who are registered on the roll of voters who are Indians’, and Section 48(2)(c) clearly envisages that the 27 members of the House of Representatives elected from ‘a roll of voters who are Indians’ shall ‘be divided into twenty seven constituencies each returning one member’. This the respondent submits, necessitated the preparation of not just one roll of voters for the Suva City Constituency but twenty seven rolls of ‘voters who are Indians’. I cannot agree.

         

        In the face of the Writ and the clear wording of Regulation 6(2) of the Electoral (Registration) Regulations 1991, the submission must, at best, be of doubtful merit. Furthermore having regard to the qualification of an objector under Regulation 24(2) of the Electoral (Registration) Regulations 1991 namely, that “(his) name appears on an electoral roll”, by parity of reasoning a similar argument could be mounted that all rolls would need to be printed for every by-election. That cannot be right.

         

        The decision of the respondent to update all the electoral rolls numbering a total of 52 as opposed to the single roll necessitated by the Writ, is significant.

         

        The applicant who is an aspiring National Federation Party candidate for the seat left vacant by the death of Mr. Harilal Patel deposed :

         

        “... on the 9th day of June, 1997 I went to the Office of the Supervisor of Elections to ensure that my name was on the roll. After checking the rolls I discovered that my name was not on the roll.”

         

        Quite plainly the applicant, not being registered on the roll of voters who are Indians, was neither qualified to be nominated as a candidate for the Suva City Constituency [see : Regulation 13(1) of the Electoral (Conduct of Elections) Regulations 1992] nor could he have been elected to fill the vacant seat.

         

        By this time too, the advertised registration period for voters had been closed 5 weeks earlier and provisional rolls had already been sent to the Government Printer for printing.

         

        Undeterred, the applicant on the respondent’s advice, completed an application for registration as a voter form seeking thereby the exercise of the respondent’s discretion pursuant to the proviso to Regulation 6(3) of the Electoral (Registration) Regulations 1991 which provides :

         

        “... that all applications for registration as a voter delivered since the close of any registration period shall, unless the Supervisor otherwise decides, be dealt with in the registration period next succeeding that in which they were delivered.” (my underlining)

         

        The underlined words are a new addition to the proviso which existed in the predecessor regulation 5 of the old Electoral Regulations (Cap.4) and governed earlier parliamentary elections held under the 1970 Constitution.

         

        In other words, under the old Electoral Regulations only those voter application forms lodged within the registration period would be entered on the rolls and any applications lodged ‘out-of-time’ so to speak, would be carried over and dealt with in the next succeeding registration period. With the addition of the underlined words however, the Supervisor of Elections was given a discretion to entertain and enrol late applicants.

         

        Under normal circumstances one would not expect the late delivery of voter application forms to necessarily call for any exercise of the respondent’s discretion, much less, give rise to litigation, but in the present circumstances, with an impending by-election about to be held and given the applicant’s desire and agreement to stand as a N.F.P. candidate in the forthcoming by-election, it was imperative that he be enrolled before the by-election, and not at the next succeeding registration period. But in order to achieve this, the respondent had to agree to exercise his discretion under the proviso.

         

        The discretion is in its terms unqualified but in its nature and effect, it is necessarily an inclusive one meaning by that, that any exercise of the discretion would necessarily result in the inclusion of the late applicant on a roll of voters.

         

        In the leading case of Padfield and Others v. Minister of Agriculture and Others [1968] A.C. 997 Lord Reid said in an oft-quoted passage, of the nature of a statutory discretion :

         

        “Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act ; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act, or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court.”

         

        A fortiori where the Act being considered seeks to regulate fundamental electoral rights derived under the Constitution. In this regard Lord Blackburn pertinently observed in Julius v. Bishop of Oxford (1880) 5 A.C. 214 (HL) at p.241 :

         

        “... if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power to exercise it for the benefit of those who have that right when required on their behalf.”

         

        (see also : per Lord Morris of Borth-y-Gest in Padfield’s case (ibid) at p.1039E)

         

        Finally in Practical Shooting Institute (N.Z.) Inc. v. Commissioner of Police [1992] 1 N.Z.L.R. 709 Tipping J. said, in rejecting a complete ban imposed by the Commissioner of Police on the importation into New Zealand of certain types of fire-arms, at p.718 :

         

        “The cases suggest that there are two, possibly three, categories into which discretionary powers of this kind can be put :

         

        (1)        First there are those powers which require an individual case by case examination without any predetermined fetter on the exercise of the discretion, other than what might be explicit or implicit in such criteria as may be set out in the enabling instrument.

         

        (2)        Second there are those powers which by dint of the nature of the subject-matter justify the establishment as a matter of discretion of a carefully formulated policy, but always with the reservation that no case is to be rejected automatically because it does not fit the policy. In this category all cases must be considered to see if they are sufficiently special to warrant a departure from the general policy.

         

        (3)        The third category, if it exists at all, represents cases where the discretionary decision maker is implicitly authorised to exercise his discretion to establish for himself an immutable policy admitting of no exceptions.

         

        The only tenuous authority of which I am aware for the suggested third category comes from Viscount Dilhorne’s words in British Oxygen. But rigid policy is really the antithesis of the exercise of discretion and I for one would need to see the power to adopt such a rigid policy for a discretionary assessment appear by clear and necessary implication from the enabling legislation before I was prepared to place a case into the possible third category.”

