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Alipate Karikari v. The State

    [1999] 45 FLR 310

        HIGH COURT OF FIJI ISLANDS

         

        ALIPATE KARIKARI

         

        v.

         

        THE STATE

         

        [HIGH COURT, 1999 (Pathik J) 6 December]

         

        Appellate Jurisdiction

         

        Crime: defences- unlawful carnal knowledge with minor- statutory defence to be raised- Penal Code (Cap. 17) Section 156 (a).

         

        An unrepresented accused pleaded guilty to unlawful sexual intercourse with a girl aged between 13 and 16. Although he told the Magistrates’ Court that he thought she was aged more than 16 a plea of not guilty was not entered by the Magistrate who proceeded to convict. The High Court quashed the conviction and emphasised that an available statutory defence must be raised by the Court even if not raised by an unrepresented accused.

         

        Cases cited:

         

        Akuila Kuboutawa and Reginam (Labasa Criminal Appeal No. 2/75)

        Mikaele Bari and Reginam (Labasa Criminal Appeal No. 11/75)

         

        Appeal against conviction and sentence in the Magistrates’ Court.

         

        Appellant in Person

        J. Rabuku for State

         

        Pathik J:

         

        Appellant was convicted in the Labasa Magistrates’ Court on his own plea of the offence of defilement of a girl between thirteen and sixteen years of age contrary to section 156(1)(a) of the Penal Code.

         

        The particulars of offence are that on 31 March 1999 at Natewa Village, Savusavu in the Northern Division he had unlawful carnal knowledge of a girl namely Loata Rokodovu of the age of 15 years 8 months 17 days.

         

        Upon his conviction he was sentenced to imprisonment for 2 years on 7 September 1999.

         

        The facts of the case are that on 31 March 1999 at about 11.00 p.m. the appellant who was drunk went to the kitchen where the complainant was baking a cake. He took her behind the dining hall and into a cassava patch where they had sexual intercourse under a mango tree. When she returned home her father came to know of the incident. He reported the matter to police. The complainant was medically examined and it was found that she was not a virgin.

         

        The accused admitted the offence. When asked if he had anything to say in mitigation he said that he “thought she was over 16 years of age by looking at her build. She consented to have sexual intercourse. We had been having sexual intercourse before this for one year.” He is 29 years old single man.

         

        The appellant submitted that the sentence is harsh and excessive.

         

        The learned State Counsel opposed the appeal and stated, inter alia, that the girl is half his age; but when confronted by the Court about the proviso to the section under which the accused is charged not having been put to the appellant he agreed that that should have been done. He then conceded the appeal.

         

        Section 156 (1)(a) under which the appellant was charged reads as follows:

         

        “156 (1) (a) Any person who unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years; or

         

           (b) ………………………………..

         

        is guilty of a misdemeanor, and is liable to imprisonment for five years, with or without corporal punishment:

         

        Provided that it shall be a sufficient defence to any charge under paragraph (a) if it shall be made to appear to the Court before whom the charge shall be brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

         

        (2) ……………

        (3) ……………

         

        A similar situation such as in this case arose in Mikaele Bari and Reginam (Labasa Criminal Appeal No. 11/75). There the accused was also engaged in sexual intercourse on previous occasions and they were intending to get married. The conviction was quashed and sentence of 12 months set aside because the proviso to the said section was not brought to his attention.

         

        It appears that in the case before the learned magistrate he was of the impression that because of the appellant’s involvement in sexual intercourse with the complainant for previous 12 months was sufficient compliance with section 156(1) (a). I find that he fell into an error and the conviction cannot stand in view of the said proviso.

         

        In Bari (supra) Grant CJ (the then Chief Justice) referred to another case of Akuila Kuboutawa and Reginam (Labasa Criminal Appeal No. 2/75) which was also a case of defilement in which he comments on the requirements of s.156 (1) (a) (previously section 150(1) (a)) and that is worth nothing. He said:

         

        “I might add for the guidance of Magistrates that, in the case of an unrepresented accused, any statutory defence should be brought to his attention. For instance, on a charge of this nature, the accused should be informed that he is charged with unlawful carnal knowledge of a particular girl of a specific age and that he had no reasonable cause to believe that she was of or above the age of sixteen years; and the record should disclose that the charge was explained accordingly.”

         

        In the appeal before me the appellant’s attention was not drawn to the proviso. In any case on what he said in mitigation about his belief as to the girl’s age, the learned magistrate should have set aside the conviction and entered a plea of not guilty.

         

        For these reasons and for this error on the part of the learned Magistrate the appeal should be allowed. The conviction and sentence are set aside and the appellant set free forthwith.

         

        (Appeal allowed; conviction quashed.)
 

Avinesh Krishna & Tukoli Visawaqa v. The State

    [1999] 45 FLR 180

        HIGH COURT OF FIJI ISLANDS

         

        AVINESH KRISHNA & TUKOLI VISAWAQA

         

        v.

         

        THE STATE

         

        [HIGH COURT, 1999 (Fatiaki J) 23 August]

         

        Appellate Jurisdiction

         

        Crime: evidence and proof- need to consider the defence of each accused separately- rape- recent complaint- not corroborative- evidence of accused implicating co-accused- need for warning- Penal Code (Cap 17) Section 149.

         

        Allowing appeals against convictions entered in the Magistrates’ Court the High Court emphasised (a) the requirement that a trial magistrate consider the separate defences advanced by each accused (b) that evidence of recent complaint was not corroborative (c) that the person to whom the complaint was made should be called to give evidence and (d) that before acting on the uncorroborated evidence of a co-accused the Court should warn itself of the danger of doing so.

         

        Cases cited:

         

        Anthony Steven v. R - 17 F.L.R. 48

        Dhani Chand v. R - Cr. App. 35 of 1979 (FCA Reps 79/145)

        Mano Datt Sharma v. R - 15F.L.R. 136

        Mohammed Hamidullar Khan v. R - 19 FLR 133

        Peceli Vosararawa v. R - 16 F.L.R. 202

        R v. Coulthread 24 Cr. App. R. 44

        R v. Evans 18 Cr. App. R. 123

        R v. Prater (1959) 44 Cr. App. R. 83

        Shinodra v. The State 34 F.L.R. 135

         

        Appeals against conviction in the Magistrates’ Court.

         

        A. Sen for the 1st Appellant

        2nd Appellant in Person

        Ms. A. Driu for the Respondent

         

        Fatiaki J:

         

        On the 2nd of November, 1998 the appellants were jointly charged with an offence of Rape before the Labasa Magistrate Court. They both pleaded not guilty to the charge and were remanded in custody to await the trial. Eventually after numerous adjournments and several unsuccessful attempts to obtain bail, the trial began on New Year’s eve and lasted for five days spread over a fortnight in January 1999.

         

        During the trial at which the appellants were unrepresented, the prosecution called three civilian witnesses, - the complainant, her mother, and a former head teacher of the school which the complainant attended; and the interviewing and charging officers who exhibited the appellant’s caution interview records (Exs.3 & 7) and charge statements (Exs.6 & 8) respectively. The birth certificate (Ex.2) and a medical report of the complainant (Ex.1) was also exhibited pursuant to Section 191 of the Criminal Procedure Code (Cap.21). At the close of the prosecution case the appellants elected and gave sworn evidence and each called a witness in his defence, namely, the mother and wife of the second appellant.

         

        At the close of the evidence the trial magistrate ‘adjourned for considering of judgment for 2 hours or so’. Upon his return the trial magistrate delivered a lengthy Ruling in which he found the appellants guilty as charged. Five days later the appellants were sentenced each to five years imprisonment and five strokes of corporal punishment.

         

        The appellants now appeal against their conviction and sentences on numerous grounds which may be condensed into the following:

         

        (1)     that the trial was not conducted fairly;

         

        (2)     the trial magistrate misdirected himself on the evidence of recent complaint and corroboration;

         

        (3)     failed to properly evaluate the evidence in the case including that of the defence witnesses; and

         

        (4)     the sentences are harsh and excessive.

         

        In arguing the appeal counsel for the first appellant sought to highlight the unfairness of the trial by referring to various unsatisfactory features, including - the failure of the trial magistrate to examine the complainant who was barely 14 years of age and described as a ‘slow learner’, as to her understanding of the oath before being sworn; his improper curtailment and confinement of the 1st appellant’s cross-examination of the complainant; misdirections as to the evidence of recent complaint and corroboration; and his failure to deal with the various inconsistencies in the complainant’s evidence as to the whereabouts of the 2nd appellant during the alleged rape by the 1st appellant.

         

        The 2nd appellant for his part although unrepresented, ably argued his appeal and produced a four page written submission in which he challenged the credibility of the complainant’s evidence of recent complaint and complains that ‘(the magistrate) didn’t even try to understand what my wife and mother were explaining to the Court, that the complainant was not pulled from the road and there was no signs of rape in her and her physical appearance was normal’.

         

        In this latter regard it might be beneficial to consider the form and contents of the

        trial magistrate’s RULING which comprises ten typed-written pages which may be apportioned as follows:

         

        -           1 1/2 pages are devoted to the complainant’s evidence followed by:

         

        -           5 1/2 pages of references to cases and judicial dicta dealing with the elements of rape; corroboration; the approach of the courts to corroboration and the nature and relevance of evidence of recent or early complaint. This general discourse on the law is then followed by:

         

        -           1 page in which the trial magistrate makes two findings of corroboration provided by two items of evidence namely, the medical report (Ex.1) and the evidence of recent complaint by the complainant’s mother (P.W.2); and this is followed by:

         

        -           1 page dealing in the abstract with the burden and standard of proof in a criminal trial and;

         

        -           on the final page one encounters the trial magistrate’s findings as to the guilt of the accused.

         

        From the above analysis of the contents of the trial magistrate’s ruling it is immediately plain that more than half of it (7 pages) was devoted to citing legal authorities and legal propositions and only three pages relate to the evidence led before the court.

         

        It is also plain that the sworn evidence of the appellants (which is nowhere set out in the ruling) was treated or considered (if at all) in the most summary dismissive manner. Not surprisingly the evidence of the defence witnesses (of which there were 2) did not even warrant a mention let alone any consideration in the entire

        ruling.

         

        Indeed so perfunctory is the trial magistrate’s judgment in dealing with the defence evidence that it is possible to extract the only two sentences which directly refers to the defence. These are (at p.2) where he says:

         

        ‘The second accused denied raping her.’

         

        and (at p.10) where he says:

         

        ‘I find the evidence of the two accused so inherently incredible that no reasonable person could believe it.’

         

        There is no reference whatsoever to the 1st accused denying the charge in the trial magistrate’s judgment.

         

        In somewhat similar circumstances Thompson J. (as he then was) in setting aside the conviction in Mano Datt Sharma v. R. 15 F.L.R.136 said at p.139:

         

        ‘In so far as the judgment indicates the learned magistrate’s process of thought in considering the evidence adduced, there is nothing to show that he took the defence case, and the evidence in support of it, into consideration at all.’

         

        and later his lordship said:

         

        ‘In this case there may well have been good reasons for rejecting the evidence of the accused and of the witness called on his behalf. But there is nothing in the judgment to indicate that that evidence was taken into account at all. ... It is not simply a matter of implicitly rejecting evidence of an apparently far fetched story told by the accused (or his witness).’

         

        Then there is the distinct probability that the trial magistrate in convicting the appellants failed to consider the evidence against each separately and, in failing to consider the second appellant’s evidence and that of his witness, may well have bolstered the case against him by relying on evidence only admissible against the first appellant.

         

        The relevant principle is set out in the following passage in Garrow and Spence’s Criminal Law (4th edn.) at p.365 where the learned author’s say:

         

        ‘Where several ... accused are involved it is frequently necessary ... to separate the evidence applicable to ... each accused and to direct the jury to consider them separately.’

         

        In similar vein the Fiji Court of Appeal said in Anthony Steven v. R. 17 F.L.R.48 at p.54:

         

        ‘We do not question for one moment that in a joint trial of several accused persons, a Magistrate should proceed in the same way as a jury or assessors would be directed to proceed. He must consider the case against each accused separately, being careful to distinguish the evidence admissible against one accused from that admissible against another. He must resist any temptation to bolster up a weak case against one accused by reference to evidence properly admissible only against some other accused (or by looking at the evidence as a whole).’

         

        In the present case it was all the more encumbent on the trial magistrate to not only clearly identify and deal with the evidence against each accused separately given his assessment of the complainant’s credibility and its apparent indivisibility, but also, because the nature of the defences differed in material respects. It was more than just a bare denial of opportunity.

         

        Furthermore given the highly incriminating evidence of the 1st appellant on oath implicating his co-accused, the 2nd appellant, in the offence, it was encumbent on the trial magistrate to record or direct himself that although admissible as evidence against the 2nd appellant, nevertheless he should indicate either that he has ignored such highly prejudicial evidence or, at the least, made plain that he is aware of the dangers of acting on it unless corroborated (see: R. v. Prater (1959) 44 Cr.App.R.83).

         

        I turn next to deal with the corroborative evidence relied upon by the trial magistrate in his judgment, namely, the complainant’s medical report (Ex.1) and the mother’s evidence.

         

        As for the medical report (Ex.1) appellant’s counsel highlighted that on its face it bore two different types of handwriting and was ‘prepared 32 hours after the incident’ and therefore the doctor’s ageing of the complainant’s injuries both of which were sustained ‘within 24 hours’ was plainly unreliable and or wrong and ought not to have been accepted by the trial magistrate in the absence of any clarification or explanation by the examining doctor who was not called as a witness. This point is well-taken.

         

        State Counsel for her part in attempting to explain the various discrepancies in the medical report, accepted that ‘on its own it cannot amount (in law) to corroboration unless the accused admits sexual intercourse’ which neither did.

         

        At most, the medical report confirms that sexual intercourse had recently occurred with the complainant but this falls well short of amounting in law to corroboration of an offence of rape committed by the appellants.

         

        Quite plainly the trial magistrate misdirected himself when he said in his judgment (at p.8):

         

        ‘There was undoubtedly medical corroboration in this case.’

         

        and (at p.9):

         

        ‘So in respect of the element of consent or non-consent the evidence of the complainant is well corroborated by medical evidence and other evidence (not identified) to show clearly lack of consent.’

         

        As for the complainant’s mother’s evidence, the trial magistrate says in his judgment (again at p.8):

         

        ‘Even P.W.2’s evidence (nowhere set out in the judgment) corroborates victims. She told her mother about the rape as soon as she met her.’

         

        In this latter regard it is note-worthy that the only finding of recent complaint in the trial magistrate’s judgment relates to the complainant’s claim that after being raped she had immediately gone to ‘one Roshni’s house’ in the neighbourhood and related the incident to her (see: p.41 & p.2 of the judgment).

         

        No finding of recent complaint has been made relative to the complainant’s report to her mother (see: her evidence also at p.41 & p.59) ‘at about 5.30 p.m.’ on the day of the incident (i.e. about 8 hours later) but in any event such a complaint even if recent could not in law amount to corroboration.

         

        In Peceli Vosararawa v. R. 16 F.L.R.202 which was referred to in the trial magistrate’s ruling, Hammett C.J. in rejecting the suggestion that such a complaint could amount to corroboration said at p.204:

         

        ‘In his judgment the learned trial magistrate said he accepted the evidence of Unaisi (the complainant) and held that it was corroborated by her complaint to her mother. He said that this was ample corroboration in law.

         

        This is not so. The evidence of the female complainant was in fact not fully corroborated and her complaint to her mother was not corroboration in law (See: R. v. Evans 18 Cr.App.R.123; R. v. Coulthread 24 Cr.App.R.44).’

        (my underlining)

         

        In similar vein the Fiji Court of Appeal said in Mohammed Hamidullah Khan v. R 19 F.L.R.133 at p.134:

         

        ‘... it is well established that the evidence of complaints made by the victim of alleged sexual assault, if made at the first opportunity and to a person in authority, are admissible in evidence, not as corroboration of the girl’s story, but for the purpose of showing consistency in her evidence.’

        (my underlining)

         

        Plainly again on this aspect the trial magistrate misdirected himself as to what evidence was capable of affording corroboration in law.

         

        Furthermore before evidence of recent complaint can to be admissible and relied upon, the person to whom the complaint was made must be called as a witness to testify as to the nature and circumstances under which the complaint was made by the complainant.

         

        In the present case despite Roshni not being called to testify, the trial magistrate said (at p.8):

         

        ‘I have come to the conclusion that there was an early complaint by the victim.’

         

        This conclusion was unwarranted as being based solely on the complainant’s self-serving evidence and cannot be relied upon as evidence of recent complaint. This too was a misdirection.

         

        In light of the foregoing I am firmly of view that it would be unsafe to allow the appellants convictions to remain. The appeals against conviction are allowed, the convictions are quashed and the sentences set aside.

         

        In the exercise of the Court’s powers under Section 319(1) of the Criminal Procedure Code (Cap.21) and bearing in mind the guidance provided in the judgments of the Fiji Court of Appeal in Shinodra v. The State (1988) 34 F.L.R.135 and Dhani Chand v. R. Cr.App.35 of 1979 (unreported), I order a retrial before a different magistrate.

         

        (Appeals allowed; retrial ordered.)

Baiju v. Jai Kumar

        [1999] 45 FLR 74

        HIGH COURT OF FIJI ISLANDS

         

        BAIJU

         

        v.

         

        JAI KUMAR

         

        [HIGH COURT, 1999 (Pathik J) 31 March]

         

        Civil Jurisdiction

         

        Land- application for possession- whether procedure for obtaining possession against trespassers is available against a former licensee- High Court Rules 1988 Order 113.

         

        The Plaintiff brought summary proceedings for possession under the provisions of Order 113 of the High Court Rules. The High Court declined to grant the order for possession. HELD: (i) that the facts did not reveal that the Defendant was a mere trespasser and (ii) that the summary procedure was unsuitable where the issues between the parties could not be satisfactorily resolved by consideration only of affidavit evidence.

         

        Cases cited:

         

        Ambika Prasad v. Santa Wati (C.A. 38/95-FCA Reps 98/130)

        Bristol Corp v. Persons Unknown [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593

        British Railways Board v. Herrington [1972] A.C. 877

        Browne v. Dawson (1840) 12 Ad. & El 624

        Department of Environment v. James & Ors [1972] 3 All E.R. 629

        Kanji Jogia & Ors v. Bhagwandas Hargovind & Ors 12 FLR 180

         

        Application for summary order for possession in the High Court.

         

        S. Chandra for the Plaintiff

        K. Muaror for the Defendant

         

        Pathik J:

         

        This is the plaintiff’s summons under Or.113 of The High Court Rules 1988 seeking an order for vacant possession of a portion of the land occupied by the defendant being the property of the plaintiff and another comprised in Native Lease known as Vunibua 5 (part of) containing an area of 3 acres 1 rood 3 perches in the district of Naitasiri in the Island of Viti Levu (hereafter referred to as “the land”).

         

        The action commenced as an application by the plaintiff as co-lessee of the land under s.169 of the Land Transfer Act Cap.131 but then it was withdrawn and substituted by an application under the said Or 113. The matter then proceeded to hearing in Chambers accordingly.

         

        Plaintiff’s submission

         

        The plaintiff’s counsel submits that the plaintiff is the registered proprietor (lessee) of the said land on which is erected a residential dwelling-house. The defendant has been occupying a portion of the house and land as a licensee and he was served with notice dated 30 April 1998 to deliver vacant possession of the land but he has refused to do so.

         

        The plaintiff says that the defendant is the youngest child of his (plaintiff’s) father-in-law Ram Shankar whom he allowed to live in his converted bulk store “so that his three young children could attend school”. That resulted in NLTB charging him penal rent in addition to the normal rent which he paid until his father-in-law’s children grew up and started earning money. The Plaintiff then paid the penal rent to assist his father-in-law who died on 1 January 1995.

         

        For the reasons set out in his affidavit the plaintiff says that he had verbally asked the defendant in the past to vacate the land as he is also earning sufficient to find accommodation for himself.

         

        The defendant, he says, has no equitable interest in the land. The tenancy of the land is 20 years from 1.7.80 expiring on 1.7.2000 under ALTA (vide Annexure ‘A’ to Plaintiff’s affidavit filed 8.6.98). The defendant has fenced part of the property without the plaintiff’s permission.

         

        The plaintiff says that the provisions of ALTA do not apply to the defendant for neither of them were given permission to cultivate the land nor did the defendant do any cultivation. He has no legal right of claim under ALTA.

         

        The plaintiff further argues that the total area of the land is 3 acres 1 rood 3 perches of which he himself is entitled to only half. The other half belongs to his late brother Ram Narayan and his successors. Therefore the land falls within the exemption under s.3(1)(a) of ALTA.

         

        Counsel says that the alleged payment of rent was penal rent payable on behalf of the Plaintiff and that does not create a tenancy in the defendant.

         

        Defendant’s submission

         

        The defendant says that the land has NLTB approval from 1970 to 1980 and for a further period of 20 years from 1.7.80. That there are five dwelling-houses on the land and not just one as the plaintiff has deposed.

         

        The defendant says that he came on the land when the plaintiff granted his father and his family including the defendant permission to occupy a portion of the land in 1974. He and his brother have from 1974 to 1987 been paying rent to N.L.T.B. directly (vide Annexure J to Plaintiff’s affidavit of 8.7.98); and from 1988 to 1998 it was agreed with plaintiff the defendant pay appropriate proportional rent directly to NLTB for the piece of land he occupied.

         

        The defendant says that he is advised that notice to quit is defective as it contravenes the provisions of Agricultural Landlord and Tenant Act Cap.270 (“ALTA”). He had on 31 August 1998 made an application to the Agricultural Tribunal for a formal declaration of tenancy. He says that he has been on the land for 30 years now and that his father and family built the home which he occupies.

         

        The defendant says that he is there with the consent of the owner of the land. Hence Or 113 does not apply to him. He says that there is one other person who is the legal owner of the land and it is “improper for the second legal owner not to be included as a party to these proceedings”.

         

        Determination of the issue

         

        This action is brought under Or 113 of The High Court Rules which inter alia in Rule 1 reads as follows:

         

        “Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.”

         

        The question for Court’s determination is whether the plaintiff is entitled to possession under this Order. To decide this the Court has to consider the scope of the Order. This aspect is covered in detail in The Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:

         

        “This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers.”

         

        As to the application of this Order it is further stated thus:

         

        “The application of this Order is narrowly confined to the particular circumstances described in r.1. i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593.”

         

        This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:

         

        “this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto.”

         

        I have carefully considered all the affidavit evidence adduced in this case and the written and oral legal submissions from both counsel.

         

        The facts as I have found them are that the defendant came on to the land with his father as a child and has lived there continuously for thirty years and made improvement to the house he is occupying. He has even paid the “penal rent” for the plaintiff (see Annexure J to Plaintiffs affidavit of 8.7.98). Now after so many years of him occupying the land as a licensee (term used by plaintiff), he is being evicted under Order 113 which as already stated is applicable inter alia, to a trespasser.

         

        The facts do not reveal that the defendant is a trespasser on the land. He continued living there as a licensee even after his father’s death in 1995. The notice to quit dated 30 April 1998 which was given to him does not state that he is a trespasser; it says “your father has since passed away and you had become a nuisance in my land, and that you without any approval decided to allocate yourself a block of my land”.

         

        The defendant has vigorously opposed the application to evict him under Order 113. I agree with the Mr. Muaror, the learned counsel for the defendant, that the defendant and his father entered upon the land in 1970 with the plaintiff’s consent and has lived there all along ever since. It was, agreed between them that the defendant’s father will pay the penal rent which he did followed by payment by the defendant after the death of his father.

         

        On the facts of this case, the cases to which I refer to hereafter do not make the defendant a trespasser or a squatter.

         

        Order 113 is effectively applied with regard to eviction of squatters or trespassers. In Department of Environment v James and others [1972] 3 All E.R. 629 squatters and trespassers are defined as:

         

        “he is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can .....”      

         

        There Goulding J. said that:

         

        “.....where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession.....”

         

        Another definition of “trespasser” is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631:

         

        “A trespasser is a person who has neither right nor permission to enter on premises”.

         

        Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] A.C. 877 at 904:

         

        “The term `trespasser’ is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another’s land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child - all may be dubbed as trespassers”.

         

        I agree with Mr. Muaror that the defendants father and his children gained possession of the land only after the plaintiff had given his consent in or about 1970 and for that matter, the physical fact of the defendant’s occupation is that of acquiescence on the land. I refer to Sir Frederick Pollock’s statement in the case of Browne v. Dawson (1840) 12 Ad. & El 624 where he said:

         

        “..... A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner....”

         

        The defendant’s counsel has raised one other point and that is that the plaintiff is not the sole lessee of the said land and therefore it is improper to issue notice to quit on his own accord without the endorsement of the other joint owner or his legal representative.

         

        I agree with this contention of counsel for it was held by Hammett PJ in Kanji Jogia and Others v Bhagwandas Hargovind and Others12 FLR 180 that: “a notice to quit given by only two of the three lessors was ineffective to determine the lease”.

         

        I would say that Order 113 is akin summary procedure under s169 of the Land Transfer Act Cap. 131. It is an effective and speedy relief to property owners in cases where tenants or other persons have no right to continue to stay in possession.

         

        As can be seen from the evidence before this Court that the defendant maintains that he has the right to stay on the land whereas the plaintiff disputes it. There are triable issues and these cannot be resolved in a summary manner by affidavit alone. The following statements from the Court of Appeal case of Ambika Prasad f/n Ram Piyare v. Santa Wati f/n Kali Charan, Bissun Deo f/n Jag Deo (Civ. App. No. 38/95s - FCA Reps. 98/130) which concerned s169 are apt to suit the circumstances of this case:

         

        “Whether or not the appellant had an equitable interest and whether or not there was fraud by the respondents in the manner alleged are matters which are disputed by the respondents in their affidavits. These are clearly issues which cannot be resolved by affidavit evidence and ought to go to trial.”

         

        To conclude, for these reasons particularly because of the dispute as to possession between the parties it is not possible to make the order sought in the summons without going to trial.

         

        In these circumstances I could either make an order dismissing the Summons or order that this action be entered for trial like a writ action. Before making an order in this regard I would like both counsel to address me on this. The costs of this action is to be borne by the plaintiff to be taxed if not agreed.

         

        (Order for possession refused.)

Chan Long Chong & Ye Hui Fang v. Yen Yain Kai

        [1999] 45 FLR 217

        HIGH COURT OF FIJI ISLANDS

         

        CHAN LONG CHONG & YE HUI FANG

         

        v.

         

        YEN YAIN KAI

         

        [HIGH COURT, 1999 (Scott J) 10 September]

         

        Appellate Jurisdiction

         

        Small Claims Tribunals- language in which proceedings are to be conducted - powers of Resident Magistrates and Referees to grant leave to appeal out of time- Small Claims Tribunal Decree 1991 Section 33- Magistrates Courts Rules (Cap 14 - Subs) Order XXXVII r 4.

         

        While allowing one appeal and dismissing the other the High Court reviewed the relevant statutory provisions and HELD: (i) that the proceedings of Small Claims Tribunals should be conducted in a language which the parties understand and (ii) that a Small Claims Tribunal Referee has power to extend the time for appealing to the Magistrates’ Court upon good cause being shown.

         

        Cases cited:

         

        CM Van Stillevoldt BV v. El Carriers Inc. [1983] 1 WLR 297; [1983]

                    1 All ER 699

        Sheet Metal and Plumbing (Fiji) Ltd v. Deo - HBA 7/99

         

        Appeal from interlocutory decision in the Magistrates’ Court.

         

        A.K. Singh for the Appellants

        Ms. A. Nilta for the Respondent

         

        Scott J:

         

        As will be seen from the Grounds of Appeal filed on 16 February 1999 the Appellants jointly wish to appeal not only against the several Judgments entered against them by the Suva Small Claims Tribunal in Claim Nos. 3026/1997 and 0855/98 but also against the refusal by the Suva Magistrates’ Court to grant leave to the two Appellants to appeal out of time against the Judgment entered against them in the SCT.

         

        This procedure is wrong. Separate proceedings must not be conjoined for appeal purposes and appeals from the Small Claims Tribunal do not lie direct to the High Court except where the tribunal is presided over by a magistrate. There is no record of the proceedings in the Magistrates’ Court before me. The whole appeal could have been struck out for these reasons but Mr. Singh told me that the appeal raised two general matters upon which the guidance of the Court was sought while the papers in 0855/98 appeared to reveal a fundamental defect in that the Appellant was not served with the notice of adjourned hearing. Ms. Nilta did not demur.

         

        The two questions raised by Mr. Singh are:

         

        (i)      whether proceedings in a Small Claims Tribunal must be conducted in a language which the parties understand; and

         

        (ii)      whether a Small Claims Tribunal referee and/or a Resident Magistrate have power to grant leave to appeal out of time.

         

        The answer to the first question is straightforward. Rule 10 (1) of the Small Claims Tribunal Rules (LN 95/94) requires that:

         

        “Proceedings of a Small Claims Tribunal may be conducted in the language that the Tribunal considers is best suited to the parties ...”.

         

        This provision contrasts with Section 51 of the Magistrates Courts Act (Cap. 14) which specifies that:

         

        “the language of Magistrates Courts shall be English”.

         

        Even though the Small Claims Tribunal is a division of the Magistrates’ Court (Small Claims Tribunal Decree 1991 – Section 3 (3)) special arrangements have been made for the proceedings of Small Claims Tribunal to take place informally and in a language with which the parties are familiar. The answer therefore to the first question is in the affirmative.

         

        In paragraph 13 of his supporting affidavit filed on 16 February 1999 the first Appellant complains that he was not provided with a Chinese interpreter and was not able to put his side of the case. In paragraph 29 of the same affidavit he asserts that both Appellants’ rights were compromised by the failure to provide them with a Chinese interpreter. The records of the proceedings do not support the first Appellant’s claim. On the contrary, there is nothing to show that the first Appellant asked for an interpreter or was unable to conduct his case which involved calling a witness on his behalf. Since the second Appellant did not turn up at all it is difficult to see how the provision of a Chinese interpreter could have helped.

         

        The second question involves consideration of Section 33 of the Decree, Part V of the Magistrates’ Court Act and Order XXXVII r 4 of the Rules thereto.

         

        Section 33 (2) of the Decree requires appeals against the decisions of referees to be brought in the Magistrates’ Court while Section 33 (3) requires such an appeal to be brought within 14 days of the order against which it is desired to appeal. There is no provision within the Decree or the Small Claims Tribunal Rules for the period of 14 days to the extended but as previously pointed out the Small Claims Tribunal is a division of the Magistrates’ Courts and therefore it is reasonable to look to the Magistrates’ Courts Act and the Magistrates’ Courts Rules for guidance.

         

        In Sheet Metal and Plumbing (Fiji) Ltd v. Deo (HBA 7/99) Fatiaki J expressed the view that Order XXXVII r 4 gave power to a Magistrates’ Court to extend the 14 day period. I agree. Although the Order was made at a time when Resident Magistrates still heard appeals from Second or Third Class Magistrates under the provisions of Section 40 (1) of the Act it may suitably be applied to appeals from Small Claims Tribunals which are analogous to the “Court below” presided over by Second or Third Class Magistrates (who of course now no longer exist).

         

        The next question is whether the Small Claims Tribunal itself has the powers to extend the 14 day period. In my view it has. I reach this conclusion for two reasons. The first is the wording of Order XXXVII r 4 which empowers the “Court below” to extend time if it sees fit. The second is that applications for leave to appeal are usually first made to the lower Court (see e.g. Court of Appeal Rules – Cap 12 – Rule 26 (3)).

         

        The general principles governing the grant of leave to appeal out of time are well known. The principal factors taken into account in deciding whether to grant an extension are (1) the length of the delay (2) the reasons for the delay (3) the chances of an appeal succeeding if the time for appealing is extended and (4) the degree of prejudice to a would-be Respondent if the application is granted (see CM Van Stillevoldt BV v. El Carriers Inc. [1983] 1 WLR 297; [1983] 1 All ER 699). Although, given the informality of the proceedings in the Small Claims Tribunal I would not absolutely require any application for leave to be supported by an affidavit deposing to facts relied on by the applicant, the better practice must be to support such applications at least with a written statement of reasons.

         

        In the present case I am not satisfied that the Appellants have shown that the Resident Magistrate erred in exercising her discretion to refuse the applications for leave to appeal out of time. I am not satisfied that the first Appellant has pointed to any shortcoming in the procedures which led to the Small Claims Tribunal making an award against him. It is clear however that the second Appellant was not served with the Notice of Adjourned Hearing (which is still lying on the file) and accordingly SCT claim 0855/98 is remitted to the Small Claims Tribunal for rehearing.

         

        (Appeal partly allowed.)

Chiman Lal Jamnadas & Ors v. Commissioner of Inland Revenue

        [1999] 45 FLR 192

        HIGH COURT OF FIJI ISLANDS

         

        CHIMAN LAL JAMNADAS

        MICHELLE APARTMENTS LIMITED

        PRIMETIME PROPERTIES LIMITED

         

        v.

         

        COMMISSIONER OF INLAND REVENUE

         

        [HIGH COURT, 1999 (Byrne J) 24 August]

         

        Appellate Jurisdiction

         

        Income Tax- travelling and accommodation expenses- whether deductible- late filing penalty- whether appealable- Income Tax Act (Cap 201) Sections 19, 62 and 63.

         

        The taxpayer regularly visited Fiji on business trips. The Court of Review ruled that he was not entitled to deduct these expenses and that it had no jurisdiction to entertain an appeal against a penalty imposed for the late filing of his tax return. The High Court allowed the appeals and HELD: (i) so long as a disbursement or expense is solely for a business purpose any other benefit obtained is merely incidental and (ii) that penalties imposed under the Income Tax Act are assessments and accordingly appealable.

         

        Cases cited:

         

        Bentleys, Stokes and Lowless v. Beeson [1952] 2 All E.R. 82.

        Edwards (Inspector of Taxes) v. Warmsley Henshall & Co. [1968]

                    1 All ER 1089

        Mallalieu v. Drummond (Inspector of Taxes) [1983] 2 All E.R. 1095.

        Newsom v. Robertson [1952] 2 All E.R. 728.

        Ricketts v. Colquhoun (1925) 10 TC 118.

        Sweetman v. Commissioner of Inland Revenue Civ. App. No.

                    CBV0005/95S. (42 FLR)

        Watkis v. Ashford Sparkes and Harward (a firm) [1985] 2 All E.R. 916.

         

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

         

        J. Greenwood Q.C. and M. S. Arjun for the Appellants

        G.A. Keay for the Respondent

         

        Byrne J:

         

        This is an appeal from the decision of the Hon. M.J.C. Saunders sitting as the Court of Review dated 6th October 1997. The facts which are not in dispute are these:

         

        Mr. Jamnadas, the First Appellant, practised as a lawyer in Suva, Fiji. In 1982 he acquired control of Michelle Apartments Limited (Michelle). In 1987 he acquired control of Primetime Properties Limited (Primetime).

         

        In 1988 Mr. Jamnadas moved himself and his family to Adelaide, South Australia for the purpose of educating his children in Australia. He intends to return to the Fiji Islands upon completing the education of his children. He and his wife still retain their Fiji passports. When he left for Australia he let the family home in Suva. He had an interest in a family deceased’s estate, which produces Fiji income and he retained his interests in Michelle and Primetime. He began to travel regularly and for considerable periods from his Australian residence to Fiji to look after the estate and business interests. He had no business interests in Australia and ran down his practice as a solicitor in Suva until it ceased at the end of 1990.

         

        He derives no income in Australia other than small amounts of interest. His income is otherwise entirely sourced in this country.

         

        When he came to Fiji the pattern of his visits was always the same. He left Adelaide, flew to Nadi and caught a bus from Nadi to Suva where he stayed at the then-called Travelodge now Centra.

         

        While at the Travelodge he paid for accommodation, telephone calls, faxes, laundry, dry cleaning and meals.

         

        When he returned to Adelaide immediately after he finished his business in Suva he left Suva, stayed overnight in Nadi and then flew across the following day to Adelaide. The reasons why he stayed at the Travelodge were that it was very central and that he could use the hotel’s facilities such as the telephone and fax.

         

        After various discussions with the Respondent’s representatives, made necessary as the financial position of each Appellant changed, Mr. Jamnadas and his Accountant Mr. Mudaliar reached agreement with the Commissioner on most of the items claimed as deductions by the Appellants. When the matter came before me only two issues remained for determination, whether as a matter of law the taxpayer’s travel and accommodation expenses are deductible and what (if any) penalty should be imposed on Michelle Apartments for late lodgements of returns. To determine these issues calls for this Court to interpret the meaning of Section 19 of the Income Tax Act Cap. 201 which reads so far as relevant:

         

        “In determining total income, no deductions shall be allowed in respect of -

         

        (a)     personal and living expenses and, .......;

         

        (b)     any disbursement or expense not being money wholly and exclusively laid out or expended for the purpose of the trade, business, profession, employment or vocation of the taxpayer;”

         

        There is a considerable body of law on Section 19 and its equivalent in England including cases known in the profession as ‘travelling cases’. Mr. Saunders treated this as a travelling case and likened it at p.9 of his Decision, p.1313 of the record, to that of a commuter travelling regularly from his place of residence to his place of business. He said:

         

        “Except for the distance, there is no difference between Mr. Jamnadas, say, living at Pacific Harbour, some 60 kilometres from Suva, and travelling to Suva to attend to his businesses, and his travelling from Adelaide to Suva to attend to his businesses. His accountant, Mr. Mudaliar, wrote to the Respondent on 18th November 1993 (p.78 of the bundle) saying “The taxpayer has been commuting between Suva and Adelaide since September 1988”.

         

        I consider it a great pity that the noun “commuter” or its verb “to commute” were ever used in these proceedings because, having considered the material, it seems to me with respect that it may well have coloured the view which the Court of Review took of the admitted facts, particularly the admission by the Appellant that he does not need to live in Adelaide for the purposes of his business.

         

        In the Oxford Dictionary and Thesaurus edited by Sara Tulloch the first meaning of the verb commute is to travel to and from one’s daily work, usually in a city, especially by car or train.

         

        Thus one talks of people commuting from their homes say in Nausori to Suva daily by bus and from even Pacific Harbour to Suva by bus or by their own private transport. In countries such as Australia and England which have extensive public transport systems one speaks for example of commuter trains or commuter trams or buses.

         

        In this case I consider there is a clear distinction in the various cases between daily travel from the house where a taxpayer chooses to live and sleep on the one hand and business or professional trips on the other. A barrister on circuit is on a professional trip and his travelling expenses are always deductible. A barrister commuting daily from his home to his chambers is engaged in travel that is part of his living expenses and is not deductible.

         

        This principle is clearly stated in the cases the first of which I mention is Newsom v. Robertson [1952] 2 All E.R. 728. This was a case where a barrister chose to live out of London at Whipsnade. He was disallowed his daily travel expenses between Whipsnade and his London chambers as a living expense. It was an expense incurred to enable him to live and sleep some distance from his place of work.

         

        Romer L.J. put it this way at p.732, letter “F” of the report:

         

        “Moreover, it cannot be said even of the morning journey to work that it is undertaken in order to enable the traveller to exercise his profession. It is undertaken for the purpose of neutralising the effect of his departure from his place of business, for private purposes, on the previous evening. In other words, the object of the journeys, both morning and evening, is not to enable a man to do his work, but to live away from it.”

         

        On the other hand a business trip such as one undertaken by a barrister on circuit stands on an entirely different footing. It is not daily commuting. It is not an expense of daily living. It is a special excursion for a special purpose. The expense of maintaining the barrister’s home continues while he is away. In my judgment that cannot be said of Mr. Jamnadas. In my view what he did when coming to Fiji from time to time was to embark on a business trip. He did not travel home from Fiji each night. In no sense were his travelling expenses to Fiji part of his daily living expenses.

         

        To my mind there is a wealth of difference between a resident of Pacific Harbour travelling daily to Suva for the purpose of his business or employment and that of a retired businessman such as Mr. Jamnadas travelling some thousands of miles from Adelaide to Fiji for the purpose of his business interests. Thus in my judgment the learned Court of Review was wrong in equating the facts in Newsom v. Robertson to those of the instant case.

         

        Likewise in my judgment Mr. Saunders erred in relying on the case of Ricketts v. Colquhoun (1925) 10 TC 118, a decision of the House of Lords in which it was held that a barrister who held the Recordership of Portsmouth was not entitled to deduct from the emoluments of his office the cost of travelling between London and Portsmouth in order to attend Quarter Sessions (of which he was the Judge) his hotel expenses at Portsmouth or the cost of conveyance of his robes to the Court there.

         

        The first comment I make about Ricketts v. Colquhoun is that it concerns a completely different schedule of the English Tax Act. It deals with schedule E and not D, the equivalent of which in Fiji is Section 19 of the Income Tax Act.

         

        At p. 133, line 3 Viscount Cave, L.C. (using phrases derived from Rule 9 which applies to Schedule E) said:

         

        “In order that travelling expenses may be deductible under this rule from an assessment under Schedule E, they must be expenses which the holder of an office is necessarily obliged to occur, - that is to say, obliged by the very fact that he holds the office, and has to perform its duties, - and they must be incurred in, that is in the performance of, those duties.”

         

        The Recorder was not claiming his expenses under Schedule D. As to this, in the Court of Appeal Lord Pollock M.R. pointed out at p.127:

         

        “The intention of the Legislature was, I am sure, to make the deductions narrow, and, in as much as this emolument of an office falls to be taxed under Schedule E, unless Rule 9 applies, it is of no moment to say that had it been taxable under Schedule D something else might have been deducted.”

         

        In my opinion it is reasonable to infer from that remark that Lord Pollock would have accepted the Recorder’s claims if he had brought them under the correct Schedule.

         

        In my judgment the fact of the Appellant living in Adelaide is irrelevant. If it were relevant the result would be that no retired taxpayer could ever deduct business travelling expenses when monitoring his investments nor could any taxpayer still in the workforce who chose to live somewhere that was not one of his business locations. There are many people in such situations. In my judgment the true test is whether or not the trip is a business trip or, on the other hand, is part of the taxpayer’s daily living expenses.

         

        Hotel Accommodation

         

        Accommodation when on a business trip is treated as a business expense for tax purposes. The approach taken both by the Courts and the Commissioner for Inland Revenue in the United Kingdom seems to be that accommodation at a taxpayer’s home is available to him as part of his domestic expenses. If he is obliged to be away from home for a business purpose and incur the additional costs of hotel accommodation, then these additional costs are incurred solely for a business purpose. They are expenses additional to and quite distinct from his ongoing domestic expenses in maintaining a home. The principles are referred to by Nourse J. (as he then was) in Watkis v. Ashford Sparkes and Harward [1985] 2 All E.R. 916. This was a case in which a large firm of solicitors who had four offices in the West of England held local office meetings at which a modest lunch

         

        was provided weekly or fortnightly during the lunch hour and occasional evening meetings in which all the partners met to discuss matters affecting the whole firm. The evening meetings were followed by dinner during which discussion of the firm’s business continued. The firm also held an annual weekend conference attended by the partners accompanied by their wives and children, which involved staying overnight at the hotel where the conference was held. The firm appealed against the Revenue’s refusal of a claim to deduct the expenditure incurred in providing the meals at lunch time and evening meetings, and the cost of overnight accommodation for the partners at the annual conference. They also appealed against the Revenue’s refusal to allow the firm’s share of the expenditure incurred in providing a room and food and drink for the partners from three other firms and themselves which was held in a private room at the hotel and at which dinner was provided.

         

        At p.933 (f) Nourse J. said:

         

        “The cost of the food, drink and accommodation at the annual conference stands on a different footing. I do not think that the cost of the accommodation can necessarily be said to have been expenditure which met the needs of the partners as human beings. They did not need it for that purpose because they all had their own homes where they could have spent the night. The reason why they needed it was so that they could continue their discussion of the particularly important topics informally between the formal sessions on the Saturday afternoon and the Sunday morning. If they had had to break up and go home after dinner on the Saturday evening and come back on the Sunday morning, that continuity, which was of considerable importance and value, would have been broken or at least seriously damaged. In the circumstances, it seems to me that the commissioner was entitled, on the facts found, to conclude that the business purpose in incurring the cost of the accommodation was the exclusive purpose and that the private benefit to the partners was purely incidental.”

         

        He then continued at letter (h):

         

        “The same considerations do not necessarily apply to the cost of the food and drink. The well-established general practice of the Inland Revenue in the case of what are known as `travelling occupations’ is not to distinguish between the cost of travel and accommodation on the one hand and food and drink on the other. In other words, hotel bills, if reasonable in amount, are usually allowed in full. I have no reason to think that the practice does not correctly represent the law. However, counsel for the Crown has

         

        suggested, although I think rather faintly, that since the profession of a solicitor is not usually regarded as a travelling occupation, the position is different in the present case. It seems to me that that suggestion cannot stand with the decision of Cross J in Edwards (Inspector of Taxes) v. Warmsley Henshall & Co. [1968] 1 All ER 1089. In my view no distinction is to be made between the cost of the overnight accommodation on the one hand and the food and drink on the other.”

         

        In my judgment the remarks of Nourse J. can be applied to the facts of the present case.

         

        Likewise I consider the same principles apply to his laundry claims. These were an additional expense necessitated by his being on a business trip. At home his wife would have attended to laundry requirements. All laundry bills claimed like the meals were part of his hotel bill.

         

        The next case relevant is Bentleys, Stokes and Lowless v. Beeson [1952] 2 All E.R. 82. The headnote reads as follows:

         

        “The partners in a firm of solicitors were accustomed to entertain existing clients of the firm to luncheon at a social club and various restaurants. During luncheon, business was discussed. The legal advice given to clients at luncheon was charged to them in the normal way, but the fees charged did not include the expenses of the meals, which were paid by the firm. This practice was adopted by the partners both for their own convenience, so that they could devote the remainder of the day to other work in their offices, and for the convenience of clients. The partners claimed to deduct the cost of these entertainments (which included the cost of their own meals) in computing the profits of the firm for assessment to income tax. The Income Tax Act, 1918 scheduled D, Cases I and II, r.3(a), forbids the deduction of “any disbursements or expenses, not being money wholly and exclusively laid out or expended for the purposes of the trade, profession, employment, or vocation.”

         

        HELD: in spite of an element of hospitality which was necessarily inherent in what was done, in the circumstances the sole object in incurring the expenses was the promotion of the business of the firm, and, therefore, they were “money wholly and exclusively laid out or expended for the purposes of the profession” within r.3(a) and were properly to be deducted in computing the amount of the firm’s profits to be charged to tax.

         

        Per curiam: “If the activity be undertaken with the object both of promoting business and also with some other purpose, for example, with the object of indulging an independent wish of entertaining a friend or stranger or of supporting a charitable or benevolent object, then the rule is not satisfied though in the mind of the actor the business motive may predominate.”

         

        This case appears to have been rejected by the House of Lords in the later case of Mallalieu v. Drummond (Inspector of Taxes) [1983] 2 All E.R. 1095 in which the House of Lords over-ruling both the Judge at first instance Mr. Justice Slade and the Court of Appeal held that a practising lady barrister could not claim as a tax deduction the cost of replacing, cleaning and laundering of certain items of clothing which she wore in court for the purpose of complying with the notes for guidance on dress in court approved by the Bar Council and which had received the assent of the Lord Chief Justice.

         

        Miss Mallalieu did not only wear her subdued clothing in Court but she also wore it occasionally on social outings.

         

        Her argument was that the Court and the Tax Commissioner should look primarily at her intention which she said was to buy clothing that was appropriate for her appearances in Court from which she derived her income.

         

        The Commissioners of Taxation, the first appellate authority, disagreed with her. They took the view that she had a domestic or social purpose as well. Mr. Justice Slade and the Court of Appeal reversed that finding. Sir John Donaldson M.R. said in the Court of Appeal [1983] 1 All E.R. 801 at 806:

         

        “From those findings of fact there is in my judgment only one reasonable conclusion to be drawn, namely that the taxpayer’s sole purpose in incurring the expenditure was a professional purpose, any other benefit being purely incidental.”

         

        In the House of Lords, Lord Elwyn-Jones dissenting agreed with Sir John Donaldson. The majority of four law Lords however upheld the Commissioners, the leading speech being given by Lord Brightman. The House held that because Miss Mallalieu had a dual purpose namely a domestic or private purpose as well as her business or professional purpose she must fail.

         

        With all due humility and with the respect which any Puisne Judge must pay to a decision of the House of Lords I am obliged to say that I prefer the opinion of Sir John Donaldson. In this however I derive much solace from the decision of the Supreme Court of Fiji in Sweetman v. Commissioner of Inland Revenue Civil Appeal No. CBV 0005 of 1995S, judgment of 23rd October 1996 (42 FLR).

         

        Whatever the precise nature of the ratio in Mallalieu’s case it is clear in my judgment that the Supreme Court has emphatically endorsed and perhaps extended the approach exemplified by Bentleys Stokes and Lowless v. Beeson. At p.19 the Supreme Court (Lord Cooke, Sir Anthony Mason and Sir Maurice Casey) said:

         

        “It may be said that an expenditure which serves the purpose of the taxpayer’s business or profession also serves the taxpayer’s personal purposes on the basis that what is good for his business or profession will be good for him personally. However, it is scarcely to be supposed that the legislature intends to disqualify an expenditure for that reason. In other words, the non-business or non-professional purpose to be excluded by s.19(b) is a purpose distinct from the business or professional purpose which justifies the deduction of the expenditure. And this supports the view that motive, though it may be a relevant factor, is by no means a decisive factor. If the purpose of the expenditure is truly for the purpose of the taxpayer’s business or profession, it matters not that the taxpayer has in mind some personal advantage which is a consequence of that purpose.

         

        Here the immediate purpose of the expenditure was to discharge the personal liability of the partners arising under s.13 of the Partnership Act. Lying beyond that immediate purpose was unquestionably another purpose, namely the purpose of restoring and maintaining client confidence in the firm, thereby maintaining or enhancing its profit-earning capacity. In these circumstances, is it possible to conclude that the moneys were laid out or expended exclusively for the purpose of the taxpayer’s profession? In our view, the answer is in the affirmative. Although the immediate purpose of the payment was to discharge what was personal liability, it was a partnership liability and was incurred in the capacity of a partner. The fact that the liability was personal does not give the disbursement a character or purpose which is independent of the conduct of the professional practice of the taxpayer and his partners. The personal purpose served by the disbursement purpose was an integral element in the professional purpose which the disbursement served.”

         

        In my judgment the decision of the Supreme Court must make it now more difficult in Fiji for the Commissioner to reject deductions (such as expenditure on meals which has a business purpose) merely because that expenditure also served a personal purpose of the taxpayer. I am satisfied on the facts that in Jamnadas case all the meal expenditure which he claimed is in motel bills incurred for business accommodation and which in my judgment fall in the special category referred to by Mr. Justice Nourse and should be allowed.

         

        Penalties

         

        The only penalty still in dispute is one of the $26,313.00 imposed on Michelle Apartments Limited. Since the hearing before Mr. Saunders the Commissioner has issued a re-assessment which reduced the penalty to $11,621.00. Mr. Jamnadas contends that this is still too heavy.

         

        The reason why this penalty was imposed in the first place was because of the late filing by Michelle of returns. This is because the records which Mr. Jamnadas needed, the books of Michelle Apartments could not be found. The records of a High Court action related to Michelle Apartments also could not be found until much later.

         

        Mr. Saunders was obviously sympathetic to Mr. Jamnadas and his company but he held that he did not have jurisdiction to entertain an appeal against penalty tax. In my view he erred in so holding. Penalties are imposed by way of assessment and Section 62 of the Income Tax Act gives the right of objection to taxpayers dissatisfied with “an assessment”. Section 63 confers jurisdiction on the Court of Review to hear “appeals from the assessment of the Commissioner”.

         

        In my judgment the Act makes it clear that all penalties are imposed by way of an assessment. For example in Section 94 which deals with penalties for not making a return the section says in part:

         

        “all such penalties shall be assessed and collected from the person liable ... in the same manner in which tax is assessed and collected ...”

         

        The Appellant submits, and I agree, that when Sections 62 and 63 confer rights of objection and appeal against the Commissioner’s assessments, they must include a right to object and appeal against his assessment of penalties.

         

        In my judgment if the taxpayer is to be deprived of a right of appeal against an assessment of a penalty the words in Sections 62 and 63 would have to be read down or even rewritten. For example, in Section 63 the words conferring jurisdiction on the Court of Review would have to be read down as if they confer jurisdiction to hear

         

        “appeals from the assessment of the Commissioner but only assessment of primary tax and excluding an assessment of penalties”.

         

        To do so in my view would be quite contrary to principle in that the taxpayer is entitled to receive the benefit conferred by the legislation. I consider the intention is quite plain. Section 63 provides that the Court of Review is established:

         

        “for the purpose of hearing and determining appeals from the assessment of the Commissioner ...”

         

        All penalties are to be imposed by assessments and all taxpayers have the right of objection and appeal against assessments.

         

        In my judgment therefore the Court of Review was wrong in refusing to accept that it had jurisdiction to deal with penalties.

         

        I said earlier that Mr. Saunders was obviously sympathetic to Mr. Jamnadas or Michelle Apartments on the question of penalties. At p.1317 of the record he said this:

         

        “For several years, until 1995, the Respondent has encouraged, and suggested to Mr. Jamnadas’s methods of claiming both travel and accommodation expenditure which, in the clearest terms and the best authority, is not allowed under the Act. It is clear to this Court, having seen and listened to all the witnesses, that having reduced his income to such an extent that it was not worth claiming travel and accommodation expenses any longer against it, he, Mr. Mudaliar and the Respondent got together to arrange a redistribution of these unlawful expenditure claims against the growing incomes of Primetime and Michelle.

         

        The Respondent should have disallowed them from 1988 onwards. Mr. Jamnadas, of course, thought that he could continue to claim them but in a different way, and the Respondent should have stopped him.

         

        For these reasons, I would think that the Respondent would be bound to exercise his discretion in respect of penalties to a greater extent than he has indicated.”

         

        Counsel for the Respondent had informed Mr. Saunders that the Respondent was prepared to forego 80% of the penalty in each case. Obviously Mr. Saunders thought this was not enough and I agree. The penalty originally imposed was $26,313.00 in respect of Michelle Apartments which had been reduced when the appeal came before me to $11,621.00.

         

        However it cannot be forgotten that the failure by the Appellant to lodge the returns for Michelle Apartments was not the fault of the Revenue. Probably Mr. Jamnadas did what he could in the circumstances to overcome the problem but in my judgment it would be unfair to allow him to escape scot free from the imposition of any penalty. In all the circumstances I consider it be fair to impose a penalty of 10% or $1,160.00.

         

        For the reasons I have given I uphold the appeals and order that the Respondent must pay the Appellants’ costs both in the Court of Review and in this Court.

         

        I shall adjourn the further hearing of this case to a date to be fixed to hear argument as to the amount of these costs.

         

        (Appeal allowed.)
 

CKP Fishing Co. Ltd. v. The Owner of the Woo Yang #205 & Anr

        [1999] 45 FLR 154

        HIGH COURT OF FIJI ISLANDS

         

        CKP FISHING COMPANY LIMITED

         

        v.

         

        THE OWNER OF THE WOO YANG #205

        MARINE PACIFIC LIMITED (Intervener)

         

        [HIGH COURT, 1999 (Pathik J) 6 August]

         

        Admiralty Jurisdiction

         

        Practice: Civil- registration of foreign Judgment- compliance with the rules mandatory- Reciprocal Enforcement of Judgments Act (Cap 39) Section 6 - Reciprocal Enforcement of Judgments Rules (Cap 39 - Subs).

         

        The intervener sought registration of a Judgment of the High Court of England which arose out of a salvage award. It was argued that since the vessel was already the subject of litigation in Fiji the precise provisions of the Reciprocal Enforcement of Judgments Rules did not need to be observed. The High Court rejected this submission and the application and HELD: that compliance with the rules is mandatory.

         

        No Case was cited.

         

        Application for registration of a foreign Judgment.

         

        V. Kapadia for the Plaintiff

        Ms. M. Chan for the Intervener

         

        Pathik J:

         

        By Notice of Motion dated 15 March 1999 Marine Pacific Limited (the “intervener”) has sought orders as follows upon the grounds contained in the affidavit of Victor Fatiaki sworn 19 February 1999 and filed herein:

         

        “i)      Judgment for the sum of US$156,067.40 (or the Fiji equivalent) and costs and interest in the sum of £15,273.97 (or the Fiji equivalent) and interest at the continuing daily rate of US$33.62 (or the Fiji equivalent) from 17 February, 1999 being a decision of the High Court of England at London dated 16 February, 1999 and an order that the judgment be registered in Fiji under the Reciprocal Enforcement of Judgments Act (Cap 39);

         

        ii)       A Declaration that the Intervener’s claim takes priority over all other claims;

         

        iii)      The vessel “Woo Yang #205” be appraised and sold by the Intervener and that the costs of the appraisal and sale of the vessel, Judgment in favour of the Intervener, costs and interest be paid out firstly out of the proceeds of sale;

         

        iv)      such further and other relief as this Honourable Court deems fit.”

         

        Background facts

         

        The details regarding the facts of this case are set out in Fatiaki’s said affidavit and other subsequent affidavits filed herein. In so far as it is material to this application I state hereunder the relevant facts on which the determination of the issue before the Court depends.

         

        The intervener was engaged by the defendant to do salvage work on the vessel “Woo Yang # 205” (the “vessel”) which it did. As Fatiaki has stated, on 18 January 1999 the intervener obtained a salvage award over the vessel which was enforced in the High Court of England as an Order of the High Court of England on 8 February 1999 and was sealed on 15 February 1999.

         

        By an Order of this Court (ex parte) made of 5 March 1999 the intervener was granted leave to intervene in these proceedings. And as ordered the Motion and Affidavit were served on the defendant by ‘delivering to and posting the same at the entrance to the vessel identified as “Woo Yang # 205” at Walu Bay Wharf, Suva’.

         

        A further affidavit sworn 18 March 1999 by Victor Fatiaki was filed wherein he stated, inter alia, that (a) intervener’s ‘claim has priority over all prior liens, including the Plaintiff’s because it has preserved the property to which earlier liens have attached’, (b) the President of the Company (defendant) has authorized the intervener to sell the vessel. He is therefore seeking the orders prayed for in the said motion of 15 March 1999. He is also asking the Court to order service of documents out of jurisdiction by registered mail at the following address: Woo Yang Fisheries Co. Limited, 5F Honsan Building, 899-3 Bang - Bac - Dong, Seocho - Ku, Seoul, Korea.

         

        In reply to the intervener’s affidavits the Plaintiff, in the affidavit sworn by Kim Sungsoo, the Managing Director of the Plaintiff, states inter alia, that he did sign the salvage agreement as agent of the defendant without ‘any express written authority from the owners of the ship’. At that time he understood that the insurance company which had insured the vessel would pay for the salvage costs. After the salvage the ship was left with the plaintiff in its possession to look after. He says that the intervener neither advised him of the said salvage sum of US$156,067.40 and £15,273.97 as at 16 February 1999 nor was he informed of the arbitration proceedings which were carried out in London. The plaintiff further disputes that the intervener has priority over all other liens or claims including the claim by the plaintiff. The plaintiff says that it has priority over the claim by the intervener.

         

        On 16 April 1999 an order was made by this Court for the vessel to be appraised and sold by the Admiralty Marshal.

         

        Issue for Court’s determination

         

        It was agreed that before I hear argument as to priority of claims, I ought to determine the intervener’s application as in (i) of the said Motion of 15 March 1999 (supra), namely that the judgment obtained against the defendant in the High Court of England be registered in Fiji under the Reciprocal Enforcement of Judgments Act (Cap.39) (the ‘Act’).

         

        The issue therefore is whether on the facts and in law I ought to grant this application or not. To decide this I have heard extensive argument from both counsel.

         

        Intervener’s submission

         

        The vessel “Woo Yang #205” lay stranded on Nasilai Reef outside Suva. The Intervener agreed on 4 August 1998 to salve the vessel on a “No Cure - No Pay” basis.

         

        As stated above, the Intervener has a salvage award from the Council of Lloyd’s Arbitration Forum on 4 August 1998. That award is registered and taken up as a Judgment of the High Court of England under RSC Order 73 r 31 (2). It was sealed on 16 February 1999 and has been attached to the Supplementary Affidavit of Victor Fatiaki sworn on 23 April 1999. That judgment still stands for it has not been set aside.

         

        The Intervener seeks an order for the registration of the judgment in Fiji under the Act. It submits that “it has complied with the spirit of the rules of Cap 39”. Miss Chan for the Intervener submits that although the Rules require that an application be made by ex parte summons, `that process would apply to new applications where no existing litigation is on foot’. Here, she says, `there is already existing litigation, namely this action, to which this application is made’. She submits that the judgment speaks for itself, therefore the order for registration of the judgment in Fiji should be made accordingly in terms of the judgment of the High Court of Judicature.

         

        Plaintiff’s submission

         

        Mr Kapadia for the plaintiff objects to the application. He submits that the Reciprocal Enforcement of Judgments Rules (the “Rules”) which are made pursuant to Section 6 of the Act set out specific procedure for registration of a foreign judgment in Fiji and he sets out in his written submission what the basic requirements are for registration.

         

        Mr Kapadia has vigorously argued that the Intervener has not followed any of the requirements of the Act or the Rules made thereunder. Therefore he submits that the said judgment “at this stage does not give the Intervener any rights to claim any form of priority in the proceeds of the sale” of the vessel.

         

        Determination of the issue

         

        I have given due consideration to the arguments put forward by both counsel. In short, Miss Chan on the one hand submits that in relation to the provisions of the Act and the Rules made thereunder, the Intervener has “complied with the spirit of the rules of Cap 39 and hence the judgment ought to be registered”. On the other hand Mr Kapadia argues that the Intervener has not followed any of the requirements of the Act or the Rules made thereunder.

         

        In considering the issue before the Court, one should not overlook the fact that at the time the Intervener came into the picture in this action in rem against the defendant by being joined as a party, the vessel was already under arrest and it still is although an order has already been made for its appraisal and sale.

         

        Judgment in rem and its effect

         

        There is no argument about it that there is in existence this foreign judgment and that it is capable of being registered in Fiji under the Reciprocal Enforcement of Judgments Act Cap 39 provided there is a compliance with its provisions. Not only is it a judgment but it is a judgment in rem.

         

        On the definition of ‘judgment in rem’ and its effect I would like to refer to Halsbury 4th Ed. Vo 8 para 739 under the caption ‘Foreign Judgments’ where it is stated:

         

        739. In general. A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation. It is thus a judgment vesting in a person the possession of or property in a thing, or decreeing the sale of a thing in satisfaction of a claim against the thing itself, or a judgment as to the status of a person.

         

        A judgment in rem pronounced by a court of competent jurisdiction is conclusive and binding in England, not only between parties and privies, as in the case of a judgment in personam, but against all the world.

         

        And further in para 740 (ibid) Halsbury states as follows in regard to ‘judgments in rem relating to movables’ which I consider is pertinent to the issue before the Court:

         

        740. Judgments in rem relating to movables. A foreign judgment in rem relating to movables will be recognised and enforced in England if the movables were situated in the foreign country at the time of the proceedings. The judgment need not be an actual adjudication as to the status of the thing itself. A decision as to right or title will of course be conclusive, but so also will any disposition by the court by way of sale, transfer or otherwise, as for example, where an Admiralty court orders the sale of a ship to satisfy a maritime lien, or a prize court orders the sale of goods because they have been adjudged lawful prize. In such a case the foreign court can give a bona fide purchaser a title which cannot be impeached in England, even though by English law, but for the foreign judgment, some other person would have been regarded as owner of the thing sold or as having preferential rights over it.

         

        It seems that a foreign judgment in rem relating to movables can be enforced in England by an action in rem.

         

        Provisions of Reciprocal Enforcement of Judgments Act & Rules.

         

        For the purposes of registering the judgment under the Act and the Rules made thereunder, the provisions thereof ought to be complied with in toto. To follow it ‘in spirit’ as urged by counsel for the Intervener is not good enough and it certainly is not a compliance with the provisions of the Act under any circumstances. The fact that the vessel is under arrest and that there is already this action, does not mean that the provisions of the Act ought not to be followed or that the procedure under the Rules can be ignored.

         

        The Reciprocal Enforcement of Judgments Act is as its preamble states “an Act to facilitate the reciprocal enforcement of judgments and awards in the United Kingdom and Fiji”.

         

        Under s3(2) of the Act it is mandatory that there be service on the ‘judgment debtor’ with the process of the original Court. The ‘judgment debtor’ is defined as ‘the person against whom the judgment was given and includes any person against whom the judgment is enforceable in the place where it was given’. In the case before me it is the defendant which is the ‘judgment debtor’. In regard to ‘service’ of the ‘process of the original court’ the said s3(2) in so far as it is material provides:

         

        “(2) No judgment shall be ordered to be registered under this section if -

         

        (a)        .....

         

        (b)        .....

         

        (c)        the judgment debtor being the defendant in the proceedings was not duly served with the process of the original court and did not appear notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that Court or agreed to submit to the jurisdiction of that court; or

        (d)        .....

         

        (e)        .....

         

        (f)         .....”

         

        There is no dispute that ‘service’ has not been effected on the defendant as required or at all under the said s3(2) of the Act.

         

        I accept the arguments of Mr Kapadia that the correct procedure for the registration of the foreign judgment as required by the Act and the Rules have not been observed and reject Ms Chan’s submissions that the judgment should be registered because there is already this action and that there is a compliance with provisions of the Act ‘in spirit’. The details of the procedure are set out in Mr Kapadia’s written submission and they are as follows:

         

        (a)     an application must be made ex-parte and by Originating Summons in the High Court of Fiji; (Rule 2)

         

        (b)     the application must be supported by an Affidavit of the facts exhibiting the Judgment which must be duly certified; (Rule 3)

         

        (c)     the deponent to the Affidavit must depose that the Judgment does not fall within any of the cases set out in sub-section 2 of Section 3 of the Act; (Rule 3)

         

        (d)     the full place of abode of business of the judgment creditor and the judgment debtor must be set out in the Affidavit; (Rule 3)

         

        (e)     the Summons and the Affidavit must be intituled as set out in Rule 4; (Rule 4)

         

        (f)      the Summons must be served in a proper manner as a Writ of Summons is required to be served i.e. on the judgment debtor personally and not by service on the ship as has happened in this instance; (Rule 5)

         

        (g)     the Order Nisi for leave to register the Judgment is then made under Rule 6 of the Rules; (Rule 6)

         

        (h)     the Order giving leave to register the Judgment shall state the time within which the judgment debtor is entitled to apply to set aside the registration; (Rule 7)

         

        (i)      notice in writing of the registration of Judgment must be served on the judgment debtor within a reasonable time. After registration this notice must be served on the judgment debtor by personal service or by leave of the Court by substituted service or service out of jurisdiction; (Rule 10)

         

        (j)      the judgment debtor then is provided with time within which it could apply by Summons to the High Court of Fiji to set aside the registration or to suspend the execution on the judgment pursuant to Rule 13;

         

        (k)     pursuant to Rule 15 no execution shall issue on a judgment registered under the Act until after the expiration of the time limited by the Order giving leave to register after service on the judgment debtor of the notice of registration thereof;

         

        (l)      prior to issuing execution on a judgment registered under the Act the party must produce to the High Court of Fiji an Affidavit of Service of the notice of the registration of the judgment pursuant to Rule 16.

         

        Conclusion

         

        In the outcome, in the light of the above provisions in the Act and the Rules it is absolutely necessary that to enable the Intervener to successfully register this foreign judgment in Fiji it ought to comply with those provisions. This the Intervener has failed to do.

         

        For these reasons the Intervener’s application for the registration of the foreign judgment under the Reciprocal Enforcement of Judgments Act Cap 39 is refused. The Motion is therefore dismissed with costs which I fix at $250.00.

         

        (Application dismissed.)

Davendra Singh v. The State

        [1999] 45 FLR 96

        COURT OF APPEAL OF FIJI ISLANDS

         

        DAVENDRA SINGH

         

        v.

         

        THE STATE

         

        [COURT OF APPEAL, 1999 (Tikaram P, Casey, Thompson JJA)

        14 May]

         

        Criminal Jurisdiction

         

        Crime: evidence and proof- pathologist’s report- whether admissible as a business record- Evidence Act (Cap 41) Sections 2 (1) & 4.

         

        Crime: procedure- summing up- whether confined by arguments propounded by the parties- Criminal Procedure Code (Cap 21) Section 299 (1).

         

        The Court of Appeal upheld the High Court’s ruling (see 43 FLR 257) that a pathologist’s report prepared at the CWM Hospital was admissible as a business record. It dismissed the appeal and confirmed that where it is complained that a summing contained comment on a feature of the evidence not previously alluded to by counsel the onus lies on the appellant to show that as a consequence there was a miscarriage of justice.

         

        Cases cited:

         

        Commissioner of Taxation v. Silverton Tramway Co. Ltd. (1953) 88 CLR

        Evans (1990) 91 Cr. App. R.173

        R. v. Crayden [1978] 2 All E.R.700

        R. v. Cristini [1987] Crim. L.R.504

        R. v. King (1985) 17 A. Crim. R.184

        R. v. Lunn [1985] Crim. L.R. 797

        R. v. TJW [1989] 1 Qd. R. 108

        R. v. Torney (1983) A. Crim. R.437

         

        Appeal against conviction in the High Court.

         

        A.Gates for the Appellant

        J. Naigulevu for the Respondent

         

        Judgment of the Court:

         

        The appellant was convicted of murder and the mandatory sentence of imprisonment for life imposed. He now appeals against the conviction

         

        The appeal proceeded on two grounds. They were:

         

        “1.     That the learned judge erred in admitting into evidence the post mortem report of Dr. Alera when its admission was to be governed by section 191 of the Criminal Procedure Code and not the Evidence Act.

         

        2.       That the learned judge erred in putting to the assessors in the closing stages of the summing up an alternative basis of liability or explanation of facts not relied on by the prosecution.”

         

        The date on which the offence was alleged to have been committed was 25 December 1994. Dr Alera, a pathologist, was then employed by the government of Fiji as a medical officer at the Colonial War Memorial Hospital in Suva. In that capacity he conducted a post mortem examination of the body of the alleged victim (“Prasad”) at the hospital; he then prepared and signed a report of the examination. The report was in the form prescribed previously, but not currently, by the Inquests Rules. By the time the trial commenced on 16 September 1997 Dr. Alera was no longer employed by the government of Fiji, had left Fiji and had declined a request that he return to give evidence at the trial.

         

        It is pertinent to observe at this point that that situation might well not have arisen if there had not been such an appallingly long delay before the case came on for trial. Although in this instance it is not a ground of appeal that the delay prevented the appellant receiving a fair trial, the period was such that that could have occurred. It is most unsatisfactory that there should be such delays in bringing accused persons to trial when they are within the jurisdiction and thus available for trial.

         

        Section 191 of the Criminal Procedure Code authorises the admission a report by a medical officer as evidence at a trial if notice of intention to adduce it is given and if the accused person consents to its admission. In this instance consent was refused. After hearing argument by counsel whether the report was admissible under section 4 of the Evidence Act (Cap.41), Pain J. admitted it into evidence on that basis to the extent that it contained statements of fact but not in respect of the opinions expressed by Dr. Alera as to the significance of those facts. Its admission is the subject of the first ground of appeal.

         

        Section 4 of the Evidence Act, so far as is relevant in this appeal, provides:

         

        “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 ... a record relating to any trade or business and compiled, in the course of that trade or business, from information supplied ... by persons who have ...personal knowledge of the matters dealt with in the information they supply; and the person who supplied the information recorded in the statement in question is ...beyond the seas...”

         

        Section 2(1) of the Evidence Act gives the word “business” an extended meaning for the purposes of the Act in the following terms:

         

        “ ‘business’ includes any public utility or undertaking carried on by any city or 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.”

         

        Section 4 and the definition of “business” are clearly based on similar provisions of the Criminal Evidence Act 1965 (U.K.). The English Court of Appeal held in R. v. Crayden [1978] 2 All E.R.700 that, for the purposes of that Act, a medical record kept by a national health service hospital was not a “record relating to trade or business” because it had no commercial connotation. However, courts of Australian States have held that a public hospital is a “public utility” and therefore “a business” for the purpose of their legislation which gives “business” a similar extended meaning (see Bates v. Nelson (1963) and R. v. TJW [1989] 1 Qd. R. 108). Mr. Gates did not contend that Pain J. could not properly have to come to the conclusion that the Colonial War Memorial Hospital was a business for the purposes of the Evidence Act. We are satisfied that he was entitled to do so. It was a “public hospital”, as defined in section 2 of the Public Hospitals and Dispensaries Act (Cap.110); it was maintained out of public funds. By virtue of r.4 of the Public Hospitals and Dispensaries Regulations the Permanent Secretary for Health was required and empowered to exercise general control over its organisation and management. In Commissioner of Taxation v. Silverton Tramway Co. Ltd. (1953) 88 CLR 559 at 565 Dixon C.J. observed that the word “authority” had “long been used to describe a body or person exercising power or command”. The Permanent Secretary has the power of control by virtue of the Act; so the hospital can properly be held to be a business for the purpose of the Evidence Act.

         

        Dr. Alera’s report was clearly compiled in the course of the hospital’s business. Section 4 of the Inquests Act (Cap.46) makes clear that it is part of the functions of a public hospital to provide the facilities for a medical officer to perform post mortem examinations of persons dying suddenly and unexpectedly. Mr. Gates did not suggest that it did not relate to the business of the hospital. Both because Prasad was a patient in the hospital from shortly after suffering his injuries until his death, and because in performing the post mortem examination Dr. Alera was undertaking his duties as a member of the staff of the hospital, there can be no doubt, in our view, that the report related to the business of the hospital. The report, therefore, came within the terms of section 4.

         

        However, Mr. Gates submitted that, even if it did so it was nevertheless not admissible in evidence at the trial because section 4 is overridden by section 191 of the Criminal Procedure Code. He suggested that the Criminal Procedure Code provides a full and self-contained set of rules for the trial of criminal cases. With respect, the first four words of section 4, i.e. “in any criminal proceedings” make it evident that that is not so. The provisions of section 4 expressly apply to - and only to - criminal proceedings. Mr. Gates also submitted that section 191overriddes section 4 because its provisions cover the same matters as section 4 but are more specific. In our view, that is not so; the provisions are not in pari materia. Documents which meet the description in one section do not necessarily meet the description in the other, and vice versa. Further, the criteria of admissibility provided for are substantially different. We are satisfied, therefore, that Pain J. did not err in admitting Dr. Alera’s report on a factual basis as evidence at the trial. The appeal cannot succeed on the first ground.

         

        The second ground concerns a part of Pain J.’s summing-up to the assessors in which he referred to certain evidence which had been given during the trial and suggested an explanation of how that evidence might be consistent with the appellant’s guilt. There was evidence that Prasad had been alive and well at a certain time, that later he was found lying injured on the floor in the lounge of his flat, that throughout the whole of the period between those two times the appellant had been in the flat and that, as far as was known, the only other person in the flat during that period was Prasad. The appellant gave evidence that he had gone to sleep in the bedroom of the flat, leaving Prasad in the lounge, and that, when he had woken, he had found Prasad lying on the floor but had not realised that he was injured. Prasad’s grandson gave evidence that he saw a man bending over and pushing or striking downwards with his hand at the place where Prasad was later found lying and that, when he subsequently went into the flat, the man was there. He demonstrated to the Court what he saw. There was other evidence from which it could properly be concluded that the appellant was the man he saw. When prosecuting counsel addressed the court, he submitted that what the grandson had seen was the appellant striking Prasad and causing the serious injuries which he was subsequently found to have suffered. In response Mr. Gates submitted that someone bending down and punching in the manner demonstrated could not have caused the bone fractures which Dr. Alera found that Prasad had suffered.

         

        Pain J. in his summing-up suggested that the assessors might agree with that submission of Mr. Gates and that, if the appellant had caused those injuries, he must have used greater force than any of the witnesses observed. He then continued:

         

        “....one possible explanation is that [Prasad] was lying on the floor injured and moaning with pain. Further, the injuries subsequently found were within a smallish area of the body, but in separate locations. The forehead, the area around the eyes, nose and cheek bone, the lips, the shoulder and the ribs. This may suggest more than one blow. However, nobody has given an opinion and possibly nobody can say at what time throughout this period the various injuries were inflicted. Could one or more of them have been inflicted at the beginning and immediately disabled [Prasad] or were they inflicted over a period of time?”

         

        Neither counsel had suggested that explanation in their closing addresses. Mr. Gates has referred to a number of judgments of appellate courts where convictions have been set aside because the trial judge, without notice to defence counsel, introduced in his summing-up an issue not raised by counsel or suggested a different basis on which the accused person might be found guilty, e.g. as an accessory rather than as a principal offender (e.g. R. v. Lunn [1985] Crim. L.R. 797 and R. v. Cristini [1987] Crim. L.R.504; R. v. King (1985) 17 A. Crim. R.184.) His having done so was held to have constituted a procedural irregularity serious enough to produce a miscarriage of justice. However, in Evans (1990) 91 Cr. App. R.173 the English Court of Appeal observed that, in directing the jury, the trial judge is “not confined to the arguments which are propounded by the prosecution on the one hand or the defence on the other” and that “providing the matters with which he deals are matters which have been given in evidence, it is open to him to comment on them”. Likewise in R. v. Torney (1983) A. Crim. R.437 the Court of Criminal Appeal of New South Wales held that the onus was on the appellant to show that there had been a miscarriage of justice and that there was no reason why a trial judge should not draw attention to the processes of logical thinking which the jury might well themselves have engaged in. We are satisfied that in the present instance the learned trial judge did no more than refer to a view to which logical consideration of the evidence by the assessors might have led them, even without his suggesting it, and that his doing so could not have resulted in a miscarriage of justice.

         

        Accordingly, the appeal cannot succeed on either ground and must be dismissed.

         

        Before we conclude this judgment, however, it is necessary to refer to a matter brought to our attention by Mr Gates. After the appellant’s conviction, Mr. Gates requested by letter a copy of Pain J.’s summing up. The Chief Registrar replied that “the current criminal practice of this Court is that summings up are only typed for the purposes of an appeal”. That practice is clearly wrong. A barrister and solicitor advising a convicted person whether or not he has grounds for appealing against his conviction needs to be able to read the summing up before he can give that advice. Further, section 299(2) of the Criminal Procedure Code provides that, where the trial judge does not write a judgment but simply adopts the opinions of the majority of the assessors, the summing up and the judge’s decision are collectively to be deemed to be the judgment of the court for the purposes of section 157 of the Code. Section 157 requires that upon application a copy of the judgment is to be given to the accused person without delay.

         

        Decision: Appeal dismissed.
 

Director of Public Prosecutions v. Livai Lila Matatulu & Navitalai Edura Rasolosolo

        [1999] 45 FLR 24

        COURT OF APPEAL OF FIJI ISLANDS

         

        DIRECTOR OF PUBLIC PROSECUTIONS

         

        v.

         

        LIVAI LILA MATATULU &

        NAVITALAI EDURA RASOLOSOLO

         

        [COURT OF APPEAL, 1999 (Tikaram P, Barker, Thompson JJA)

        12 February]

         

        Civil Jurisdiction

         

        Constitution- powers of Director of Public Prosecutions- entry of nolle prosequi- whether reviewable- Constitution (1997) Sections 94 (10) & 114.

         

        Crime: Offences- whether the swearing of a false affidavit constitutes perjury- Penal Code (Cap 17) Section 117.

         

        The High Court granted leave to move for judicial review of a decision by the DPP to enter a nolle presequi in a private prosecution for perjury. On appeal the Court of Appeal HELD: that since the swearing of a false affidavit by a person who is not swearing it as a witness is not a criminal offence in Fiji the private prosecution was bound to fail and accordingly no purpose would be served by reviewing the decision.

         

        Per Curiam: (i) the holder of an office whose decision it is sought to review should not be named as an individual;

         

        (ii) Opinions as to legal issues should not be included in affidavits which should only contain factual evidence;

         

        (iii) Although the statutory powers of the DPP are in principle reviewable the Court will not intervene except in cases of “flagrant impropriety”;

         

        (iv) An application for judicial review must be articulated with sufficient particularity to enable a respondent clearly to understand the applicant’s case.

         

        Cases cited:

         

        Ame Gavidi v. The Police (1949) 4 FLR 14

        Amery v. Solicitor-General [1987] 2 NZLR 292

        Attorney-General v. Director of Public Prosecutions (1982) 28 FLR 20

        Attorney-General v. Director of Public Prosecutions (Civ. App.

                    No. 18 of 1981)

        Attorney-General v. Mariappan Gounder 13 FLR 123

        Fiji Airline Pilots Association v. Permanent Secretary for Labour

                    and Industrial Relations (C.A. ABU 59/97S-FCA Reps 98/93)

        Gouriet v. United Postal Workers [1978] A.C. 435

        Inland Revenue Commissioners v. National Federation of Self

                    Employed [1982] AC 617

        Kostuch v. Attorney-General for Alberta (1995) 128 D.L.R. (4th) 440

        Lal v. R 13 FLR 1

        Maxwell v. R (1966) 70 ALJR 324

        National Farmers’ Union v. Sugar Industry Tribunal and

                    Others (CA 8/1990)

        Nivis Motors & Machinery Co. Ltd. v. Minister for Lands and

                    Mineral Resources (C.A. ABU 17/98S FCA Reps 98/483)

        R v. Director of Public Prosecutions, ex-parte C (1995) 1 Cr. App. R 136

        R v. Secretary of State for the Home Department ex.p. Rukshanda

                    Begum (1990) COD 107

        Raymond v. Attorney-General [1982] 2 All E.R. 487

         

        Appeal to the Court of Appeal from interlocutory decision of the High Court.

         

        Ms N. Shameem, Director of Public Prosecutions, in Person with K. Keteca

        I. Fa for the Respondent

         

        Judgment of the Court:

         

        The Director of Public Prosecutions (DPP) appeals against a judgment of Fatiaki J. delivered in the High Court on 16th July 1998. The learned Judge gave leave to the respondents to issue judicial review proceedings against the DPP in respect of a nolle prosequi which she had filed in respect of private prosecutions for perjury brought by the respondents against three individuals. On 4th August 1998, the Judge gave leave to the DPP to appeal to this Court against his judgment.

         

        Background

         

        On 30th November 1994, the Ministry for Fijian Affairs endorsed the advice of the Roko Tui Ba that Ratu Napolioni Dawai (one of those charged with perjury) be installed as the Tui Nadi. Ratu Isireli Rokomatu, a claimant to the title of Tui Nadi, then applied to the High Court at Lautoka for leave to issue judicial review proceedings in respect of this decision. The High Court, on 4th December 1995, refused leave to apply for judicial review.

         

        An appeal from the High Court’s judgment to this Court was allowed by consent. This Court ordered (Civil Appeal No. ABU0007/96S) on 6th February 1997:

         

                  “(i)     that no valid decision had been made in law as to the holder of the title of the Turaga Tui Nadi;

         

                  (ii)      that the decision to endorse the advice of the Roko Tui Ba was not a decision under the Native Lands Act Cap 133;

         

                  (iii)     that the Permanent Secretary for Fijian Affairs take immediate steps to conduct an inquiry as to the rightful holder of the title of Turaga Tui Nadi under section 17 of the Native Lands Act Cap 133;

         

                  (iv)     That no further money to be paid by the Native Land Trust Board to Napolioni Dawai.”

         

        On 22nd April 1997, Navitalai Rasolosolo and Livai Matalulu (the Respondents in this appeal) filed a complaint in the Suva Magistrates’ Court that affidavits sworn by Napolioni Dawai on 17th March 1995 and filed in the Judicial Review Proceedings in the High Court at Lautoka contained false statements. By 20th August 1997, those charges had been replaced with eight counts of perjury. Charges of perjury had been laid against Namia Vunimakadre Vainitoka and Tevita Maqu also in respect of affidavits made by them in the same judicial review leave application. The three accused faced a total of 29 different charges of perjury. All these charges were the subject of the DPP’s nolle prosequi.

         

        The private prosecution was first called in the Magistrates’ Court on 26th May, 1997. It did not advance them, because the Magistrates’ Court decided to stay the prosecution pending the decision of the Native Lands Commission concerning the Tui Nadi title. The Commission was due to sit on 13th September 1997.

         

        On 5th August 1997, Counsel for the three accused persons made representations to the DPP that the private prosecutions for perjury should be terminated by nolle prosequi or in another appropriate manner.

         

        On 14th August 1997, the DPP’s Office wrote to the Respondent’s solicitors asking for the evidential basis for the perjury charges and enquiring whether the respondent’s complaints against the 3 accused had been reported to the police for investigation before prosecution had been commenced.