         

        Adopting that convenient categorisation, there is not the slightest doubt in my mind that the Supervisor’s discretion in this case, falls within the first, and possibly the second, of the above categories.

         

        Having said that however, in this case, we are not dealing with the exercise of the discretion, rather we are dealing with the respondent’s failure or refusal to exercise his discretion.

         

        In this latter regard on June 10th, 1997 the Supervisor of Elections wrote to the applicant in the following terms :

         

        “Dear Mr. Narsey,

         

        Yesterday, you applied for registration as a voter and sought to have your name included in the forthcoming provisional roll for the Suva City Central Indian Constituency.

         

        As I explained to you yesterday, the 1997 voter registration period closed on April 25, 1997.

         

        The period was specifically timed to allow all qualified persons who were not already registered as voters, but who wished to vote or stand as a candidate in the forthcoming Suva City Central Indian Constituency by-election, to have their names included on the rolls.

         

        The general rule under regulation 6(3) of the Electoral (Registration) Regulations, 1991 is that applications for registration received after the close of a registration period are to be dealt with in the next following registration period.

         

        I do have a discretion to decide that your application should be dealt with earlier than the next period. However, I regret that I have, after much consideration, decided that this is not a proper case in which to exercise the discretion in your favour.

         

        I take the view the discretion must be exercised objectively with a view to ensuring administrative efficiency and fairness to all concerned.

         

        Preparation of the provisional rolls are now well advanced. The originals were sent to the Government Printer last week, and we expect copies to be delivered today. These are expected to go on display throughout Fiji this Monday June 16, 1997.

         

        There have also been other applications made after the close of the 1997 voter registration period, and if I were to take special steps to have your name included, fairness demands that I include the names of others on their respective provisional rolls as well.

         

        Please be advised that although there is no formal system of appeals against my decision, under section 53(2) of the Constitution, I am subject to direction by the Electoral Commission. You may therefore wish to request the Commission to consider this matter.

         

        Yours faithfully,

         

        (Sgd.) Jon Apted

        Supervisor of Elections”

         

        In his letter the Supervisor of Elections who would have had only the applicant’s verbal information and request and his application form before him to consider, advanced several reasons for refusing to exercise his discretion, including :

         

        “(that) the discretion must be exercised objectively with a view to ensuring administrative efficiency and fairness to all concerned.”

         

        (the ‘administrative efficiency’ reason)

         

        and in this latter regard :

         

        “... if I were to take special steps to have your name included, fairness demands that I include the names of others on their respective provisional rolls as well.”

        (the ‘fairness to others reason)

         

        I confess to some difficulty in understanding what is meant by the phrase ‘the discretion must be exercised objectively’. If it means that the personal (‘subjective’) circumstances of the applicant are to be ignored in arriving at a decision whether or not to exercise the discretion then quite plainly that view would be wrong. If it means that the applicant’s circumstances are to be compared with the objective standard of a ‘reasonable late applicant’ (whatever that might be) or be judged against some pre-ordained policy or administrative guideline for the exercise of the discretion, then that too, would be wrong. If it means that the purpose for the exercise of the discretion is to ensure some objective other than the enrolment of the late applicant then that also would be wrong. But if it means that the Supervisor is required to undertake a balancing exercise between relevant competing interests including that of the applicant, then the phrase would appear to be unobjectionable.

         

        Similarly I fail to see why the registration of the applicant’s late application should per se oblige the Supervisor to include the names of others (i.e. late applicants) on their respective provisional rolls. I cannot accept that in the absence of a request by such other late applicants, the respondent should consider himself constrained by the demands of some abstract paradigm of fairness or justice, to act in regard to such other late applicants. As the respondent has so rightly pointed out in his written submissions “... a person cannot complain that he did not get a hearing if he, himself, did not take the necessary steps to avail himself of the opportunity ...”, more so in a case such as the present, where the late applicant would still be registered without the Supervisor’s intervention albeit in the next succeeding registration period.

         

        It goes without saying that the respondent should and would be fair in considering any application for the exercise of his discretion but, in my view, he may not treat fairness as a justification for declining to exercise his discretion.

         

        Be that as it may the respondent’s reasons are further espoused and expanded upon in his first affidavit especially at paragraphs 40 to 49, where he deposes inter alia :

         

        In para. 41 :

         

        “In considering the ambit and purpose of my discretion under the said regulation 6(3), I considered that the discretion exists to mitigate any unfairness or unreasonable infringement of rights which might occur if this general rule (relating to late applications) were to be applied strictly.” ;

         

        In para. 42 :

         

        “... my discretion allowed me to make exceptions to the general rule in order to give effect to the right of individual late applicants where justice or fairness required it, but the rights and interests of other voters and citizens also required that such exceptions had to be made on consistent, fair, impartial grounds and in circumstances that did not undermine the effectiveness of the general rules, and the system of registration periods and the publication of rolls which they prescribe.” ; and

         

        In para. 43 :

         

        “In practice, ... I have exercised my discretion relatively leniently up until the compilation of the rolls is completed and they are sent for printing.”

         

        Then in paras. 45 & 46 the respondent dealt with the two options available to him in the event he should exercise his discretion in favour of the applicant viz recalling and recompiling the roll or compiling and printing a supplementary provisional roll.