         

        On 12th September 1997 the respondent’s solicitors requested a copy of the representations made to the DPP’s Office. This request was met on 1st October 1997.

         

        On 23rd October 1997, the solicitors for the respondents advised the DPP’s Office that the charges were unaffected by the findings of the Native Lands Commission, and urged that the DPP’s Office not to intervene in the prosecutions. They claimed that the statutory enquiry to be conducted by the Commission to decide the rightful Tui Nadi and the constitutional protection for such a decision should not be used as a shield against the perjury charges.

         

        On 24th October 1997, statements of six prosecution witnesses were forwarded to the DPP’s Office by the respondent’s solicitors.

         

        On 27th October 1997, the same solicitors forwarded to the DPP a copy of Ame Gavidi v. The Police (1949) 4 FLR 14 - a case which held that evidence about native custom could be relevant to the defence of charges of criminal trespass. How such an authority could have relevance to the sort of evidence needed for the prosecution of perjury charges is difficult to foresee.

         

        On 29th October 1997, the private prosecutions were set down for mention in the Suva Magistrates’ Court. On that date, Mr Naigulevu appeared for the DPP and advised the Court that the DPP’s Office was considering representations from counsel for both the respondents and the accused in order to decide whether the prosecutions should proceed in the public interest.

         

        On 6th November and 17th November 1997, the respondents’ solicitors wrote lengthy letters to the DPP which, at times in somewhat emotive language,

         

                  (a)     expressed concern that the DPP was considering staying the prosecutions

         

                  (b)     purported to refute some submissions made to the DPP by the solicitors acting for the 3 accused

         

                  (c)     questioned whether public interest could ever allow a prosecution to be stayed where prima facie evidence of criminal liability existed

         

                  (d)     challenged the DPP’s view that public interest could be a ground for stay and opined that such an approach was unheard of and defied logic

         

                  (e)     questioned the relevance to the DPP’s enquiries of the Native Lands Commission’s decision which the respondents claimed not to have seen, although one would have thought that the decision would have been freely available to interested parties

         

                  (f)      alleged partiality and bias against the DPP.

         

        On 11th November 1987, the respondents received a letter from the DPP which they chose not to exhibit to the affidavit in support of the leave application, although they exhibited their reply to the DPP’s letter: that reply was dated 17th November 1997. This letter replied to some of the matters apparently raised by the DPP’s letter and articulated at greater length the concerns expressed in earlier correspondence.

         

        On 3rd December 1997, a nolle prosequi was filed in the Court. On 10th December 1997, the DPP wrote the following letter to the respondent’s solicitor, offering the DPP’s reasons for her action.

         

        “211750

         

        10th December 1997

         

        Mr Isireli Fa

        Messrs Fa & Co

        Barristers & Solicitors

        Level 4, FNPF Place

        GPO Box 15859

        SUVA

         

        Dear Mr Fa

         

        re: PRIVATE PROSECUTION AGAINST NAPOLIONI NAULIA DAWAI, TEVITA MAQU AND NEMIA VUNIMAKADRE VAINITOBA

         

        After the receipt of the letter of representation made on behalf of the three accused persons by their counsel Mr Matebalavu Rabo, we wrote to your office on the 14th August 1994 seeking clarification on a number of matters. These included the evidential basis for which the private prosecution was being brought and whether the matter had been investigated by the police. After earlier undertaking that you would forward these materials, you wrote to us asking that we apprise you with copies of any correspondence to us that was intended to seek our intervention in the cases before the Court. We duly obliged. Your office then forwarded to us on the 23rd October, 24th October and 27th October materials that you felt pertinent and which you relied on, including a decision in the High Court. There was no indication however that the matter had been investigated by the Police.

         

        In determining what stand the DPP’s office would take in the light of the defendants’ representation, we were guided by our prosecution guidelines which we referred to you. We took account of all the materials that you sent us together with the submission made by Messrs. Essesimarm dated the 5th August 1997.

         

        In reviewing the charges before the Court, the entire evidence before us and the law we concluded that there was no prima facie case against all the accused persons on the charges that they faced. We arrived at this decision on the basis of a number of binding decisions which were authorities for the proposition that the references, in section 117, Penal Code particularly the deeming provisions of subsection (3) to statements made for the purpose of judicial proceedings did not extend a swearing of an affidavit before a Commissioner for Oaths for the purpose of civil proceedings, that the Commissioner for Oaths was not a person authorised to record and authenticate statements contained in the affidavit; that the deponent in such circumstances was not a person lawfully sworn as a witness.

         

        In applying these authorities to the evidence, we were left with little doubt that the charges preferred against the accused persons could not be sustained. To have continued notwithstanding, would be malicious and an abuse of the criminal process. Hence, on this ground alone it was our view that this was an appropriate case in which to enter a nolle prosequi.

         

        However, and in addition we considered the nature of number of charges put forward to support them. It was apparent that a number of these charges were based purely on statements of opinions, as opposed to statements of facts; and an assignment consisting merely of a request to crave leave to refer to another affidavit. These in our view could hardly in law be regarded as forming a proper basis of any criminal charge. Again to continue would have been improper and may have amounted to an abuse of the criminal process.

         

        There were also charges which assigned averments by one of the accused person that the proper basis in which to determine the rightful titleholder was by way of senior blood lineage. These were matters that were extensively examined the Native Land Commission of Inquiry convened to determine this matter whose findings did not support the allegations and further because of the continuing litigation were matters properly before the Civil Courts. Again to continue would have constituted an abuse of criminal process.

         

        We had accordingly in the exercise of the DPP’s constitutional powers opined that the proceedings against the 3 accused persons had to be discontinued. However, we can also advise that if there are other conduct that in your opinion are worthy of investigation, we recommend that you refer your complaint to the Police for proper investigation.

         

        We thank you.

         

        Yours sincerely

        (Sgd.)

        J. Naigulevu

        Assistant Director

        for Director of Public Prosecutions”

         

        Despite the entry of the nolle prosequi by the DPP, the Magistrate quite wrongly refused to discharge the accused and terminate the prosecutions. This attitude forced the DPP to apply to the High Court for a revision under s.323 of the Criminal Procedure Code. On 21 January 1998, the Chief Justice upheld the DPP’s submission that the accused had to be discharged in these words:

         

        “The long and short of this matter is that the nolle prosequi having been filed in respect of the cases in question had the effect of terminating those proceedings forthwith. This should have resulted in the discharge of the defendants from their trial without delay. The power of entering a nolle prosequi in any criminal proceedings does not require reasons to be given nor should they be sought from any quarters as this would amount to an abuse of the court process. The reasons are quite irrelevant and immaterial and could only have the effect of encumbering the criminal process with all its undesirable ramifications. The court’s decision to postpone the trial and the discharge of the defendants after the nolle prosequi was filed was plainly misconceived.

         

        The DPP is empowered by the Constitution to take over any criminal proceedings however arising and discontinue them as she in her absolute discretion saw fit guided only by her perception of the public interest and her knowledge and experience of criminal law, procedure and practice. The exercise of this power cannot be questioned by any person or authority. The rationale for it is exceptional. It is designed to bring order and integrity to the criminal process.”

         

        Whilst the decision of the Chief Justice that the Magistrate should have discharged the accused once the nolle prosequi had been filed was clearly correct, with respect we do not agree with the learned Chief Justice’s obiter statements to the effect that the DPP’s exercise of the power to issue a nolle prosequi can never be challenged.

         

        As will be apparent from this judgment, decisions of the DPP are reviewable in certain exceptional and limited circumstances. To be fair to the learned Chief Justice, he was concerned with the immediate problem of the Magistrate refusing to discharge the accused when clearly they should have been. The Chief Justice did not have the benefit of any argument about the reviewability of the DPP’s decisions, such as was addressed to Fatiaki J. and to this Court.

         

        Hearing in High Court

         

        In support of their application for leave to issue judicial review proceedings, the respondents filed a notice of application with an accompanying statement and one affidavit from one of the respondents, Livai Lila Matalulu. The documents are open to criticism for lack of precision.

         

        The ultimate grounds for the leave application put before the Judge, after amendments from what had been originally filed, were as follows:

         

                  “(a)    That the decision by the 1st and 2nd Respondent to enter a Nolle Prosequi against the Private Prosecutions commenced by the Applicants is unreasonable in law and as such ultra vires as the 1st and 2nd Respondent had failed to take into account relevant considerations, took into account extraneous considerations, had failed to exercise good faith and is arbitrary

         

                  (b)     That the 1st and 2nd Respondent had acted in breach of the Rules of Natural Justice as it had made a predetermination in arriving at its decision to enter a Nolle Prosequi and that its decision is tainted with bias.

                  (c)     The 1st and 2nd Respondent in deciding to enter a Nolle Prosequi had failed to exercise a discretion in accordance to law as required under section 96(4)(c) of the Constitution of Fiji.

         

                  (d)     That the decision of the 1st and 2nd Respondent to enter a Nolle Prosequi was arrived at unfairly and without good and legitimate reasons.”

         

        The three respondents cited in the notice of application were:

         

                  (a)     The Director of Public Prosecutions, as first respondent:

         

                  (b)     Ms Shameem, the then and current holder of that office as second respondent:

         

                  (c)     Mr J. Naigulevu, the Assistant Director who had been the principal member of the DPP’s office involved, as third respondent.

         

        The sole proper respondent should have been “The Director of Public Prosecutions.” Individuals should not be named in judicial review proceeding as respondents just because they happen to hold a specified office, or when they are only agents of the office holder. The DPP is the only appellant before this Court and rightly so. The DPP should have been the only respondent named in the High Court application.

         

        The principal criticism of this notice of application is that it does not articulate -

         

                  (a)     the relevant considerations which allegedly were not taken into account by the DPP;

         

                  (b)     the extraneous considerations that allegedly were taken into account by the DPP;

         

                  (c)     any details of predetermination leading to an inference of bias;

         

                  (d)     the precise manner in which a lack of good faith was alleged against the DPP.

         

        Allegations of this sort against an officer of state with important constitutional functions are extremely serious. They therefore needed to be articulated carefully and precisely, even on a leave application, so that the Court and the respondent knew exactly what could be expected in the substantive application. Although there are rather diffuse and unspecific allegations of bias in letters attached to the affidavit in support, statements in letters are not evidence nor substitutes for an affidavit from a deponent with relevant knowledge. Nor should the Court or a respondent be expected to trawl through a shoal of letters on the off chance of discovering an allegation which should have been clearly stated “up-front” in the originating document in which relief is claimed.

         

        The affidavit offended against Order 41 r.5 (2) in that it made statements of belief (acceptable in interlocutory proceedings) but without stating grounds and sources for the beliefs. It also offered opinions (expressed in florid terms) on legal issues. Such statements of a deponent’s view on legal issues are quite inappropriate in any affidavit which must confine itself strictly to facts. Numerous letters were exhibited: although they contained some assertions of bias and lack of impartiality on the part of the DPP, there was no evidence from which even a possibility of bias etc. could have been inferred.

         

        From a perusal of Fatiaki J’s judgment and of his notes of the hearing, it appears that much of the argument before him was devoted to whether a decision of the DPP to issue a nolle prosequi could be the subject of judicial review. However, the then counsel for the DPP did address the allegations of bias, partiality etc, but somewhat briefly and not with the comprehensiveness of the DPP’s submission now before us.

         

        Fatiaki J. reviewed carefully numerous authorities and concluded that the DPP’s decision was susceptible to judicial review. He did not go on to consider whether leave should or should not be given to commence judicial review nevertheless, by assessing whether there was an arguable case shown by the affidavit on the facts. He does not appear to have been asked by counsel then appearing for the DPP whether s.117 of the Penal Code could ever apply to false statements made in affidavits which had been merely attested in the normal way by a Commissioner for Oaths.

         

        The Judge cited with approval a case which held that a prosecutorial discretion should be reviewed, only if there were proof of misconduct bordering on corruption, violation of the law or bias for or against an individual (i.e.. Kostuch v. Attorney-General for Alberta (1995) 128 D.L.R. (4th) 440). However, the Judge did not enquire if there were prima facie evidence of this kind of allegation presented in the leave application, sufficient to pass the threshold test for a leave application.

         

        Because he was not addressed on the topic, the Judge did not consider whether s.117 of the Penal Code permitted the prosecution for perjury of someone who has made an affidavit in judicial proceedings which affidavit has merely been attested by a Commissioner for Oaths who has not recorded or authenticated the deponent’s statement. If there exists a legal reason which will prevent the charges ever succeeding, then, in our view, that legal consideration must operate to prevent leave to issue judicial review being granted. The circumstance that such a legal issue had not been argued before the Judge in the High Court does not prevent the point being raised on appeal.

         

        In fairness to the learned Judge, it appears that the principal issues argued before this Court were somewhat secondary before him, judging from the record of the argument and from his careful judgment. The DPP acknowledged before this Court that the DPP could be susceptible to judicial review in most exceptional circumstances. That acknowledgement could well have been but was not made by her counsel before Fatiaki, J.

         

        Principles for Leave Applications

         

        We accept what was said by this Court in Fiji Airline Pilots’ Association v. Permanent Secretary for Labour and Industrial Relations (Civil Appeal No. ABU0059 of 1997S, 27th February 1998 FCA Reps 98/93.):

         

        “The first ground of appeal, however, raised an important question on the Judicial Review procedure. It is clear that Fatiaki J. went into the merits of the Association’s case in some depth. The Appellant submitted that this was inappropriate in what was merely an application under Order 53 r.3(1) of the High Court Rules for leave to issue review proceedings. The basic principle is that the Judge is only required to be satisfied that the material available discloses what might, on further consideration, turn out to be an arguable case in favour of granting the relief. If it does, he or she should grant the application - per Lord Diplock in Inland Revenue Commissioners v. National Federation of Self Employed. [1982] AC 617 at 644. This principle was applied by his Court in National Farmers’ Union v. Sugar Industry Tribunal and Others (CA 8/1990; 7 June 1990). In R. v. Secretary of State for the Home Department ex p. Rukshanda Begum (1990) COD 107 (referred to in 1 Supreme Court Practice 1997 at pp.865 and 868) Lord Donaldson MR accepted that an intermediate category of cases existed where it was unclear on the papers whether or not leave should be granted, in which event a brief hearing might assist, but it should not become anything remotely like the hearing which would ensue if the parties were granted leave.

         

        In the High Court the appellant, the respondent and Company were heard, although the latter did not appear in this Court. It is difficult to escape the conclusion that this was hardly a brief intermediate hearing of the kind envisaged by the Master of the Rolls, but we can appreciate the problem faced by the Judge in being presented with what on the record were extensive submissions by all 3 counsel. The area of dispute was adequately covered in the Association’s affidavit, and the issues were reduced to the two main points discussed in this Judgment. They were quite straightforward. His Lordship was able to reach the firm conclusion that there was no arguable case warranting the grant of leave.”

         

        This decision was followed more recently by this Court in Nivis Motors and Machinery Co. Ltd. v. Minister for Lands and Mineral Resources - (Civil Appeal No. ABU0017 of 1998S, judgment 13 November 1998 FCA Reps 98/483).

         

        In the Airline Pilots and Nivis Motors cases, a total of 6 different members of this Court were critical of the requirement for leave in Order 53, pointing out that jurisdictions other than Fiji and England had no difficulty in weeding out unmeritorious applications for judicial review at an early stage. In Nivis Motors, the Court there constituted, offered reasons why Fiji’s judicial review procedure should be modelled on established practice in other South Pacific jurisdictions and recommended an appropriate rule change. However, in the absence of any such rule change, the Courts must continue to interpret the leave requirement in the manner stated in the Airline Pilots case.

         

        In Nivis Motors, this Court indicated that certain matters disclosed in the affidavit in support of the application for leave called for some evidentiary response from the respondent Ministry, before the Judge could have ruled, as he did, that the application for judicial review had no prospect of success. The Court held that unanswered matters disclosed in the applicant’s affidavit pointed to an arguable case for judicial review. The Court also noted the lack of a pre-proceeding discovery procedure and of official information legislation which could have helped that particular applicant.

         

        The situation, as presented to the High Court at the leave stage, is different in this case. The Court had before it most but not all of the relevant correspondence. Strangely enough, one letter from the DPP to the respondents’ solicitors was not attached to the affidavit in support. There was a full letter stating the reasons for DPP’s decision. The discretion under consideration in Nivis Motors was concerned with the compulsory acquisition of land. It was a discretion circumscribed by statute and was not an open-ended discretion like that possessed by the DPP in this case. There was also a statutory procedure for testing the Minister’s decision in Court

         

        Is the DPP’s decision reviewable?

         

        The Office of Director of Public Prosecutions was first created under s.85 of the 1970 Constitution and continued in s.96 of the 1990 Constitution and s.114 of the 1997 Constitution. The DPP has to be a person qualified for appointment as a Judge. The idea behind the creation of the office was clearly to keep political considerations out of the prosecutorial process by having that process administered by an independent person of standing; this principle was acknowledged by the Privy Council in Attorney-General v. Director of Public Prosecutions (1982) 28 F.L.R. 20,25.

         

        The DPP’s constitutional powers include the taking over and staying of private prosecutions. The right of any person to lay a private prosecution is found in s.78(2) of the Criminal Procedure Code (Cap.21). Indeed, as stated by Lord Diplock in Gouriet v. United Postal Workers [1978] A.C. 435,477, the right to lay a private prosecution “remains a valuable constitutional safeguard against inertia or partiality on the part of authority” although Lord Diplock acknowledged the right of the Attorney-General in England to control the process. There is no requirement that a private prosecutor has to have the Police first investigate the alleged charge. One safeguard against irresponsible private prosecution, other than the intervention of the DPP, lies in the tort of malicious prosecution. We do not rate highly therefore the argument that the right of the respondents to have the Police investigate an alleged crime is necessarily a reason why judicial review should not be entertained. However, in general it is desirable that the Police be given an opportunity to investigate an alleged offence before a private prosecution is commenced.

         

        Section 71 of the Criminal Procedure Code gives flesh to the DPP’s constitutional right to enter a nolle prosequi but goes on to provide that discharge of an accused following the entry of a nolle prosequi , “shall not operate as a bar to any subsequent proceedings against him on the same facts”.

         

        In this Court, in the judgment that was appealed to the Privy Council, i.e. Attorney-General v. Director of Public Prosecutions (Civil Appeal No.18 of 1981, judgment 5 August 1981) it was stated at p.31 concerning the DPP, “He is accountable to the Courts in the performance or non-performance of his functions”. S.136 of the 1970 Constitution which is replicated in s.158 of the 1990 Constitution, was clear authority for this statement. S.158 of the 1990 Constitution states:

         

        “No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions.”

         

        S.94 (10) of the 1997 Constitution is in pari materia.

         

        Before this Court, the DPP acknowledged that, in exceptional circumstances, the decision of the DPP is amenable to judicial review when exercising a constitutional power such as entering a nolle prosequi on a private prosecution as was done here. One wonders therefore why there was a sustained argument against the proposition in the Court below, given the above provision.

         

        There is some Australian case law which suggests that a Court cannot interfere with a nolle prosequi decision made by the relevant official. In Maxwell v. R. (1966) 70 ALJR 324, 342 it was said in the joint judgment of Gaudron and Gummow, JJ. in the High Court of Australia:

         

        “The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as “the prosecutional discretion”. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s.394A of the Act.

         

        It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

         

        With respect to the views just quoted which may be based on a different legal framework, we consider that the DPP must be answerable to judicial review because of the constitutional provision in Fiji cited above. Decisions from New Zealand, England and Canada support the proposition.

         

        In Amery v. Solicitor-General, [1987] 2 NZLR 292, an attempt was made to review the Solicitor-General’s stay of criminal proceedings pursuant to a statutory power. On the facts, the New Zealand Court of Appeal did not feel the need to decide whether the actions of the Solicitor-General were reviewable, as Sinclair J. in the High Court had found them to be. At p.391, the Court indicated a likelihood that such a decision could be reviewed but decided on the facts that the continuation of the prosecutions would amount to a clear abuse of process because the charges were based on activities for which the accused had already been convicted.

         

        In England, a Divisional Court in R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R 136, granted judicial review of the DPP’s decision because she had not followed the Code issued pursuant to her statutory powers when making a decision to refuse to prosecute the applicant’s husband for buggery. We note that counsel for the respondents in this present case did not claim that the DPP had failed to comply with her own Code. Counsel claimed he had never received a copy of any Code; unlike the English situation, there does not seem to be any statutory authority in Fiji for the issue of one.

         

        In Canada, the Kostuch case (cit supra) contains a useful summary of the Canadian law on this topic. Canada has bill of rights provisions similar to Fiji’s. The Alberta Court of Appeal rejected an argument that the Charter prevented the Attorney-General from interfering in a private prosecution.

         

        In addition to making the statement mentioned earlier, the Alberta Court of Appeal stated that “The test for review of prosecutorial discretion remains that of flagrant impropriety and it is not unreasonableness as suggested by counsel for the appellant” (ibid 451).

         

        At 449, the Court specifically referred to the Attorney-General (the equivalent officer in Alberta to the Fiji DPP) having to have regard not only to the interests of the persons laying the charges, but also to the rights of the person charged with the offence and to the public interest. It was stated at 449: “the fundamental consideration in any decision regarding prosecutions must be the public interest.”

         

        The same theme was stated in another way by the English Court of Appeal in Raymond v. Attorney-General [1982] 2 All E.R. 487, 491:

         

         “On the other hand there may be what appear to the Director substantial reasons in the public interest for not pursuing a prosecution privately commenced. What may emerge from those proceedings might have an adverse effect on a pending prosecution involving far more serious issues. The Director, in such a case, is called on to make a value judgment. Unless his decision is manifestly such that it could not be honestly and reasonably arrived at it cannot, in our opinion, be impugned. The safeguard against an unnecessary or gratuitous exercise of this power is that by s.2 of the 1979 Act the Director’s duties are exercised under the superintendence of the Attorney-General, That officer of the Crown is, in his turn, answerable to Parliament if it should appear that his or the Director’s powers under the statute have in any case been abused.

         

         Mr Raymond, if he is still concerned to bring Mr Carne to trial, can seek to start again.”

         

        We consider that the law in Fiji is best expressed in the various authorities which we have cited with approval. We proceed later to examine whether there was enough evidence, even at the leave stage, to show an arguable case for ‘flagrant impropriety’ on the part of the DPP - a handy description of the rare occasions when the DPP’s decision is reviewable.

         

        S.117 Penal Code

         

        Before doing so, however, we examine s.117 of the Penal Code to see whether, even if the DPP’s action in issuing the nolle prosequi should be reviewed, any prosecution was doomed to failure because of the provisions of that section. We here note that we cannot agree with counsel for the respondents that this issue should await a full hearing. If there is to be a technical knock-out; it is far cheaper and less traumatic for all concerned that it be delivered sooner rather than later.

         

        The section reads as follows:

         

        “117. - (1) Any person lawfully sworn as a witness in a judicial proceeding who wilfully makes a statement material in that proceeding which he knows to be false or does not believe to be true is guilty of the misdemeanour termed perjury, and is liable to imprisonment for seven years.

         

        (2) Any person lawfully sworn as an interpreter, who wilfully in the course, or proposed course, of his duties as such, makes any misstatement, or actively or by omission misinterprets any statement whether or not that statement is material in any judicial proceeding is guilty of perjury and is liable to imprisonment for seven years.

         

        (3) Where a statement made for the purpose of a judicial proceeding is not made before the tribunal itself but is made on oath before a person authorised by law to administer an oath to the person who makes the statement and to record or authenticate the statement it shall, for the purposes of this section, be treated as having been made in a judicial proceeding.

         

        (4) The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.”

         

        The section was apparently based on the English Perjury Act of 1911. It was considered in the then Supreme Court of Fiji by Mills-Owens C.J. in two cases in 1967, i.e. Lal v. R 13 FLR 1 and Attorney-General v. Mariappan Gounder, 13 FLR 123. In both those cases, the accused was alleged to have made a false statement in an affidavit filed in judicial proceedings and sworn before a Commissioner for Oaths in the normal way. In the first case, the affidavit was by a defendant seeking to have a judgment by default for debt set aside; in the second, an affidavit of service by a police officer of a summons for a traffic offence was alleged to have been false.

         

        In both cases, Mills-Owens, C.J. carefully considered the provisions of s.117 then bearing a different section number and having only three subsections, the present subsection (3) being then subsection (2). He decided that, in each case, there could be no conviction under the section of a deponent who had merely gone before a Commissioner for Oaths to swear to the truth of the contents of the affidavit with the Commissioner then merely attesting the deponent’s signature. There was no suggestion that anything other than this normal procedure occurred with the taking of the affidavits in this case in which perjured statements were allegedly found.

         

        The reasoning of Mills-Owens, C.J. was expressed thus in the Lal case at pp. 3 - 4:

         

        “Obviously there is no such things as an offence contrary to subsection (2); that subsection merely extends the operation of subsection (1). This in itself might not, however, be regarded as a very serious matter. What is abundantly clear is that the section relates only to perjury committed by a person lawfully sworn as a witness or interpreter, and that it must be perjury committed in a judicial proceeding. The object of subsection (2), quite clearly, is to extend the provisions of subsection (1) to a statement made by a witness for the purpose of a judicial proceeding before some person other than the tribunal itself. The obvious case is where the statement in question is made in the course of evidence taken on commission (that is, where evidence is taken out of Court before an examiner or commissioner). The two affidavits were sworn before Mr. Whippy merely in his capacity as a Commissioner for Oaths, that is as a person authorised to attest the signature of a deponent. It is quite clearly not the fact that Mr. Whippy was, in this case, in the terms of subsection (2), a person authorised to record or authenticate the statements made by the appellant in those affidavits. A Commissioner for Oaths does not, as such, record or authenticate statements, although he may of course be specially appointed as an examiner or commissioner to take the evidence of a witness, as, for example, for the purpose of proceedings abroad. And by no stretch of imagination could the appellant be said to be making any statement as a “person lawfully sworn as a witness.” The affidavits were made by him, unequivocally, in the capacity of a party to the suit, namely as the defendant; he was not giving evidence as a witness; he had never been sworn as a witness; the civil proceedings had not yet reached the stage at which the evidence of witnesses was required to be given; the action never came to trial because it was discovered that the “debt” was unenforceable.”

         

        We find it impossible to fault the reasoning of Mills-Owens, C.J. in decisions which have stood unchallenged in this country for over 30 years. Our finding means that a person cannot be prosecuted for making a blatantly false statement in an affidavit sworn in the normal way. That anomalous situation has been the law of Fiji since 1967 and no legislative change has been made. We recommend that urgent consideration be given to a legislative change to rectify this gap in the law. A less convoluted section which clearly indicates that a false affidavit can give rise to a perjury charge is section 108 of the New Zealand Crimes Act 1961, which provides a useful precedent

         

        Counsel for the respondents referred us to Archbold as refuting the Mills-Owens approach. The 1996 edition of Archbold is unhelpful on this point; it contains no commentary on the English requirement that the person who administers the oath has also to record or authenticate the statements deposed to by the accused. There is a note (28-176) on what is required by way of proof on an indictment for perjury by affidavit. However, there is nothing germane to the present problem.

         

        The DPP suggested that a person making a false affidavit might be charged under s.120 for perverting the course of justice and cognate offences. That may very well be, but the charges here were laid under s.117 and the nolle prosequi applied to those charges. There should be in Fiji, as in other jurisdictions, an offence of committing perjury in an affidavit.

         

        Accordingly we consider that there was an impassable roadblock in the way of the private prosecutions commenced by the respondents. It is unfortunate that this point was not argued in the Court below but, because it is a discrete legal issue, the duty of this Court is to rule on it. That is sufficient to allow the appeal. In deference to the argument we will now consider briefly whether there was sufficient “arguable case” evidence as would justify the grant of leave to commence judicial review proceedings against the DPP because of the entry of the nolle prosequi.

         

        Evidence of ‘Arguable Case’ to justify Leave

         

        Adopting the Albertan guideline for judicial review of ‘flagrant impropriety’, on the part of the DPP there is just no evidence of this disclosed in the respondent’s affidavit which was before the High Court. That affidavit exhibited letters which were replete with assertion and suspicion but short on hard fact.

         

        Looking at the reasons given by the DPP in Mr Naigulevu’s letter, it is hard to see the decision to file a nolle prosequi as other than one which was reasonable in the public interest. As the letter states, many of the allegedly false statements in the charges are statements of belief about entitlement to office and about customary processes and rituals. These assertions might or might not be objectively correct. But in an emotionally-charged situation such as a contested claim to an important chiefly title, it would be hard to characterise such an assertion as blatantly and subjectively false, as distinct from mistaken. At least one of the charges, as the Naigulevu letter pointed out, was quite inappropriate; the deponent simply “craved leave” to refer to someone else’s affidavit. Such a mechanical statement could never be the basis of a charge of perjury.

         

        Clearly, the DPP saw this dispute as one over claims to a chiefly title which had been fully ventilated before the appropriate tribunal with subsequent attempts to challenge the tribunal in the Courts. The DPP probably saw little merit in the use of the criminal law to relitigate deeply held claims between rival factions. Certainly, her assessment of the public interest was not a flagrant misuse of her powers.

         

        Accordingly, we find no reason that would justify the grant of leave to issue judicial review proceedings. Not only does s.117 mean that the prosecutions were doomed to fail, but none of the limited bases on which the decision of the DPP can be challenged has been shown to exist in arguable form.

         

        The appeal is allowed; leave to bring judicial review proceedings is set aside.

         

        Because the argument about s.117 was not made before Fatiaki J. we make no order as to costs.

         

        Result:  (a)        Appeal allowed.

         

        (b)        Leave to issue application for judicial review set aside.

         

        (c)        No order as to costs.

         

        (Appeal allowed.)
 

Govind Reddy v. The Ambassador, The Independent State of Papua New Guinea

        [1999] 45 FLR 142

        HIGH COURT OF FIJI ISLANDS

         

        GOVIND REDDY

         

        v.

         

        THE AMBASSADOR OF

        THE INDEPENDENT STATE OF PAPUA NEW GUINEA

         

        [HIGH COURT, 1999 (Fatiaki J) 30 July]

         

        Civil Jurisdiction

         

        Conflict of laws- jurisdiction of the court- immunity of diplomatic agent- sovereign immunity- Diplomatic Privileges and Immunities Act (Cap. 8) Section 3 (1).

         

        An ambassador reached an agreement with a local builder to renovate his official residence. Following differences between the parties the builder commenced legal proceedings. On the facts the High Court HELD: that the ambassador had not waived the diplomatic immunity granted to him by statute. The court also examined the common law doctrine of sovereign immunity both in its absolute and in its qualified form. It HELD: that the contract was not exclusively a private or commercial transaction and that accordingly it was subject to a plea in bar of sovereign immunity.

         

        Cases cited:

         

        A Co. Ltd v. Republic of X (1990) 2 Lloyds Reps 520

        ‘Christina’ (1938) 60 Lloyds Reps. 147

        Claim against the Empire of Iran (1963) 45 IRL 57

        Governor of Pitcairn v. Sutton [1995] 1 N.Z.L.R. 426

        ‘Harmattan’ (1976) 1 Lloyds Reps. 1

        ‘I Congreso Del Partido’ [1983] A.C. 244

        Kahan v. Pakistan Federation [1951] 2 K.B. 1003

        Mighell v. Sultan of Johore (1894) 1 Q.B. 149

        ‘Parlement Belge’ (1880) 5 P.D. 197

        ‘Phillipine Admiral’ (1976) 1 Lloyds Reps 234

        Planmount Ltd v. Zaire [1981] 1 All E.R. 1110

        R v. Madan [1961] 2 Q.B.1

        Sengupta v. Republic of India (1983) I.C.R. 221

         

        Interlocutory application in the High Court.

         

        P. Howard for the Plaintiff

        A. Khan for the Defendant

         

        Fatiaki J:

         

        This case concerns a Fiji Standard Form of Building Contract entered into on the 17th of November 1995 between the plaintiff ‘TRADING AS LANDMARK CONSTRUCTION’ and ‘THE INDEPENDENT STATE OF PAPUA NEW GUINEA’ albeit executed by its Ambassador to Fiji His Excellency Babani Maranga (‘the defendant Ambassador’).

         

        This latter fact is highlighted insofar as the plaintiff’s action ambiguously cites The Ambassador as the singular defendant and not the actual contracting party.

         

        The nature of the works to be performed under the aforesaid building contract entailed renovating the existing Head of Mission’s official residence at 12 Milne Road, Muanikau, Suva for an agreed contract sum of $565,685.00. The architect who prepared the very extensive drawings and specifications and under whose supervision the works were to be executed was Stuart Huggett of Architect Services Limited.

         

        In terms of the contract the works were to be completed eight months after possession of the building site had been given and certainly by 19th August 1996 the specified Date of Completion.

         

        Nothing much is known about the nature and quality of the works executed pursuant to the contract although, judging by the information provided in the plaintiff’s claim No.9 dated 25th November 1996, it is clear that works were not completed by the completion date albeit that almost two thirds of the contract sum had been paid out.

         

        Be that as it may on the 27th of September 1996 a winding up order was made by the High Court against Landmark Construction (Suva) Limited and, on learning of this the project architect by letter dated 13th December 1996 wrote to the plaintiff terminating the contract ‘... in accordance with Clause 25(2) of the contract ... with effect from 27th September 1996’.

         

        The plaintiff on receiving the termination notice immediately disputed the notice in a letter dated 16th December 1996 in which he claimed that:

         

        ‘The contract has been signed and sealed under the personal name of Govind Reddy with annexe trading as Landmark Construction.

         

        The liquidation of Landmark Construction (Suva) Ltd. company should have no legal effect on the above contract and therefore the liquidators or receivers have no right of access to this particular contract.’

         

        If I may say so this letter contrasts even contradicts, quite categorically, an earlier letter dated 29th January 1996 written by the plaintiff to the defendants wherein he stated:

         

        ‘We confirm by this letter that Landmark Construction (Suva) Ltd. is the principal contractor on the above project.’

         

        Fifteen months passed without any apparent resolution and on the 11th of March 1998 the plaintiff finally issued an Originating Summons seeking various declarations concerning the correct parties to the contract and the validity of the termination letter. He also sought the return of various plant and machinery left at the construction site and damages for unpaid work.

         

        On 19th March 1998 the defendant by their solicitor’s acknowledged service of the Originating Summons and on 8th April 1998 the defendant’s solicitors lodged an application pursuant to Section 5 of the Arbitration Act (Cap.38) for a stay of the proceedings pending the referral of the dispute between the parties to arbitration as contractually agreed (See: Clause 33 of the building contract).

         

        Affidavits were filed on behalf of both parties and after numerous adjournments, the papers were finally placed before the Court for directions on the 3rd of August, 1998.

         

        Upon perusing the papers I became immediately concerned at the clear possibility that the plaintiff’s claim constituted an action impleading a Sovereign State or, at the very least, the diplomatic agent of an independent sovereign state to whom various privileges and immunities are accorded.

         

        I was mindful of the principle of international law set out in para.1548 of Vol.18 of Halsburys Laws of England (4th edn) which reads:

         

        ‘An independent sovereign state may not be sued in the ... courts against its will and without its consent. This immunity from the jurisdiction is derived from the rules of international law, which in this respect have become part of the law ... It is accorded on the grounds that the exercise of jurisdiction would be incompatible with the dignity and independence of any superior authority enjoyed by every sovereign state. The principle involved is not founded upon any technical rules of law, but upon broad considerations of public policy, international law and comity.’

         

        I was also mindful of the observations of Lord Parker C.J. in R. v. Madan [1961] 2 Q.B.1 when he said at p.7:

         

        ‘Certain things are, we think clear. In the first place, it is not for someone who is entitled to diplomatic immunity to claim it in the courts. It is unnecessary to refer to the authorities, but ... certainly civil proceedings brought against somebody entitled to diplomatic immunity, are, in fact, proceedings without jurisdiction and null and void, unless and until there is a valid waiver which, as it were, would bring the proceedings to life and give jurisdiction to the court.’

         

        Accordingly, the Court with the agreement of counsel, formulated a preliminary question as follows:

         

        ‘Assuming that the Independent State of Papua New Guinea is the proper defendant, does this court have jurisdiction to entertain this claim by the plaintiff?’

         

        Submissions were ordered and these were finally provided on 4th November 1998. I am grateful to counsel for their assistance on this rather infrequently encountered question of sovereign immunity.

         

        Before turning to consider the submissions however, mention should be made of a further procedural question which arises from the plaintiff’s claim, namely, what is the appropriate procedure (if any) for suing and serving an independent Sovereign State?

         

        Is it, as the plaintiff has done in this instance, by issuing proceedings in the name of the local diplomatic agent of the State and serving it on him in this country? or ought the proceedings in this Court, as in an ordinary action against Government, be entitled in the name of the Attorney General of the State with service effected upon him after obtaining leave to serve out of the court’s jurisdiction pursuant to Or.11 of the High Court Rules 1988?; or, is it the case, that a suit against an independent sovereign State may only be instituted in the domestic Courts of that State? This issue was not raised before me or addressed in counsel’s submissions however, and need not further concern me in this application. Suffice it to say that the answer to the question remains unclear.

         

        Counsel for the plaintiff in his brief written submission, without specifically addressing the formulated question or discussing the nature, effect, and differences between sovereign and diplomatic immunity, boldly submits that ‘the defendant as Head of Mission of the Independent State of Papua New Guinea in Fiji has waived his immunities in this case (by signing and initialling each page of the building contract) and as such is deemed to be a waiver by that State’.

         

        As authority for this proposition reference is made to Art.32(2) of the Vienna Convention on Diplomatic Relations which, pursuant to Section 3(1) of the Diplomatic Privileges and Immunities Act (Cap.8), ‘... shall have the force of law in Fiji’ and also, to para.1575 of Vol.18 of Halsbury Laws of England (4th edn.) which reads in part:

         

        ‘the privileges and immunities of diplomatic agents ... may be waived by the sending state. A waiver by the head of the mission ... is deemed to be a waiver by that State. Waiver must always be express. Accordingly, even if a person entitled to immunity has entered an appearance ... he may at a later stage prove that his government has not consented to a waiver of his immunity.’

         

        Defence counsel in a fuller, more closely reasoned submission argues that the defendant Ambassador as the Head of Mission of the Independent State of Papua New Guinea is entitled to the privileges and immunities accorded under Art.31 of the Convention and, as such, is improperly joined in this proceedings for which there has been no express waiver by the Independent State of Papua New Guinea.

         

        Needless to say counsel submits that ‘entering into an agreement, the proper law of which is the law of Fiji, does not constitute submission to the jurisdiction of the Fijian Courts’. Furthermore the agreement in question concerns the construction of an official residence for the Ambassador and ‘as such (is) exclusively and particularly concerned with the conduct of the Independent State of Papua New Guinea as a diplomatic mission and ... hardly capable of being classed as commercial activities’.

         

        As to the question of waiver counsel submits in reply that:

         

        ‘Waiver as it is understood in the diplomatic parlance is nothing short of an express open act which indicates that the State does not wish to be bound by the terms of the Convention. Such an act, having the ramifications that it must, is hardly available to be invoked in this scenario, where the mere execution of the agreement does not of itself amount to waiver in the diplomatic sense.’

         

        I can now deal quite briefly with the question of diplomatic immunity which in this country is statutorily provided for under the Diplomatic Privileges and Immunities Act (Cap.8) (‘the Act’) which incorporates into the domestic law of Fiji, ‘the provisions of Articles 1,22 and 24 inclusive, and 27 to 41 inclusive, of the (Vienna Convention on Diplomatic Relations)’ (‘the Convention’).

         

        The relevant Articles of the Convention for present purposes are: Article 1 containing various definitions and Articles 31 & 32 which deal with the jurisdictional immunities of a diplomatic agent, and the manner and circumstances under which such immunity might be waived.

         

        In particular, Art.31 of the Convention provides (with three irrelevant exceptions not relied upon by the plaintiff) that:

         

        ‘1.     A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction.

         

                  and

         

        2.       A diplomatic agent is not obliged to give evidence as a witness.’

         

        In this case it is undisputed that, by definition, the defendant Ambassador is a diplomatic agent being the accredited head of the diplomatic mission of the Independent State of Papua New Guinea in Fiji. Furthermore, the premises at 12 Milne Road, Muanikau, Suva which the plaintiff claims he was contracted to renovate is the existing head of mission official residence in Fiji and in terms of Art.22 of the Convention ‘shall be inviolable’.

         

        Article 32 which may be conveniently described as the ‘waiver’ article, is relied upon by the plaintiff. It, relevantly provides:

         

        ‘1.     The immunity from jurisdiction of diplomatic agents ... may be waived by the sending State.

         

        2.       Waiver must always be expressed.

         

                  and

         

        4.       Waiver of immunity from jurisdiction in respect of civil ... proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.’

         

        Section 3(6) of the Act further provides by way of expansion, in paragraph (d) that:

         

        ‘... reference in Article 32 to waiver by the sending State shall be construed as including a waiver by the head of the mission of the sending State ...’

         

        Prima facie therefore, in the absence of an express waiver, the defendant Ambassador is entitled to claim and is immune from the civil jurisdiction of this court. The plaintiff however has named the Ambassador as the defendant in these proceedings on the singular basis that in executing the building contract and in initialling every page thereof he had thereby expressly waived his diplomatic immunity. I cannot agree.

         

        There is not the slightest doubt in my mind that in executing the building contract and in initialling every page thereof, the Ambassador was acting at all times, in his official capacity as Ambassador for and on behalf of the Independent State of Papua New Guinea and cannot be said, by any stretch of the imagination, to have either expressly (as opposed to impliedly) waived diplomatic immunity or been engaged in a ‘commercial activity ... outside his official functions’ which is an excepted category in Art.31.

         

        Needless to say it cannot be and has never been suggested that the premises being renovated by the plaintiff are the defendant Ambassador’s private immovable property or that he is either personally or contractually liable under the building contract merely because he signed it.

         

        I accept that Clause 33(5) of the building contract expressly provides that:

         

        ‘The law of Fiji shall be the proper law of this Contract and in particular shall apply to any arbitration under this Contract wherever the same or any part of it, shall be conducted.’

         

        but that inter partes agreement cannot and does not imply an express waiver of immunity nor does it amount to an actual submission or undertaking given to this court, in these proceedings, to exercise jurisdiction over the defendant Ambassador (See: Kahan v. Pakistan Federation [1951] 2 K.B. 1003).