         

        In rejecting both options the respondent referred, as to the first option, to “... the administrative and financial consequences ... as well as the precedent that this would set”. As to the second option, the respondent instanced that the only ground when he had done this previously was “where through the fault of (his) administration voters had been mistakenly omitted or deleted from the roll”, and he suggested in para. 47 that another “good reason might exist where there is clear evidence that the late applicant was not at fault because he or she did not have a real opportunity to make an application, for example, in a case in which he or she was ill or overseas or in a remote part of Fiji” or where, although the application form was completed on time, it was negligently delivered out-of-time but before compilation of the rolls was completed as in the case of N.F.P. parliamentarian Niraj Sumeshwar Yadav.

         

        Needless to say the respondent did not consider that the verbal information provided by the applicant and as reported in paras. 25 & 26 of the affidavit, was a sufficiently good reason to justify his (the applicant’s) late registration and inclusion in a supplementary roll.

         

        Upon receiving the respondent’s letter, the applicant no doubt acting on the advice contained in the final paragraph, immediately sought, by letter, the intervention of the Electoral Commission in terms of its power under Section 53(2) of the 1990 Constitution to give mandatory directions to the Supervisor of Elections ‘concerning the exercise of his functions’. The Electoral Commission through its Chairman declined the applicant’s request in a letter dated June 12, 1997.

         

        Five days later the applicant issued an application for leave to issue judicial review of both refusals to act. Upon the respondent’s written intimation that he was not opposing the application, leave was granted to the applicant. At the hearing of the substantive application it was further agreed, only to pursue the application in so far as it related to the respondent’s decision, and to limit the relief sought to a Declaration.

         

        The grounds advanced by the applicant are set out as follows in the Statement filed pursuant to Order 53 r.3(2) of the High Court Rules 1988 :

         

        “21.        The grounds upon which the Applicant is seeking relief against the Supervisor of Elections ... as follows :

         

        (a)        That the Supervisor of Elections ... failed to give any proper reasons for (his) decisions.

         

        (b)       That the Supervisor of Elections ... abused (his) discretion in that:

         

        (i)         That (he) took into consideration irrelevant matters and

         

        (ii)        (He) did not take into consideration relevant matters and;

         

        (iii)       (He) acted unreasonably and/or arbitrarily.

         

        (iv)       (He) acted in breach of the Doctrine of Legitimate Expectations.

         

        (c)        That the Supervisor of Elections ... acted in excess of (his) jurisdiction or failed to exercise (his) jurisdiction.”

         

        As for ground (a) I say at once that as drafted, it has no chance of success both as a matter of law and as a matter of fact. In my view there is no such duty imposed on the Supervisor of Elections to furnish proper reasons (whatever those might be) for his refusal to exercise his discretion under the proviso to Regulation 6(3) (op.cit). The fact that he has chosen to give his reasons in writing is all that can be expected of him. This ground is accordingly rejected in limine. As for ground (b) the absence of any details or particulars renders it quite unhelpful even misleading, and ground (c) suffers from an inherent irreconcilable inconsistency.

         

        Be that as it may the application was supported by an affidavit deposed by the applicant in which he referred to the circumstances surrounding his agreement to be a N.F.P. candidate for the vacant seat ; the late discovery of his non-registration on the electoral rolls ; and the unsuccessful steps he took thereafter to be registered.

         

        The affidavit also categorised the respondent’s refusal as ‘... unreasonable in the circumstances, but, what the applicant’s particular circumstances are or were, is unclear from the affidavit except for the following paragraph which is to be found in the applicant’s letter to the Electoral Commission of 10 June 1997 where he states :

         

        “My failure to be registered seems to have resulted from my (erroneous) understanding that once a person was registered, that registration continued until the death of the individual. I certainly was registered in 1987 and therefore did not see any reason to register when calls were made recently by the Elections Office. My name does not appear in the current rolls, and I am told that all registrations were cancelled in 1992 and fresh registrations were called for, in the newly defined constituencies. During 1991 and 1992 I was engaged in considerable regional and international travel while undertaking an 18 month World Bank-funded Project on Higher Education in the Pacific, and it is likely that I was not in-country when the calls for new registrations were made then.”

         

        This is further expanded upon and particularised in the applicant’s affidavit in reply where he annexed a summary of the dates on which he was absent from Fiji between the 31st of December 1989 and 14th November 1994 during which time he “... was practically living out of a suitcase to do (his) regional consultancy work and (he) was continuously travelling and in between (travelling) was writing some 10 reports for regional governments and the World Bank”.

         

        In considering this application I have borne in mind that the discretion and the decision whether or not to enrol any particular late applicant as a voter, is entrusted to the Supervisor of Elections alone and the Court ought to exercise restraint in overturning his decision save where he has misconstrued the enabling legislation, or abused his discretion or otherwise acted unreasonably or perversely.

         

        I have earlier commented upon the respondent’s reasons given his letter to the applicant and having had the benefit of further clarifications in the respondent’s two affidavits and comprehensive 47 page written submissions, I am reluctantly driven to the following additional conclusions :

         

        (1)        That the respondent was unduly preoccupied by the notion of creating an undesirable precedent in a situation where no precedent could be created and thereby imposed an unwarranted fetter on his discretion ;

         

        (2)        The respondent’s views regarding the publication of a supplementary roll and his thinly-disguised fear of being closely scrutinised by voters and political parties coupled with his concerns for accountability are in my view, considerations that Lord Upjohn in Padfield’s case (op.cit) said at p.1061F:

         

        “(are) alone sufficient to vitiate the Minister’s decision (not to refer the applicant’s complaint to a committee of investigation) ... (since) ... he must be prepared to face the music ... if a statute has cast upon him an obligation in the proper exercise of a discretion conferred upon him to order a reference ...” ;

         

        (3)        The respondent’s continuous references to the interests of other late applicants and voters in consistency and impartiality leaves me with the distinctly unfavourable impression that he misdirected himself. In the words of Jenkins L.J. in R. v. County Licensing (Stage Plays) Committee of Flint CC ex-parte Barrett [1957] 1 All E.R. 112 in rejecting a claim that the same rule should be applied in all cases said at p.122:

         

        “I cannot think that that method of approach fulfils the requirement that the matter should be heard and determined according to law ... (insofar as) ... it wrongly pursues consistency at the expense of the merits of the (applicant’s case).” ;

         

        (4)        The respondent’s references to administrative and financial consequences and to maintaining the integrity of the electoral registration system discloses a failure on his part to understand the object of the Regulations or to appreciate the inclusive nature of the discretion given to him under the proviso to Regulation 6(3) and his duty thereunder ;

         

        (5)        Furthermore the reference to ‘fault’ in the context of a discretion which is granted so as to facilitate the attainment and the exercise of fundamental constitutional rights is, to my mind, both inappropriate and misconceived.

         

        For the foregoing reasons the application was granted and a writ of certiorari was issued quashing the decision of the Supervisor of Elections as contained in his letter of 10th June, 1997.

         

        (Certiorari issued; decision quashed).
   

State v. Suva City Council ex-parte Island Buses Ltd

        [1997] 43 FLR 129

         

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        SUVA CITY COUNCIL

        ex-parte

        ISLAND BUSES LIMITED

         

        [HIGH COURT, 1997 (Fatiaki J) 17 June]

         

        Revisional Jurisdiction

         

        Judicial review- local government- allocation of bus stand- whether allocation subject to Fair Trading Decree- whether decision biased- whether in breach of the applicant’s legitimate expectations- Fair Trading Decree 25/1992- High Court Rules 1988, Order 53.

         

        The Suva City Council allocated the applicant bus operator a bus bay some way removed from the bay allocated to other buses serving the same destination. The High Court rejected the applicant’s contention that there had been a breach of the Fair Trading Decree and expressed the view that such alleged breaches were not susceptible to judicial review. After dismissing the claim of bias the Court examined and explained the doctrine of “legitimate expectation” and HELD that the Applicants legitimate expectation had been breached by the Council’s departure from long established practice. The allocation was quashed.

         

        Cases cited:

         

        A.G. of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629 PC

        A.G. of NSW v. Quin (1990) 170 CLR 1

        Birkdale District Electric Supply Co. Ltd v. Southport Corporation

                    [1926] AC 355

        Council of Civil Services Unions v. Minister for the Civil Service [1985]

                    AC 374 HL

        Findlay v. Secretary of State [1984] 3 All ER 801

        O’Reilly v. Mackman [1983] 2 AC 237

        Pacific Transport Co. Ltd v. Mohammed Jalil Khan & TCB (Civ. App. 21/96)

        R v. Bow Street Magistrate ex parte Roberts [1990] 3 All ER 487

        R v. County Licensing (Stage Plays) Committee of Flint County Council

                    ex-parte Barrett [1957] 1QB 367

        R v. Durham County Council ex parte Curtis & Broxion (1992)

                    Admin LR 113

        R v. Liverpool Corp. ex-parte Liverpool Taxi Fleet Operators Association

                    [1972] 2 QB 299

        R v. Secretary of State for Home Department ex-parte Asif Mohammed Khan

                    [1984] 1 WLR 1337

        R v. Secretary of State for Home Department ex-parte Ruddock

                    [1987] 1WLR 1382

        Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149

         

        Motion for judicial review in the High Court

         

        H. Lateef for the Applicant

        R. Gopal for Suva City Council

        M. Raza for Dee Cees Bus Services Limited

         

        Fatiaki J:

         

        On the 31st of October 1996 this Court granted the applicant Island Buses Limited (‘Island’) leave to issue an application for judicial review of a decision of the Suva City Council (‘SCC’) taken on the 6th June 1996 whereby it consented to Dee Cee’s Bus Services Limited (‘DCs’) using its existing bus bays at the Suva Bus Station for its bus service to Muanikoso.

         

        The undisputed facts of this case may be briefly summarised as follows : Island and DCs were competing bus companies that sought similar road service licences (‘RSL’) from the Transport Control Board (‘TCB’) to provide a bus service from the Suva Bus Station to Muanikoso in Nasinu. As a pre-requisite to the granting of the RSL both operators were required by the TCB first to obtain the approval of the SCC (the owner and operator of the Suva Bus Station) for the use of the bus stand for the proposed service.