         

        What is more the relevant time or occasion when waiver must occur or be expressed ‘... is when the Court is about or is being asked to exercise jurisdiction ... and not at any previous time’ (per Lord Esher M.R. in Mighell v. Sultan of Johore (1894) 1 Q.B.149 at p.159).

         

        In similar vein are the observations of Kay L.J. when his lordship said (ibid at p.163):

         

        ‘... the time at which immunity is to be waived must be when action is brought against the foreign sovereign, and when it is brought to the attention of the Court by reason of its judicial knowledge or from other information that the person sued is a foreign sovereign.’

         

        In light of the foregoing and in the absence of a clear and express waiver of diplomatic immunity given to this Court by either the defendant Ambassador or the Independent State of Papua New Guinea as the sending State, I am constrained to rule that the defendant Ambassador is immune from the civil jurisdiction of this Court, is improperly named and/or joined in the present proceedings and the Originating Summons must be and is hereby set aside against him.

         

        I turn next to consider the doctrine of sovereign immunity as it applies to the present proceedings which cites the Independent State of Papua New Guinea as a defendant.

         

        In the absence of domestic legislation dealing with this type of immunity such as exists in New Zealand (State Immunity act 1978) Australia (Foreign States Immunities Act 1985) and the United Kingdom (State Immunity Act 1978), I turn to the common law to ascertain the nature and extent of this widely-held doctrine of international law.

         

        In doing so I am immediately faced with two schools of thought, with the older school being in favour of an absolute rule of sovereign immunity, and the other, more recent view, favouring a more limited or restrictive approach.

         

        I begin with the absolute view which is best expressed in the very well-known dicta of Lord Atkin in the ‘Christina’ (1938) 60 Lloyds Reps.147 where his Lordship said at p.156:

         

        ‘The foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seems to me to be well established and beyond dispute. The first is that the Courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.

         

        The second, is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control.’

        (my underlining)

         

        There are many reasons that have been advanced in support of the absolute rule including:

         

        ‘... that of ‘par in parem’ which effectively means that the sovereign or government act of one State are not matters upon which the Courts of other states will adjudicate’ (per Lord Wilberforce in the ‘I Congreso’ post at p.262); and

         

        ‘that the exercise of such jurisdiction would be incompatible with regal dignity - that is to say, with (the sovereign’s) absolute independence of any superior authority’ (per Brett L.J. in the ‘Parlement Belge’(1880) 5 P.D. 197 at 207); and

         

        ‘that, if the Courts ... once entertained the claim, and in consequence, gave judgment against the foreign sovereign (for debt or damages) they could be called upon to enforce it by execution against its property here. Such execution might imperil our relations with that country and lead to repercussions impossible to foresee (or predict). (per Lord Denning M.R. in the ‘Harmattan’ (1976) 1 Lloyds Reps.1 at p.4).

         

        The restrictive school of thought on the other hand, owes its modern Commonwealth origins to the judgment of the Privy Council in the ‘Phillipine Admiral’ (1976) 1 Lloyds Reps.234 where the Privy Council adopted a restrictive doctrine of sovereign immunity which requires a Court faced with a claim for sovereign immunity (ibid at p.244):

         

        ‘to draw a distinction between acts of a State which are done jure imperii (i.e. public or sovereign acts) and acts done by it ‘jure gestionis’ (private actions) and (to) accord the foreign State no immunity either in actions in personam or in actions in rem in respect of transactions falling under the second head.’

         

        The rationalisation often advanced for this more limited rule of sovereign immunity stems from the view that the activities of Sovereigns and independent States at the time when the doctrine of absolute immunity was first developed, has so dramatically transformed especially in the fields of banking, trade and commerce as to warrant some limitation or exception being made to the absolute rule.

         

        One of the reasons advanced by the Privy Council for preferring the restrictive theory of sovereign immunity in its application to ordinary trading transactions was that it is more consonant with justice insofar as (ibid at p.248):

         

        ‘In this country - and no doubt in most countries in the western world - the State can be sued in its own courts on commercial contracts into which it has entered and there is no apparent reason why foreign states cannot be equally liable to be sued there in respect of such transactions.’

         

        Lord Wilberforce in the ‘I Congreso’ (post) identified two reasons for the limitation when he said (at p.262):

         

        ‘It appears to have two main foundations: (a) It is necessary in the interests of justice to individuals having (commercial or private law) transactions with States to allow them to bring such transactions before the Courts. (b) To require a State to answer a claim based upon such transaction does not involve a challenge to or inquiry into any act of sovereignty or governmental act of that state. It is ... neither a threat to the dignity of the State nor any interference with its sovereign functions.’

         

        In ‘I Congreso Del Partido’ [1983] A.C.244 the House of Lords approved and applied the restrictive doctrine, but Lord Wilberforce recognising the difficulties inherent in drawing the distinction said, at p.264:

         

        ‘The activities of States cannot always be compartmentalised into trading or government activities; and what is one to make of a case where a state has, and in the relevant circumstances, clearly displayed, both a commercial interest and a sovereign or government interest? To which is the critical action to be attributed?’

         

        His Lordship then considered how various foreign courts have sought to answer the question and concludes with the following test at p.267:

         

        ‘... in considering ... whether state immunity should be granted or not, the court must consider the whole context in which the claim against the State is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the State has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.’

         

        The difficulty in drawing the distinction may be said to arise in the present case. On the one hand, it might be said that in entering into a contract to carry out renovation works to its Ambassador’s official residence in Fiji, the Government of Papua New Guinea was undertaking an ordinary contractual obligation of a private or commercial nature which any private citizen could have entered into.

         

        This was certainly the view expressed by Lloyd J. in Planmount Ltd. v. Zaire [1981] 1 All E.R. 1110 where the plaintiff company, a small firm of builders, agreed to carry out certain building works for the Republic of Zaire at the official London residence of its ambassador; the plaintiff was paid only part of the contract price and it issued a writ against the Republic claiming the balance.

         

        In rejecting the Republic’s claim to sovereign immunity and in granting the plaintiff leave to serve the writ out of the jurisdiction, Lloyd J. said, at p.1114:

         

        ‘To my mind, it is hard to imagine a clearer case of an act or a transaction of a private commercial nature than the repairs to the ambassador’s residence.’

         

        There is also the decision of the Federal Constitutional Court of the German Federal Republic in the Claim against the Empire of Iran (1963) 45 ILR.57 which was a claim for the cost of repairs to the heating system of the Iranian Embassy and in which immunity was refused and in which the Court said (at p.80):

         

        ‘As a means for determining the distinction between acts jure imperii and jure gestionis one should rather refer to the nature of the State transaction or the resulting legal relationships, and not to the motive or purpose of the State activity.’

         

        On the other hand, the absolutist would argue that the provision of a safe and suitable residence for its accredited Ambassador in Fiji is undoubtedly and legitimately a concern, even a duty, of the Independent State of Papua New Guinea as the sending State and, therefore, any building contract entered into to achieve that end is and ought to be categorised as an act jure imperii.

         

        In Governor of Pitcairn v. Sutton [1995] 1 N.Z.L.R. 426 the New Zealand Court of Appeal in upholding a claim for sovereign immunity in an action brought by a New Zealand citizen employed as a typist/clerk in the appellant’s Auckland office, against her summary dismissal, Held:

         

        ‘Mrs. Sutton’s employment in the Pitcairn Office necessarily involved her in the public acts of the British Crown; and to allow consideration of a claim of unjustifiable dismissal in the Courts of New Zealand would intrude on the exercise of the sovereign functions exercised through the Governor of Pitcairn.’

         

        Richardson J. in rejecting a submission that the dismissal of a clerk was something which any employer might do and therefore did not involve the power of the State, said at p.436:

         

        ‘In my view that suggested approach poses the question too narrowly and in a vacuum.

         

        The focus must be on the particular contractual relationship and responsibilities and their termination. If the employee is engaged in carrying out the public functions of the foreign state, a challenge to the dismissal ... may well require consideration of how the work was done within the mission.’

         

        In somewhat similar vein Browne-Wilkinson J. in Sengupta v. Republic of India (1983) I.C.R.221, also a summary dismissal case involving an Indian national employed as a clerk in the Indian High Commission in London, in rejecting the submission that the classification into ‘public’ or ‘private’ acts depends wholly on the type of contract and not on the subject-matter of the contract, said at p.227:

         

        ‘There may be cases, particularly in relation to contracts of employment, where the performance of the contract is itself part of the performance by the State of an essentially public or sovereign act. In my view it is necessary in each case to look at what is to be done under the contract in order to decide whether the entry into, and the performance of, that contract is a private act of the State or involves a necessary participation by the other contracting party in a public act of the State.’

         

        Needless to say in the context of employment cases the above judgments quite plainly reject as overly simplistic the analysis that since any private individual can hire and fire another private individual therefore the entry by a State into a contract of employment is essentially a private act giving rise to a mere contractual relationship of employer and employee unrelated to the exercise of any sovereign function.

         

        In this case it is by no means an easy task to categorise with any confidence the essential nature of the contract between the parties, involving as it does, the construction of the official residence of the Ambassador of Papua New Guinea in Fiji and I must confess that my view has waxed and waned between the restrictive view and the absolutist.

         

        I am however finally and reluctantly driven to the conclusion that the contract between the parties is not so clearly and exclusively a private or commercial transaction that the restrictive view should inevitably prevail.

         

        Needless to say the plaintiff must be taken to know that he was entering into a contract with an independent sovereign State and, just as the parties agreed in the contract, to arbitrate their differences, so too could the Independent State of Papua New Guinea have expressly agreed to waive its sovereign immunity in similar terms to that contained in the agreement under consideration in: A Co. Ltd. v. Republic of X (1990) 2 Lloyds Reps.520 at p.522.

         

        Furthermore this is not a case of a commercial transaction between a private contractor and a government-owned statutory body or shipping company where there might be some difficulty in identifying the body or company with an independent sovereign state or where there could be any doubt that the body being contracted with was the alter-ego of an independent sovereign state. Indeed this issue is only before the Court because the parties had not expressly agreed to the waiver of the defendant state’s sovereign immunity.

         

        What is more, unlike in a private building contract where the resultant building is subject to execution, the official residence of the Ambassador of Papua New Guinea is by definition part of the ‘premises of the mission’ and therefore, in law, inviolable. In the words of Art.22 of the Convention it ‘... shall be immune from search, requisition, attachment or execution’ unless expressly waived (See: Art.32(4) of the Convention).

         

        If I am wrong however in my categorisation of the contract between the parties and in upholding the absolute immunity of the Independent State of Papua New Guinea, from the civil jurisdiction of this Court, then I have no hesitation whatsoever in granting the defendant’s application for a stay of the proceedings pursuant to an exercise of the court’s discretion under Section 5 of the Arbitration Act (Cap.38).

         

        The proceedings are accordingly stayed.

         

        (Application granted; proceedings stayed.)

Josaia Lutunatabua v. The State

        [1999] 45 FLR 51

        COURT OF APPEAL OF FIJI ISLANDS

         

        JOSAIA LUTUNATABUA

         

        v.

         

        THE STATE

         

        [COURT OF APPEAL, 1999(Casey , Thompson JJA) 26 February]

         

        Criminal Jurisdiction

         

        Crime: procedure- need for expedition in the preparation of records for appeal purposes.

         

        While dismissing an appeal against conviction the Court of Appeal stressed that a delay of nearly 3 years in the preparation of the appeal book was unacceptable. A delay of more than 3 months is to be regarded as exceptional and sufficient to require explanation.

         

        No case was cited.

         

        Appeals against conviction entered in the High Court.

         

        Appellant in person

        J. Naigulevu for Respondent

         

        Judgment of the Court:

         

        On 10 October 1995 the appellant was convicted of rape and sentenced to serve 8 years’ imprisonment. On 29 February 1996 he applied for leave to appeal. Leave was granted shortly thereafter. Now, nearly three years later his appeal has come to hearing. As we are satisfied that the appeal must be dismissed, the delay has not caused the appellant any actual detriment in terms of loss of his liberty. However, where the liberty of an appellant is at stake, it is imperative that an appeal be heard and determined as soon as possible. In this case the registry of this Court wrote to the High Court registry in Lautoka early in 1996 requiring that a typed record of the trial be provided. That record was not received until late 1998. Such a delay is unacceptable in respect of any appeal. But where it is a criminal appeal and the appellant is in prison, the record must be provided to the registry of this Court as a matter of urgency. A delay of more than three months should be exceptional and an explanation required for it. If there is no satisfactory explanation, those responsible for the delay should be held accountable and made subject to disciplinary action.

         

        Although the letter by the appellant seeking leave to appeal was headed “Late Sentence Appeal”, the grounds stated in it related to the conviction. At the hearing of the appeal he confirmed that he wished to appeal against his conviction on questions of mixed fact and law. In case further leave was required for him to do that, we granted it (see Court of Appeal Act (Cap. 12) s.21(1)(b)). Although the grounds were expressed in the letter in layman’s fashion they are essentially that the learned trial judge failed to bring to the assessors’ attention contradictions in the evidence of the prosecution witnesses, that the evidence did not establish that there was sperm inside the woman’s vagina, and that the evidence was insufficient to establish the appellant’s guilt beyond reasonable doubt. At the hearing he specified one instance in which the evidence of the woman differed from information she had given the police. He said that three of the prosecution witnesses had lied and should not have been believed.

         

        There was evidence that the alleged victim told the police that she had been raped by three men. In her evidence-in-chief she said that it was the appellant alone who assaulted and raped her; she was not cross-examined about the discrepancy between that evidence and her report to the police. At the trial three Fijian men gave evidence that they were with the appellant when she walked along the beach past them; that the appellant spoke to her asking her to have sexual intercourse and that she refused; and that he then left them, followed her and assaulted her. They said that they followed the appellant for a sufficient distance to be able to see the offence being committed. They admitted that, although she was calling for help, they did not go to her assistance. They could have been seen by the woman when the offence was taking place and she could well have believed at the time that they were there supporting the appellant. The learned trial judge did not address the assessors on the matter. In our view, he should have done so, but the error was not sufficient to vitiate the assessors’ findings. The evidence that the appellant committed the offence was overwhelming

         

        Although no other contradiction or inconsistency was specified by the appellant in his letter or at the hearing, as he was unrepresented we have examined the appeal book to see whether there were any others and, if so, whether they were significant. We have found only one major contradiction; it was between the evidence of the woman and the three Fijian men and concerned the clothing worn by the appellant. She gave evidence that he was wearing shorts; the three Fijian men said that he was wearing long trousers. The relevance of such evidence is mainly to the identification of the person accused of the offence, although it may also be relevant to assessment of the witnesses’ veracity. In the present case the woman saw her assailant’s features in broad daylight for some considerable time, before and during the commission of the offence. She was certain of his identity. The Fijian men had been in company with the appellant immediately before the offence was alleged to have been committed and, if they were telling the truth, there could be no doubt about his identity as the assailant . In his statement to the police made under caution he placed himself at the scene, although he denied committing the offence. The appellant, who was unrepresented at his trial, put the veracity of the Fijian men in issue when he cross-examined them; however, neither they nor the alleged woman were cross-examined about the appellant’s clothing and in those circumstances the contradiction concerning it was not significant in relation to the assessment of the veracity of any of them.

         

        In respect of the second ground of appeal, proof of there having been semen in the vagina was not necessary. For the purpose of establishing rape, insertion of the penis into the vagina is sufficient, even if there is no ejaculation. Of course, if semen is found, it strengthens the prosecution case. That is why it is usual for doctors examining women who allege rape to take a vaginal swab. In this case the doctor took a vaginal swab on the day of the alleged offence; but he gave evidence of delay in the carrying-out of the scientific examination of it and said that, if there had been semen on the swab, the delay could account for the result of the examination being negative. The learned trial judge drew this evidence to the assessors’ attention. The second ground is, therefore, without merit.

         

        The third ground goes simply to the strength of the prosecution evidence. The learned trial judge made it clear to the assessors that the appellant’s case was that the prosecution witnesses were lying. He addressed them properly on the onus and standard of proof. If the assessors and the judge believed them, as clearly they did, the evidence was overwhelming. The appellant cannot, therefore, succeed on the third ground.

         

        The appeal against conviction must be dismissed.

         

        None of the grounds of appeal in the appellant’s letter related to sentence. However, we asked him whether he wished to address the Court about it. He said that the sentence was excessive. We would be willing to give the appellant leave to amend his appeal to include appeal against sentence, if we considered that such appeal had any merit. However, in our view it does not. The offence was committed in a most violent manner by a strong man against a weak woman who was a stranger to him and who had simply walked past him on the beach. The appellant has previous convictions involving violence and rape but had not been convicted for more than four years before the commission of this offence. In our view, the sentence was not harsh or excessive; if any thing, it was lenient. We have decided, therefore, not to give leave to amend the appeal to include appeal against sentence.

         

        Decision: Appeal dismissed.

Julie Doyle v. Phyllis Latour Doyle & Trustee Corporation Ltd.

        [1999] 45 FLR 262

        COURT OF APPEAL OF FIJI ISLANDS

         

        JULIE DOYLE

         

        v.

         

        PHYLLIS LATOUR DOYLE &

        TRUSTEE CORPORATION LIMITED

         

         

        TRUSTEE CORPORATION LIMITED

         

        v.

         

        PHYLLIS LATOUR DOYLE

         

        [COURT OF APPEAL, 1999 (Tikaram P, Barker JA) 12 November]

         

        Civil Jurisdiction

         

        Family law- divorce- ancillary relief- whether maintenance order capable of binding the estate of a deceased party- whether a prior deed of settlement remains valid after the making of a statutory maintenance order- Matrimonial Causes Act (Cap 51) Sections 87 (1) (k) and 101 (2).

         

        A former wife sought leave to enforce a maintenance order made upon the granting of the decree nisi notwithstanding the death of the husband. She also sought to recover arrears of maintenance and a lump sum. On appeal against the grant of leave and the award of a lump sum the Court of Appeal HELD: (i) the statutory maintenance order could, with the leave of the Court bind the husband’s estate (ii) the provision for payment of maintenance in a deed of settlement agreed before the grant of the decree nisi was not extinguished by the statutory maintenance order (iii) the existence of such a provision is relevant in deciding whether to grant leave but that (iv) in the circumstances of the case the leave would be upheld but the award of a lump sum would be set aside.

         

        Cases cited:

         

        Brooks v. Burns Philp Trustee Co. Ltd. (1969), 121 C.L.R. 432.

        Hyman v. Hyman [1929] A.C. 601

        Kirk v. Rose [1937] A.C.491

        Lake v. Quinton [1970] 1 NSWLR 111

        South Pacific Recordings v. Yates (ABU 39/96 - FCA Reps 97/483)

         

        M.B. Patel for Phyllis Latour Doyle

        P. Knight for Trustee Corporation Limited

        V. Kapadia and Ms S. Begum for Julie Doyle

         

        Judgment of the Court:

         

        These appeals have been heard by a Court of 2 Judges pursuant to s.6(2) of the Court of Appeal Act Cap. 12.

         

        There are two appeals against a judgment of Byrne J delivered in the High Court on 25 November 1996. By consent, the appeals were heard together.

         

        Facts

         

        The facts are not in dispute. The respondent, Phyllis Latour Doyle (‘the former wife’) is the former wife of Patrick Joyce Doyle, late of Sigatoka, Company Director (‘the deceased’). He died on 13th March 1990 at Nadi: probate of his Will was granted on 8th May 1990 to Anthony William Cooper, of Suva, the Manager in Fiji of Burns Philp Trustee Company Limited (‘Burns Philp’), which company was the sole executor and trustee named in the Will. Burns Philp, although incorporated in New South Wales, was registered in Fiji under the Trustee Corporation Act Cap.66. The estate was sworn for probate at $236,000 but neither this Court nor the High Court was provided with an up-to-date statement of the estate’s financial position. We were told from the Bar that the estate had been distributed almost entirely to the sole beneficiary.

         

        The appellant, Julie Doyle (‘the widow’) is the widow of the deceased. She is the sole beneficiary in his estate. An affidavit from the Managing Director of the appellant, Trustee Corporation Limited (‘the Trustee’) revealed that Burns Philp had been placed in liquidation in New South Wales on 3 December 1990. Burns Philp, whilst in liquidation, changed its name to BPTC Limited (in liquidation) (‘BPTC’) on 30th July 1991. BPTC, by deed dated 10 July 1992, appointed the Trustee as trustee of a number of estates and trusts in Fiji previously administered by BPTC, including the estate of the deceased.

         

        There was not filed in the High Court, as there should have been, an affidavit from the Trustee giving an account of its Burns Philp’s or BPTC’s stewardship of the estate of the deceased and of the present state of the estate’s assets, liabilities and income. In particular, the Trustee should have revealed when the executorship had ceased. Given that the widow was the only beneficiary, one would normally have expected that, between May 1990 when probate was granted and January 1996 when the former wife issued proceedings, any prudent executor would have gathered in the assets and transferred them to the beneficiary in her own right, however making some provision to cover any potential claim. However, we infer, without opposition from counsel, from the fact that BPTC transferred to the Trustee its trusteeship of the deceased’s estate, that its executorship had terminated at least by the date of the deed of appointment of new Trustee. Counsel agreed that, although BPTC had been joined as a party, if the claim by the former wife were to succeed, the Trustee would be the party liable, subject to any right of recovery from the widow and/or BPTC.

         

        The Court should also have been informed as to what provision, if any, had been made by the Trustee or its predecessor to cover the potential claim of the former wife which must have been known to BPTC and the Trustee. We were informed from the Bar that the statutory procedure whereby a trustee can require a claimant to bring a claim or else forfeit his or her rights, had not been utilised.

        Letters exhibited to the former wife’s affidavit indicate that the Trustee was still involved in the management of the estate in 1994-5, and acted as a conduit between the widow’s solicitors in Fiji and former wife’s New Zealand and later Fiji solicitors. The former wife’s solicitors had been justifiably anxious to obtain replies to their letters. Reasons for the apparent delays in replying by the widow and/or her solicitors were not explained to the Court.

         

        The former wife and the deceased married in 1948. By 4th June 1975, they had been separated for some time. After separation, the deceased stayed in Fiji and the former wife went to New Zealand. Each had issued divorce proceedings against the other: he in Fiji, she in New Zealand. On that date, the deceased and the former wife signed a Deed of Settlement of their matrimonial affairs. It is not necessary to set out in full this deed (which complied with all legal requirements for a deed). The deceased agreed to transfer to the former wife a half-share in a property in New Zealand and to pay $F70,000 to the wife from the disposition of a company. Both agreed to withdraw their divorce petitions (with the deceased paying the costs). After the withdrawal of both divorce petitions, the former wife was to file a fresh petition in the Magistrates’ Court in Fiji on the grounds of the deceased’s adultery.

         

        The relevant portion of the deed is the following provision: “The husband shall pay the sum of $F360 (three hundred and sixty dollars) per month to the wife for the rest of her life or until her re-marriage.” The expression ‘the husband’ in the deed included his executors, administrators and assigns.

         

        The wife duly commenced fresh divorce proceedings in Fiji. On 20th February 1970, a decree nisi was pronounced which included the following provision: “The Court doth further order that the Respondent (i.e. the deceased) pay maintenance to the Petitioner (‘the former wife’) at the rate of $360 (three hundred and sixty dollars) per month with effect from 22nd January 1976”. The decree nisi, which was made absolute on 21st May 1976, contained no reference to the Deed of Settlement made on 4th June 1975. Nor was there any sanctioning by the Court of the Deed of Settlement as would have been possible under s.87(1)(k) of the Matrimonial Causes Act Cap. 51 (‘The Act’).

         

        The deceased paid the maintenance until his death. As at the time of the hearing in the High Court, the Trustee and the widow had not paid anything further. We were informed from the Bar that, after the judgment in the High Court, the Trustee had paid $20,000 on account of the arrears in an effort to gain a stay of Byrne J’s judgment.

         

        The former wife, aged about 72 at the date of the hearing in the High Court, sought an additional $70,000 as a lump sum in settlement of her future maintenance entitlement under the deed and/or the decree. She alleged, without any medical or actuarial evidence, that this figure represented a fair assessment of the future amount which could be due to her, given her then good health. She detailed her financial and personal circumstances which were not good. These circumstances are irrelevant to the interpretation question as indeed are the circumstances of the widow which (we were informed from the Bar) are not good either. The circumstances of the parties would of course have been relevant to any application to the Court to vary or cancel the maintenance order contained in the decree nisi. However, none was ever made.

         

        We were also informed that the widow has issued proceedings against the Trustee alleging deficiencies in the administration of the estate by BPTC and/or the Trustee. The Trustee may have a claim for indemnity against BPTC with a possible recovery, from a fund of $50,000 held by the Government of Fiji as a statutory deposit paid by Burns Philp upon its registration in Fiji as a trustee corporation.

         

        Course of Proceedings in High Court

         

        The former wife’s proceedings were intituled with reference to the Act (sections 87 and 101), to the divorce proceedings of 1976 and to the Court’s inherent jurisdiction. She sought in her first statement of claim against the Trustee:

         

        (a)     leave to enforce the maintenance order made in the decree nisi, leave being required by s.101(2) of the Act.

         

        (b)     arrears of maintenance at $360 per month from the date of death of the deceased.

         

        (c)     the $70,000 lump sum.

         

        (d)     costs.

         

        Later the application was amended to seek a declaration against all defendants that the deed was in full force and effect. BPTC was added as a party and was represented by counsel who represented the Trustee.

         

        In his reserved judgment, delivered after three appearances before him, and the filing of written submissions, Byrne J. granted application (a) above. He also entered judgment for the arrears (then $25,260) and awarded the former wife a further $60,000 instead of the $70,000 claimed for future maintenance. Judgment for these amounts was entered against the Trustee only. The Judge also ordered that indemnity costs be paid by the Trustee to the former wife on the basis that the widow had more detailed submissions disputing the former wife’s right to future maintenance and her obvious need.

         

        The widow’s basic appeal is against the Judge’s finding that the former wife’s right to continuing maintenance depended on the Deed of Settlement, that the deed was valid and enforceable and that it had not been extinguished on the death of the deceased. She further submitted there was nothing in the decree nisi which authorised maintenance to be paid to the former wife after the death of the deceased since liability to pay was extinguished upon the death of the deceased. In other words, the submission was that the decree nisi superseded the deed.

         

        The Trustee supported the widow in her appeal.

         

        Both appellants further submitted

         

        (a)     That the Judge erred in awarding lump sum future maintenance at all or at the figure of $60,000

         

        (b)     That the order for indemnity costs was unjustified.

         

        At the commencement of the hearing before us, counsel for the former wife very properly conceded that the award for a lump sum for future maintenance could not stand. If the Deed is in still force, it confers only a right to periodic maintenance. There can be no liability on the estate of the deceased to pay any lump sum for future maintenance. This Court also indicated to counsel that it could not see any justification for an award of costs against the appellant on an indemnity basis. All three counsel agreed with the Court’s view.

         

        We note that there was no warrant for the Judge’s method of calculation of a lump sum. It is any plaintiff’s duty to prove quantum as well as liability and this plaintiff had clearly failed to discharge that onus in respect of the future maintenance. As elementary requirements, there would have had to be some evidence of

         

        (a)     The plaintiff’s health, by affidavit from a medical practitioner.

         

        (b)     actuarial calculations of her life expectancy.

         

        (c)     the present value of the benefit paid now instead of monthly over the period of her life expectancy.

         

        There would then have to be a contingency deduction by way of percentage to cope with the possibility of the former wife’s premature death or sooner re-marriage.

         

        The Trustee, in parts of the 1994-5 correspondence,(particularly a letter dated 26 September 1996) appeared to support the former wife’s claim, whilst averring that it was neutral. However, in this Court, it forsook a trustee’s neutral stance, normal in situations such as the present, and supported the arguments made for the widow. As a party, it was entitled to charge its stance but the consequence of its doing is that by becoming partisan, it could be treated as an opposing party where costs are concerned should the former wife be successful.

         

        The Trustee had two independent further grounds of appeal i.e.

         

        (a)     judgment should have been entered against BPTC as executor and not against the Trustee and

         

        (b)     the former wife’s claim under the Deed should not have been formulated under the procedural umbrella of a claim under the Act but should have had a simple claim in contract in summary judgment proceedings.

         

        As to ground (a), we have already indicated our view that BPTC was functus as executor because it had transferred its trusteeship to the Trustee as part of a sale of its trusteeship business as a going concern. Counsel agreed that if there be any liability on the estate, then the proper party to suffer judgment being entered against it is the Trustee, subject to

         

        (a)     any judgment being confined to the assets of the trust estate and

         

        (b)     its rights (if any) of indemnity against BPTC and

         

        (c)     its rights (if any) to trace and recover against the widow any money wrongfully paid to her.

         

        After some discussion, counsel agreed in writing that the following matters required resolution by the Court.

         

        1.       Are the provisions of the Deed of Settlement dated 4th June 1975 relating to the payment of maintenance contained in Clause 1 of the Deed valid and enforceable against Trustee Corporation Limited?

         

        2.       Does the maintenance order contained in the Decree Nisi survive the death of Patrick Joyce Doyle?

         

        These questions are not easy to answer and require some consideration of authority.

         

        Legal Considerations

         

        At common law, an agreement to pay maintenance for the life of the wife which in terms bound the husband’s executors is not invalid. See Kirk v. Rose [1937] A.C.491. There, a separation agreement, in the then common form, was expressed to bind the husband’s estate. The agreement provided for the payment of “a clear weekly sum of ^2 during her life for the maintenance and support of herself subject nevertheless to the provisions and conditions hereinafter contained.” The wife had agreed to what where then usual covenants, such as indemnifying the husband against any debts which she might contract and continuing to lead a chaste life. The House of Lords overruled the Court of Appeal which had held by a majority that, because the whole basis of the agreement was that the parties live apart, after the husband’s death they could no longer continue to live apart. Therefore, the whole basis of the contract had disappeared. The House of Lords rejected this view and held that the clear, simple words of the contract meant what they said. The husband’s estate had to pay the maintenance to the wife.

         

        The Fiji Matrimonial Causes Act was modelled on the Australian Act of the same name. It provides that orders, inter alia, for spousal maintenance may be made at the granting of a decree. Section 87 of the Act sets out a whole range of options available to the Court on making a decree including the power to approve a Deed of Settlement (s.87(1)(k)).

         

        In this case, the parties did not ask the Court to approve the Deed of Settlement, entered into in contemplation of the divorce proceeding which both had agreed was to be the vehicle for dissolving their marriage. It is easy to understand why. The provisions of the Deed were spent upon the making of the decree nisi. As Byrne J. pointed out in his judgment, there was a mechanism in the Deed which allowed the wife to continue with her existing divorce proceedings if the husband failed to comply with Clause 1 (payment of maintenance), Clause 2 (payment of $70,000) and Clause 3 (transfer of house property). In the result, the only matter which required attention at decree nisi stage was the wife’s maintenance.

         

        The question is whether the provision in the Deed which purports to bind the estate still applies once the parties opted into the statutory system for a maintenance order. By so opting, the parties gained the right to apply to have the Court increase, decrease or even extinguish the maintenance, should circumstances so dictate. They chose never to exercise that right. Had they done so, the Court hearing any application may well have taken into account the words of Lord Atkin in Hyman v. Hyman [1929] A.C. 601,629. “I could well understand the Court coming to the conclusion that the parties’ pre-estimate of the wife’s reasonable needs was judicious and that the allowance, continuing as it does after the husband’s decease, and being independent of any fluctuations in the amounts of his fortune, needed no supplement”.

         

         Hyman’s case is authority (if any were needed) that an agreement to pay maintenance at a stated amount does not remove the right of a wife to apply to the Court for more maintenance, even when a wife had covenanted not to apply for more maintenance; such a covenant is void against public policy. See also, Brooks v. Burns Philp Trustee Co. Ltd. (1969), 121 C.L.R. 432.

         

        Australian cases (which are somewhat difficult to assess because of the number and length of the judgments) point to the view holding that a maintenance order is a personal liability which ceases on death. The Australian position was summarised by Jacobs, P in Lake v. Quinton [1970] 1 NSWLR 111, 113-4.

         

        “Section 87(1)(h) of the Matrimonial Causes Act provides that the Court in exercising its powers under the part of the Act dealing with ancillary relief may do any or all of a number of things, including making a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order. One of the powers which the court can exercise under that part of the Act is that referred to in s.84(1), namely, to make such order it thinks proper in proceedings with respect to he maintenance of a party to a marriage. This language is appropriate to an order which extends beyond the life of the spouse against whom the order is made, but a very real question arises whether upon the true construction of the Act an order which in its terms take effect beyond the life of the spouse against whom it is made can be enforced under the provisions of the Act or has any efficacy as an order made under the Act: see Johnston v. Krakowski . It is strongly arguable that a majority of the Court, which of course would bind this Court, held as part of the ratio decidendi of the case that any order made under the Matrimonial Causes Act is purely personal to the parties, and, whatever its terms, comes to an effectual end upon the death of one of the parties. The decision was considered at some length by this Court in Felton (formerly Oser) v. Oser . It was held by this Court in the latter case that Johnston v. Krakowski is authority for the view that under the Act orders for maintenance must be made during the lifetime of the spouses. The High Court was divided upon the question whether, provided the order was made during the lifetime of the spouses, it could in any way be enforced after the death of the party against whom it was made. Kitto J. with whom Windeyer J. and Owen J. agreed took the view that the order could have no force whatsoever after the death of the party. He thereby gave a very limited construction to s.104(2) which is in the following terms: “104. (2) A decree made under this Act may be enforced, by leave of the court by which it was made and on such terms and conditions as the court thinks fit, against the estate of a party after that party’s death.” Barwick CJ. with whom McTiernan J. agreed expressed the view that the Act provided for the making in the lifetime of the husband of orders for maintenance of his wife upon the basis that orders so made could operate and be enforced after his death. Menzies J. did not find it necessary to deal expressly with the point, but I think that it may be said that he took the view correspondent with that of Barwick CJ. upon this point. The seventh member of the Court was Taylor J. who said that an order under the Act creates a personal liability on the husband to pay which comes to an end of his death, so that if an order be made to continue for the duration of the wife’s life, notwithstanding the earlier decease of her husband, it is necessary that the order be secured if it is to have any efficacy after the death of the husband. He did not deal with s.104(2), but it would seem that, in his opinion an order made under the Act ceased to have a continuing effect upon the death of the party against whom it was made. Lastly in this relation I should say that the view of Kitto J. as to the operation of s.104(2) was that it only applied so as to enable arrears which had accrued during the lifetime of the party to be recovered.”

         

        The dissenting judgment of Hutley, JA in Lake v. Quinton [1973] provides a contrary view on s.104(2) of the Australian Act.(i.e. s.101(2) of the Fiji Act)

         

        “An order for the ex-spouse’s life should mean what it says. Nor should decrees of courts, particularly of superior courts be qualified or cut down so as to have an effect other than their transparent effect, unless imperatively necessary. A decree of a court should be an instrument that parties are able to act upon without any suspicion of hidden limitations. This is particularly so in the field of divorce. The property arrangements and orders for maintenance may be the divorced spouse’s sole support for the rest of his or her days.

         

        It follows that it is irrelevant in these proceedings whether or not the order of the court in question has been validly made, in the sense that there is no legal error involved in making it. Having been made, it could only be attacked by the deceased in his lifetime by appeal, and he could have applied for variation, but he could never have sought any orders from another division of the Supreme Court on the basis that the order made was ultra vires. In my opinion the executor is in no better position than the deceased. He is in a worse position in that he cannot apply for a variation of the order nor can he appeal. In any proceedings brought under s.104(2) by Helene Howes, he may be able to set up these matters as providing a discretionary basis for the refusal of the Court to allow the order to be enforced. As to what matter can be raised as a proper basis for the discretion under s.104(2) I express no opinion.”

         

        In Johnston v. Krakowski, (1965) 113 C.L.R. 552, referred to in the quotations, a majority of the High Court of Australia appears to have read down the clear words of s.104(2) of the Australian Act allowing for enforcement of maintenance orders after the death of the party liable with the leave of the Court. Kitto, J’s rationale at 562 was: “This provision does not purport to convert an order against a party, which is in its nature, personal to him, into an order which on his death may be made binding upon his legal personal representatives.”

         

        Like Hutley JA in Lake v. Quinton at 139, we have great difficulty in reconciling the views expressed in some but not all of the judgments in Johnston v. Krakowski with the apparently clear words of a statute which purports to give the right, with leave of the Court, to apply to enforce a maintenance order against the estate of the person ordered to pay.

         

        One would imagine that questions of competing equities could be canvassed before the Court on a leave application (e.g. respective financial positions of the former wife and the widow). No information was before Byrne J. concerning the means of the widow; he had information about the circumstances of the former wife which were not good. It is not surprising, therefore, that he exercised his discretion under s.101(2) in her favour, absent any other information, assuming of course that he had jurisdiction to make an order under s.101(2).

         

        We consider that the Judge did have jurisdiction under s.101(2). The opinions on the comparable Australian subsection were probably obiter, since Johnston v. Krakowski was concerned with the constitutionality of a Victorian statute giving a former wife the right to sue for testamentary provision out of the estate of her former husband. The question for the High Court of Australia was how this right conflicted with the Commonwealth Statute. We are not bound by the apparent view of the majority. We find the views of Hutley JA quoted above and of Barwick CJ in Johnston v. Krakowski more compelling. Indeed they seem to be supported by English authorities such as Hyman v. Hyman. We note, too, that some doubts seemed to have been expressed about Johnston v. Krakowski in the later High Court of Australia case of Felton v. Mulligan, (1971) 45 ALJR 525, 528, 543.

         

        Hutley JA at 139 of his judgment in Lake v. Quinton suggested clarification of the law in Australia because, as he saw that Act as interpreted by the High Court, “may provide only illusory protection for the divorced spouse.” However, the position in that country is now academic because of the Family Law Legislation created a completely new regime for matrimonial disputes. Fiji however has not yet gone the way of both Australia and New Zealand with family law reform. The obsolete Act is still in force here. We cannot hold that Act can be interpreted so restrictively at some of the Australian authority suggests.

         

        It follows from what we have said that the decree nisi maintenance order could, with leave of the Court, bind the estate of the deceased. Byrne J.exercised his discretion correctly to give that leave.

         

        We think too that the provision for maintenance in the Deed survived the decree nisi although the Deed became secondary to the maintenance orders because of the latter’s susceptibility to variation and extinction. The only difference between the two was that the Deed by its terms, bound the husband’s estate. There was nothing contrary to public policy in such a provision in the deed, (Kirk v. Rose) (Supra). The Deed’s existence would also be a factor in deciding to grant leave under s.101(2). Accordingly in our view, the Judge was correct both to uphold the deed and to grant leave under s.101(2).

         

        The declaration made by Byrne J. will stand as will judgment for the arrears. As indicated at the hearing, we disagree with the Judge that this was a proper case for indemnity costs. In our view, the widow was quite justified in contesting the claim. As can be seen from this judgment, the legal issues were quite difficult. She was fully within her rights in contesting the claim. We agree with the Judge that the scale of costs, as at the date of his judgment, was out of touch with reality. The widow should suffer the normal consequences of unsuccessful litigation i.e. to pay the successful litigant a reasonable contribution by way of party and party costs.

         

        We endorse the view taken by this Court in South Pacific Recordings Ltd.v. Yates (Civil Appeal 39 of 1996). We commend that case to High Court Judges as a useful authority on the fixing of costs. For the reasons stated in Yates, we consider a lump sum allowance appropriate for party and party costs.

         

        The former wife is entitled to a reasonable contribution to her costs in the High Court against the husband’s estate. The costs order should reflect the fact that the former wife did not succeed on her claim for a lump sum for future maintenance. However it should also reflect the delay in 1994-5 on the part of the widow and/or the Trustee in replying to the former wife’s solicitors’ letters.

         

        We think that a reasonable party and party award for the High Court hearing is $1,250 plus disbursements as fixed by the Chief Registrar. As to the costs in this Court, the respondents have succeeded on the orders for future maintenance and on the indemnity costs order. We therefore think an appropriate award is $1,000 plus disbursements as fixed by the Chief Registrar. Both costs orders are to be against both the Trustee (as representing the estate of the deceased).

         

        For the reasons given, we answer in the affirmative both the questions posed on page 9 of this judgment.

         

        Result

         

        1.       Appeal allowed in Part.

         

        2.       Declaration made by Byrne J. affirmed.

         

        3.       Judgment for arrears of $25,920 against Trustee affirmed.

         

        4.       Judgment for $60,000 for future maintenance quashed.

         

        5.       Order for indemnity costs quashed.

         

        6.       Trustee to pay to $1,250 costs plus disbursements as fixed by the Chief Registrar for High Court trial.

         

        7.       Trustees to pay $1,000 plus disbursements as fixed by Chief Registrar to former wife as costs on this appeal.

Kalesi Cakau v. Abbul Habib & Mohammed Janif

        [1999] 45 FLR 117

        HIGH COURT OF FIJI ISLANDS

         

        KALESI CAKAU

         

        v.

         

        1.         ABDUL HABIB

        2.         MOHAMMED JANIF

         

        [HIGH COURT, 1999 (Fatiaki J) 18 June]

         

        Civil Jurisdiction

         

        Limitation- intended plaintiff’s ignorance of identity of tortfeasor- effect on effluxion of time- Limitation Act (Cap 35) Sections 16, 17, 20 & 21.

         

        The High Court HELD: that until the identity of the tortfeasor become known to the intended Plaintiff, time under the provisions of the Limitation Act did not begin to run.

         

        Cases cited:

         

        Central Asbestos Co. Ltd. v. Dodd [1972] 2 All ER 1135

        F.E.A. and A.G. v. Miriama Ganilau Appeal No. 50 of 1997

        In re Pickles v. N.C.B. (intended action) [1968] 1 W.L.R. 997

        Newton v. Cammell Laird & Co. [1969] 1 W.L.R. 415

        Re Clark v. Forbes Stuart (Thames Street) Ltd. (intended action)

                    [1964] 2 All E.R. 282

        Thomson v. Lord Clanmorris [1900] 1 Ch.D. 718

        Walford v. Richards [1976] 1 Lloyds Rep. 526)

         

        Interlocutory application in the High Court.

         

        S. Samuels for the Plaintiff

        B.N. Sweetman for the Defendants

         

        Fatiaki J:

         

        This is an application pursuant to Section 17 of the Limitation Act (Cap. 35) (‘the Act’) for leave to issue a Writ claiming special and general damages for personal injuries outside the limitation period of three years fixed for such a claim under proviso (i) to Section 4(1) of the Act.