         

        By letter dated 30th April 1996, Island sought the necessary consent of SCC and a bus bay Rank 5 Bay No. 6 located some distance from the main bus stand was allocated. By letter dated June 6, 1996 SCC granted a similar request by DCs but instead of allocating a separate bay, DCs was permitted “... to operate from (its) existing bus bay ... at the Suva Bus Station”.

         

        This latter decision of SCC, has resulted, according to a director of Island :

         

        “(in) a situation whereby two separate bases are being used for services to Muanikoso (and) since Dee Cee’s base is at the heart of the bus stand and the applicant’s further along Rodwell Road, the applicant is not getting any passengers from Suva to Muanikoso.”

         

        Hence this application for judicial review.

         

        At first sight it did not appear plain that Island had the necessary locus standi to bring the application, but on hearing counsel I was satisfied on a prima facie basis that Island as a direct competitor to DCs bus service emanating from the Suva Bus Station area had a sufficient interest in SCC’s seemingly unrelated decision consenting to DCs operating its service out of its existing busbay.

         

        Furthermore as was pointed out by Lord Diplock in O’Reilly v. Mackman [1983] 2 A.C. 237 at 275 a legitimate expectation gives rise to a locus standi in relation to judicial review enabling the applicant to complain of the authority having exceeded or misused its powers or acted unfairly. (see also : Lord Scarman in Findlay v. Secretary of State [1984] 3 All E.R. 801 at p.830.) Leave was accordingly granted to the applicant to apply for judicial review.

         

        The principal relief being sought by the applicant is an order of certiorari to quash the SCC’s decision which it challenges on the following grounds :

         

        “(a)      That Suva City Council has acted unfairly in granting Dee Cee’s its exising bus bay for trips to Muanikoso when it granted the Applicant a base in Rodwell Road known as Rank 5 Bay 6 for its trips to Muanikoso.

         

        (b)        That the Suva City Council abused its discretion under the Suva (Bus Station) By-Laws in that :

         

        (i)         It took into consideration irrelevant matters ; and

         

        (ii)        It did not take into consideration relevant matters; and

         

        (iii)       It acted wrongly and/or in bad faith and/or unreasonably ; and

         

        (iv)       It acted unreasonably in giving the Applicant a base in Roadwell Road next to long distance operators, and Dee Cee’s base in the main bus stand for trips to the same area.

         

        (v)        It acted unreasonably in giving two operators two bases so far apart for trips to the same area.

         

        (c)        That the Suva City Council exceeded its jurisdiction under the Suva (Bus Station) By-Laws.

         

        (d)        That the Suva City Council has acted contrary to the legitimate expectations of the Applicant.

         

        (e)        That the Suva City Council breached the Fair Trading Decree by granting two separate bases for trips to the same area.

         

        (f)         That the Suva City Council is biased in favour of the Respondent Dee Cee’s.”

         

        In Judicial Review No. 1 of 1996, The State v. The Permanent Arbitrator ex-parte Fiji Electricity Authority, (43 FLR 123) this Court said and I say it again :

         

        “This form of pleading (for want of a better expression) which is fast becoming the norm in applications for judicial review is unacceptable, unhelpful and often duplicitous.”

         

        In this particular application almost every ground suffers from a lack of relevant particulars and may be similarly criticised. For instance what (if any) is the difference between grounds (b) & (c) and sub-grounds b(iii), (iv) & (v) ? ; and What relevant matters were ignored or irrelevant matters were considered by SCC in arriving at its decision ? ; Furthermore what was the nature and content of the applicant’s legitimate expectation ? and what provision(s) of the Fair Trading Decree were breached by SCC’s decision ? Finally in what particular respects was SCC’s decision biased in favour of DC?

         

        The matter is further complicated by the undenial fact that SCC had in fact granted (not refused) the applicant’s request for a bus bay in the Suva Bus Stand from which to run its Muanikoso Service and, given that fact, the basis for the applicant’s various grounds of complaint are by no means self-evident.

         

        This manner of drafting grounds in an application for judicial review smacks of throwing the book in the hope that at least one of the grounds advanced will find favour with the Court. If I may say so this indiscriminate listing of grounds unnecessarily lengthens proceedings and overlooks the court’s power to allow further grounds to be added at the substantive hearing.

         

        Needless to say a single carefully thought-out, properly-particularised and well-taken ground is all that is needed to succeed in an application for judicial review and is to be preferred to a multiplicity of inapplicable, ill-thought-out, over-lapping and unparticularised grounds. For a recent example of properly particularised grounds in an application for judicial review, I would draw counsel’s attention to the grounds set out in the judgment of Watkins L.J. in R. v. Bow Street Magistrate ex-parte Roberts [1990] 3 All E.R. 487 at p.488h.

         

        Indeed the inappropriateness of the drafting of the grounds in this application for judicial review was clearly demonstrated in the submissions of counsel for the applicant which, despite the numerous headings under which the submission was clothed, all boiled down to a single simple proposition based upon the undisputed past practice of SCC in allocating bus bays at the Suva Bus Stand which was :

         

        “... to allocate bases next to each other or close to each other in the Suva Bus Stand for routes or services to the same designated area.”

         

        The applicant’s claim I venture to suggest, is more than adequately and appropriately dealt with in the single ground (d) above under the heading legitimate expectation.

         

        Having so concluded, I propose now to deal very briefly with the various other grounds advanced in the submissions of counsel for the applicant at the hearing of the application. These were confined to alleged breaches of Section 27 of the Fair Trading Decree No. 25 of 1992 [ground (e)] and so-called bias on the part of SCC towards DCs [ground (f)].

         

        As for the Fair Trading ground there is not the slightest doubt in my mind that it is no part of the Court’s function in an application by way of judicial review to investigate alleged breaches of the Fair Trading Decree nor for that matter, is the procedure suited to such an investigation.

         

        Assuming however for the sake of argument that such a ground may be raised, counsel’s submission is to the effect that in allocating bus bays in different areas of the Suva Bus Station for bus services to the same destination, SCC had created a situation which would lessen competition and therefore its decision was in breach of Section 27 of the Fair Trading Decree.

         

        If I may say so the submission has only a superficial attraction and cannot withstand close scrutiny. In the first place it is difficult to understand how SCC can be said to have a duty to positively promote or facilitate competition in the provision of bus services to the travelling public ; and secondly, even if it did have such a duty (which I very much doubt) how can its allocation of bus bays be said to be in breach of that duty ? This is not a case of granting one bus operator a bus bay and refusing a bus bay to a competitor.

         

        Indeed both competitors were fairly granted bus bays within the Suva Bus Station area thus enabling them to compete for fares. In my view it is not so much the grant of the bus bay that has results in a non-competitive situation rather, it is the unpredictable element of human laziness that has given rise to the applicant’s complaint.

         

        There is not the slightest merit in this ground which is accordingly rejected.

         

        Then there is the allegation of bias in favour of DCs. This is said to arise from the fact that DCs application for a bus bay was granted after the applicant’s and therefore SCC well knew the location of the applicant’s assigned bus bay in the Suva Bus Station area yet it ignored it when it granted DCs application.

         

        I confess that having considered this submission and mindful that these were not competing applications for the same bus bay, I am firmly of the opinion that the circumstances outlined by counsel for the applicant could not even remotely give rise to a reasonable suspicion let alone have the appearance of a real likelihood of bias on the part of SCC in granting DC’s application. There is in my view not a shred of evidence to support counsel’s submissions in this regard beyond surmise and conjecture. This ground of complaint is accordingly rejected as fanciful and imaginary.

         

        Returning then to legitimate expectations. The Fiji Court of Appeal recently described the concept in Pacific Transport Co. Ltd. v. Mohammed Jalil Khan & TCB Civil Appeal No. 21 of 1996 (FCA Reps 97/3) at p.9 as capable of arising in the following circumstances :

         

        “(a)      (where) an express representation has been made to the person concerned, or to a group of people of which he or she is a member, that a certain procedure will be followed before a decision is made (A.G. of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C.629 PC ; A.G. of N.S.W. v. Quin (1990) 170 C.L.R.1); or

         

        (b)       there is a longstanding practice of following a certain procedure before a decision is made (Council of Civil Services Unions v. Minister for the Civil Service [1985] A.C. 374 HL.”

         

        Notably in this latter case of the CCSU v. Minister of the Civil Service Lord Fraser of Tullybelton said at p.401:

         

        “Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.” (my underlining)

         

        later, in dealing with the particular practice raised in the case before him, Lord Fraser said :

         

        “The test ... is whether the practice of prior consultation with the staff on significant changes in their conditions of service was so well established ... that it would be unfair or inconsistent with good administration for the government to depart from the practice ... In the present case the evidence shows that, since GCHQ began in 1947, prior consultation has been the invariable rule when conditions of service were to be significantly altered. Accordingly, in my opinion, ..., the appellants would have had a legitimate expectation that the minister would consult them before issuing the instruction.”         (my underlining)

         

        More recently in R. v. Devon County Council ex-parte Baker and Johns and R. v. Durham County Council ex-parte Curtis and Broxion (1992) Admin L.R. 113 Lord Justice Simon Brown helpfully identified in his judgment at pp.130/132, four broad categories (or senses) in which the phrase ‘legitimate expectation’ has come to be used. These are :

         

        “(1)      Sometimes the phrase is used to denote a substantive right : an entitlement that the claimant asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as R. v. Secretary of State for Home Department ex-parte Asif Mohammed Khan [1984] 1 W.L.R. 1337 and R. v. Secretary of State for Home Department ex-parte Ruddock [1987[ 1 W.L.R. 1382 ... These various authorities show that the claimant’s right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless (it) is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel ... ;

         

        (2)       Perhaps more conveniently the concept of legitimate expectation is used to refer to the claimant’s interest in some ultimate benefit which he hopes to retain (or some would argue attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation ... Of the various authorities drawn to our attention Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149, O’Reilly v. Mackman [1983] 2 A.C. 237 ... are clear examples of this head of legitimate expectation ;

         

        (3)       Frequently, however, the concept of legitimate expectation is used to refer to the fair procedure itself. In other words it is contended that the claimant has a legitimate expectation that the public body will act fairly towards him. As was pointed out in A.G. for NSW v. Quinn (1990) 170 C.L.R., this use of the term is superfluous and unhelpful : it confuses the interest which is the basis of the requirement of procedural fairness with the requirement itself (per Dawson J.in the Quinn case);

         

        (4)       The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. R. v. Liverpool Corp. ex-parte Liverpool Taxi Fleet Operators Association [1972] 2 Q.B. 299 and A.G. of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629 are illustrations of the Court giving effect to legitmate expectations based upon express promises ; Council of Civil Service Unions v. Minister of Civil Service an illustration of a legitmate expectation founded upon practice ...”