         

        Under such an application the Court is empowered:

         

        ‘(to) grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced ... it appears to the court that, if such an action were brought forthwith and like evidence were adduced in that action, that evidence would, ... be sufficient –

         

        (a)     to establish that cause of action ...;

         

                  and

         

        (b)     to fulfil the requirements of subsection (3) of Section 16 in relation to that cause of action.’

         

        As to requirement (a) above, the evidence adduced in the plaintiff’s affidavit in support of the application for leave tells of how on the 28th of September 1993 the plaintiff, who was a 17 year old fifth former living with her parents, was a fare-paying passenger travelling in a bus at Veisari when it was involved in a collision with an overtaking truck owned by the second defendant and being driven in the opposite direction by the first defendant.

         

        In the accident the plaintiff sustained injuries to her right arm which subsequently had to be amputated above the elbow. As a result of her injuries the plaintiff was unable to finish her secondary schooling and, although she is now married, she continues to suffer from the loss of her arm.

         

        The first defendant was subsequently convicted and fined in the Magistrates’ Court, Suva for an offence of Dangerous Driving arising out of the same collision.

         

        I am more than satisfied that the above evidence would, in the absence of evidence to the contrary, be sufficient to establish the plaintiff’s claim for damages for the personal injuries she suffered as a result of the 1st defendant’s negligent driving.

         

        As to requirement (b) above, Section 16(3) of the Act provides:

         

        ‘The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which -

         

        (a)     either was after the end of the three year period relating to the cause of action or was not earlier than twelve months before the end of that period; and

         

        (b)     in either case, was a date not earlier than twelve months before the date on which the action was brought.’

         

        As to what are ‘material facts relating to a cause of action’, Section 19 of the Act provides that the phrase refers amongst other things, to the following:

         

        ‘(a)    the fact that personal injuries resulted from the negligence or breach of duty constituting that cause of action; and

         

        (c)     The fact that the personal injuries so resulting were attributable to that negligence or breach of duty, or the extent to which any of those personal injuries were so attributable.’

         

        Section 20 of the Act then defines the meaning of ‘facts of a decisive character’ in the following objective terms:

         

        ‘... if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice ... with respect to them, would have regarded at that time as determining ..., that an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.’

         

        For the sake of completeness reference should be made to the subjective provisions of Section 21 which provides that:

         

        ‘... a fact shall, at any time, be taken to have been outside the knowledge, actual or constructive, of a person if, but only if -

         

        (a)     he did not know that fact;

         

        (c)     in so far as there existed, and were known to him, circumstances from which with appropriate advice ... that fact might have been ascertained ..., he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice ... with respect to those circumstances.’

         

        The above provisions are an exact duplicate of the provisions of Sections 1 & 7 of the Limitation Act 1963 (U.K.) which were considered by the House of Lords in the leading case of Central Asbestos Co. Ltd. v. Dodd [1972] 2 All E.R. 1135.

         

        Their lordships in construing the above provisions were extremely critical of the drafting manner adopted, describing it as: ‘... the worst drafted Act in the statute book’ (­per Lord Reid at 1138); ... ‘notoriously difficult to construe’ (per Lord Pearson at p.1148); and ... formulated to disguise rather than reveal the meaning which it was intended to bear’ (per Lord Salmon at p.1159).

         

        In their majority judgments their lordships held:

         

        ‘(i)     (per Lord Reid and Lord Morris of Borth-y-Gest) time did not begin to run against a plaintiff under S.1(3) [the equivalent of our Section 16(3)] ... until the date on which he learnt that his injuries were attributable to the defendant’s negligence, nuisance or breach of duty i.e. that he had a legal remedy or cause of action against the defendant in respect of his injuries, for that constituted a material fact under Section 7(3)(c) [the equivalent of our Section 19(c)].’

         

        Lord Reid, in particular, in identifying the necessary elements of a claim for damages for personal injuries said at p.1139:

         

        ‘Before a person can reasonably bring an action he (or his advisors) must know or at least believe that he can establish (1) that he has suffered certain injuries; (2) That the defendant (or those for whom he is responsible) has done or failed to do certain acts; (3) that his injuries were caused by those acts or omissions; and (4) that those acts or omissions involved negligence or breach of duty.’

         

        In this case there can be little doubt that the plaintiff sustained severe personal injuries as a result of the collision between the bus in which she was a passenger and the truck being driven by the first defendant and this would have been known to her on the date of the accident when the injury was suffered and her arm was amputated. But whose negligence or breach of duty (if any) caused the collision? I am satisfied she would not and did not know at the time.

         

        As to Section 19(c) above, there would have been in my view, two clear possibilities open to the plaintiff. As a fare-paying passenger on a public transport bus she was owed a duty of care by the bus driver to ensure that his driving did not endanger her, and, as against the 1st defendant truck driver, the plaintiff was owed a similar duty as a sufficiently proximate and foreseeable road-user. She could have sued either or both drivers relying on negligence and/or breach of duty.

         

        As for the extent to which her injuries were attributable to either driver’s negligence and/or breach of duty however, the plaintiff I am satisfied, did not and could not have known until such time as she or her parents had obtained ‘appropriate (legal) advice’ or possibly, the responsible driver had been identified and confirmed in a successful criminal prosecution.

         

        The latter of these events occurred, it is common ground, on the 8th of March 1995 when the 1st defendant was convicted of Dangerous Driving, and the former, a few months later, on the 12th of May, 1995 when her father sought legal advice. Both dates are well within the three year limitation period and it is very unfortunate that proceedings were not commenced earlier and doubly unfortunate, that the plaintiff’s father did not depose to the legal advice he received (if any) and his understanding of it.

         

        Instead, the plaintiff’s claim got caught up by staff movements in her solicitor’s office and, much later, by their ill-advised pursuit of a detailed medical opinion as to the degree of incapacity arising from the plaintiff’s injuries when her amputated arm spoke volumes without such an opinion.

         

        In this way two years were lost or wasted as a result and the limitation period elapsed without a Writ ever being issued.

         

        Be that as it may and mindful that the Fiji Court of Appeal has recently described as convoluted the above provisions of the Act, in F.E.A. and A.G. v. Miriama Ganilau Appeal No. 50 of 1997 (FCA Reps 99/192) delivered 14th May 1999, I am satisfied on the evidence produced by the plaintiff of the following:

         

        (1)     that the requirements of Section 17(2)(a) of the Act have been fulfilled; and

         

        (2)     that the evidence fulfils the multifarious requirements of Section 16(3) of the Act in so far as the identity of the driver to whose negligence the plaintiff’s injuries was ‘attributable’, was ‘a material fact of a decisive character’ [See: Re Clark v. Forbes Stuart (Thames Street) Ltd. (intended action) [1964] 2 ALL E.R. 282), and Walford v. Richards [1976] 1 Lloyds Rep. 526)] which was unknown to both the plaintiff and her parents at all material times and for the ascertainment of which the plaintiff’s father had at the relevant time, taken all reasonable actions that could be expected of him [See: In re Pickles v. N.C.B. (intended action) [1968] 1 W.L.R. 997 and Newton v. Cammell Laird & Co. [1969] 1 W.L.R. 415].

         

        Needless to say I cannot accept that despite her father doing everything that reasonably could be expected to be done, the plaintiff is, nevertheless, to be denied leave because of the fault or failings of her solicitors, to institute proceedings within the limitation period.

         

        In any event as was emphasised by Vaughan Williams L.J. in Thomson v. Lord Clanmorris [1900] 1 Ch.D. 718 at p.728/729:

         

        ‘A Statute of Limitation cannot begin to run unless there are two things present - a party capable of suing and a party liable to be sued.’

         

        If therefore the identity of the ‘party liable to be sued’ is unknown and unascertained then, in my view, a precondition for time beginning to run has not been fulfilled. In this latter regard the relevant date in my opinion, is the 12th of May, 1995.

         

        The application is accordingly allowed and the plaintiff is granted leave to commence proceedings within 7 days of the date hereof.

         

        (Application granted.)

Kikuo Sakashita v. Concave Investment Ltd.

        [1999] 45 FLR 13

        HIGH COURT OF FIJI ISLANDS

         

        KIKUO SAKASHITA

         

        v.

         

        CONCAVE INVESTMENT LIMITED

         

        [HIGH COURT, 1999 (Fatiaki J) 5 February]

         

        Civil Jurisdiction

         

        Land- contract to purchase by non resident- whether prior consent of minister essential- whether deposit recoverable- Land Sales Act (Cap 137) Section 6.

         

        The Plaintiff who was a non resident reached an agreement with the Defendant company to purchase land in Fiji. Later the Plaintiff rescinded the contract and sought return of deposits paid. The High Court HELD: (i) that absent the minister’s prior consent the effect of Section 6 of the Land Sales Act was that the contract was void and (ii) that the Plaintiff was entitled to the return of the deposits under the law of restitution.

         

        Cases cited:

         

        Amar Singh v. Kulubya [1964] A.C. 142

        Attorney-General v. Carlton Bruce [1988] 2 QB 158

        Bowmakers Ltd v. Barnet Instruments Ltd [1945] K.B. 65

        Cope v. Rowlands (1836) 46 RR 532

        Damodar & Ratanji Ltdv. Redwood Investments Ltd. 34 FLR 30

        Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd

                    [1943] A.C. 32

        Hunter v. Apgar 35 FLR 180

        Jennyne Gonxalez & Anr v. Haroon Khan & Anr - HBC 73/92

        Saunders v. Edwards [1987] 1 WLR 1116

        Scott v.Brown Doering, McNab & Co. (1892) 2 Q.B. 724

        St. John Shipping Corporation v. Joseph Rank Ltd. [1957] 1 Q.B. 267

        Tinsley v. Milligan [1994] 1 A.C. 340

         

        Action seeking declaratory relief and restitution in the High Court.

         

        K. Bulewa for the Plaintiff

        S. Lateef for the Defendant

         

        Fatiaki J:

         

        The plaintiff Kikuo Sakashita is a Japanese businessman who was interested in investing in Fiji. He had plans to construct an exclusive health club/hotel complex to cater for the growing number of Asian visitors to Fiji. To that end he was shown a number of properties and also introduced to the managing director of the defendant company. He settled upon a vacant block of land just off Queens Road in the defendant company’s subdivision at Namaka, Nadi.

         

        On 15th May 1997 Kikuo the plaintiff entered into a Memorandum of Agreement (‘the Agreement’) to purchase the said land for $295,000.00 payable in three instalments - an initial deposit of $29,500.00 on signing, a further $29,500.00 within 30 days thereafter and the balance of $236,000.00 on production of the Title Deed to the land. It is common ground that pursuant to the Agreement, the plaintiff has made two payments of $29,500 each as deposit.

         

        The Agreement was made subject to three conditions precedent of which, for present purposes it is only necessary to refer to the following:

         

                  ‘(i)     The vendor arranging for all government approvals (including zoning) of Purchasers proposed motel/tourist apartments development on the said lot ...; and

         

                  (iii)     The Purchaser and/or his nominee company obtaining the necessary approval from the Minister of Lands for this purchase and also the approval from FTIB and the RBF’;

         

        As to condition (i), by letter dated 3rd November 1997 addressed to the plaintiff’s solicitor, the managing director of the defendant company advised:

         

        ‘All necessary approvals has been received and Deposit Plan No. 8003 has been registered.’

         

        This is confirmed in the affidavit of a principal in the firm of Wood & Jepsen, which acted as consultants to the subdivision, where he deposed:

         

        ‘... the Director of Town and Country Planning which is the ultimate authority in monitoring and approving developments in the country has approved the said land for Tourist development.’

         

        As to condition (iii) above, and in response to the plaintiff’s solicitor’s letter of 9th October 1997 to the Minister of Lands seeking his approval to the Agreement, the managing director of the defendant company wrote to the plaintiff’s solicitor advising ‘that Minister of Lands has already consent to the dealing and photocopy of the consent is attached herewith.’

         

        The relevant application form with the Minister of Land’s consent endorsed on it is dated 17.6.97 and is signed by the defendant company as the Vendor, and purports to be signed by the plaintiff as the Purchaser. I say ‘purports’ because in the body of the form, Clause 6(a), the purchaser is identified as: ‘Ryo-Zan-Pak (Fiji) Limited’ a company registered in Fiji.

         

        Furthermore in an earlier letter of the plaintiff’s solicitor to the defendant company dated 6th October 1997, in which it was suggested ‘... that the agreement be mutually cancelled or terminated and that both parties be restored to their respective position prior to 15th May 1997’, doubt was raised as to the validity of ‘the consent from the Minister of Lands to Ryo-Zan-Pak (Fiji) Ltd’.

         

        Be that as it may and after failing to get the defendant company’s agreement to cancel the Agreement, the plaintiff issued an Originating Summons on 19th February 1998 seeking various declarations, including, a declaration that ‘the Agreement is in breach of Section 6(1) of the Land Sales Act Cap.137 and is therefore null and void’.

         

        After answering affidavits were filed it was agreed by counsel that the case should proceed on the following preliminary legal issues:

         

        (1)        Whether the Agreement dated 15th May 1997 is in breach of Section 6(1) of the Land Sales Act (Cap. 137); and/or

         

        (2)        Whether or not the Minister of Lands consent dated 28.8.97 is sufficient for the purposes of Section 6(1) of the Land Sales Act ? and

         

        (3)        What are the consequences in the event of either question being answered in the affirmative ?

         

        Written submissions were ordered on the preliminary issues and these were eventually filed by the plaintiff’s solicitor on 29th September 1998 and by the defendants solicitor on 13th October 1998. I am grateful to counsel for their assistance.

         

        It is clear from the submissions that counsel differ fundamentally on the meaning and purpose of section 6(1) of the Lands Sales Act (Cap. 137- “the Act”). In this regard plaintiff’s Counsel writes:

         

        “The phrase '... prior consent in writing of the Minister responsible for land matters make any contract ...' used in Section 6(1) of the Act in its plain and ordinary meaning clearly require such a consent be obtained in writing before any contract to purchase land is made. The Section makes no exception to all kinds of contract.”

         

        and counsel relies on the unreported judgment of Palmer J. in the leading case of Hunter v. Apgar 35 FLR 180 delivered on 15th September, 1989.

         

        In that case Palmer J. said of the purpose of the Act at p.8:

         

        “The Land Sales Act, as already noticed, aims directly at the non-resident. It provides a mechanism to ensure that a non-resident cannot obtain any enforceable right in relation to land until, right at the outset, the Minister has had the opportunity of prohibiting any such transaction or imposing terms and conditions for his consent to the same.”

         

        and later at p.19 his lordship said:

         

        “The whole purpose of the legislation is to ensure that no contract is made without first giving the Minister the opportunity of permitting or prohibiting it and in the former case of imposing conditions upon it.”

         

        Defence counsel for his part, and equally forcefully, submits that:

         

        ‘Section 6(1) is directory or regulatory in nature and not prohibitory. Hence it does not render a contract void and unenforceable if consent of the Minister responsible is not obtained prior to the making of an agreement.’

         

        and, Counsel states that the Act:

         

        ‘by setting out the (penal) consequences of (any) contravention of Section 6(1) gives the strong impression that the contract could be enforced along with the offender being penalised for that right to enforcement.’

         

        Furthermore:

         

        ‘it would be impractical for a Minister to give his consent to a dealing in land if he is unaware as to what he is giving his consent to. It is important for a Minister to know in some detail what dealing is made between the parties regarding a piece of land in order to ascertain whether to give consent and this could only be possible if some form of agreement is put before the Minister.’

         

        and finally, after referring to Clauses 12 & 13 of the application form, Counsel writes:

         

        ‘... the form used (by its wordings) ... suggests that some agreement is indeed necessary and was so intended before application for consent is made to the Minister.’

         

        In support of these various submissions defence counsel cites Jennyne Gonzalez and Anor v. Haroon Khan and Anor Lautoka Civil Action No. HBC 0073 of 1992 (per Lyons J.) delivered in July last year.

         

        In his judgment Lyons J. said of the nature of Section 6(1) of the Land Sales Act at p.23:

         

        ‘On taking a broad approach, and reading the whole of the Act, including the preamble, Section 6 cannot be said to be prohibitory. Clearly there is no intention in the legislators to prohibit non-residents from purchasing land in Fiji. Indeed Section 15, (and I would add Section 7) for example, envisages non-residents owning land. ... If looked at in broad terms then by definition ..., as the statute itself is not prohibitory, Section 6 must be considered not to vitiate a contract by a non-resident for purchase or lease of land if not complied with. Section 6 must thus be declaratory or regulatory only.’

         

        and later his lordship identifies the purpose of the Act when he says at p.24:

         

        ‘The design of the Act, from a stand point of public policy, is to prevent speculative profiteering by non-residents. This public policy is met, not by expressly prohibiting speculation (indeed how can it ?) but by discouraging such activity by specific provisions to tax profits. Thus the Act itself is clearly revenue collecting and so provides for the public interest.’

         

        It is clear from the above-quoted extracts that even amongst judges of the High Court there exists a difference of opinion as to the nature and purpose of Section 6(1) of the Land Sales Act and I am reluctant to add a third and different view if it can be avoided.

         

        I turn then to consider Section 6(1) of the Land Sales Act Cap. 137 which reads (subject to an inapplicable proviso):

         

        ‘No non-resident or any person acting as his agent shall without the prior consent in writing of the Minister responsible for land matters make any contract to purchase or to take on lease any land.’

         

        In interpreting this provision I am first and foremost guided by the oft-cited observations of Lord Russell of Killowen C.J. when he said in Attorney-General v. Carlton Bruce [1988] 2 Q.B. 158 at p.164:

         

        ‘The duty of the Court is, in my opinion, in all cases the same, whether the Act to be construed relates to taxation or to any other subject viz. to give effect to the intention of the Legislature, as that intention is to be gathered from the language employed, having regard to the context in connection with which it is employed (and once ascertained) ... It is not open to the court to narrow and whittle down the operation of the Act by consideration of hardship or business convenience, or the like.’

         

        In the context of the present case, I am also mindful of the rule of law enunciated by Baron Parke when he said in Cope v. Rowlands (1836) 46 R.R. 532 at p.539/540:

         

        ‘It is perfectly settled, that where the contract which the plaintiff seeks to enforce, be it express or implied, is expressly or by implication forbidden by the common or statute law, no Court will lend its assistance to give it effect. It is equally clear that a contract is void if prohibited by statute, though the statute inflicts a penalty only, because such a penalty implies a prohibition and it may be safely laid down, notwithstanding some dicta apparently to the contrary, that if the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in view the protection of the revenue, or any other object. The sole question is, whether the statute means to prohibit the contract ?’

         

        At the outset, and as already noticed by Palmer J. Section 6(1) aims directly at the non-resident, and I would add purchaser. This is not to say however that a resident vendor cannot be a party to a contravention of its provisions. Plainly he can. Similarly with a contravention of the provisions of Section 7(1) of the Act which deals with a non-resident vendor. In neither instance however can the primacy of a non-resident be ignored.

         

        Secondly, both Sections in clear terms require, not just the consent of the Minister responsible for land matters to the making of a contract to purchase or lease any land or for its disposition, but his prior consent in writing. Prior to what ? one may ask - to any discussion, proposal or oral agreement ? Commonsense dictates that none of these preparatory steps are within the contemplation of the Sections.

         

        In my view therefore and bearing in mind the evidential requirements of Section 59(d) of the Indemnity Guarantee and Bailment Act (Cap. 232), the answer to the above question must be, prior to the execution by a non-resident of a written memorandum or note evidencing such purchase, lease or disposition of land.

         

        As for the revenue collecting purpose of the Act it is noteworthy that Section 3, the charging provision of the Act, other than imposing a land sales tax on any profits makes no distinction between a resident or non-resident seller or buyer. The Section does however impose the liability on the seller of the land.

         

        In other words, in so far as the Act has a revenue-collecting purpose, the residency of the parties is considered irrelevant, and, if that were its sole purpose, then there would in my view, have been no need for the Act to expressly proscribe sales or purchases by non-residents.

         

        The fact that such dealings are singled out and made subject to the ‘prior consent in writing of the Minister responsible for land matters’ suggests to my mind, that the Act also has a discernible protective or public policy purpose, namely, the prevention in the public interest, of the uncontrolled alienation of land in Fiji, to and by non-residents.

         

        Furthermore the fact that it is the Minister responsible for land matters who must give his prior consent reflects the concern of the Legislature that consideration and consent or refusal be given and taken at the highest executive level, to each and every land dealing by a non-resident whether in person or through an agent.

         

        Needless to say I prefer the approach of Palmer J. to the interpretation of Section 6(1) of the Act. It is not only consistent with the clear protective purpose of the Act but in addition, gives effect to the plain and ordinary meaning of the words of the Section.

         

        Lyons J’s approach on the other hand ignores altogether the existence of the word prior in relation to the consent of the Minister and unduly stresses the revenue-collecting purpose of the Act at the expense of its other equally important protective purpose.

         

        This latter approach is also problematic in that it may entail an otherwise valid and binding contract which may have been partly-performed (as occurred in this case) being unilaterally altered or rendered illegal and unenforceable by the Minister’s subsequent conditional approval or refusal of consent ex poste facto. Such a result would be at the very least inconvenient, and could, in some instances, give rise to unreasonable and unjust consequences.

         

        Money may have changed hands and the personal and business affairs of the non-resident buyer or seller may have been rearranged as a result of the contract, which may have to be refunded and dismantled not as a result of anything done by the parties but because of the subsequent decision of the Minister.

         

        Given the above construction of Section 6 I am constrained to answer the first question earlier posed at page 4 in the affirmative and the second question negatively. In this latter regard I respectfully agree with and adopt the words of Palmer J. when he said at p.17 (op.cit):

         

        ‘The Minister’s purported consent given on the (28th of August 1997) can be of no effect. He derives his powers in the matter from Section 6 of the Act and those powers are to consent or refuse consent prior to the making of the contract. Any consent he purports to give after that is in my view ultra vires and of no effect.’

         

        The plaintiff must be and is accordingly granted the first declaration sought in the Originating Summons.

         

        What then is to be done about the deposit already paid to the defendant company pursuant to the Agreement? This, I confess is the more difficult of the questions earlier posed to the Court. Here too there is no agreement by counsel.

         

        Plaintiff’s counsel submits that the Agreement being unlawful of effect (sic) and unenforceable, no legal or equitable interest can therefore pass under it and counsel simplistically submits the Plaintiff is entitled to a refund of all money paid under the Agreement. On what legal basis or principle is undisclosed.

         

        Defence counsel for his part, whilst disputing the amount paid by way of deposit, submits that:

         

        ‘The Sale and Purchase Agreement is valid and enforceable.’ (a submission which can no longer be sustained given the court’s construction of Section 6)

         

        and Counsel submits:

         

        ‘The deposit paid by the Plaintiff to the Defendant towards the purchase price is not refundable.’

         

        In this latter regard it is noteworthy that Clause 13 of the Agreement between the parties expressly provides that: ‘all monies ... paid or ... applied in reduction of the purchase price shall be refunded to the Purchaser without deduction ...’ in the event that the Vendor, for 14 days, defaults in the performance or observance of any of his contractual duties.

         

        The Clause is highlighted not because the defendant company as Vendor has breached its contractual obligations under the Agreement (upon which no finding has been made) but rather, to underscore the fact that a refund of the deposit monies was within the contemplation and agreed to by the parties when the terms of the Agreement was settled between them.

         

        Indeed Clause 16(iii) of the Agreement (earlier set out at p.2) clearly places the contractual duty of ‘... obtaining the necessary approval from the Minister of Lands ...’ on the Purchaser and/or his nominee company and defence counsel submits that if there was any breach of this clause then it is the plaintiff’s fault!

         

        That is not to suggest however that the defendant company committed any breach in applying for and obtaining the Minister’s consent under the Lands Sales Act. Plainly it did not, but I have digressed somewhat.

         

        Returning then to the deposit and mindful of the Court’s construction of Section 6(1) of the Act, I am constrained to hold that the Agreement is a contract implicitly prohibited by the Act and is rendered illegal in its making.

         

        In such a case the learned authors of Cheshire and Fifoot’s Law of Contract (9th edn.) write at p.323:

         

        ‘(the contract) is void ab initio. It is a complete nullity under which neither party can acquire rights whether there is an intention to breach the law or not.’

         

        As to the consequences of such a contract the learned authors say at p.345:

         

        ‘The general principle, founded on public policy, is that any transaction that is tainted by illegality in which both parties are equally involved is beyond the pale of the law. No person can claim any right or remedy whatsoever under an illegal transaction in which he has participated. Ex turpi causa non oritur actio.’

         

        and later, in dealing with the application of the general principle to monies paid under such a contract and in recognising an exception to the general principle, the learned authors write at p.349/350:

         

        ‘Neither party can recover what he has given to the other under an illegal contract if in order to substantiate his claim he is driven to disclose the illegality. The maxim in pari delicto potior est conditio defendentis applies and the defendant may keep what he has been given.’

         

        Quite clearly then the matter is not as simply addressed as plaintiff’s counsel has submitted nor is it necessarily a question of the court restoring the parties to their respective positions prior to their entering into the illegal contract. Rather, the Court is obliged to consider whether in seeking to recover the deposit paid to the defendant company, the plaintiff is driven to disclose the illegality.

         

        This exception to the general rule was applied in the judgment of the Privy Council in Amar Singh v. Kulubya [1964] A.C.142 which concerned a Ugandan ordinance which prohibited the sale or lease of ‘Mailo’ land by a non-African except with the written consent of the Governor and where despite the absence of any written consent rendering a lease illegal, the respondent a native African, succeeded in recovering possession of the land before the illegal lease had expired.

         

        Lord Morris of Borth-Y-Gest in delivering the judgment of the Privy Council and in approving the dictum of Du Parq L.J. in Bowmakers Ltd. v. Barnet Instruments Ltd. [1945] K.B.65 at p.70, and of Lindley L.J. in Scott v. Brown Doering, McNab & Co. (1892) 2 Q.B. 724 at p.728, said at p.153:

         

        ‘... their Lordships consider that the plaintiff was neither obliged to found his claim on the illegal agreements into which he entered nor, in order to support his claim, to plead or to depend upon the agreements.’

         

        In that case the Privy Council said at p.151:

         

        ‘(the respondent) required no aid from the illegal transactions to establish his case; it was sufficient for him to show that he was the registered proprietor of the lands and that the appellant, a non-African, was in occupation without the consent of the Governor, and accordingly had no right to occupy.’

         

        More recently, in affirming this exception in Tinsley v. Milligan [1994] 1 A.C. 340, Lord Browne-Wilkinson delivering the leading majority judgment of the House of Lords said at p.376:

         

        ‘In my judgment the time has come to decide clearly that the rule is the same whether a plaintiff founds himself on a legal or equitable title: he is entitled to recover if he is not forced to plead or rely on the illegality, even if it emerges that the title on which he relied was acquired in the course of carrying through an illegal transaction.’

         

        and later at p.377 his lordship said:

         

        ‘In my judgment the court is only entitled and bound to dismiss a claim on the basis that it is founded on an illegality in those cases where the illegality is of a kind which would have provided a good defence if raised by the defendant. In a case where the plaintiff is not seeking to enforce an unlawful contract but founds his case on collateral rights acquired under the contract (such as a right of property). The court is neither bound or entitled to reject the claim unless the illegality of necessity forms part of the plaintiff’s case.’

         

        In determining this question I am acutely aware that in the event that the deposit is not returned the defendant company may be said to have been unjustly enriched in so far as it will be permitted to retain both the land and the deposit which is a considerable sum of money.

         

        Conversely, if the deposit is refunded to the plaintiff then on one view, it might be said that the court was lending its assistance to a party to an illegal contract or in the language of equity, one who has not come to equity with clean hands (see: Damodar & Ratanji Ltd. v. Redwood Investments Ltd. (1988) 34 F.L.R. 30 at p.36 and 37).

         

        In similar vein Bingham L.J. said in Saunders v. Edwards [1987] 1 W.L.R. 1116 where the defence of ex turpi causa was rejected, at p.1134:

         

        ‘Where issues of illegality are raised, the courts have (as it seems to me) to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an ... agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct.’

         

        (see also: the observations of Devlin J. in St. John Shipping Corporation v. Joseph Rank Ltd. [1957] 1 Q.B. 267 at pp.288 & 289)

         

        Neither is my decision made any easier by considering the conduct or relative moral culpability of the parties to the Agreement since both were aware of the need to obtain the Minister’s approval and both have acted on the basis that there was a valid and binding contract in existence.

         

        In the final analysis I am content to categorise this aspect of the plaintiff’s Originating Summons as being a claim for money had and received or for restitution according to the principles discussed in the judgments of the House of Lords in the case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] A.C. 32.

         

        In particular I am satisfied that with little modification the words of Lord Roche in the Fibrosa case are directly applicable to the plaintiff’s claim, where his lordship said at p.75:

         

        ‘It is, I think, a well settled rule of English law that, subject always to special provisions in a contract, payments on account of a purchase price are recoverable if the consideration for which that price is being paid wholly fails: see: Ockenden v. Henley EB & E 485, 492. Looking at the terms of the contract in the case now under consideration, I cannot doubt that the sum sued for was of this provisional nature. It was part of a lump sum price, and when it was paid it was no more than a payment on account of the price. Its payment had advantages for the (defendant company) in affording some security that the (plaintiff) would implement their contract and take up (the transfer) and pay the balance of the price, and it may be that it had other advantages ... but if no ... document of title were delivered to (the plaintiff) ... (or, as in this case, the contract is declared illegal ab initio) then, in my opinion, the consideration for the price including the payment on account, wholly failed and the payments so made is recoverable. It was contended that unless there is found some default on the part of the recipient of such payment ... the consideration cannot be said to have wholly failed merely because the frustration of the contract produced a result which, had it been due to some default, would have amounted to a failure of consideration. I find no authority to support this contention, which seems appropriate to an action for damages, but foreign to the action for money had and received.’

         

        In light of the foregoing and accepting the sworn concession of the managing director of the defendant company: ‘... that the purchaser made two payments of $29,500 each as deposit’, I order that the defendant company repay to the plaintiff or his solicitors within 21 days the sum of $59,000 with costs to be taxed if not agreed.

         

        (Judgment for the Plaintiff.)

Kylie-Jane Anderson v. Iowane Salaitoga

        [1999] 45 FLR 241

        HIGH COURT OF FIJI ISLANDS

         

        KYLIE-JANE ANDERSON

         

        v.

         

        IOWANE SALAITOGA

         

        [HIGH COURT, 1999 (Byrne J) 3 September]

         

        Civil Jurisdiction

         

        Practice: Civil- costs- whether plaintiff entitled to recover costs on an indemnity basis- High Court Rules 1988, Order 62.

         

        The Plaintiff who was a visitor to Fiji sustained very severe injuries in a motor- vehicle accident. She retained an Australian Queen’s Counsel to represent her. The High Court HELD: that the action was straightforward both as to law and as to facts and therefore the retention at the Defendant’s expenses of an overseas Q.C. could not be justified.

         

        No case was cited.

         

        Application for costs in the High Court.

         

        M. Arjun for the Plaintiff

        R. Krishna for the Defendant

         

        Byrne J:

         

        On the 4th of May 1994 after a hearing of four days and comprehensive written submissions made by the parties I awarded the Plaintiff the sum of $215,000.00 for damages as a result of injuries which she sustained in a motor vehicle accident on Queen’s Road between Sigatoka and Suva on the 3rd of May 1987. I concluded my judgment with this paragraph:

         

        “There will be a verdict for the Plaintiff of $215,000.00 and costs and judgment accordingly.”

         

        The Defendant appealed to the Court of Appeal, the hearing taking place on 15th August 1995 and judgment dismissing the appeal being given by the Court on the 17th of October 1995. The order of the Court was expressed in this way:

         

        “(1)    The appeal on liability and on damages is dismissed.

         

        (2)     The appellant to pay the costs of the respondent of and incidental to this appeal to be taxed unless otherwise agreed between the parties.”

         

        On the 18th of June 1998 the Plaintiff issued a Summons for Directions seeking orders that:

         

        (1)     The Plaintiff proceed to a taxing of costs on an indemnity basis.

         

        (2)     The costs of this application be costs in the cause.

         

        The Summons was supported by an affidavit of the Plaintiff in which she deposed that as a result of the litigation she incurred the following costs:

         

        (1)     Legal fees totalling $11,876.87 to her solicitors Wm Scott Grahame & Co.

         

        (2)     Fees due to her counsel Mr. D.E. Curtain of the Victorian (Australia) Bar $32,360.54.

         

        (3)     Air travel to Fiji $3,083.00.

         

        (4)     Fee payable to her mother for attendance at the trial $1,550.00.

         

        (5)     Attendance of her treating surgeon Mr. Joseph Robin to give evidence $8,755.38.

         

        (6)     Accommodation and incidental expenses $967.84.

         

        Annexed to the short submission of the Plaintiff’s solicitors in support of her application that the costs be paid to her on an indemnity basis was an affidavit of John Raymond Ansell a Law Clerk employed by the Plaintiff’s Melbourne lawyers in which Mr. Ansell gives reasons why the Plaintiff should be awarded costs on an indemnity basis. These are set out in Paragraph 14:

         

        “I seek an Order that the costs incurred by the plaintiff in engaging Mr. Curtain QC be paid by the defendant, for the following reasons:

         

        • The plaintiff issued proceedings in Fiji;

         

        • The plaintiff received severe, serious and multiple injuries in the transport accident. The defendant did not admit to the extent of the plaintiff’s injuries. The defendant denied liability for the occurrence of the transport accident and pleaded that the plaintiff was  contributory negligent. The plaintiff’s claim for damages was vigorously contested by the defendant;

         

        • The plaintiff’s working capacity had been reduced by reason of the injuries sustained in the transport accident;

         

        • The retention of Senior Counsel was necessary for the presentation of the plaintiff’s case. The skill and experience of a Senior Counsel was reasonably necessary for the presentation of the plaintiff’s case;

         

        • The presentation of the plaintiff’s case was of particular importance and significance to the plaintiff. She had been injured in a foreign country and sued through a foreign legal system. It presented with complexities on the issue of jurisdiction, the law of Fiji and the onus of proof;

         

        • The plaintiff’s injuries were devastating and the potential of the claim substantial, both in terms of monetary value in Australia and, more importantly, Fiji. This was evidenced by the ultimate award of damages which the plaintiff received. The complexities of the plaintiff’s case was evidenced by the duration of the Trial. The case involved substantial and complex issues in relation to damages;

         

        • It was the obligation of Phillips Fox to Brief Counsel of sufficient competency and experience to ensure that the rights of the plaintiff were adequately protected. Mr. Curtain QC was an appropriate Counsel bearing in mind his competence and experience. Mr. Curtain was admitted to the Victorian Bar in 1974 and appointed one of Her Majesty’s Queen’s Counsel in 1993. He has practised  predominately in personal injury cases throughout his career.”

         

        The first comment I make about this affidavit is that it is contrary to the principle stressed time and again by the Judges of this Court that affidavits should depose only as to facts in accordance with Order 41 Rule 5 of the Rules of the High Court and not be in reality as here, a submission on the law and an expression of opinions.

         

        The second comment is that the affidavit does not persuade me that I should grant the Plaintiff’s application for reasons which I shall give shortly.

         

        Counsel for the Defendant submits that I should ignore the affidavit as being improper in that presumably it is really a submission on the law and cannot be taken as evidence. If this is what counsel for the Defendant means by his use of the adjective “improper” then I agree. However I am prepared in this case to allow it to be used because of the comments I must make for rejecting the reasons stated.

         

        Counsel for the Defendant submits that I should reject the application for four reasons:

         

        (i)      The case was a simple motor vehicle accident action involving liability, proof of injuries and damages, so common in Fiji.

         

        (ii)      In almost all cases local barristers and solicitors are able and do handle such cases efficiently.         

         

        (iii)     There was no need for the Plaintiff to engage counsel from overseas at such enormous cost to his client.

         

        (iv)     If the Plaintiff chose to engage Mr. Curtain then she should bear the costs.

        I agree.

         

        Whilst as evidenced by my judgment I considered that the Plaintiff suffered very severe injuries with a consequent reduction in her working capacity I do not consider that the retention of overseas counsel was necessary for the proper presentation of her case.

         

        In my experience in very few motor vehicle accident claims in this Court are overseas counsel engaged, obviously I consider for the reason that the local legal fraternity, at least those practitioners who appear regularly in the Courts, is fully capable of handling such actions. Indeed the senior partner in the firm Wm Scott Grahame & Co., the Plaintiff’s solicitors in Suva, Mr. N.S. Arjun is in my view a very competent and persuasive advocate who could have represented the Plaintiff perfectly adequately. I say this without in any way meaning to disparage Mr. Curtain.

         

        Mr. Ansell seeks to justify the engagement of overseas counsel because the Plaintiff had been engaged in a foreign country and sued through a foreign legal system which presented with complexities on the issue of jurisdiction, the law of Fiji, and the onus of proof.

         

        I disagree.

         

        A simple enquiry to her solicitors in Fiji would have revealed that the law in Fiji governing motor vehicle claims such as the Plaintiff’s is no different from the law applicable in most Commonwealth countries of which I am aware and indeed even that of the United States.

         

        Mr. Ansell does not state what he claims were the complexities on the issue of jurisdiction, the law of Fiji, and the onus of proof. An enquiry of the Plaintiff’s solicitors would have disclosed that there were none.

         

        When a Court makes an order in the terms of the last paragraph of my judgment and the last paragraph of that of the Court of Appeal judgment the word “costs” is a form of legal shorthand meaning party and party costs. If a Court intends to award costs on an indemnity basis it will say so. I did not intend to award costs on an indemnity basis first because no request had been made to me to do so and secondly because if such a request had been made I would have refused it for the reasons I have just given.

         

        The principles governing party and party costs are set out in the Supreme Court Practice 1976 Vol. 1 Order 62 Rule 28 (note 62/28/3) thus:

         

        “It is of great importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs. The costs chargeable under a taxation between party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries, and must be paid by the party incurring them.”

         

        To summarise my conclusion I consider that the employment of counsel from overseas in this case, let alone Queen’s Counsel, was, with respect, a luxury for which the Defendant should not have to pay. I therefore dismiss the Plaintiff’s Summons for Directions and order her to pay the Defendant’s costs to be taxed if not agreed.

         

        (Application dismissed.)

         

        (Editor’s note: Order 62 of the High Court Rules was amended on 15 May 1990- see LN 72/98)

Mahendra Pal Chaudhry v. Attorney-General of Fiji

        [1999] 45 FLR 87

        COURT OF APPEAL OF FIJI ISLANDS

         

        MAHENDRA PAL CHAUDHRY

         

        v.

         

        ATTORNEY-GENERAL OF FIJI

         

        [COURT OF APPEAL, 1999 (Casey, Barker, Thompson JJA) 4 May]

         

        Criminal Jurisdiction

         

        Constitution- freedom of expression- whether contempt by scandalising the Court is reasonably justifiable in a democratic society -  Constitution (1990) Section 13.

         

        Courts- contempt of  court- freedom of expression - Constitution (1990) Section 13.

         

        The Appellant published a pamphlet which repeated suggestions that some judges and magistrates were corrupt.  The Appellant was convicted of contempt by scandalising the Court.  On appeal the Court of Appeal re-affirmed the existence of the common law offence in Fiji and HELD: (i) that the constitutional right to freedom of expression could not avail where it was proved that there was a real risk that the actions of the contemnor would undermine public confidence in the administration of justice; but (ii) that even in such cases the defences of honest or fair comment and of justification or truth were available.

         

        Cases cited:

         

        Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, 325 (PC).

        Attorney-General v Butterworth [1963] 1QB 696

        Attorney-General for NSW v Mundey [1972] 2 NSWLR 887

        Attorney-General v Times Newspapers Ltd [1974] AC 273

        Craig v Harney 331 US 367 (1947)

        Duff v Communicado Ltd [1996] 2 NZLR 89.

        Harmsworth v Harmsworth [1978] 3 All ER 816

        McLeod v St Aubyn [1899] AC 549, 561

        Metropolitan Police Commissioner ex parte Blackburn [1968] 2 QB 150

        Ministry of Transport v Noort [1992] 3 NZLR 260 (CA).

        Nationwide News Pty Ltd v Wells (1992) 177 CLR 1

        R v Chaulk (1991) 2 CR (4th) 1, 27-28

        R v Editor of New Statesman ex parte DPP (1928) 44 TLR 301

        R v Fletcher (1935) 52 CLR 248

        R v Gray [1890] 2QB 36

        R v Kopyto (1988) 47 DLR (4th) 213

        R v Nicholls (1911) 12 CLR 280, 286

        R v Oakes (1986) 26 DLR (4th) 200

        Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339

        Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225, 232

        Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48

        St. James Evening Post (1742) 2 Atk 469; 26 ER 642

        Vijaya Parmananandam v Attorney -General (1972) 18 FLR 90 (CA)

         

        Appeal against conviction in the High Court.

         

        R. Naidu for the Appellant

        S. Banuve & S. Kumar for the Respondent.

         

        Judgment  of  the Court:

         

        On 7 April 1998 in the High Court at Suva, Fatiaki J found the appellant, Mr Mahendra Pal Chaudhry, guilty of contempt of court on the application of the respondent and ordered him to pay $500 costs.  He appeals against that finding and order.

         

        The application was based on O.52, r1 of the High Court Rules 1988 which provides that the Court’s power to punish for contempt may be exercised by an order of committal (inter alia) “otherwise than in connection with any proceedings” (O.52, r1(2)(b)). The appellant was described at the material time as a trade unionist and leader of the Labour Party in Parliament.  The grounds on which the order of committal was sought were expressed in the Notice of Motion of 10 February 1998 as “his contempt of this Honourable Court in publishing pamphlets (sic) and causing [it to be] published in the issue of the Daily Post dated 14 July 1997 under the heading “Judiciary Corrupt”. The words complained of appeared in the following paragraph of the pamphlet alleged to have been published by the appellant:-

         

        There has been public suspicion since the coups that many in our judicial system are corrupt. In several cases well known lawyers have been identified as receiving agents for magistrates and judges. A number of lawyers are known to arrange for them to appear before their preferred magistrates or judges.

         

        It was claimed that this statement constituted a form of contempt recognised by the common law  as that of  ‘scandalising’ the court.   It was included in a chapter relating to Law and Order as part of a wide-ranging social and political review of Fiji, expressed occasionally in robust language, and generally consistent with what could be expected in a party political report of such a nature.

         

        The affidavit of Kamal Iyer, a journalist (which was not challenged by cross-examination) established that the appellant, as Secretary-General of the Labour Party, presented the pamphlet to a meeting of party delegates on 11 July 1997 and it was distributed to journalists and news media.  It was a lengthy document over the signature of Mahendra Pal Chaudhry as Secretary-General, headed  “Fiji Labour  Party Report of the Secretary-General to the 12th Delegates Conference, Tokatoka Resort, Nadi - 11 July 1997”.  In spite of Mr Naidu’s submissions in support of the ground of appeal alleging that publication of the report by the appellant had not been proved to the required standard of beyond reasonable doubt, we are satisfied that this was clearly established on the evidence and agree with His Lordship’s conclusion to this effect.  We also concur in his view that instead of alleging a single contempt of causing the pamphlet to be published in the newspaper (as contended for by Mr Naidu), the Notice of Motion alleged two separate contempts, one of publishing the pamphlet, and the other of causing it to be published in the Daily Post.  His Lordship found the second allegation was  not proved and the appeal is concerned only with Mr Chaudhry’s own publication of the statement.

         

        We saw no merit in Mr Naidu’s submission that the Notice of Motion did not particularise sufficiently the details of the publication.  No application was made for further particulars, and we reject any suggestion that Mr. Chaudhry was uncertain of what was charged against him, or placed at any disadvantage in defending himself.  Mr Naidu relied on Harmsworth v Harmsworth [1978] 3 All ER 816 where the Divisional Court of Appeal held that a notice served on a person charged with contempt should contain enough information to enable him or her to meet the charge, and it was not sufficient to have this particularised in another document or affidavit.

         

        O.52, r3 of the High Court Rules dealing with the Motion for  a Committal Order has no requirement that the grounds be stated in it , as distinct from the comparable English O.52 r4 which contains such a direction.  There is provision in our O.52 r3(3) for service, along with the Notice of Motion, of the affidavit and statement in support of the originating application for leave under O.52, r2, which was done here. This is clearly designed to give the respondent  the information he or she needs to meet the contempt charged in the Motion.  It was sufficient in this case.  We see no need to introduce into our Rules the added refinement that the motion itself should contain similar particulars.  Accordingly we are not prepared to follow Harmsworth and other English authorities suggesting this must be done as a matter of course. The contempt alleged in that case consisted of breaches of a non-molestation order, and it may be sensible in such situations for details of the episodes relied on to be included in the Notice of Motion, even though there is no requirement for that to be done.  But there was no need for such particularity here.

         

        The surviving issue in the appeal is the effect on the law of contempt of the provisions of the 1990 Constitution then in force relating to freedom of expression. Under s4(b) that right was declared and protected, and s13 read:

         

                                   Protection of freedom of expression

         

        13(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold and to receive and impart ideas and information without interference, and freedom from interference with  his correspondence.

         

        (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

        ………

        (b)       for the purpose of ……… maintaining the authority and independence of the courts………

        ………

        except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

         

        Section 121 provided:

         

        The superior courts shall have power to punish persons for contempt in accordance with the law.

         

        We take this to be declaratory of the existing powers, both explicit and inherent, of the superior courts, but that the law they apply and the things done under its authority must still accord with the requirements of the Constitution and in particular with s13.

         

        In the High Court Fatiaki J said he had  not the slightest doubt that the law of contempt of court is a legitimate, necessary and reasonably justifiable law in a democratic society having as its sole purpose the maintenance and authority of the courts.  He referred to Vijaya Parmananandam v Attorney -General (1972) 18 FLR 90 (CA) upholding a finding of contempt by the then Supreme (now High) Court in relation to a statement scandalising the court, but it seems that it did not have the advantage of considering the body of law which has since been developed in other jurisdictions with similar constitutional guarantees.  His Lordship distinguished the decision of the majority in the Ontario Court of Appeal in R v Kopyto (1988) 47 DLR (4th) 213 holding there was no such contempt because of the effect of a provision similar to that in s13(2) relating to reasonable justification in a democratic society.

         

        Contempt at common law

         

        In determining the extent to which the law relating to contempt by scandalising the Court is “reasonably justifiable in a democratic society”, it is appropriate to ascertain how that law is presently understood in common-law jurisdictions. Recent cases in England show the tension existing between the perceived need in the public interest to punish statements scandalising the Courts or judges, and the common-law values of freedom of speech and expression. The existence of this form of contempt, recognised in earlier cases, was confirmed in St. James Evening Post (1742) 2 Atk 469; 26 ER 642. There were few reported cases thereafter and in 1899 Lord Morris said it was obsolete in England (McLeod v St Aubyn [1899] AC 549, 561); however, in the following year it was applied in R v Gray [1890] 2QB 36 to punish those responsible for an article abusing a judge. After a series of cases dealing with publications alleging bias or partiality by the Courts, Lord Atkin emphasised in 1936 that it was legitimate for members of the public  to criticise judges or the administration of justice, even erroneously, so long as they abstained from imputing improper motives to them and were genuinely exercising a right of criticism and were not acting in malice or attempting to impair the administration of justice. “Justice is  not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” (Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, 325 (PC).

         

        By 1985 contempt by scandalising the Court was described by Lord Diplock as “virtually obsolescent” in Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339, 347A, and it is said in Arlidge, Eady and Smith on Contempt (2nd edition) (London, Sweet & Maxwell 1999) at p341 that proceedings for contempt of this kind are rare, the Courts in the United Kingdom preferring to ignore attacks upon themselves.

         

        An intention to interfere with the proper administration of justice was not seen as a necessary ingredient of the offence of contempt by scandalising the court in Attorney-General v Butterworth [1963] 1QB 696 (it was enough if the action complained of was inherently likely so to interfere), or by Lord Hewart in R v Editor of New Statesman ex parte DPP (1928) 44 TLR 301, and this view has been adopted in other common-law jurisdictions - see Attorney-General for NSW v Mundey [1972] 2 NSWLR 887, 911 and Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225, 232.

         

        Jurisdiction at common-law to punish for contempt has been recognised in other Commonwealth Courts as well as by this Court in Vijaya Parmanandam v Attorney-General on much the same basis as that current in the United Kingdom. But it is a jurisdiction to be exercised cautiously and  with due regard for freedom of speech, as the New Zealand Court of Appeal acknowledged in Solicitor-General v Radio Avon Ltd, decided before the passing of the New Zealand Bill of Rights Act in 1990. After citing at p230 the passage referred to above from Lord Atkin’s judgment in Ambard v Attorney-General, that Court said:

         

        “The courts in New Zealand, as in the United Kingdom, completely recognise the importance of freedom of speech in relation to their work provided that criticism is put forward fairly and honestly for a legitimate purpose and not for the purpose of injuring our system of justice.”

         

        However, it added that there was an area of uncertainty in Lord Atkin’s statement, which  could be interpreted as excluding from protection any form of criticism imputing improper motives to those taking part in the administration of justice, and went on to say:

         

        “If this were the law then nobody could publish a true account of the conduct of a judge if the matter published disclosed that the judge had in fact acted from some improper motive.  Nor would it be possible, on the basis of facts truly stated, to make an honest and fair comment suggesting some improper motive, such as partiality or bias, without running the risk of being held in contempt.”

         

        The Court referred to published works suggesting that a defence of justification or fair comment could be an answer to this dilemma, citing in support of fair comment the judgment of Griffith J in the High Court of Australia in R v Nicholls (1911) 12 CLR 280, 286; and R v Fletcher (1935) 52 CLR 248, 257-8, and other Australian State judgments to the same effect. Lord Denning also upheld the right of fair comment in Metropolitan Police Commissioner ex parte Blackburn [1968] 2 QB 150, 155.  The Court noted in Solicitor-General v Radio Avon Ltd  that there were ‘greater difficulties’ with a defence of justification.  One problem could be that airing in court a disputed claim of truth could do more harm to public confidence in a judge or court than the original publication (see para 165 of the U.K. Phillimore Committee’s Report). However, truth was recognised as a defence in Nationwide News Pty Ltd v Wells (1992) 177 CLR 1, 39 per Brennan J who said:

         

        …..the revelation of truth - at all events when its revelation is for the public benefit-   and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court of public confidence.

         

        The logic in recognising truth as a defence is compelling and accords with current attitudes of the common law relating to this form of contempt.  On the other hand, the use in this judgment of such terms as ‘unjustified’, ‘baseless’ and ‘unwarranted’ in referring to statements scandalising the court indicate an objective test, so that a mistaken belief in the truth of the allegations would not avail the defendant.

         

        This summary indicates that the common-law offence of contempt scandalising the Court involves attacks upon the integrity or impartiality of  judges or Courts, the mischief aimed at being a real risk of undermining public confidence in the administration of justice, which must be established beyond reasonable doubt (See Solicitor-General v Radio Avon Ltd at p234). We accept that in respect of such attacks, a defence is available of honest and  fair comment on the basis of facts truly stated, and of justification or truth. Mr. Chaudhry did not invoke either by way of defence, and we consider his counsel’s concession that his remarks amounted to contempt on purely common-law principles was rightly made.

         

        The Constitutional Impact

         

        As recorded earlier in this judgment, s13(2) of the 1990 Constitution provided that nothing contained in any law should  be held to be inconsistent with, or in contravention of, s13(1) protecting freedom of expression, to the extent that it made provision for the purpose (among other things) of  maintaining the authority and independence of the courts. We have no doubt that such laws would include the common-law provisions relating to contempt under its various headings such as disobedience of a court order, conduct  prejudicing a fair trial and statements scandalising the court, except so far as they are shown not to be reasonably justifiable in a democratic society, this being the overall  qualification to s13(2).        There may be a question of where the onus lies of persuading the court on this qualification, but this was not argued on the appeal. We incline to the view that the answer should not depend on narrow considerations of the burden of proof, but should be resolved by having regard to all the material before the Court in the light of judicial knowledge and experience, and in accordance with the Constitution’s manifest intention.

         

        Neither the Canadian Charter of Rights and Freedoms (in force since 1982) nor the New Zealand Bill of Rights Act 1990 contains a specific provision corresponding to s13(2) upholding laws maintaining the authority and independence of the courts, but in both jurisdictions the same result has been achieved by the provisions subjecting the guarantees of rights in the Charter and the Act to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  These are sufficiently close to the final qualification to s13(2) of  Fiji’s 1990 Constitution as to make decisions in those jurisdictions relevant in determining how it should be applied.

         

        In Canada the principles to be adopted in determining the limits were enunciated in R v Oakes (1986) 26 DLR (4th) 200 and summarised by the Supreme Court of Canada in R v Chaulk (1991) 2 CR (4th) 1, 27-28 as follows:

         

        1.             The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterised as sufficiently important.

         

        2.             Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass the proportionality test; that is to say they must:

         

        a.        be ‘rationally connected’ to the objective and not be arbitrary, unfair or based on irrational considerations;

        b.        impair the right or freedom in question ‘as little as possible’; and

        c.        be such that their effects on the limitation of rights and freedoms are proportionate to the objective.

         

        In New Zealand Richardson J adopted broadly similar considerations in Ministry of Transport v Noort [1992] 3 NZLR 260 (CA). There have been no reported cases of scandalising contempt there since the passage of the Bill of Rights Act, but the courts have had to consider its impact on other forms of contempt likely to interfere with a fair trial: see Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 and Duff v Communicado Ltd [1996] 2 NZLR 89.

         

        R v Kopyto is the leading Canadian authority on the effect of the Charter on the offence of scandalising the Court.  In that case, the majority (3-2) of the Ontario Court of Appeal allowed an appeal by a lawyer against his conviction for contempt in respect of an emotive statement that the courts were warped in favour of the police. Cory and Goodman JJA  held that the offence as charged did not meet the proportionality test referred to above.  To do so, they said it would have to provide and be proved that the words complained of produced real, substantial and immediate danger to the proper administration of justice.  This is much the same as the “clear and present danger” test adopted in the United States (see for example Craig v Harney 331 US 367 (1947)) in applying its constitutional guarantees of free speech.  In their view the offence as constituted by the common law, lacking this requirement, did not impose a reasonable limitation to the right to freedom of expression. Houlden JA (the other member of the majority) went further and held that even if  the offence were re-defined to include such a requirement of immediate danger, it would still be inconsistent with the Charter and he considered  it was no longer of any force.   

         

        With respect, we think the  majority view puts the threshold unduly high.  In effect it means that scandalising contempt would be virtually impossible to establish, a fact acknowledged by at least one Canadian commentator who said it was reasonable to assume that this form of contempt no longer exists in the light of R v Kopyto (Martin, Media Law in Canada (1997)). There have been no reported cases of scandalising contempt since then.  In Fiji, s13(2)(b) of the Constitution affords explicit protection to laws aimed at maintaining the authority and independence of the courts, and the qualification about reasonable justification at the end must be interpreted with this in mind. We prefer the “real risk” test accepted by the New Zealand Court of Appeal in Solicitor-General v Radio Avon Ltd. at p234.  This accords with the general common-law view reflected in Attorney-General v Times Newspapers Ltd [1974] AC 273, and with the views of the minority in R v Kopyto.

         

        With the adoption of this threshold to liability as an appropriate ingredient of the proportionality test enunciated by the Canadian Supreme Court, we are satisfied that the common-law offence of scandalising the court meets its requirements.  In terms of the principles summarised in R v Chaulk it is not irrational, arbitrary or unfair (para 2(a)); and with the defences of fair comment and truth, it impairs freedom of speech “as little as possible” (para 2(b)), and is proportional to the Constitutional objective of maintaining the authority and independence of the courts (para 2(c)). Accordingly it has not been “shown not to be reasonably justifiable in a democratic society”, thus satisfying the requirements  s13(2)(b).

         

        The ‘real risk’ test may exonerate angry outbursts by disappointed litigants or their counsel (as was evidently the situation in Kopyto) since reasonable people would understand them for what they were and would not treat them seriously; indeed this point was made by Judges in that case.  There may also be room by analogy with the defence of fair comment for the voicing of  genuine suspicions about judicial misconduct in the absence of hard evidence. This may be for the wider  public benefit by signalling the need for open debate and enquiry, which are the hall-marks of a truly democratic society. In the long run it cannot be good for the administration of justice for such misgivings to be repressed, especially if they are felt by responsible citizens. However, Mr Chaudhry’s statement went far beyond the voicing of mere suspicions.  We are satisfied that his considered and unsubstantiated  allegations of corruption were serious enough  to constitute a real risk to the authority and independence of the Courts, and we agree with Fatiaki J that the charge against him was proved.

         

        Result

         

        The appeal is dismissed.  As it raised an important Constitutional question, we do not think Mr. Chaudhry  should be required to pay costs in this Court and we make no order for them.

         

        (Appeal dismissed.)

Maulana Mohammed Tauab Raza v. Mohammed Takki & The Macuata Muslim League

        [1999] 45 FLR 187

        HIGH COURT OF FIJI ISLANDS

         

        MAULANA MOHAMMED TAUAB RAZA

         

        v.

         

        MOHAMMED TAKKI & THE MACUATA MUSLIM LEAGUE

         

        [HIGH COURT, 1999 (Fatiaki J) 23 August]

         

        Civil Jurisdiction

         

        Practice: Civil- application to set aside Judgment in default of defence- principles applicable- High Court Rules 1988 Order 19 r 9.

         

        While granting a Defendant’s application to set aside a judgment entered against it in default of defence the High Court explained the principles governing such applications. It indicated that failure by a party to advise the other side that it intended to enter judgment was a factor to be taken into account when assessing the merits of the application.

         

        Cases cited:

         

        Atwood v. Chichester (1878) 3 Q.B.D. 722

        Bula Timber v. Geelong Holding Ltd. Suva Civ. Action 173/77

        Evans v. Bartlam (1937) 2 All E.R. 646

        FSC Ltd. V. Mohammed Ismail 34 F.L.R. 75

        Ratnam v. Carasamy [1965] 1 WLR 8

        Wearsmart Textiles Ltd. v. General Machinery Hire Ltd & Anr Civ. App. 30/97

         

        Interlocutory application in the High Court.

         

        V. Parshuram for the Plaintiff

        A. Sen for the Defendants

         

        Fatiaki J:

         

        On the 16th of October 1998 the plaintiff issued a Writ out of the High Court at Labasa claiming damages and other relief for defamation contained in two letters written by the defendants and sent to various bodies in Australia. The Writ was served by way of registered post on 5th November 1998.

         

        On 10th November 1998 the defendant’s solicitors wrote to the plaintiff’s solicitors advising that they were in the process of filing an acknowledgement of service and requesting ‘... you not to take any further action in the matter without prior notice been given to us first’. On the same day an Acknowledgement of Service was filed in the High Court, Labasa indicating that the defendants intended to contest the proceedings.

         

        In spite of the clear terms of defence counsel’s request, default judgment for damages to be assessed was entered by the plaintiff’s solicitors on 5th February 1999 without any prior notice or warning to counsel.

         

        In this regard defence counsel quite forcefully submits that the entry of default judgment in the face of his specific request is not only discourteous but also in breach of the practice or convention recognised in the judgment of Tuivaga J. (as he then was) in Bula Timber v. Geelong Holding Ltd. Suva Civil Action No. 173 of 1977 (unreported) where his lordship said:

         

        ‘I think it is fair to record that a practice appears to have developed at the bar in this country whereby counsel for one party would as a matter of good conscience give notice to the other side of any intended step to enter judgment in default and calling upon the other side to move in the matter if it desires to defend the action.’

         

        Plaintiff’s counsel claims however that it never received defence counsel’s first letter and the matter must rest there. As for the so-called practice or convention the Fiji Court of Appeal recently disavowed the existence of such a convention when it said in Wearsmart Textiles Ltd. v. General Machinery Hire Ltd. and Shareen Kumar Sharma Civil Appeal No.30 of 1997 (loose leaf) at p.14:

         

        ‘... if the alleged ‘convention’ did exist then it was a matter of professional courtesy between practitioners. It cannot be elevated to a rule of law to prevail over or compete with the relevant prescribed Rules of the Court.’

         

        and later when it said at p.15:

         

        ‘... we venture to suggest with respect that the learned Chief Justice never intended that any such practice between solicitors should have the force of a rule of law.’

         

        I content myself in saying that where a written request has been received and ignored that is a factor to be weighed in the Court’s exercise of its unfettered discretion.

         

        On 10th February 1999 upon learning of the default judgment, defence counsel wrote again to the plaintiff’s counsel requesting ‘if you can consent to the setting aside of the judgment as we were not advised of your intentions to enter judgment’. This second letter is plainly predicated on Order 4 r.3 of the High Court Rules and it is unfortunate that it too went unanswered.

         

        A fortnight later and in the absence of any response from the plaintiff’s solicitors, the present application was filed by the defendants solicitors seeking to set aside the default judgment and unconditional leave to defend the plaintiff’s claim.

         

        The Fiji Court of Appeal in F.S.C. Ltd. v. Mohammed Ismail (1988) 34 F.L.R.75 in dealing with a similar application said:

         

        “The principle on which a Court acts where it is sought to set aside a judgment resulting from a failure to comply with rules was stated by Lord Atkin in the House of Lords case Evans v. Bartlam (1937) 2 All E.R. p.646 at p.650. He said:

         

        ‘I agree that both R.S.C. Ord.13, r.10, and R.S.C., Ord.27, r.15, gives a discretionary power to the judge in chambers to set aside a default judgment. The discretion is in terms unconditional. The courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the application must produce to the court evidence that he has a prima facie defence. It was suggested in argument that there is another rule, that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, to set it aside is one of the matters to which the court will have regard in excising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.’

         

        We draw attention to that part of Lord Atkin’s statement referring to the fact that a defendant only has to establish a prima facie defence ... The statement also indicates that a draft defence is not necessary, what is required is the affidavit disclosing a prima facie defence.”

         

        In this latter regard the application is supported by an affidavit deposed by the President and Trustee of the second-named defendant organisation verifying the truth of the contents of a proposed Statement of Defence annexed to the affidavit.

         

        The proposed Statement of Defence in its various paragraphs acknowledges authorship of the two allegedly defamatory letters and pleads that the specific passages complained about:

         

        ‘... were comments made in good faith and without malice upon a matter of public interest, namely upon the conduct of the plaintiff in his public capacity being the Chairman of Zakaat account held by the second defendant. During the course (sic) of his appointment as the Chairman the plaintiff signed ANZ Cheque No.069264 which was converted to his own use and/or for the use and benefit of other persons. So far as necessary the defendants rely on Sections 15 and 16 of the Defamation Act Cap.34.’

         

        The defendants also say that the allegations ‘... are justified, true and were done so in the public interest’ and:

         

        ‘further say that the Islamic Society of Darra (the plaintiff’s present employer in Australia) had a common and corresponding interest in the subject matter and publication of the said words and/or the defendants were under a social and/or moral duty to publish the said words to the said Islamic Society of Darra, who had a like duty and/or interest to receive them.’

         

        Finally and alternatively the defendants aver that:

         

        ‘in the event the letters were published in Australia, the cause of action has arisen in that jurisdiction and in the premises the plaintiff is not entitled to maintain this action here in Labasa.’

         

        From the foregoing it is sufficiently plain that the proposed Statement of Defence raises several matters by way of defence including:

         

        (a)          justification;

        (b)          fair comment on a matter of public interest; and

        (c)          publication on an occasion of qualified privilege;

         

        In reply the plaintiff merely deposed of the proposed Statement of Defence:

         

        ‘I deny that the defendants have merits in their defence ...’

         

        Defence Counsel in his oral submissions to the court briefly traced the chronology of events leading up to the entry of default judgment and submits that there was hardly any delay on the defendant’s part in filing the present application and with that I entirely agree.

         

        Furthermore counsel submitted that the letters were written to the plaintiff’s Australian employer as a sister organisation sharing a common interest with the second defendant and concerning a common employee.

         

        Plaintiff’s counsel on the other hand points to the gratuitous publication to the Australian Department of Immigration and Multi Cultural Affairs as being clear evidence of a malicious intent on the part of the defendants although it is nowhere deposed that the copy letter was actually received, and counsel seeks indemnity costs in the event that judgment is set aside.

         

        In particular counsel relied upon the observations of the Privy Council in the case of Ratnam v. Cumarasamy [1965] 1 W.L.R.8 at p.12. That case however is plainly distinguishable from the present in so far as it concerned an application for leave to extend the time for appealing and not one to set aside a default judgment.

         

        Even the Privy Council in its judgment recognised this distinction when it said at p.12:

         

        ‘Their Lordships note that these observations [per Bramwell L.J. in Atwood v. Chichester (1878) 3 Q.B.D.722 at 723] were made in reference to a case where the application was to set aside a judgment by default which is on a different basis from an application to extend the time for appealing. In the one case the litigant has had no trial at all in the other he has had a trial and lost.’

         

        Having carefully considered the affidavits and the proposed Statement of Defence I am satisfied that the defendants have established a prima facie defence to the plaintiff’s claim and therefore the court’s discretion ought to be exercised in their favour.

         

        The application is accordingly granted with liberty to the defendants to file and serve a Statement of Defence within 14 days. The costs of this application to be in the cause.

         

        (Application granted.)

Mohammed Sheik Khan & Sheik’s Rent-A-Car Ltd v. The Official Receiver

        [1999] 45 FLR 220

        HIGH COURT OF FIJI ISLANDS

         

        MOHAMMED SHEIK KHAN & SHEIK’S RENT-A-CAR LTD

         

        v.

         

        THE OFFICIAL RECEIVER

         

        [HIGH COURT, 1999 (Pathik J) 17 September]

         

        Civil Jurisdiction

         

        Company Law- company in liquidation- duties and powers of Official Receiver- how far subject to control by the Court- Companies Act (Cap 247) Sections 242 (1) 243 and 251.

         

        A former director of a company in liquidation was aggrieved at the Official Receiver’s refusal to consent to the initiation of legal proceedings on behalf of the company. The High Court examined and explained the meaning and effect of winding up a bankrupt company. It re-affirmed that the Court will not interfere with the exercise of the Official Receiver’s powers unless his actions were wholly unreasonable.

         

        Cases cited:

         

        re Peters, ex parte Lloyd (1882) 47 L.T. 64

        re a Debtor, ex parte the Debtor v Dodwell [1949] Ch. 236

        Burnells Pty Ltd (In Liquidation) v Walsh re Burnells Pry Ltd

                    1979 Qd.R 440

        Re Allebart Pty. Ltd (In Liq) and The Companies Act, Re Home Holdings

                    Pty. Ltd (In Liq) and the Companies Act. (1971) NSW LR 24

        Re Toronto Wood & Shingle Co. (1894) 30 Can. L.T. 353

         

        P. Howard for the Plaintiffs

        L. Agbejule for the Defendant

         

        Pathik J:

         

        By originating summons dated 12 November 1998 which was amended on 8 April 1999 Mohammed Sheik Khan (the first plaintiff - the “P1”) is seeking the following orders and/or relief.

         

        (a)     An order that the Defendant vary his decision and grant his consent to the First Plaintiff to institute legal action or actions for and on behalf of Second Plaintiff;

         

        (b)     An order that the First Plaintiff shall be responsible for the payment of all costs if any costs are awarded against the Second Plaintiff;

         

        (c)     An Order that all monies recovered through any legal proceedings shall be paid to the Defendant;

         

        (d)     Such further order or orders as this Honourable Court seems just and proper;

         

        (e)     Costs of this application.

         

        The summons is supported by an affidavit from P1 who was a director and a majority shareholder in Sheik’s Rent-a-Car Limited (the second plaintiff - P2).

         

        The Official Receiver (the “O.R”) who is the defendant in this action and who has been appointed the liquidator of P2 has filed an affidavit sworn 9 December 1998 in opposition to the summons.

         

        Background facts

         

        On 8 December 1995 the second plaintiff (P2) was wound up by High Court of Fiji at Lautoka and the O.R. was appointed the provisional liquidator and on 14 October 1998 the liquidator. On 23 June 1998 P1 commenced Civil Action HBC0198/98L and on 24 August 1998 O.R’s consent was sought by Peter Howard & Associates, the solicitors for Pl, to enable P2 to ‘institute legal actions against such parties it has on legitimate and sustainable causes of action’. The O.R. declined his consent firstly on 14 September 1998 and then again on 26 October 1998.

         

        Plaintiff’s (P1’s) submission

         

        In the affidavit in support of the summons sworn by P1 on 11 November 1998 he stated that he is a Director and a majority shareholder in P2. The second plaintiff was wound up by the Court on 8 December 1995 and the O.R was appointed the provisional liquidator.

         

        The P1 wanted to pursue P2’s claim against certain companies. He said that although at one stage Mr Labo Agbejule the counsel for O.R gave his consent to proceed with the alleged claim, he reneged on this undertaking to grant the necessary directive and the O.R. disregarded the creditors’ direction given at a creditors’ meeting held in October at the O.R’s office.

         

        As a result Pl says, inter alia, that the refusal “is arbitrary and defeats the creditors’ claim against the P2 and that of the P2 to pay off its creditors and resume its normal business of rental cars” (item 14 of Pl’s affidavit sworn 11.11.98).

         

        The P1 says in his affidavit sworn 12 January 1999, with the leave of the Court, that as a major shareholder in the P2, he has the “necessary powers and the interest to bring the company (P2) out of liquidation” (items (a) on p3 of P1’s affidavit sworn 12.1.99)

         

        The P1 submits that O.R. ought to give his consent to the continuation of the action commenced by P2 on 23 June 1998 in the Lautoka High Court against Pitstop (Fiji) Limited and Pala’s Autoport Ltd for wrongful and/or illegal seizure of motor vehicle No. CN614. The P1 alleges (item 2(a) of P1’s affidavit of 12.1.99) that “(a) the National MBF Finance (Fiji) Ltd financed only one vehicle namely, CN 614 however, the Lease Agreement in error quoted CN 615. I immediately discovered the error and informed National MBF Finance (Fiji) Ltd to correct same on the Lease Agreement. Despite my said directive, the error remained and the financiers maintained that they financed CN 615 and later seized and sold this vehicle.”

         

        P1 wants the Court make an Order under s243(5) of the Companies Act, Cap.247 (the ‘Act’) that the Court ‘reverse’ the decision of the O.R. by ordering him to continue or institute proceedings against the proposed defendant or defendants.

         

        Defendant’s submission

         

        Through the affidavit in opposition to the summons sworn on 9 December 1998 by the Deputy Official Receiver Mohammed Azam Khan, the O.R states that it is not within the authority of the Legal Officer Mr. Labo but the Official Receiver to institute proceedings and that Credit Corporation (Fiji) Ltd referred to by P1 did not give a blanket authorisation to the O.R that he must endorse his consent to the action commenced by P1 as a director of P2.

         

        The O.R says that he had only exercised the power conferred on him by section 251 of the Act which provide as follows:

         

        “251. Where, in the case of a winding up, there is no committee of inspection, the court may, on the application of the liquidator, do any act or thing or give any direction or permission which is, by this Act, authorized or required to be done or given by the committee:

         

        Provided that, where the official receiver is the liquidator, he may do any such act or thing and give any such direction or permission without application to the court.” (emphasis mine)

         

        In the performance of his duty the O.R says that he requested the directors of P2 to submit a Statement of Affairs of the Company. In September 1996 P1 presented to the O.R a document being the Company’s (P2’s) Financial Statement for the year ended 1995.

         

        The O.R says that he did not give his consent to litigate the civil proceedings being Action HBC 0198/98L for the reasons given in his letter of 14 September 1998: addressed to P1’s solicitors Messrs. Peter Howard & Associates. This was further elaborated upon in the letter dated 26 October 1998 to the said solicitors wherein he again declined to give his consent.

         

        In the said affidavit the O.R has outlined very clearly his stand in the matter of refusal of consent for the reasons he has given and stated that he was acting in accordance with the provisions of the Act in regard to his duties as the liquidator.

         

        The O.R says that the P1 has no locus standi in maintaining the action and that by virtue of the provisions of section 242 (1) of the Act the O.R as the liquidator is empowered with the sanction of the Court or of the Committee of Inspection to bring or defend any action or other legal proceedings in the name and on behalf of the Company and that O.R is empowered by the said section 251 to act without making application to the Court.

         

        The O.R says (in Mr. Khan’s affidavit of 9.12.98 at 5-6) that “as liquidator of the Company he is obliged to exercise due diligence in the exercise of his powers and as the case stands the proceeding already commenced by the Plaintiff appear to be one which may unfairly prejudice the general body of creditors and further increase the cost of liquidation being a proceeding essentially compensation for loss of use of a car in company business for a period beginning from the first month after the company went into liquidation”.

         

        Issue for determination

         

        Whether upon winding up of P2 the O.R should be ordered by the Court to give his consent to commence or continue legal action or actions for and on behalf of P2 on the facts and circumstances of case.

         

        The Law

         

        Winding up and its effect

         

        The application before the Court has to be considered in the light of the law on the subject of winding up and its effect on the liquidator in the performance of his duties. I shall therefore deal with the applicable law.

         

        Upon the making up of the winding up order there is transferred to the liquidator all the powers of the directors which it can reasonably have been intended to vest in the liquidator and the powers of the directors come to an end with the appointment of a permanent liquidator as is the case here. After this the directors do not have any power, inter alia, to conduct proceedings on behalf of the company. In a compulsory winding up, as in this case, there is no winding up until the Court makes an Order, but the winding up is deemed to have commenced at the time of presentation of the petition. The relevance in most cases is the occurrence of the winding up itself and this, inter alia, has an effect on the right to commence or continue actions or proceedings against the company. The control of the company’s affairs is upon a winding up taken from the directors and vested in the liquidator.

         

        As is clear from the provisions in the Act, in a compulsory winding up the decisions the liquidator makes from time to time are in effect under the authority of the Court. He is expected to discharge his duties impartially and properly.

         

        In a winding up by the Court, the liquidator is an officer of the Court, and as such he has public responsibilities to investigate past activities with the Company and in appropriate cases to initiate such further proceedings, civil or criminal, as the circumstances may dictate (Re Allebart Pty. Ltd (In Liq) and The Companies Act, Re Home Holdings Pry. Ltd (In Liq) and the Companies Act, Street J. (1971)NSW LR 24). He is empowered under the Act, as one of his powers to commence or to continue actions in Court.

         

        In so far as it is relevant to this case, one effect of the winding up is that where the company is insolvent, all proceedings against the company are automatically stayed by the winding up as is the power of the creditors to enforce their remedies against the company.

         

        Consideration of the issue

         

        I have for my consideration for the determination of the issue in this case various affidavits and written submissions filed in this action.

         

        It is to be noted that by letter dated 26 October 1998 and addressed to Messrs. Peter Howard & Associates, Solicitors for P1, the O.R declined to give his consent to P2 to institute “legal actions against such parties it has a legitimate and sustainable causes of action. The action being Civil Action No. HBCO198/98L had already commenced claiming inter alia for an order that the defendants in that action (Pitstop (Fiji) Limited and Pala’ s Autoport Ltd) to pay the plaintiff compensation at the rate of $165.00 per day from the date of seizure being 3rd January 1996 to date of final settlement of this claim”.

         

        The O.R. further stated that the vehicle in question the subject matter of the action was held by P2 ( in liquidation) as a lessee of National MBf Finance (Fiji) Ltd which is claiming ownership thereof. The O.R. said that “it appears that the said vehicle may not be the property in respect of which the Official Receiver can exercise control. It belonged to the National MBf (Fiji) Ltd; the company reserves its right as owner. In addition the claim for lost profit may have been vitiated by the winding-up order”.

         

        The Company (P2) is in liquidation and the Official Receiver is exercising his powers as the liquidator under the powers vested in him under the said s251 of the Act. The O.R received a sealed copy of the winding up order after May 1997. Notice of winding up was published on 22 August 1998 in the Fiji Times newspaper.

         

        In law, it is clear that, the plaintiff as a former director of the Company cannot maintain the said action in that his powers as a director in relation to the assets and business of P2 ceased with the winding up Order against it and whatever powers he may still have does not include power to commence proceedings. The liquidator in this case who is the O.R, would be the proper person to continue or commence proceedings, under the powers vested in him under the Act.

         

        By virtue of the provisions of section 242(1) of the Act the liquidator is empowered, ‘with the sanction either of the Court or of the Committee of Inspection (a) to bring or defend any action or other legal proceedings in the name and on behalf of the Company’.

         

        The first plaintiff is by his Originating Summons seeking, inter alia, an Order from the Court that the O.R ‘vary his decision and grant his consent to the first Plaintiff to institute legal action or actions for on behalf of second Plaintiff’ (prayer (a) in Summons).

         

        The section under which this application is made is s243(5) which provides:

         

        “(5) If any person is aggrieved by any act or decision of the liquidator, that person may apply to the court, and the court may confirm, reverse or,modify the act or decision complained of, and make such order in the premises as it thinks just”.

         

        A liquidator must decide himself what steps should be taken in the winding up and should not yield up his exclusive independent control in the decision-making processes and administration of a winding up.

         

        In this case the liquidator has decided not to grant his consent for the reasons he has given and which are clearly set out in the said letters referred to hereabove by me. In considering P1’s application to him he was acting well within his powers. Matters relating to the ‘appointment’, of a liquidator, ‘powers of liquidator’ and ‘exercise and control of liquidator’s powers’ are contained in sections 236, 242 and 243 respectively of the Act.

         

        Under s236 of the Act the Court appointed the Official receiver as provisional liquidator. He was later confirmed the liquidator at a creditors meeting. The O.R. is not oblivious of the provisions of s243 which controls liquidator’s powers.

         

        I think it is important that I set out the provisions of the said s243 hereunder so that P1 becomes aware of the ambit within which the liquidator acts coupled with his powers under s242(1)(a). Section 243 provides:

         

        “243. - (1) Subject to the provisions of this Act, the liquidator of a company which is being wound up by the court shall, in the administration of the assets of the company and in the distribution thereof among its creditors, have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting or by the committee of inspection, and any directions given by the creditors or contributories at any general meeting shall, in case of conflict, be deemed to override any directions given by the committee of inspection.

         

        (2) The liquidator may summon a general meetings of the creditors or contributories for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors or contributories, by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or contributories as the case may be.

        (3) The liquidator may apply to the court, in manner prescribed, for directions in relation to any particular matter arising under the winding up.

         

        (4) Subject to the provisions of this Act, the liquidator shall use his own discretion in the management of the estate and its distribution among the creditors.

         

        (5) If any person is aggrieved by any act or-decision of the liquidator, that person may apply to the court, and the court may confirm, reverse or modify the act or decision complained of, and make such order in the premises as it thinks just.”

         

        It is within the confines of these provisions and as directed by resolution of the creditors or contributories or by the committee of inspection and in the exercise of his own discretion in the matter of instituting Court proceedings and continuing with Court actions that the O.R. acts.

         

        Effect of winding up on actions and proceedings

         

        In so far as it is material to this case upon the winding up of P2 all proceedings in Court are stayed under s229 of the Act which provides that “no action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose” The purpose behind this is to avoid the inconvenience and expense of litigation and to oblige all claimant to submit to the procedural scheme under the Act. This has been succinctly put by a Canadian judge in Re Toronto Wood & Shingle Co (1894) 30 Can. L.T 353, 356 thus:

         

        “It must be kept in view that the intention of the Winding Up Act and of all legislation respecting insolvency is to get within the control of the court all the estate of the insolvent company, to settle there all the claims of debt, privilege, mortgage, lien, or right of property upon, in or to any effects or property of such company in the simplest and least expensive way, and to distribute its assets among its creditors in the most expeditious manner possible and not to have the proceedings of the winding up court or the distribution of the assets delayed or impeded by or dependent upon outside or expensive litigation in other courts.”

         

        Where leave is sought to commence or continue proceedings by a company in liquidation as in this case there are two determining factors; one is the nature of the plaintiff’s claim and the other is the balance of convenience and the demands of justice.

         

        The O.R. (the liquidator) in the case before me considered the issue before him and decided to refuse consent to proceed with the action for the reasons he had given based on the advice he received. I find that he has exercised his powers properly and in accordance with the law and in accordance with the following statement from Lindley on Companies (6th Ed. Vol. 2 p.908) in determining whether he should proceed:

         

        “The only material question to be considered is whether there are any circumstances which render it necessary that the action should be continued, or whether the claim of the plaintiff is not one which can be as easily dealt with in the winding up as in any other way.”

         

        When the liquidator exercises his powers under the relevant provisions of the Act “... the Court will not interfere unless the trustee is doing that which is so utterly unreasonable and absurd that no reasonable man would so act” (Sir George Jessel in re Peters, ex parte Lloyd (1882) 47 L.T. 64). Sir George went on to say speaking of the trustee in bankruptcy: ‘He is certainly not doing anything of the kind in the present case and, in my opinion, the appeal ought to fail’

         

        I adopt the same statements in this case.

         

        I also consider that the following passage from the judgment of Harman J in re a Debtor, ex parte the Debtor v Dodwell [1949] Ch. 236 is apt after stating that “I need not, I think, attempt to define what the circumstances are” meaning the circumstances in which the court will interfere at the instance of a bankrupt:

         

        “They cannot, I think (in the absence of fraud), justify interference in the day-to-day administration of the estate, nor entitle the bankrupt to question the exercise by the trustee in good faith of his discretion, nor to hold him accountable for an error of judgment.

         

        Administration in bankruptcy would be impossible if the trustee must answer at every step to the bankrupt for the exercise of his powers and discretions in the management and realisation of the property.”

         

        In this regard Dunn J in Burnells Pty Ltd (In Liquidation) v Walsh re Burnells Pry Ltd (Supreme Court, Brisbane 1979 Qd.R 440 at 442) has summed up the position very well, which I adopt, in the following words, after referring to the above passage in Burnells (at p.442):

         

        “Similarly, in my opinion, a trustee or liquidator who exercises his powers in good faith, having taken proper advice, is not answerable to a creditor or a contributory even if the creditor or contributory is disposed to challenge the judgment of the liquidator, ...”

         

        Conclusion

         

        Having considered the affidavit evidence and the useful submissions from both sides and bearing in mind the reasons advanced by the O.R for not consenting and the law on the subject, I am not persuaded in the present case that the decision made by the O.R. is not entirely a regular and proper step for him to make within the legitimate scope of his discretion in conducting the winding up. However, at a later date while in the process of administering, the liquidator decides to accede to the application such as the one before me he can draw upon financial assistance from P1 as offered by him but in doing so it is incumbent upon him to ensure that he does not place in jeopardy his independence in the discharge of his duties. It is not improper to accept the offer of costs and indemnity from the director P1 for there is support for this proposition in the following passage from the judgment of Street J in Allebart Pty. Ltd. (supra) at p.28:

         

        “Where a company is being wound up and it has no assets, or insufficient assets, to enable the due processes of the liquidator to be carried through, a creditor is to be encouraged, rather than criticized, in making funds available to the liquidator.. Nor need a liquidator be diffident in accepting funds or indemnities from creditors so as to enable a winding up to proceed. Moreover, I see no reason to criticize on the grounds of propriety the arrangement under which a creditor provides money or indemnity to cover the expenses of a specific step in the winding up, such as the bringing of named proceedings or the carrying out of named examinations. Arrangements such as these are commonplace, and, if anything, they are to be encouraged, as very frequently some such arrangement enables the liquidator to carry out his duties more thoroughly or comprehensively than would otherwise be the case (cf. Companies Act 1961, s.292(10)).”

         

        For these reasons I dismiss the summons with a direction that the Official Receiver give further consideration if it becomes necessary at a later state to the possibility of instituting proceedings against companies or persons against whom there is a cause of action. I award costs of this application against the first plaintiff which I fix at $200 to be paid within 28 days.

         

        (Judgment for the Defendant.)

Moontide South Pacific Limited v. The Commissioner of Inland Revenue

        [1999] 45 FLR 303

        HIGH COURT OF FIJI ISLANDS

         

        MOONTIDE SOUTH PACIFIC LIMITED

         

        v.

         

        THE COMMISSIONER OF INLAND REVENUE

         

        [HIGH COURT, 1999 (Shameem J) 1 December]

         

        Civil Jurisdiction

         

        Income tax- tax free zone- non resident dividend withholding tax- shift in revenue- whether exemption confined to payments to immediate recipient- Tax Free Zones Decree 571991 Sections 7 (2), 11 and 17; Income Tax Act (Cap 201) Section 8 (1).

         

        The Plaintiff owned a garment factory in a tax free zone. He sought tax clearance to enable dividends to be paid to a non resident shareholder in the Plaintiff. The shareholder was itself a company and it appeared that in due course the dividends would be distributed by that company to an Australian share-holder who would be subject to tax. The CIR contended that this involved a “shift in revenue” and that accordingly the Plaintiffs dividends were not exempt from withholding tax. The High Court HELD: a payment is exempt so long as the immediate payee is itself exempt in the place of payment whether or not there is a subsequent distribution to another non exempt payee.