         

        In this case counsel for the applicant forcefully submits that barring any exceptional circumstances (and none is here raised), the applicant had a legitimate or reasonable expectation that SCC in the allocation of bus bays at the Suva Bus Station would continue to follow its ‘consistent past practice’ of some 30 odd years, namely, that bus services from the Suva Bus Station to the same destination would be allocated bus bays ‘next to each other or close by’.

         

        I am not unmindful of the:

         

        “... well established principle of law, that if a person or public body is entrusted by the Legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties.” (per the Earl of Birkenhead in Birkdale District Electric Supply Co. Ltd. v. Southport Corporation [1926] A.C. 355 at 364) ;

         

        or, of the words of Jenkins L.J. in R. v. County Licensing (Stage Plays) Committee of Flint County Council Ex-parte Barrett [1957] 1 Q.B. 367 when he said in rejecting the Committee’s decision that it was essential in the interest of consistency that the same rule should be applied in all cases, at p.368:

         

        “I cannot think that that method of approach fulfils the requirement that the matter should be heard and determined according to law ... It seems to me that it wrongly pursues consistency at the expense of the merits of individual cases.”

         

        But as was said by Lord Denning M.R. in re Liverpool Taxi Owners Association [1972] 2 Q.B. 299 at p.308:

         

        “That principle does not mean that a corporation can give an undertaking and break it as they please. So long as the performance of the undertaking is compatible with their public duty, they must honour it.”

         

        Nor in my view does the principle prevent or preclude a public body endowed with a statutory discretion from legitimately adopting general principles of policy to guide itself as to the manner in which its own discretion will be exercised in individual cases provided that such policy is legally relevant to the exercise of its powers, is consistent with the purpose of the enabling legislation and is not arbitrary or capricious.

         

        In this particular case bearing in mind the limited area designated as the Suva Bus Station and the desirability in the interests of the travelling public as well as bus operators that the allocation of bus bays at the Suva Bus Station should not be arbitrary or haphazard and pay due regard to the movement and safety of other road users in the vicinity of and within the Suva Bus Station, SCC as the controlling authority was perfectly entitled to adopt a general policy and practice in the allocation of bus bays at the Suva Bus Station.

         

        Furthermore as was said by Lord Roskill in the CCSU case (op. cit at p.415) :

         

        “It is not for the courts to determine whether a particular policy or particular decision taken in fulfilment of that policy are fair.”

         

        But where the particular decision taken is at variance with a well established policy or practice then the court can and will interfere where such long standing practice has given rise to a legitimate expectation on the part of the claimant that the practice will continue to be adhered to and not be unilaterally and abruptly departed from in the absence of any good cause for such departure or an over-riding public interest.

         

        I am satisfied from the undisputed evidence in this application that SCC’s decision as contained in its letter of June 6, 1996 was in breach of Island’s legitimate expectation based upon a consistent and regular practice adopted by SCC in the allocation of busbays at the Suva Bus Station.

         

        The decision is accordingly quashed with costs to be taxed if not agreed.

         

        (Certiorari issued; decision quashed.)
 

State v. Transport Control Board ex-parte S. Nair Transport, Island Buses Ltd & Dee Cees Bus Services Ltd

        [1997] 43 FLR 191

         

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        TRANSPORT CONTROL BOARD

         

        ex parte

         

        S. NAIR TRANSPORT, ISLAND BUSES LIMITED

        & DEE CEES BUS SERVICES LIMITED

         

        [HIGH COURT, 1997 (Scott J) 5 August]

         

        Revisional Jurisdiction

         

        Traffic- Transport Control Board- grant of road service licence- whether Board must give reasons for decision taken- Traffic Act (Cap. 176) Division 3.

         

        The Transport Control Board awarded road service licences to 2 operators but rejected competing applications by 5 other companies. No reasons for the award were forthcoming. The High Court stressed the desirability of giving reasons for decisions and quashed the award on the ground that the Board could not be seen to have acted within its jurisdiction.

         

        Cases cited:

         

        Akbar Buses v. Transport Control Board (C.A. 9/84, FCA Reps 84/40)

        Pacific Transport v. Khan (ABU 21/96- FCA Reps 97/3)

        R v Lancashire County‑ Council ex parte Huddleston [1986] 2 All ER 941

        The State v. Transport Control Board ex parte Peni Company Limited

        (HBJ 22/94S)

         

        Motion for judicial review in the High Court.

         

        H. Nagin for the Applicant

        I. Tuberi for the Respondent

        H. Lateef for the 1st Interested Party

        M.Raza for the 2nd Interested Party

         

        Scott J:

         

        The Applicant moves for Judicial Review pursuant to leave granted by consent on 15 November 1996. The principal relief sought is an Order of Certiorari to quash a decision of the Respondent (the Board) reached on 31 July 1996 the effect of which was to grant the 1st and 2nd Interested Parties road services to operate to and from Muanikoso, Nasinu. The Muanikoso Estate is a new Housing Authority subdivision, the first tenants of which moved into occupation in early 1996.