         

        Cases cited:

         

        Anderson v. Commissioner of Taxes (Victoria) [1937] AC 747

        Attorney-General v. Milne [1914] AC 765

        Brunton v. Commissioner of Stamp Duties [1913] AC 747

        Commonwealth of Australia v. Bank of New South Wales [1950] AC 235

        Hawtrey v. Beaufront Ltd [1946] KB 280

        R v. Chief National Insurance Commission ex-parte Connor [1981] 1 QB 158

        Saraswati v. The Queen (1990-1991) 172 CLR 1

         

        P.I. Knight for the Plaintiff

        A. Bale for the Defendant

         

        Shameem J:

         

        On 11th June 1999 an originating summons was issued by Moontide South Pacific Limited, seeking determination of the following question:

         

        “Is the Plaintiff liable to pay non-resident dividend withholding tax under section 8 of the Income Tax Act Cap. 201 on dividends declared and payable to Oldtex Pty Limited a company incorporated in New South Wales, Australia and the sole beneficial owner of all the issued shares in the Plaintiff?”

         

        The originating summons were supported by the affidavit of Sydney Leonard Schneider sworn on 8th June 1999. The affidavit sets out the matter for determination. Sydney Schneider states that Moontide South Pacific Limited is a company incorporated in Fiji and carries on business as garment manufacturers. The sole beneficial owner of the issued capital in Moontide South Pacific Limited is Oldtex Pty Limited, an Australian company. Oldtex Ltd. owns 431,745 shares of $1.00 each in Moontide Ltd. The sole beneficial owner of the issued capital in Oldtex Ltd. is Tolric Pty Limited, another Australian company. The sole shareholder in Tolric Ltd. is Philip James Bart, an Australian citizen.

         

        In October 1988, Moontide Ltd. was designated a Tax Free Factory by the Fiji Trade and Investment Board. In his letter to the Plaintiff Company the Director of the Board granted, inter alia, the following concessions to the Plaintiff:

         

        “(a)    total waiver of licensing for import of capital goods and other production materials;

         

        (b)     duty free import of capital goods and equipment from any source;

         

        (c)     exemption from customs duty on the importation of raw materials, components, spares and packaging materials;

         

        (d)     exemption from excise duty on products manufactured for exports;

         

        (e)     income tax concessions under the 5th Schedule of the Income Tax Act i.e. no income tax payable on corporate profits for a period of 13 years provided that all provisions of the schedule of the Income Tax Act are met;

         

        (f)      no withholding tax on interest, dividends and royalty paid abroad provided there is no shift of revenue abroad;

         

        (g)     no restrictions to repatriate capital and after tax profits;

         

        (h)     freedom to import specialist personnel for the enterprise subject to fulfilment of requirements under the Immigration Act;

         

        (i)      accelerated depreciation allowance on plant and machinery and new factory building;

         

        (j)      final dividend tax of 5% on dividends paid to resident shareholders.”

         

        (My underlining)

         

        In 1991 the Tax Free Zones Decree 1991 was passed. The Title reads:

         

        “A Decree to provide for the establishment, management, control, licensing and registration of Tax-Free Zones and related matters.”

         

        The Decree provides for the creation of “tax-free zones” and lays down conditions for eligibility of businesses. Section 7(2) of the Decree provides:

         

        “Any company seeking an operating licence for the carrying on of any trade, business or manufacture in a Tax-Free Zone shall be required to -

         

        (a)     derive all of its chargeable income from export sales, which may include sales for a company licensed under subsection (1) of this section;

         

        (b)     generate employment opportunities for the people of Fiji;

         

        (c)     enhance, expand and improve the technological and trading capability and capacity of the economy of Fiji; and

         

        (d)     comply with any other condition deemed by the Minister to be appropriate under the circumstances.”

         

        Section 11 of the Decree provides:

         

        “A licence granted by the Minister .... shall provide, for a period of thirteen consecutive fiscal years from the commencement of such a licence, the exemption of the licensee in accordance with the Customs Tariff Act, the Excise Act and the Income Tax Act, from payment of the following -

         

        (a)     duties leviable on the importation or purchase ex bond or excise duty leviable on purchase ex-excise factory of machinery and equipment (including parts and materials) insofar as they are required for the establishment and factory operation of the trade, business or manufacture to be carried out in a Tax Free Zone;

         

        (b)     taxes normally leviable under the Income Tax Act in respect of chargeable income of a company licensed under subsection (1) of section 7;

         

        (c)     taxes leviable under the Income Tax Act, excepting dividend tax, on dividends derived by a resident shareholder in companies licensed under subsection (1) of section 7;

         

        (d)     withholding taxes leviable on income under the Income Tax Act:

         

        Provided that where such income is subjected to tax under the laws of the State of that person, then tax exemption under this paragraph will not apply.”

         

        Section 17 of the Decree provides that “the Decree applies to tax-free factories approved by the Minister of Finance before the commencement of the Decree.”

         

        Section 8(1) of the Income Tax Act Cap.201 provides:

         

        “(1)    Notwithstanding anything to the contrary in the other provisions of this Act, there shall be paid a tax, to be known as “non-resident dividend withholding tax”, in respect of the payments specified in subsection (2) at the rate of 15 per cent of the gross amount payable.

         

        (2)     Such tax shall be payable in respect of -

         

        (a)     a dividend declared, paid or credited by a company incorporated in Fiji;

         

        For the purpose of this paragraph -

         

        “dividend” means any amount distributed by a company, whether carrying on business in Fiji or not, to its shareholders;”

         

        In 1998, the Plaintiff sought tax clearance from the Commissioner of Inland Revenue to enable dividends declared by the Plaintiff to be paid to the Plaintiff’s non-resident shareholder. The Plaintiff said in a letter from its accountants, G. Lal & Co. to the Inland Revenue Department (Annexure ss2), that no withholding tax was payable on the dividends.

         

        The Commissioner replied on 11th February 1998 (Annexure ss3) seeking confirmation that there would be no shift in revenue. On 30th June 1998 G. Lal & Co. replied enclosing a letter from the Australian Tax Office dated 23rd June 1998 confirming that the dividends received by Oldtex Pty Ltd. from the Plaintiff are exempt from tax in Australia (Annexure ss4).

         

        On 24th July 1998 the Commissioner wrote to G. Lal & Co. informing them that dividend withholding tax was payable on the dividends (Annexure ss5). In that letter the Commissioner wrote:

         

        “The letter from the Australian Taxation Office only states that the dividends received by the Australian company from Fiji will be exempt from tax. However it does not state the status of the dividends when it will be finally distributed by Oldtex Pty Limited to the Australian shareholders. In our view the dividends when declared will be subject to tax.”

         

        On 4th August 1998 G. Lal & Co. wrote back to the Commissioner disputing his decision, and saying that to trace the “shift in revenue” to the eventual distribution of the dividends by the non-resident shareholder company “would be far-fetched and would not be in conformity with the real intention and spirit of the TFZ Decree.”

         

        On 23rd November 1998, the Commissioner informed G. Lal & Co. that “... tax clearance will only be issued upon payment of the 20 per cent Dividend Withholding Tax.”

         

        These are the facts which are not in dispute. The Commissioner for Inland Revenue chose not to file any affidavit in reply, and submissions by counsel were heard on 10th November 1999.

         

        Mr P. Knight for the Plaintiff submitted, in essence, that the effect of the words “shift in revenue” referred to in the FTIB letter of October 1988 meant that dividend income is not taxable in the hands of the recipient in his country of residence. He submitted that the words “that person” in the proviso to section 11 of the Decree meant the immediate recipient of the dividends, on a strict interpretation of the section. He submitted that if one would require tax exemption from the eventual individual recipient of the dividend, then it make a nonsense of the purposes of the legislation, since the exemption would never apply because all eventual recipients are individuals who are liable to tax.

         

        Mr A. Bale for the Defendant submitted that it was necessary to consider the protection and concessions granted by the Decree. He said that the Decree intended to give tax concessions to companies, and not to individuals. In this case, he submitted, the ultimate beneficiary was not a tax-exempt company, but was Philip James Bart. He further submitted that under the Double Taxation Agreement between Australia and Fiji Article 10 provided that dividends paid by a company resident in one State, to residents in the other, may be taxed in the other State. He submitted that Philip James Bart was therefore subject to tax on the dividends payable to him, and that the proviso therefore did not apply. He said that tax was payable somewhere in the law of taxation. In this case, it was payable on the dividends when they were paid to Philip James Bart, and after appropriate adjustment to prevent discriminatory double taxation, payable as withholding tax in Fiji.

         

        The submissions of counsel were clear and helpful, and the Court was greatly assisted by them.

         

        The issue in dispute is a narrow one. Firstly, the words “that person” in the proviso of section 11(d) of the Decree mean “immediate recipient” or does it mean “eventual recipient” of dividends payable to non-Fiji residents? Secondly, in interpreting these words, should the court consider their meaning on a strict interpretation, or is the court entitled to consider the effect of taxation law generally in assessing the true intention of the legislature?

         

        According to the Interpretation Act Cap.7, the word “person” includes a body of persons corporate or incorporate. A principle of statutory interpretation is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. If the words are plain and unambiguous, they apply as they stand, even if the result does not represent the true intention of Parliament (Commonwealth of Australia -v- Bank of New South Wales [1950] AC 235 at 307).

         

        Where, however, the words are ambiguous, the intention of Parliament must be sought first in the statute itself, then in other legislation and contemporaneous circumstances and in the common law before the legislation was passed which the legislation was intended to remedy. (Halsbury’s Laws of England Vol. 44, 4th Ed. Para 858). Furthermore the courts must construe statutes on the assumption that that Parliament intended them to be construed according to the principles of natural justice and public policy (R -v- Chief National Insurance Commissioner ex parte Connor [1981] 1 QB 158). Finally statutes must be construed to give them a sensible meaning which does not defeat the manifest intentions of the legislature (Hawtrey -v- Beaufront Ltd [1946] KB 280, Saraswati -v- The Queen (1990-1991) 172 CLR 1).

         

        In respect of tax legislation specifically, the rules of interpretation have developed considerably since the Lord Treasurer reportedly said in 1679, to the Chief Justice for Chester and the Welsh Marshes in relation to the interpretation of stamp duty law.

         

        “.... all disputes ... will find the most favourable construction for the King that the words and intention of the act will reasonably bear” (Edwards and Pares (eds) “The English Historical Review (Longmans, Green & Co. 1941 Vol.LVI).

         

        In Anderson -v- Commissioner of Taxes (Victoria) (1937) 57 CLR 233, Rich and Dixon JJ in a joint judgment said:

         

        “In Brunton -v- Commissioner of Stamp Duties [1913] AC 747 at 760 Lord Parker of Waddington speaking for the Privy Council, says ‘the intention to impose a tax or duty, or to increase a tax or duty already imposed, must be shown by clear and unambiguous language and cannot be inferred from ambiguous words.’ This rule he again emphasised in Attorney-General -v- Milne [1914] AC 765 at 781, where he said in the House of Lords: ‘The Finance Act is a taxing statute and if the Crown claims a duty thereunder it must show that such duty is imposed by clear and unambiguous words’.”

         

        I note however that section 11(d) of the Tax Free Zone Decree is not a taxing statute, it is a tax-exempting statute. As such in my view, the ordinary principles of statutory interpretation apply.

         

        Applying these principles, what therefore is the ordinary meaning of the proviso to section 11(d)? On a reading of the proviso to section 11(d), it is not clear whether the person who must be exempt from tax is the income of the immediate recipient of the dividends (in this case Oldtex Pty Ltd) or whether all income of all recipients including the individuals who eventually receive the dividends from Tolric Pty Ltd., must be so exempt.

         

        Further, the definition of “shareholder” in the Income Tax Act is a broad one. Section 2 of the Act states:

         

        “ ‘shareholder’ includes any registered holder or beneficial owner of a unit in a unit trust.”

         

        In the absence of a clear and unambiguous construction of the proviso to section 11(d), I now turn to the purpose of the legislature. It is clear from section 7(2) of the Decree that the intention of the legislature was to create a business-friendly environment which would provide incentives for investment in Fiji. Thus the exemption from taxation on withholding dividends, is to provide a tax concession.

         

        Counsel for the Defendant submits that the court should look at taxation principles generally, and to consider the need to ensure that tax on dividends must be payable somewhere, either in Fiji or in Australia.

         

        If his submission is correct, and the dividends are inevitably subject to tax in Australia because dividends are always eventually payable to individuals who are not tax-exempt, then the concession provided under section 11(d) of the Decree would never be available to any tax-free business in Fiji. This cannot be the intention of the legislature. The section and the proviso must be presumed to have a practical and sensible effect.

         

        In order for section 11(d) of the Decree to provide a concession as envisaged by the Tax Free Zone Decree, the company applying for the concession must satisfy the Commissioner for Inland Revenue that the immediate non-resident recipient of the dividends is exempt from tax. Although the Double Taxation Treaty between Australia and Fiji certainly was intended to prevent double-taxation, I do not read it as intending to usurp the purpose of tax concessions and exemptions under the Tax Free Zone Decree.

         

        As such, I find that on a construction of section 11(d) and of the proviso to section 11(d) of the Tax-Free Zone Decree, the Plaintiff is exempt from paying withholding tax in Fiji on dividends payable to a tax exempt “person” in Australia, namely Oldtex Pty Limited. The Defendant is to pay the Plaintiff’s costs of the proceedings, to be taxed if not agreed.

         

        (Judgment for the Plaintiff.)

Mount Kasi Ltd v. Range Resources Ltd.

        [1999] 45 FLR 161

        HIGH COURT OF FIJI ISLANDS

         

        MOUNT KASI LIMITED

         

        v.

         

        RANGE RESOURCES LIMITED

         

        [HIGH COURT, 1999 (Byrne J) 11 August]

         

        Civil Jurisdiction

         

        Conflict of laws- anti suit injunction- principles governing.

         

        The High Court of Fiji sanctioned a scheme of compromise between the Plaintiff and its unsecured creditors, one of whom was the Defendant. The Court rejected the Defendant’s claim that it was entitled to a charge. Subsequently the Defendant renewed its claim for a charge in the Supreme Court of Western Australia. The Plaintiff sought an order preventing the Defendant from furthering its claim. The High Court explained the law and practice of anti-suit injunctions. It HELD: that in the circumstances of the case the High Court of Fiji was the natural forum for the resolution of the dispute and accordingly an injunction would be granted.

         

        Cases cited:

         

        Amchem Products Inc. v. Workers Compensation Board (1993) 1 SCR 897.

        Carron Iron Co. v. Maclaren (1855) 5 HLC 416.

        CSR Ltd. v. Cigna Insurance Australia Limited (1997) 71 ALJR 1143.

        CSR Ltd. v. New Zealand Insurance Company Limited (1994) 36 NSWLR 138.

        Ellerman Lines Ltd. v. Read [1928] 2 KB 144

         

        Interlocutory application in the High Court.

         

        R.A. Smith for the Plaintiff

        No Appearance for the Defendant

         

        Byrne J:

         

        I have before me a Notice of Motion by the Plaintiff for leave to enter judgment against the Defendant and for an injunction restraining the Defendant by itself, its servants or agents from continuing Civil Action No. 2063 of 1998 in the Supreme Court of Western Australia against the Plaintiff and an order for costs of this application.

         

        The application which appears to be the first of its kind in Fiji seeks what is now called an “anti-suit injunction” and to understand the present proceedings it is necessary to refer first to the history of this litigation.

         

        The Writ of Summons in this action was issued on the 9th of April 1999 and was served on the Defendant on the 12th of April in Perth. The Statement of Claim alleges that the Plaintiff is a Company duly incorporated under the laws of Fiji and having its registered office in Suva. It carries on the business of gold mining and exploration and has a mine on the island of Vanua Levu.

         

        The Defendant is a Company incorporated in the Commonwealth of Australia and is an unsecured creditor of the Plaintiff.

         

        As a result of financial difficulties the Plaintiff proposed a scheme of compromise with its unsecured creditors pursuant to Section 208 of the Companies Act Cap. 240.

         

        On 14th October 1998 this Court ordered a meeting of the Plaintiff’s unsecured creditors to be held on the 29th of October 1998 for the purpose of considering, and if thought fit, approving the scheme. The Defendant was invited to the meeting and was represented at it but refrained from taking part in the voting.

         

        The remaining unsecured creditors at the meeting unanimously approved the scheme.

         

        On 10th November 1998 the Plaintiff petitioned the High Court for sanction of this scheme. The Defendant opposed the petition by Summons seeking inter alia that it be exempted from the scheme or that the scheme be restrained pending the outcome of proceedings by the Defendant against Pacific Island Gold N.L. as First Defendant, Nationwide Pacific N.L. as Second Defendant and the Plaintiff as Third Defendant in the Supreme Court of Western Australia in Civil Action No. 2063 of 1998 on the basis that the Defendant was entitled to have the Plaintiff execute a charge in its favour. The application was argued before me on the 20th of November 1998.

         

        On 23rd December 1998 I delivered an oral judgment and found that there was no obligation upon the Plaintiff to execute a charge in favour of the Defendant. I dismissed the Defendant’s application and sanctioned the scheme.

         

        On 11th February 1999 the Defendant lodged a proof of debt with the Scheme Administrators pursuant to the scheme without prejudice to any rights it might have.

         

        The Defendant has continued the Western Australia proceedings against the Plaintiff seeking orders to the effect inter alia that the Plaintiff execute a charge in favour of the Defendant.

         

        The Statement of Claim then alleges that the Defendant intends, unless restrained from doing so to continue the Western Australia proceedings against the Plaintiff.

         

        In the circumstances the Plaintiff alleges that the Defendant’s actions are an interference with the jurisdiction of the High Court of Fiji and/or are frivolous and vexatious.

         

        The Plaintiff therefore claims an injunction restraining the Defendant from continuing the Western Australia proceedings against the Plaintiff and costs of the action.

        There has been no appeal by the Defendant against my judgment of 23rd December 1998.

         

        Furthermore the Defendant has not served on Mount Kasi any Notice of Intention to Defend the Writ of Summons or any defence to the Statement of Claim.

         

        From the foregoing it is clear first that the Plaintiff has a registered office in Fiji; secondly that it has a goldmine in Fiji, thirdly that the Defendant attended the meeting of creditors and fourthly that a proof of debt has been submitted under protest.

         

        I do not propose to refer in any detail to the reasons given in my judgment of the 23rd of December 1998 but I discussed the submissions that had been made to me and my reasons for accepting and rejecting them. However two of my findings are relevant to the present application. The first was that in the circumstances there was no obligation upon the Plaintiff to execute a charge and that, accordingly, specific performance could not be ordered against the Plaintiff. I also found that Range Resources had taken no legal steps to enforce its alleged right for 8 years, during which the Plaintiff continued to trade, became insolvent and proposed a scheme of compromise to its unsecured creditors which scheme had been unanimously approved. In the circumstances, I found Range Resources guilty of laches.

         

        The law on anti-suit injunctions

         

        In making my findings on the law I express my thanks to counsel for the Plaintiff for his very helpful submissions and references to two Law Journals one of which, the Australian Law Journal, is available in the High Court Library but the other, International Litigation News is not. These two Journals contain a helpful summary of the history and case law on this subject. In particular the July 1998 issue of International Litigation News refers to a recent decision of the High Court of Australia - CSR v. Cigna Insurance Australia Limited reported in (1997) 71 ALJR 1143, the judgment of the Court being delivered on the 5th of August 1997. The International Litigation News refers both to this decision and a very recent decision of the House of Lords in Airbus Industrie GIE v. Patel in which on the 2nd of April 1998 the House of Lords overturned the decision of the Court of Appeal and discharged an injunction granted by that Court restraining proceedings brought in Texas arising out of the crash of an Indian Airlines jet in India. I shall refer to both these cases shortly but here state that the Plaintiff brings its present application under Order 13(6), Order 19(7) and Order 65(9) of the High Court Rules, the application of which it contends relieves the Plaintiff from complying with Order 32(3) of the rules. I set out these rules hereunder:

         

        Order 13(6) states:

         

        “(1) Where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4 then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.

         

        (2)   Where a writ issued against a defendant is endorsed as aforesaid, but by reason of the defendant’s satisfying the claim or complying with the demands thereof or any other like reason it has become unnecessary for the plaintiff to proceed with the action, then, if the defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time, enter judgment with the leave of the Court against that defendant for costs.

         

        (3)   An application for leave to enter judgment under paragraph (2) shall be by summons which must, unless the Court otherwise orders, and notwithstanding anything in Order 65, rule 9, be served on the defendant against whom it is sought to enter judgment.”

         

        Rules 1-4 of Order 13 refer to claims for a liquidated demand, unliquidated damages, detention of goods and possession of land.

         

        Order 19(7) reads so far as relevant:

         

        “(1)    Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

         

        And sub-rule 3 reads:

         

        “An application under paragraph (1) must be by summons or motion.”

         

        Order 65(9) is in these terms:

         

        “Where by virtue of these Rules any document is required to be served on any person but is not required to be served personally or in accordance with Order 10, rule 1(2) and at the time when service is to be effected that person is in default as to acknowledgment of service or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these Rules otherwise provides.”

         

        The Plaintiff contends that the present proceedings being a Notice of Motion for leave to enter judgment are covered by Order 65 Rule 9 and consequently the Notice of Motion is not required to be served personally. I accept that submission.

         

        Principles governing stay of proceedings on grounds of forum non-conveniens and the grant of anti-suit injunctions and the historical basis of the grant of anti-suit injunctions

         

        The practice of granting anti-suit injunctions has developed considerably during the last 15 years and owes its origin to the practice of the old Chancery Court to grant a common injunction to protect the process of that Court against interference by the processes of other Courts. Such injunctions were not directed to the Courts of common law, as was the prerogative Writ of prohibition, but were in the form of an order operating in personam on the conscience of the party proceeding or proposing to proceed at common law, directing it to desist therefrom.

         

        In 1855, in Carron Iron Co. v. Maclaren (1855) 5 HLC 416, the House of Lords reviewed the previous anti-suit injunction cases. In particular, the Lord Chancellor stated:

         

        “There is no doubt as to the power of the Court of Chancery to restrain persons within its jurisdiction from instituting or prosecuting suits in foreign courts, wherever the circumstances of the case make such an interposition necessary or expedient. The Court acts in personam, and will not suffer anyone within its reach to do what is contrary to its notions of equity, merely because the act to be done may be, in point of locality, beyond its jurisdiction.”

         

        The equitable foundation of the jurisdiction was also well stated by Atkin L.J. in 1928 in Ellerman Lines Ltd v. Read [1928] 2 KB 144 at p.155, a case where proceedings had been commenced and judgment obtained in Turkey in breach of contract.

         

        An injunction was granted to restrain the enforcement of the judgment not merely in England but anywhere in the world. Atkin L.J. said:

         

        “If the English Court finds that a person subject to its jurisdiction has committed a breach of covenant, or has acted in breach of some fiduciary duty or has in any way violated the principles of equity and conscience, and that it would be inequitable on his part to seek to enforce a judgment obtained in breach of such obligations, it will restrain him, not by issuing an edict to the foreign Court, but by saying that he is in conscience bound not to enforce that judgment or commence or maintain proceedings.”

         

        The Courts have eschewed attempts to categorise the cases or circumstances in which anti-suit injunctions may be granted - Aerospatiale [1987] AC 871 at 892 but the decisions show that anti-suit relief has been granted (a) in equity’s exclusive jurisdiction or (b) in its auxiliary jurisdiction.

         

        In addition, as was emphasised by the High Court of Australia in CSR Ltd. v. Cigna Insurance Australia Ltd. the grant of an anti-suit injunction may be founded in the Court’s inherent jurisdiction where it is necessary for the protection of the Court’s proceedings or processes (1997) 71 ALJR 1165-6.

         

        In order to warrant the grant of an anti-suit injunction in the exclusive jurisdiction it will be generally necessary to demonstrate that the institution or maintenance of the foreign suit was or is vexatious or oppressive.

         

        The commencement of proceedings in a forum having little or no connection with the subject matter of the dispute is generally regarded as an indication of vexatiousness or oppression whether subjectively intended or as a necessary consequence of such proceeding - Aerospatiale at 894.

         

        In CSR v. Cigna, Brennan C.J. (dissenting) stated that it is vexatious or oppressive for a party to seek to enforce a liability in a foreign court where that is not a natural forum for determining the issue in question. This issue was not dealt with directly by the majority joint judgment which concentrated mainly upon the fact that there was certain relief in the form of treble damages available claimed in the foreign forum which was apparently not available in the Australian Court.

         

        The rule of comity in the grant of anti-suit injunction

         

        The reported decisions of the English, Canadian, US Circuit Courts and the Australian Courts leave no doubt that a court asked to grant anti-suit injunctive relief should be sensitive to the foreign court because of the possible perception of interference in that Court’s processes but reading the various authorities it seems that considerations of comity are relevant but are no more than a matter to be weighed by a trial judge in the overall exercise of his or her discretion.

         

        Reference is made in both CSR v. Cigna and Airbus to various Canadian and US authorities among them being the decision of the Supreme Court of Canada in Amchem Products Inc. v. Workers Compensation Board (1993) 1 SCR 897 in which it was held that prior to the local court entertaining an application for anti-suit relief it was “preferable” as being “consonant with the principles of comity” that the Applicant for such relief should first have sought a stay or termination of the foreign proceedings from the foreign court but this decision has been criticised in an article “The Anti-suit Injunction” in 71 ALJR in December 1997 by Dr. Andrew S. Bell and Mr. Justin Gleeson who appeared as junior counsel for the Respondents in CSR Ltd. v. Cigna Insurance Australia Ltd. The authors argue that the “preferable course” stated in Amchem was based upon a major and untested assumption, namely that the foreign court would be insulted if proceedings pending before it are restrained. They say that this assumption has been and should be questioned, especially in circumstances where the court issuing the injunction makes plain the reasons for its decision, focusing as they must on the Defendant’s unconscionable conduct, and the basis for the grant of the relief entails no criticism of the foreign court. In this proposition they cite two American cases and one New South Wales case CSR Ltd. v. New Zealand Insurance Company Limited (1994) 36 NSWLR 138. They also argue that Amchem failed to refer to the long line of cases in which anti-suit injunctions have been granted, either in the court’s auxiliary jurisdiction or in its exclusive jurisdiction, without there being any requirement of first seeking a stay from a foreign court.

         

        The High Court in CSR v. Cigna did not adopt the Amchem approach. The majority judgment declined to adopt the Amchem approach as a general rule and indicated, importantly in my view in the present case, that Amchem has no application where the foreign proceedings clearly constitute conduct entitling the Applicant to equitable relief or where the injunction is sought to protect the integrity of the local proceedings or the processes of the local court.

         

        The majority judgment recognised that where the anti-suit injunction is sought to protect the proceedings or processes of the local court no question arises whether that court is an appropriate forum for the resolution of the issue: it is the only court with any interest in the matter. The majority also confirmed that an anti-suit injunction should be used sparingly having regard to considerations of international comity, but was nevertheless part of the court’s equitable jurisdiction to prevent injustice and to protect the proper exercise of jurisdiction of Australian courts.

         

        Generally speaking this was the approach adopted by the House of Lords in the Airbus decision of 2nd of April 1998. The judgment stated as a general rule that before an anti-suit injunction can properly be granted by an English Court to restrain a person from pursuing proceedings in a foreign jurisdiction, comity required that the English forum should have a sufficient interest in or connection with, the matter in question to justify the indirect interference with the foreign court which an anti-suit injunction entails. In an alternative forum case this will involve consideration of whether the English Court is the natural forum for the resolution of the dispute.

         

        Applying these principles to the facts of the instant case I am satisfied that this court is the natural forum for the resolution of the dispute based on the facts I have enumerated above namely the fact that the Plaintiff is a registered company in Fiji; that its business also is based in Fiji; that the decision of this court approving the scheme of arrangement has not been appealed by the Defendant and lastly that the Defendant has not served on the Plaintiff either an intention to defend the Writ of Summons or any defence to the Statement of Claim. For these reasons I grant the orders sought in the Notice of Motion as follows:

         

        (1)     Judgment is entered for the Plaintiff against the Defendant for an injunction restraining the Defendant by itself, its servants, agents or otherwise howsoever from continuing Civil Action No. 2063 of 1998 in the Supreme Court of Western Australia against the Plaintiff;

         

        (2)     The Defendant is to pay the Plaintiff’s costs of this application to be taxed in default of agreement.

         

        (Application allowed; injunction granted.)

National Trading Corp. Ltd v. Stuart Hugget & Carpenters Fiji Ltd MBF

        [1999] 45 FLR 41

        HIGH COURT OF FIJI ISLANDS

         

        NATIONAL TRADING CORPORATION LTD

         

        v.

         

        STUART HUGGET &

        CARPENTERS FIJI LIMITED MBF

         

        [HIGH COURT, 1999 (Pathik J) 19 February]

         

        Appellate Jurisdiction

         

        Admiralty- demise charter party- implied warranty by charterer that vessel seaworthy.

         

        A group of anti nuclear protestors including a well-known Suva architect and a prominent Senator chartered a vessel to sail to the Tuamotu Archipelago to protest against French nuclear testing at Mururoa. Unfortunately the vessel broke down and the party never reached their destination instead drifting at sea for some days before finally being rescued. The owners of the vessel refused to pay for essential repairs. On appeal the High Court HELD: that it was an implied term of the charter party that the vessel was seaworthy which it plainly was not and that accordingly the cost of the repairs was properly the responsibility of the owner.

         

        Cases cited:

         

        Cohn v. Davidson & Anr (1877) 2 QBD 455

        Dixon v. Sadler (1841) 5 M & W 405

        Jessie Hedley (Pauper) v. Pinkney & Sons Steamship Co. Ltd.

                    (1894) AC 222

        Kopitoff v. Wilson & Ors (1876) 1 QBD 377

        Steel et.al v The State Line Steamship Company (1877) 3 App Cas.72

         

        Appeal to the High Court from the Magistrates’ Court.

         

        G.P. Lala for the Appellant

        P.I. Knight for the First Respondent

        H. Lateef for the Second Respondent

         

        Pathik J:

         

        The appellant (Third Party) has appealed against the ‘whole of the findings, order, judgment or decision’ herein against the appellant from the judgment delivered on 10 March 1998. The learned Magistrate gave judgment in favour of the second respondent (the original plaintiff - R2) with costs and also ordered that the first respondent (RI) be indemnified by the appellant for the sum claimed with costs.

         

        Background facts

         

        The facts are amply set out in the Decision or Judgment of the learned Magistrate and for ease of reference, in so far as it is material to this Appeal, they are as follows:

         

        “In September 1995, the “the M.V. Kaunitoni” (the vessel) sailed from Fiji bound for Muroroa. Her passengers consisted of a group of anti-nuclear protestors both local and international.

         

        Unfortunately the “M.V. Kaunitoni” did not reach her destination. Her engine broke down on route. The protestors were stranded on the drifting vessel in the middle of the Pacific Ocean. Following a dramatic rescue, she was towed to the Cook Islands for engine repairs.

         

        The repair works were carried out by the plaintiff at the defendant’s request. The plaintiff claims against him for the balance of the costs of the said repairs amounting to $11,805.99.

         

        Mr. Hugget alleges that the 3rd party, (Natco), is liable to indemnify him against the plaintiff’s claim.

         

        Natco owns the “M.V. Kaunitoni”. At the time of the breakdown, the vessel was the subject of a charter party Agreement (the agreement) between Natco and Mr. Hugget, Adi Tabakaucoro and Ms Costello, (charterers). The charterers had hired the vessel specifically for the protest voyage. The charter party agreement contains the terms and conditions of hire”.

         

        Grounds of Appeal

         

        The following are the Grounds of Appeal:

         

        1.                THAT the learned trial Magistrate failed to properly and correctly interpret the meaning and effect of the charter party Deed, and/or failed to appreciate or hold that the contract for repairs was entered into by the first Respondent with Carptrac without any authority express or implied from the Appellant and therefore the Court was wrong in not holding that the Appellant was not liable to indemnify the first Respondent.

         

        2.                THAT the learned trial Magistrate was -

         

        (a)     wrong in holding that the damage done to the vessel arose out of fair wear and tear;

         

        (b)     wrong in not holding that the 1st Respondent was not entitled to any indemnity under $40,000.00 in terms of the charter party;

         

        (c)     wrong in holding that Appellant was liable to indemnify the 1st Respondent when the Appellant had nothing to do with the causation giving rise to claim by the Carptrac nor was the appellant party to the contract for repairs.

         

        (d)     wrong in not holding that the 1st Respondent was not an agent of the appellant and had no authority to incur liability and seek indemnity from the appellant.

         

        3.                THAT the learned trial Magistrate’s judgment or decision is inconsistent in that the Court held that “engine was damaged” and later in the judgment held that the damage was by reason of fair, wear and tear.

         

        4.       THAT the learned trial Magistrate relied on irrelevant matters and failed to rely on the relevant material, namely the charter party Deed.

         

        Issue on Appeal

         

        In short the main issue for the Court’s determination is whether the learned Magistrate was correct in ordering that the defendant be indemnified by the Third Party for cost of repairs carried out by the second respondent.

         

        Appellant’s submission

         

        Mr. Lala submitted that the appellant is not liable to indemnify the first respondent for cost of repair works carried out by the second respondent on the vessel; that R1 did not act as agent of the appellant in having the repair work carried out and in fact there was no request made to the appellant to have the work done.

         

        Mr. Lala further argued that upon a true construction of the clauses in the Charter no authority could be implied in law for R1 to carry out repairs and to seek indemnity from the Third Party. He says that the vessel was at R1’s risk and he was solely liable for any breakdown and its repair costs. He says that R1 could not have acted as the agent of the appellant to authorise repairs. He submits that the Third Party should have been contacted first.

         

        It is further argued by him that the vessel was seaworthy and fit to undertake the voyage and that is evident from the Survey Certificate dated 22 August 1996 issued to the appellant by the Fiji Marine Board.

         

        Mr. Lala submits that the learned Magistrate’s finding that the damage was done to the vessel ‘by reason of fair wear and tear’ is not supported by ‘first hand admissible evidence’.

         

        Reference was made to Clauses 12, 18 and 5 of the Charter which Mr. Lala says are clear and they manifest the intention of the parties.

         

        Counsel submitted that the learned Magistrate was wrong in finding that there was a breach of warranty. He said that the vessel was fit for the voyage which it took. He says that the warranty did not guarantee an unforeseeable and unknown risk taking into account that the Third Party had certain repairs done to the vessel by R2 before the Charter and before the Marine Certificate was obtained.

         

        First respondent’s submission

         

        It is Mr. Knight’s submission that the ship owners (the appellant) by virtue of the provisions of the Demise Charter (the “Charter”), coupled with the evidence and an express or implied warranty of `additional seaworthiness’ are liable to pay the expenses incurred by the first Respondent.

         

        Second respondent’s submission

         

        Mr. H. Lateef stated that the issue is between the appellant and the first respondent and therefore he has no submission to make.

         

        Consideration of the issue

         

        A careful consideration has been given by me to all the submissions made by counsel for the respective parties. I have also considered the evidence tendered in this case.

         

        In this Appeal the appellant does not agree with the learned Magistrate’s decision that the first respondent be indemnified by it for the repair costs payable to the second respondent as claimed by it.

         

        Essentially the learned Magistrate found ‘that the engine damage that caused the “M.V. Kaunitoni” (“the vessel”) to breakdown was damages resulting from fair wear and tear’ and ‘that Natco did warranty that the vessel was seaworthy and fit for charter’. There are other findings such as that: ‘the Marine Board Survey Certificate did not certify the vessel’s (engine’s) seaworthiness. It merely pertained to certification of safety equipment’, and ‘that Natco approved the course of action taken by the defendant including approval of the repairs carried out by the plaintiff’.

         

        I do not find anything wrong in the above findings including the finding that the Third Party “approved the course of action taken by the defendant including approval of the repairs carried out by the plaintiff”. I agree with these findings which are based on evidence before the Magistrate and do not consider that they ought to be disturbed in any way. The learned Magistrate was in a better position than the appellate Court to make the findings of fact having heard and seen the witnesses and having observed their demeanour in the witness box.

         

        I am of the view that there is a point of law involved in this case. There was no reference to any case law on the issues in the lower court. Bearing in mind the facts the crucial factor which will decide as to who should be liable to pay for the repairs depends entirely on the interpretation which one gives to the clauses in the Charter executed by the appellant and the first respondent and in particular the clauses to which reference was made by Mr. Knight and Mr. Lala and argued on; they are clauses 5,10, 11, 12 and 18 and they read as follows in so far as they are material:

         

        “5.     The Charterers shall at their own expense maintain the vessel throughout the period of hiring in a thoroughly efficient state in hull, machinery and equipment (fair wear and tear only excepted) in accordance with good maintenance practice and shall make good all damage thereto other than damage resulting from fair wear and tear.....

         

        10.     The Charterers shall have no authority to bind the owners by any contract whatsoever, including contracts for the carriage of goods or performance of services or for the repair, maintenance, provisioning or supply of the vessel, .....

         

        11.     The owners shall be under no liability whatsoever for any loss, damage or delay of whatsoever kind and whensoever arising or for any injury to or death of any person whomsoever, unless caused by personal want of due diligence on the part of the owners or their manager prior to delivery in making the vessel seaworthy and fitted for the charter service.

         

        12.     The Charterers shall indemnify the owners against all and any liabilities and claims of whatsoever nature and howsoever arising in connection with the vessel, including but not limited to any damages, fines, charges, taxes or other impositions salvage or general average for which the owners may incur liability or which may be claimed against the owners or imposed upon the vessel at any time during the period of hiring.

         

        18.     The vessel shall be redelivered on the expiration of this charter in the same order and condition as when delivered to the Charterers (fair wear and tear only excepted) at port in Suva on or before expiration of charter.”

         

        In a nutshell, it is Mr. Lala’s argument that the clauses in the Charter particularly the ones referred to hereabove completely absolve the appellant from all liability and that the finding by the learned Magistrate that there was “fair wear and tear” was wrong on the evidence before her.

         

        In view of the authorities which I shall consider hereafter and on the facts as found, Mr. Lala’s arguments do not hold any water.

         

        Application of law to facts

         

        What is charterparty?

         

        This was a ‘demise charterparty’ and it is headed as such being one of the three categories of charterparties in shipping law. The other two being ‘voyage charterparties’ and ‘time charterparties’.

         

        A ship or vessel can be hired out and a contract for the hire of a ship is called a ‘charterparty’. The ship that is hired is said to be ‘chartered’ and the hirer is the ‘charterer’. They are leases of ships.

         

        In a demise charterparty the charterer takes over all the responsibilities for the vessel and I emphasise that this is subject to the Charterparty agreement. Under clause 24 it is stated that “this Charterparty contains the whole agreement of the parties and no variation shall be effective unless made in writing and signed by the parties hereto”. He employs a crew and provisions, bunkers and runs the ship as his own as long as the demise charter lasts. In this case R1 had his own crew and captain.

         

        Seaworthiness - implied warranty

         

        The Charterparty provides in said clause 11 that the owners shall exercise due diligence to render the vessel seaworthy before delivery when it states therein that they are under “no liability whatsoever ..... unless caused by personal want of due diligence on the part of the owners or their manager prior to delivery in making the vessel seaworthy and fitted for the charter service”.

         

        The owners knew what the purpose of the hiring was. The vessel broke down en route because of its unseaworthiness at the time of delivery and the charterers could not reach their destination and the whole purpose of hiring was defeated.

         

        On this aspect there is the further clause 18 which required the vessel to be redelivered in the same order and condition ‘fair wear and tear only excepted’.

         

        The responsibilities of the parties are set out in the said clauses 5 and 11: In my view they provide an express warranty that the vessel has to be seaworthy at the time of delivery for the voyage that she has to undertake.

         

        Thus the liability of either party will depend on whether the appellant (the owners) made the vessel seaworthy and fitted for the charter service than this will exempt the owners from any liability but liability will accrue to the charterers.

         

        The learned Magistrate correctly found on the evidence before her that there was a warranty of seaworthiness. The House of Lords in Steel et.al v The State Lines Steamship Company (1877) 3 App Cas.72 held, inter alia, that “there was an implied engagement to supply a seaworthy ship”. The Lord Chancellor in his judgment on the meaning of the word `seaworthy’ in this context stated thus:

         

        By “seaworthy”, my Lords, I do not desire to point to any technical meaning of the term, but to express that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in crossing the Atlantic. My Lords, if there were no authority upon the question, it appears to me that it would be scarcely possible to arrive at any other conclusion than that this is the meaning of the contract.

         

        In regard to ‘seaworthiness’, for the principles applicable to this appeal, I would like to refer to the following passage from the judgment of Lord Blackburn in Steel (supra) at p86 which I consider apt:

         

        “I take it my Lords, to be quite clear, both in England and in Scotland, that where there is a contract to carry goods in a ship, whether that contract is in the shape of a bill of lading, or any other form, there is a duty on the part of the person who furnishes or supplies that ship, or that ship’s room, unless something be stipulated which should prevent it, that the ship shall be fit for its purpose. That is generally expressed by saying that it shall be seaworthy; and I think also in marine contracts, contracts for sea carriage, that is what is properly called a “warranty,” not merely that they should do their best to make the ship fit, but that the ship should really be fit. I think it is impossible to read the opinion of Lord Tenterden, as early as the first edition of Abbott on Shipping, at the very beginning of this century, of Lord Ellenborough, following him, and of Baron Parke, also in the case of Gibson v. Small (4 H.L.C 353), without seeing that these three great masters of marine law all concurred in that; and their opinions are spread over a period of about forty or fifty years. I think therefore, that it may be fairly said that it is clear that there is such a warranty or such an obligation in the case of contract to carry on board ship. (emphasis added)   

         

        Lord Blackburn in Steel at p.87 (ibid) goes on to say and this is pertinent:

         

        “In the case of Kopitoff v. Wilson, where I had directed the jury that there was an obligation, I did certainly conceive the law to be, that the shipowner in such a case warranted the fitness of his ship when she sailed, and not merely that he had loyally, honestly, and bona fide endeavoured to make her fit.”

         

        It was stated in Kopitoff v Wilson & Ors (1876) 1 QBD 377 (in the headnote) that ‘in every contract for the conveyance of merchandise by sea there is, in the absence of express provision to the contrary, an implied warranty by the shipowner that his vessel is seaworthy’. I would say that this statement of principle in the present appeal is the one that should be applied on the facts and circumstances of this case despite the fact that there was no question of conveyance of merchandise in this case.