         

        In about July 1995, apparently before any houses had actually been built on the estate but after the road into it had been constructed, the 1st Interested Party (Island) applied to the Board for a licence to operate a bus service to and from the new estate.

         

        Following the Board’s advertisement of Island’s application the Applicant (Nair) lodged an application for an amendment to one of its current licences, the effect of which, if granted, would have been to allow it to service the new estate.

         

        Nair’s application was followed by matching applications from a number of other bus operators namely the second interested party (Dee Cee), Tebara Transport, George Transport, Tui Davuilevu Buses and K.R. Latchan Bros. Ltd.

         

        The procedure governing the grant of road service licences by the Board is set out in Division 3 of the Traffic Act (Cap 176). Section 65 provides that after an application for a licence has been published the Board must receive any objections in writing to the application. The objections must state the grounds of the objection and copies of any objections must be provided to any other applicant.

         

        The supporting affidavit filed by the general manager of Nair exhibits 21 pages of representations received in connection with the seven competing applications. In general, each applicant, while seeking the grant of a licence to service the new estate for itself objected to a grant to the other applicants on the grounds of encroachment on to already established routes. Muanikoso is close to the Suva/Nausori stretch of the Kings Road which is almost certainly the most densely populated and bus serviced stretch of road in Fiji. It is clear that there was very fierce competition indeed for the new service.

         

        On 31 July 1996 the Board convened for the purpose of hearing evidence and oral representations from the competing applicants. The minutes of the public meeting are exhibited to the affidavit of the Board’s secretary, Mr. Gyneshwar Chandra Naidu filed on 20 December 1996. Although the minutes were not formally accepted by the Applicant or by the Interested Parties as being complete and accurate they do, as I find and as will become clear below, constitute a sufficiently accurate record of what transpired for present purposes.

         

        After the Board had heard all the representations made to it, it retired and reached the decision which it is now sought to quash. It granted licences to the two Interested Parties and refused the other applications.

         

        After all the affidavits had been filed in Court counsel for the parties agreed that the most convenient way forward was for written submissions to be filed and in due course four excellent, careful and comprehensive written submissions were placed before me for which I am grateful.

         

        Mr. Nagin advanced four arguments. Put shortly they are as follows:

         

        (a)        the Board should have rejected all the applications for licences to service the new estate because there were no, or almost no people living there:

         

        (b)        the hearing on 31st July was unfair and in breach of the audi alteram partem rule.

        (c)        the decision to grant licences was unreasonable for the same reasons as set out in (a) above.

         

        (d)        Nair’ s legitimate expectations were defeated by the Board’ s failure to give reasons for its decision.

         

        In my view grounds (a) and (c) have little force. It has long been recognised and accepted that the processes set out in sections 64, 65, 66, 67 and 72 of the Act may take several months to complete. I see nothing wrong in applying in advance for a licence to service a new estate which will not in fact have reached full development until the time that the application is actually heard. Having invited the Board to grant a licence to itself I find it comes ill from Nair to complain that the Board entertained its and the other competing applications. These two grounds fail.

         

        Ground (b) is dependent on the validity of the premise that the Board is bound to follow a precise procedure when “receiving any evidence and any representations for or against any application in respect of the proposed service” under the provision of Section 65(3) of the Act. In my view that premise cannot be justified. So long as the procedure adopted is fair there can, in my view, be no objection to it. Upon examination of the minutes of the meeting and Exhibit A to Mr. Nair’ s supporting affidavit, already referred to, I can find nothing to suggest that Mr. Kapadia who is an experienced, forceful and effective advocate not known for bouts of shyness was in any way prevented from fully presenting his objections to the other applications or from fully presenting those facts and matters which he wished to urge in support of Nair’s application. Examination of Exhibit A reveals that contrary to the requirements of Section 65 (3) Nair chose not to provide a full statement of the grounds of its objections to the competing applications but in each case stated “further grounds of objection will be given on the day of the hearings”. I can find no basis for such a procedure in the Act. In my view Nair failed to avail itself of the opportunity given by the Act to provide a full written statement of its case and was not prevented at the hearing from presenting such submissions as it wished to place before the Board. This ground also fails.

         

        The third ground (d) adverts to the fact that the Board did not give reasons for its decision. Both Dee Cees and the Board state in their written submissions (paragraphs 5.01 and 6.02) that Nair did not ask for reasons to be provided. This however is not correct, as can be seen from paragraph No. 1 of Nair’s letter to the Board dated 19 November 1996 (see Nair’s affidavit in reply filed 2 June 1997 - Exhibit A).

         

        Apparently accepting that a request for reasons was in fact made Mr. Lateef, for Island, advanced a number of “good reasons” for the grant in paragraph. 4.03 of his written submissions. Mr. Tuberi suggested that the Board’s reasons for its decision were set out in Mr. Naidu’s affidavit.

         

        In my view both these attempts to deflect the force of Mr. Nagin’ s argument fail. That Mr. Lateef can conceive of “good reasons” does not mean that those were in fact the reasons for the Board’ s decision while examination of Mr. Naidu’s affidavit and particular paragraphs 9 and 13 thereof reveals no more than a denial of suggested reasons and a number of factors taken into account before the decision was reached.