         

        Also Parke B. in the case of Dixon v. Sadler (1841) 5 M & W 405 at 414 (E.R Vol 151 p.172) (approved in Jessie Hedley (Pauper) v. Pinkney & Sons Steamship Company Limited (1894) A.C. (H.L.) 222 at 227) defined seaworthiness of a vessel thus:

         

        “..... it is clearly established that there is an implied warranty that the vessel shall be seaworthy, by which it is meant that she shall lie in a fit state as to repairs, equipment, and crew, and in all other respects, to encounter the ordinary perils of the voyage insured, at the time of sailing upon it”.

         

        To counter the argument as to seaworthiness, Mr. Lala relied upon the said Marine Survey Certificate but he eventually agreed that this does not prove seaworthiness. In this regard the Plaintiff’s second witness (PW2) (the Naval Architect) stated that this Certificate does not check the engine of the ship, it only ensures that safety equipment such as life jackets, pumps, safety doors etc. are present in the vessel.

         

        Furthermore, according to Cohn v. Davidson & Anor (1877) 2 QBD 455, the condition of seaworthiness is broken although the ship may be in a present state of fitness at the moment of sailing if by reason of a latent defect or internal weakness existing at that time she will be rendered unfit in the future for the due completion of her voyage. In this respect I refer to the headnote to Cohn (supra) which I consider is applicable to the facts of this case. The headnote reads:

         

        “The implied warranty of seaworthiness into which the owner of a ship enters with the owner of her cargo, attaches at the time when the perils of the intended voyage commence, that is, when she sets sail with the cargo on board for her port of destination; and this warranty is broken if she is then unfit to encounter these perils, although she may have been seaworthy whilst lying in the port of loading, and also at the times of starting from her anchorage for and arriving at the place of loading appointed by the charterer, and of commencing to take on board her cargo.”

         

        The facts of the case are (the headnote continues):

         

        “The defendants were the owners of a vessel, and chartered her for a voyage to D., from the port of S., where she was then lying in a seaworthy condition. Pursuant to the terms of the charterparty, and by the orders of the plaintiff, the vessel proceeded to a wharf situate in the port of S. and there loaded on board a cargo of cement belonging to the plaintiff. At the time when she commenced taking in the cargo she was seaworthy; but by the time of setting sail on her voyage she had from some unknown cause become unseaworthy. The defendants were not guilty of negligence in sending her to sea in the condition in which she then was. Soon after starting from S. she began to leak; but the wind being fair for the voyage to D., the master resolved to keep his course for D., and he was not guilty of any negligence in not returning to S. The vessel did not reach D., but foundered at sea, and the plaintiff’s cargo of cement was totally lost:-

         

        It was held:

         

        that the warranty of seaworthiness implied by law upon entering into the charterparty had been broken, and that the plaintiff was entitled to recover the value of the cargo shipped by him on board the vessel.”

         

        In the case before me PW2 gave evidence that the cause of the engine breakdown was overheating of the engine and the normal cause of overheating is failure of water circulation and thus concluded that blockage of water pipes had occurred. The chamber also cracked because it was too old and he also stated that the engine was very old which was probably the original engine of the ship which was built in 1973. This he said could amount to fair wear and tear. The witness also stated that looking at the engine one could not be sure whether the owners complied with one of the important requirements to maintain an engine that is installation of ‘zincs’ inside the engine to keep it from corroding.

         

        It is therefore clear from the evidence that the appellant had failed in its common law duty and duty under the Charter (contract) with the charterers to provide a seaworthy vessel to encounter the perils of the voyage as a result whereof the vessel broke down thus frustrating the object of the Charter namely, to reach Morurua Island.

         

        Conclusion

         

        To sum up, the law as I have stated above is this, that there is an implied warranty of seaworthiness in a situation such as the present. The case law to which I have made reference support this proposition. There is no provision in the Charter excluding or limiting the implied warranty of seaworthiness, if anything, as I have already said the said clauses 5 and 11, on my interpretation of them on the authorities require the vessel to have been seaworthy before delivery. In The Cargo ex Laertes (1877) 12 P 187 at 190 Butt J said:

         

        “No doubt the ordinary rule is that, at the commencement of the voyage, there is an implied warranty that the ship is seaworthy, not that the owner will use his best endeavours to make her so, but that she is in fact seaworthy. (emphasis added)

         

        In the case before me, on the evidence, whatever repair work was alleged to have been done to the vessel prior to delivery is an insufficient reason, in the light of the law as to warranty of seaworthiness, to absolve the appellant from liability. Evidently the fault in the engine which caused the break-down existed when the vessel started and therefore she was not seaworthy for the voyage.

         

        Even if a case of ‘wear and tear’ was not made out it was still incumbent on the appellant/owners to provide a seaworthy vessel. In this context I conclude with the following words from the judgment of Lord O’Hagan in Steel (supra) at p 84 when he said:

         

        “.....I have no doubt myself that the words of exception which are contained in the bill of lading in no degree denude the shipowner in this case from the liability so created”.

         

        In the outcome, taking the whole of the evidence and interpreting the relevant clauses in the Charter as the learned Magistrate did and considering the authorities, I find that the vessel was unseaworthy at the time she sailed to encounter the perils of the voyage and that the damage that was caused was as a consequence of her being unfit hence there was a breach of the implied warranty of seaworthiness.

         

        The appeal therefore fails and is dismissed with costs to be taxed if not agreed.

         

        (Appeal dismissed).

Pramendra Singh v. Registrar of Titles

        [1999] 45 FLR 122

        HIGH COURT OF FIJI ISLANDS

         

        PRAMENDRA SINGH

         

        v.

         

        REGISTRAR OF TITLES

         

        [HIGH COURT, 1999 (Shameem J) 22 June]

         

        Civil Jurisdiction

         

        Estate- power of Registrar to enter caveat against sale of estate property by executor- Land Transfer Act (Cap 131) Sections 93, 94, 129 & 131- Succession Probate and Administration Act (Cap 60) Section 11 (3).

         

        After the executor of an estate sold estate property the Registrar of Titles refused to register the transfer and entered a caveat against dealing in the property.  She requested a Deed of Family Arrangement.  Upon application being made to the Court for removal of the caveat the High Court HELD: (i) in the absence of any suggestion of unproper dealing the Registrar had no authority to enter the caveat and (ii) there is no power to back date a caveat under the powers conferred on the Registrar by Section 94 of the Act.

         

        No case was cited.

         

        Interlocutory application in the High Court.

         

        N. Arjun for Plaintiff

        S. Kumar for Defendant

         

        Shameem J:

         

        This is an application by Pramendra Singh, (the Plaintiff) under Section 164 of the Land Transfer Act (Cap. 131), for an order that the Registrar of Titles register the transfer of property comprised in CT Register Volume 43 Folio 4245, Lots 7, 8, 9 Section XXI, to the said Plaintiff.  The decision of the Registrar giving rise to this application, was her decision to lodge a caveat (number 192113A) against the title on  7th May 1999, backdated to 24th May 1982 (when she was not the Registrar of Titles) preventing the transfer of the property to the Plaintiff on the sale by the executor and trustee of the estate of Sarah Grace Vandenberg.

         

        The affidavit of the applicant, Pramendra Singh, shows that the property in question was part of the estate of Sarah Grace Vandenberg. She died on 21st May 1977. Her son-in-law one Vishnu Deo Prasad was appointed executor, by virtue of her will dated 28th February 1975. The estate was transferred to the executor on 25th May 1982. The will of Sarah Grace Vandenberg named her eight children as beneficiaries in equal shares.

         

        On 8th July 1998 the executor sold the property in question to the Plaintiff.  The purchase price was paid to the executor in full, and he took possession of the land. The transfer dated 8th July 1998 was stamped, lodged and accepted for registration by the Registrar of Titles on 6th August 1998. On 8th January 1999, the Registrar returned the Transfer document to the Plaintiff’s solicitors, with a verbal request for a Deed of Family Arrangement.

         

        The solicitors for the Plaintiff informed the Registrar that there was no Deed of Family Arrangement and that the executor had full powers to sell and distribute the estate. The Transfer document was then re-lodged at the Titles Office on 11th January 1999.

         

        On 7th May 1999, the document and the Title Deed were again returned to the Plaintiff’ s solicitors with a caveat endorsed on the title by the Registrar backdated to 25th May 1982, the date of transmission by death, and a date on which she was not the Registrar of Titles.

         

        On 7th May 1999, the Plaintiff’ s solicitors wrote to the Registrar asking her for her reasons for refusing registration. This is a requirement under Section 164(1) of the Land Transfer Act. The Registrar did not respond to this letter.

         

        On 19th May 1999, the Plaintiff applied to the High Court for an order that the Registrar register the transfer, by way of originating summons and supporting affidavit.

         

        The matter was listed on 26th May 1999, and on 3rd  June 1999. On both dates the Registrar failed to appear. However on 11th June the Registrar was represented by counsel, who asked for time to file an affidavit.

         

        On 14th June 1999, the affidavit of Ma’ata Sakiti, the Registrar of Titles was filed. She deposed that she wished to sight a Deed of Family Arrangement “which would indicate that the sale was in the best interests of the beneficiaries named in the will of Sarah Grace Vandenberg”. At paragraph 8(iii) of her affidavit, the Registrar deposed that the sale was to a person not named in the Will. She stated that she entered a caveat under Section 94 of the Land Transfer Act which provided that

         

        “Upon registration of the transmission of any estate or interest in land under the provisions of Section 93 the Registrar may enter a caveat for the protection of the interests of any person whom he is satisfied are beneficially interested in such estate or interest.”

         

        She stated that she had power under 129(1) of the Land Transfer Act to call for documents, and that she believed that she was entitled to backdate the caveat since her predecessor ought to have lodged a caveat in 1982. She said that she had acted to protect the interests of the beneficiaries. She does not state what grounds she has for believing that the executor was not acting in the interests of the beneficiaries. There is no evidence at all that the beneficiaries objected to the sale of the property in question.

         

        The application was heard on 18th June 1999. Mr. Narendra Arjun for the Plaintiff submitted that the executor and trustee is deemed to be the absolute proprietor of the estate by virtue of Section 93(3) of the Land Transfer Act. He submitted that whilst the Registrar could enter a caveat under Section 94 of the Act, this power must be exercised “upon registration of any estate” by virtue of a transmission by death under section 93. He submitted that this power did not exist 15 years after such transmission. He argued that there was no statutory or legal requirement for a Deed of Family Arrangement before an executor and trustee could sell the estate, and that a Deed of Family Arrangement was normally required when the beneficiaries wished to vary the terms of a will, or wished to renounce their interests.

         

        Mr. Arjun submitted that the Registrar did not point to any improper dealing on the part of the executor. He argued that if her predecessor had decided not to  enter a caveat in 1982, the present Registrar could not now substitute her own discretion for his. Mr. Arjun submitted that the result was that a bona fide purchaser for value had no security of title.

         

        Mr. Kumar for the Registrar endorsed Mr. Arjun’ s submissions on the law. However he said that his instructions were to stand by the affidavit of Ma’ ata Sakiti. He conceded that if the beneficiaries were aggrieved by the sale of the estate, they had a right of action against the executor. He said that he left the matter to the Court.

         

        There is no doubt at all that the Registrar of Titles has wide powers under the Land Transfer Act.  Section 129 of the Act gives the Registrar power to require any person interested in property to produce any instrument in his/her possession.

         

        Under Section 131 the Registrar may enter a caveat on behalf of any person where an error has been  made in the description of the property, or for the prevention of fraud or improper dealing. Section 131(2) gives the Registrar powers to correct errors in the register provided that the date of such correction is inserted by her. In this case the Registrar purported to act under Section 94 of the Act. She states that the section impliedly allowed her to backdate the caveat. I cannot agree. The then Registrar of Titles did not consider it necessary to register a caveat to protect the interests of the beneficiaries in 1982. Any prospective purchaser searching the register for any encumbrances on the file, would have found the title clear.

         

        To register a caveat 17 years after the transfer to the executor on transmission by death, and to backdate such a caveat, would defeat the whole purpose of the Act. It would render the process of registration, and search, a futile exercise and would prevent the security of titles. Finally, the back-dating of the caveat creates a false impression of the date of the entry of the caveat.

         

        The Registrar does have powers to enter a caveat at any time under Section 131 (1) of the Act, but must only act if he/she believes an error is made by misdescription or to prevent fraud or improper dealing. Although the Registrar does not purport to rely on this provision in this case, it is apparent from her affidavit that she has no grounds to suspect error, fraud or improper dealing.

         

        The Registrar appears to base her action on the fact that the purchaser is not a beneficiary under the will. The executor is not obliged to sell the estate to a beneficiary. Furthermore Section 11 (3) of the Succession, Probate and Administration Act (Cap 60) provides

         

        “An executor to whom probate has been granted, or administrator, may, for the purposes of administrator, sell or lease such real estate or mortgage the same, with or without a power of sale, and assure the same to a purchaser or mortgagee in as full and effectual manner as the deceased could have done in his lifetime”.

         

        If the Registrar’s position in entering the caveat without suspicion of improper dealing, is correct, no executor and trustee could sell the estate and distribute the proceeds, without a Deed of Family Arrangement.  Such a position clearly has no legal basis.  It is also impractical and would frustrate the orderly administration of the registration process.

         

        In all the circumstances I find that the Registrar erred in entering Caveat No. 192 113A, and I order her to remove such caveat forthwith.  I also order the registration of the transfer of CT 4245 to the Plaintiff.  Costs of this application are to be paid by the Defendant to the Plaintiff, to be taxed if not agreed.

         

        (Application granted.)

Ram Dutt Prasad v. Australia & New Zealand Banking Group Ltd

        [1999] 45 FLR 101

        HIGH COURT OF FIJI ISLANDS

         

        RAM DUTT PRASAD

         

        v.

         

        AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

         

        [HIGH COURT, 1999 (Scott J), 6 May]

         

        Civil Jurisdiction

         

        Mortgage- rights of mortgagees and mortgagors- caveat against dealing by mortgagee- how to be dealt with by Registrar of Titles- Land Transfer Act (Cap 131) Sections 72, 109 and 113- Property Law Act (Cap 130) Section 79.

         

        Bankruptcy- rescission of receiving order after expiry of period of appeal- Bankruptcy Act (Cap 48) Sections 5, 94 & 100.

         

        A mortgagor sought to have a receiving order rescinded.  He also sought an order preventing a mortgagee from completing a contract of sale of the mortgaged property.  The High Court dismissed the applications.  It explained the mortgagee’s duty to act in good faith but HELD: (i) in the absence of evidence of bad faith the Court would not intervene to present completion  of the contract and (ii) the mortgagor not having appealed against the moving of the receiving order as provided by statute, rescission was no longer available.  The Court recommended that the Registrar of Titles immediately advise all those with an interest in the property whenever a caveat is lodged.

         

        Cases cited:

         

        Alexandra v New Zealand Breweries Ltd [1974] 1 NZLR 497

        American  Cynamid Co v Ethicon Ltd [1975] AC 396

        Commercial and General Acceptance Ltd v Nixon (1983) 152 CLR 491

        Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949

        ex parte Goodlet and Smith Investments Pty Ltd [1983] 2 Qd. R 792

        Forsyth v Blundell (1973) 129 CLR 477, 483, 494

        Haddington Island Quarry Co Ltd v Huson [1911] AC 727

        Hawson v Little [1948] NZLR 1073

        Inglis & Anr v Commonwealth Trading Bank of Australia 126 CLR 161

        Maclead v Jones (1883) 24 Ch 289

        Murad v National Provincial Bank (1966) 198 Estates Gazette 117

        Property and Bloodstock Ltd v Emerton [1968] 1 Ch 94

        R v Birmingham JJ ex parte Ferrero [1993] 1 All ER 530

        R v Inland Revenue Commissioner ex parte Preston [1985] AC 835

        Rauzia Mohammed v ANZ Banking Group Ltd Suva S.C. 323/84

        Re Pile’s Caveat [1981] Qd. R 81

        Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410

        Uluinayau & Anr v NBF - HBC 175/1994S

        Warner v Jacob (1882) 2 Ch. D 220, 234

        Warring v London and Manchester Assurance Co [1935] 1 Ch 310

         

        Interlocutory applications in the High Court.

         

        G.P. Lala for the Plaintiff

        S. Lateef for the Defendant

         

        Scott J:

         

        The Plaintiff has been the registered proprietor of property comprised in Native Lease No. 19898 since 9 December 1987.

         

        On 5 October 1994 the property was mortgaged by the Plaintiff  to the Defendant Bank (the Bank) in consideration of loans and advances.

         

        On 24 November 1997 after the Defendant defaulted a demand notice was served on him.  The amount claimed was $16,252.07 with interest accruing at the rate of $7.84 per day from 1 November 1997.  The Defendant did not respond.

         

        In December 1997 in exercise of its powers (apparently both contractual and statutory : see Property Law Act - Cap 130 - Section 79) the Bank’s solicitors proceeded to advertise the property under mortgagee sale.  No tenders were received.

         

        On 12 September 1998 the property was auctioned, the highest bid received being $18,500.  On 22 October 1998 a sale and purchase agreement was entered into between the Bank and the successful tenderer.  On 3 February 1999 the Native Land Trust Board consented to the transfer of the property.

         

        On 1 March 1999 these proceedings were commenced by Writ.  Paragraph 3 of the Statement of Claim seeks an injunction to restrain the Bank from depriving the Plaintiff of the property by selling or transferring it or entering into any agreement to sell it or transfer it.  No Defence has yet been filed.

         

        On the same day that the Writ was filed the Plaintiff also filed a Notice of Motion and supporting affidavit.  The only difference between the reliefs sought in the Motion and those sought in the Statement of Claim is the omission of the claim for damages from the former.  In addition to the injunction (paragraph (c)) the Plaintiff also seeks:

         

        “(a)    An order that the Defendant do forthwith take all necessary steps to have the Receiving Order rescinded” and

         

        “(b)    An order that the Defendant do accept the debts lawfully owing to it to allow the Plaintiff to redeem the mortgage and pay off the debts and to obtain proper and valid discharge in registerable form.”

         

        Although paragraph (b) will be readily understood given the context already set out, paragraph (a) calls for further explanation.

         

        As is well understood a mortgagee, so long as part of the mortgage debt remains unpaid may pursue any or all of the remedies available to the mortgagee at the same time.  Thus, the mortgagee may concurrently sue for payment on a covenant in the mortgage to pay principal and interest, for possession of the mortgaged property and for foreclosure.

         

        Doubtless being aware that this is the general position in law the Bank not only exercised its powers of sale but also sued for the amount owed.  On 21 April 1998 Judgment in default of notice of intention to defend was obtained by the Bank against the Defendant for the sum due.  The Judgment debt has not been satisfied.

         

        The Bank then went further: it commenced bankruptcy proceedings against the Plaintiff in the Suva Magistrates’  Court (Action No. 210 of 1998s).  It relied on the unsatisfied judgment debt and a bankruptcy notice was issued on 9 June.  On 20 July the petition was presented.  A copy is Exhibit D to the Plaintiff’s supporting affidavit filed on 1 March.  On 11 September 1998 a receiving order was made.

         

        The first matter which calls for consideration is the power of this Court to grant the interlocutory reliefs sought.

         

        So far as prayer (a) is concerned there are, as it seems to me, two objections to such relief being granted at this stage.  The first is that the making of a receiving order by a Magistrates Court under the powers conferred on the Court by Sections 5 and 94 of the Bankruptcy Act (Cap 48 and see also L.N 65/94) is subject to the right of appeal conferred by Section 100 of the Act.  This right must however be exercised within 21 days of the decision against which it is desired to appeal.  The Plaintiff did not avail himself of this statutory right of appeal.  It is a general principle of our system of law that where a specific method of questioning a particular activity is provided by statute then that specific method should be adopted and not, without exceptional cause, another (see e.g. R v Inland Revenue Commissioner ex parte Preston [1985] AC 835 and R v Birmingham JJ ex parte Ferrero [1993] 1 All ER 530).   In my view the Plaintiff cannot now seek the same relief available to him under the appeal procedure provided for by the Bankruptcy Act by commencing proceedings within the original jurisdiction of the High Court, outside the appeal period.

         

        The second objection to granting the relief sought in (a) at this stage is that it seems to me that the order sought is not interlocutory but final, that it is not being sought in order to preserve the status quo until the rights of the parties have been determined in the action and that therefore it is not within the scope of RHC O 29 as applicable subject to the criteria explained in American  Cynamid Co v Ethicon Ltd [1975] AC 396.

         

        Turning to paragraph (b) of the motion it appears that what the Plaintiff is seeking is the right to exercise what he must be asserting is a still existent equity of redemption. If granted, this prayer would have the effect of preventing the Bank further exercising its powers of sale, in other words prayer (b) effectively encompasses prayer (c) and therefore the two may be taken together.  Before considering them in depth it must be pointed out that there is in fact no relevant legal nexus at all between relief (a) on the one hand and reliefs (b) and (c) on the other.  I do not know whether the Plaintiff will be able successfully to appeal against his receiving order on the ground that the Bank’s supporting affidavit was factually incorrect but even if he is ultimately successful on this issue it can have no bearing at all on his entitlement, if any, to restrain the mortgagee Bank from exercising its powers of sale.

         

        The Plaintiff says in paragraph 20 of his supporting affidavit that he has “been able, willing and ready to redeem the mortgage debt”.  Although Westpac Bank was willing to refinance the Plaintiff’s loan (paragraph 9 and Exhibit F) there is no evidence that money has actually been offered to the Bank and neither was there any offer to pay the amount claimed by the Bank into Court.

         

        On 13 April the Bank filed a reply to the Plaintiff’s affidavit.    Mr. Griffiths on behalf of the Bank deposed that after the failure of the demand notice served on the Plaintiff to evoke any response  the property was advertised “on several occasions” in about December 1997.  In the following September the property was auctioned.  Following the auction and receipt of only one bid the Bank had “numerous telephone discussions with the aim of giving the Plaintiff a last opportunity to redeem the mortgage”.  Only when these efforts failed did the Bank accept the bid offered at the auction and proceed to enter into a sale and purchase agreement with the successful bidder.

         

        Although no reply was filed to the Bank’s affidavit Mr.Lala told me (which the Plaintiff’s affidavit did not) that the Plaintiff based his claim for relief on the fact that he had offered the Bank a cheque in full satisfaction of the amount claimed, but that the cheque had been refused, that the sale of the property not been handled by the Bank in good faith and that neither the attempted sale nor the auction had been sufficiently advertised.  Mr. Lala pointed out that no copies of the advertisements had been exhibited to the Bank’s affidavit.  Mr. Lala also told me that the successful bidder at the auction was in fact an employee of the Bank.

         

        In answer to these submissions Mr. Lateef, relying on Hawson v Little [1948] NZLR 1073 submitted that whatever entitlement the Plaintiff might have had to redeem had been lost because of the fact that the Bank had entered into a binding sale and purchase agreement with the bidder; the property had, in other words, already been sold within the meaning of Section 72 (1) of the Property Law Act (Cap 130).  He stressed that numerous opportunities had been given to the Plaintiff to redeem and argued that even if, which was of course not admitted, the Plaintiff had any cause of action against the Bank then, (citing Uluinayau & Anr v NBF - HBC 175/1994S) the Plaintiff could sufficiently be compensated in damages.

         

        Before concluding his submissions Mr. Lateef raised another matter which must also be dealt with.  As  appears from paragraph 12 of the Plaintiff’s affidavit and Exhibit H, a caveat was lodged over the property on 6 January 1998, apparently by the Plaintiff’s wife.  This caveat remains in existence following the refusal of the Registrar of Titles to remove it despite request to do so by the Bank’s solicitors made on 9 March 1999 (Exhibit H2 to the Bank’s affidavit).  Mr. Lateef sought the caveat’s immediate removal.

         

        In discussion with counsel it emerged that the problem of caveats being lodged over property already subject to mortgage was now a serious one.  I was told that the present Registrar of Titles (unlike her predecessor) took the view that Section 113 (1) absolutely prevented the transfer by sale of a property subject to a caveat (other then a Section 117 caveat) even when the caveat was lodged subsequent to the registration of a mortgage and that therefore such a transfer could presently only be effected after the caveat had been removed.  This had become a problem both for the Banks and other mortgagees and also for the legal profession.  Both Mr. Lala and Mr. Lateef indicated that any guidance that this Court could offer as a means of resolving the difficulty would be welcomed.  Mr. Lala most kindly lent me a volume from his own library (which our own does not include) namely Caveats by Colbran & Jackson, Melbourne 1996.  I was also referred to a paper “Caveats & Injunctions - Consequences and Effects with respect to Mortgagee sales” delivered by R.R. Douglas QC at the Fiji Law Society Convention in 1998.

         

        The High Court of Fiji has for many years followed the long established rule that:

         

        “the mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute or because the mortgagor has begun a redemption action or because the mortgagor objects to the manner in which the sale is being arranged.  He will be restrained however if the mortgagor pays the amount claimed into Court, that is the amount which the mortgagee claims to be due to him.”

         

        (Halsbury 4th Edn Vol 32, paragraph 725).

         

        Among many other authorities in support of this proposition may be cited Maclead v Jones (1883) 24 Ch 289; Inglis & Anr v Commonwealth Trading Bank of Australia 126 CLR 161 and Rauzia Mohammed v ANZ Banking Group Ltd Suva S.C. 323/84.

         

        Although the rule appears on its face to be absolute it is in fact subject to qualification.  While the power of sale is given to a mortgagee for his own benefit, to enable him the better to realise the debt (Warner v Jacob (1882) 2 Ch. D 220, 234; Forsyth v Blundell (1973) 129 CLR 477, 483, 494) and the mortgagee is not a trustee of the power for the mortgagor yet nevertheless the mortgagee must pay some regard to the interests of the mortgagor.  Where their interests conflict the mortgagee is not entitled to act in a manner which sacrifices the interests of the mortgagor (Forsyth v Blundell supra).

         

        When exercising a power of sale the mortgagee is required to act in good faith and owes the mortgagor a duty to take reasonable care to obtain a proper price (Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949; Alexandra v New Zealand Breweries Ltd [1974] 1 NZLR 497).  Discharge of this duty requires the property to be adequately and sufficiently advertised and where an auction takes place it must be held in reasonable conditions (see generally Commercial and General Acceptance Ltd v Nixon (1983) 152 CLR 491; Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410).

         

        As has already been seen a mortgagor disputing the amount due rather than the mode of sale is required to pay into Court the amount claimed by the mortgagee before the Court will consider  restraining the sale but it seems that a mortgagor (upon whom the onus of proof rests - Haddington Island Quarry Co Ltd v Huson [1911] AC 727) who is seeking to restrain the mortgagee on the grounds of want of good faith or breach of duty of care, need not (Murad v National Provincial Bank (1966) 198 Estates Gazette 117).

         

        It is clear that the Court will only intervene on behalf of a mortgagor to prevent completion of  contract of sale, where it is satisfied that the contract was brought about by want of good faith on the part of the mortgagee (Warring v London and Manchester Assurance Co [1935] 1 Ch 310; Property and Bloodstock Ltd v Emerton [1968] 1 Ch 94; Forsyth v Blundell, supra).  On the papers before me I am satisfied there is no evidence of want of good faith or, in other words, dishonesty.  Whether Mr. Lala’s allegations of insufficient advertising and an unsatisfactory auction will eventually be borne out by further evidence I do not know.  If they are, then as already seen, they will prima facie afford evidence to support a claim by the mortgagor relying on Section 79 (3) of the Property Law Act.  I am satisfied however that these allegations are quite insufficient to warrant interference by this Court at this stage.  In the circumstances therefore prayers (b) and (c) of the motion also fail.

         

        There remains the matter of the caveat.

         

        On page 15 of Caveats Colburn & Jackson quote another work namely Woodman & Nettle’s The Torrens System in New South Wales and observe that:

         

        “Generally the system of caveats worked reasonably well over the years but there were increasing complaints ... that abuse of the system was beginning to discredit it.  The main areas of complaint were that:

         

                  1.      persons who had no interest in the land lodged caveats for oppressive and other reasons;

                  2.      the caveator often did not give sufficient information about the circumstances from which the alleged interest in the land arose; and

                  3.      the caveat almost invariably prohibited all dealings with the land- this included dealings which the caveator was not entitled to forbid, such as dealing with a prior registered mortgage” (emphasis added).

         

        Quoting from Lindsay: Caveats against Dealings in Australia and New Zealand Federation Press 1995 p 21 R.R. Douglas QC notes that:

         

        “the Torrens title legislation has been amended to ensure that the holders of unregistered subsequent securities are in no better position than the holders of registered subsequent securities in the event that a first mortgagee exercises the power of sale”.

         

        Although the amendments in the various Australian jurisdictions are not uniform they all provide that a transfer from a mortgagee exercising the power of sale is an exception to the prohibition against dealings contained in a caveat.

         

        One example of such an amendment which I find to be simple and straightforward is Section 136 (2) of the Real Property Act of the Northern Territory which reads as follows:

         

        “(2) the registration of a transfer by a mortgagee or encumbrancee exercising power of sale conferred by this Act is not prevented by a caveat or an instrument that has effect as a caveat where the caveat or the instrument relates to an estate, interest or right to which the mortgage or encumbrance has priority and, upon registration of the transfer -

         

        (a)     any such caveats;

        (b)     the registration of any such instrument that has effect as a caveat;

         

        shall be deemed to have been cancelled”.

         

        Section 136 (1) of the Northern Territory Act is the equivalent of our own Section 72 of the Land Transfer Act (Cap 131) while the prohibition against registering a transfer of land subject to a caveat is to be found, as has already been noted, in Section 113.

         

        In his paper Mr. Douglas examined the situation in Fiji.  He concluded that as the law presently stands the Registrar of Titles is entitled to require a caveat subsequent to a registered mortgage to be removed before the mortgagee, following exercise of its powers of sale, could seek transfer of the land to the new purchaser.  With respect, I agree.  Mr. Douglas recommended that the Land Transfer Act be amended to deal with the problem and again, with respect I agree.  But I am not sure that the present problem cannot quite effectively be dealt with, at least on an interim basis without amending the law.

         

        As I see it, amendment of the law along the lines of Section 136 (2) or along the lines of Section 124 (2) (c) of the Queensland Land Title Act 1994 suggested by Mr. Douglas would do little more than enact a rule which is already recognised by the Courts namely that an interest created by a mortgagor cannot prevail over the statutory right of  the mortgagee to exercise its powers of sale.

         

        Mere statutory recognition of a received rule of law would not of itself solve the practical difficulties which would continue to arise where caveats, the lodgement of which could not be justified, continue in fact to be lodged.  Such lodgements would impose on the Registrar of Titles the onerous new duty of deciding whether any particular caveat fell into the category covered by the exception while the mortgagee would continue to remain unaware that such a caveat had been lodged in the absence of a provision requiring notice of lodgement of such a caveat to be given to him.

         

        In my opinion the practical answer is to be found in a simple amendment to Section 109 of the Land Transfer Act.

         

        Under Section 109 (1) the Registrar, upon receipt of a caveat is required to give notice of receipt to the registered proprietor of the land in respect of which the caveat has been lodged.

         

        Under Section 109 (2) the Registered proprietor or any other person having an interest in the land may apply the Court by summons to have the caveat removed.  The Court than considers  the nature of the caveat and the justification or otherwise for its lodgement and proceeds to make whatever order is just in the circumstances.

         

        The weakness of the Section as it stands is that although notice of a newly lodged caveat has to be given to the proprietor, such notice does not have to be given to the mortgagee who may remain unaware of the existence of the caveat until exercise of the powers of sale is well advanced.

         

        In my view Section 109 (1) should be amended to require notice of the lodgement of a caveat to be given not only to the registered proprietor but also to any other person having a registered interest in the land.  This will enable early application for the removal of the caveat to be made.  In my opinion it should be the Court, and not the Registrar, which decides whether a particular caveat is of such a character as to warrant the prevention of transfer.

         

        It is of course, not for this Court to decide if or how the law should be amended, it can only make recommendations.  There is however much to be said for the Registrar immediately adopting a policy of advising not only a proprietor but also other interested parties of the lodgement of a new caveat.  The Court will then be in a position to decide to remove the caveat if such a decision is warranted.

         

        In the present case the caveat was lodged by the mortgagor in his wife’s name.  No grounds for lodging it have been advanced other than by the mortgagor who in his affidavit states that he lodged the caveat “to protect my interest”.  Without going into the question of whether the Plaintiff mortgagor’s wife is in a position to assert a caveatable interest as opposed to a mere personal equity (see ex parte Goodlet and Smith Investments Pty Ltd [1983] 2 Qd. R 792; Re Pile’s Caveat [1981] Qd. R 81) I have already reached the conclusion that the mortgagor’s evidence falls far short of successfully impeaching the mortgagee’s conduct of this sale and accordingly I am satisfied that the caveat cannot stand.

         

        Although no summons as such was filed by the Mortgagee Bank within the terms of Section 109 of the Land Transfer Act I am also satisfied that the parties have had ample opportunity to argue the matter fully before me and that I can fairly adjudicate on the question of the caveat in the present proceedings.  I order its removal forthwith.

         

        (Applications dismissed.)

Ram Sami v. The State

        [1999] 45 FLR 70

        HIGH COURT OF FIJI ISLANDS

         

        RAM SAMI

         

        v.

         

        THE STATE

         

        [HIGH COURT, 1999 (Fatiaki J) 22 March]

         

        Appellate Jurisdiction

         

        Crime: procedure- amended charge- whether to be put to accused- statement of offence- whether subsection or paragraph of Section charged must be referred to- Criminal Procedure Code (Cap 21) Sections 122 (a) (ii), 122 (f) and 214 (a).

         

        The Appellant argued that the Statement of Offence did not fully particularise the section charged and that the wording of the charge did not precisely follow the Section. The High Court dismissed the appeal and HELD: (i) that although desirable it was not necessary to specify the subsection or paragraph of a section in the statement of offence and (ii) providing the particulars of the offence are readily understood it is not necessary precisely to follow the wording of the charging section.

         

        Case cited:

         

        Sucha Singh v. R 14 F.L.R. 222

         

        Appeal against conviction entered in the Magistrates’ Court.

         

        A. Sen for the Appellant

        Ms. A. Driu for the Respondent

         

        Fatiaki J:

         

        On the 30th of March 1998 the appellant was charged with an offence of Criminal Trespass in which he is alleged to have ‘by night entered the (Complainant’s) compound without lawful excuse’. He pleaded not guilty and after a trial in which the prosecution called four witnesses including the complainant and the appellant gave sworn evidence, the trial magistrate convicted the appellant and sentenced him to 6 months imprisonment suspended for 12 months.

         

        The appellant now appeals against his conviction on the following three grounds:

         

        (a)     That the Statement of Offence and the Particulars of Offence do not disclose any offence;

         

        (b)     that both the Statement of Offence and the Particulars of Offence do not comply with the requirements of Section 122 of the Criminal Procedure Code; and

         

        (c)     That the findings of the learned Magistrate are wholly contrary to the evidence tendered and cannot be supported by the weight of the evidence.

         

        As to ground (a) the appellant’s counsel states in his short written submission:

         

        ‘Where the allegation is that the accused has committed an offence under a statute then that statute must be quoted otherwise the charge is bad.’

         

        and later counsel writes:

         

        ‘Obviously any charge under Section 197 simpliciter would be bad in law.’

         

        I cannot agree.

         

        If that submission is based on Section 122(a)(ii) of the Criminal Procedure Code (Cap.21) as it appears to be, then it is plainly wrong. The Section merely requires, in the Statement of Offence, ‘a reference to the Section of the enactment creating the offence’ which in this case, the charge plainly did in its original form.

         

        There is no statutory requirement that the Statement of Offence should also refer to any particular subsection or paragraph of the Section charged, although it is highly desirable that it do so if relevant.

         

        Then counsel highlights that the manual alteration of the original charge by the insertion of the relevant paragraph ‘(2)’ into the original Statement of Offence amounts to a material alteration or amendment of the charge and the amended charge should have been put to the accused and since it was not, therefore, the conviction cannot stand. No authority has been referred to in counsel’s submission nor was the Court’s attention expressly drawn to the provisions of Section 214 proviso (a) of the Criminal Procedure Code (Cap.21) as it should have been.

         

        Be that as it may I have considered the Section and respectfully agree with the majority view expressed by the Fiji Court of Appeal in Sucha Singh v. R 14 F.L.R. 222 where Marsack J.A. said at p.232:

         

        “Section 204, subsection (1)(a) [now Section 214(a)] makes it clear that the obligation on the Court to call upon the accused person to plead to the altered charge arises only `where a charge is altered as aforesaid’. That is to say , ... altered by way of amendment ... when `it appears to the Court that the charge is defective either in substance or in form’.”

         

        and later in rejecting an argument not dissimilar to that put before me by appellant’s counsel, his lordship said at p.233:

         

        ‘... the obligation on the Court to call upon the accused person to plead to the altered charge arises only in the case of an amendment made when it appears to the Court that the original charge is defective.’

         

        In this appeal having earlier held that the charge was not defective by the failure to include the relevant paragraph in the Statement of Offence, I find that there is no merit at all in counsel’s submission as to the so-called amendment of the charge which could have been just as easily left out. In any event there can not have been the slightest prejudice caused to the appellant by the amendment, since his defence to the charge was a blanket denial. In the appellant’s own words: ‘This incident never took place.’

         

        As to ground (b) Counsel writes:

         

        “Particulars here state entered `the compound’ of Mohammed Hassan: There is no offence of entering `the compound’ under the Section.”

         

        In other words because the word ‘compound’ does not appear in the Section creating the offence, therefore there can be no offence of ‘entering the compound’. Again I cannot agree.

         

        Section 122(a)(iii) of the Criminal Procedure Code merely requires ‘particulars of such offence (to be) set out in ordinary language, in which the use of technical terms shall not be necessary’.

         

        Furthermore Section 122(f) states that:

         

        ‘... it shall be sufficient to describe any place ... which it is necessary to refer to in any charge in ordinary language in such a manner as to indicate with reasonable clearness the place ... referred to.’

         

        In my opinion the use of the ordinary English word ‘compound’ is less technical and foreign, and more readily understood in this country, than the phrase ‘land adjacent to or within the curtilage of (the complainant’s dwelling house)’.

         

        There is not the slightest merit in this submission which I reject in limine.

         

        I turn finally to ground (c) which in effect complains that the judgment is against the weight of the evidence.

         

        It has been said that in order to succeed upon such a ground the appellant must clearly demonstrate that there was no evidence on which the trial magistrate could have reached the conclusion which he did reach if he had properly directed himself.

         

        In this appeal there has been no suggestion that the trial magistrate misdirected himself in law, only that he failed to properly consider the inconsistencies in the prosecution’s evidence as to the appellant’s movements on the night in question after being disturbed.

         

        The trial magistrate’s judgment is a short one but that was to be expected given that there was only one real issue before him namely, the identity of the trespasser. He was also plainly aware of the presence of ‘inconsistencies in the prosecution evidence but they are minor and do not affect the issue to be decided ... (and) ... are to be expected (where) ... witnesses are asked to recall every detail of something that took place nearly three years ago in the middle of the night ...’

         

        Quite plainly this case depended almost entirely on the view the trial magistrate took as to the evidence of the complainant on the one hand and the accused on the other and is based in large measure upon his assessment of their respective credibility.

         

        In such a case an appellate court will not interfere with the magistrate’s findings based on an assessment of the credibility of witnesses unless convincing and compelling reasons are shown which would justify an appellate court differing from such findings.

         

        In this appeal after carefully considering counsel’s written submission, the evidence in the case and the trial magistrate’s clear preference for the complainant’s account of the events of the night of 2nd October 1994 which was detailed and elaborate, I remain unconvinced that the trial magistrate’s favourable assessment of the complainant’s credibility was insupportable or erroneous.

         

        In the result the appeal is dismissed.

         

        (Appeal dismissed.)

Ratu Ovini Bokini v. The State

        [1999] 45 FLR 273

        COURT OF APPEAL OF FIJI ISLANDS

         

        RATU OVINI BOKINI

         

        v.

         

        THE STATE

         

        [COURT OF APPEAL, 1999 (Tikaram P, Barker JA) 12 November]

         

        Criminal Jurisdiction

         

        Appeal- jurisdiction of High Court to hear appeals from interlocutory orders of the Magistrates’ Court- Criminal Procedure Code (Cap 21) Section 308 (as amended).

         

        Courts- bias by tribunal- whether established.

         

        The High Court stayed committal proceedings in the Magistrates’ Court and ordered the presiding Magistrate to disqualify himself after it found that he had been biased against the prosecution. On appeal the Court of Appeal upheld the High Court’s finding of bias. It also broadly interpreted the High Court’s new powers to entertain appeals from interlocutory orders and decisions of the Magistrates’ Court at the same time emphasising that only interlocutory appeals with a sufficient degree of seriousness should be lodged.

         

        Cases cited:

         

        Asgar Ali v R (1964) 10 FLR 235

        Izuora v. The Queen [1953] A.C. 329

        Koya v The State - Crim. App. CAV 002/97

        Leece v R (1996) 86 A.Crim. R. 493

        Parashuram Detaram Shamdasani v King Emperor [1945] A.C. 264

        Pinson v Pinson (1991) 5 PRNZ 177

        Ramesh Patel v The State - Cr.App. AAU0017/96 & AAU0001/97

        Southwick v State - Cr. Appeal AAU020/96

        Tuiqaqa v R - CA 2/86

        Vakauta v Kelly (1989) 167 C.L.R. 568

         

        Dr. M. S. Sahu Khan for the Appellant

        J. Naigulevu for the Respondent

         

        Judgment of the Court:

         

        Background

         

        These consolidated appeals were heard by a Court of two Judges under the provisions of s.6 of the Court of Appeal Act (Cap 12) (the Act). Although there are, in form, two appeals, both relate to the same decisions made in the High Court: by consent, the appeals were consolidated.

         

        The Respondent faced 32 Counts of official corruption and 32 alternative counts of fraudulent conversion of property. These charges were, by consent, removed from the Magistrates’ Court into the High Court for trial. The necessary preliminary inquiry commenced before the Chief Magistrate on 16 November 1998. After some adjournments, the hearing continued until 25 November 1998. After the bulk of prosecution evidence had been given, the preliminary inquiry proceeded no further in circumstances outlined below.

         

        On that day of the hearing, there was an exchange between the Chief Magistrate and the Deputy Director of Public Prosecutions, Mr. K.Wilkinson who was appearing as counsel for the prosecution. The Chief Magistrate refused to hear Mr. Wilkinson’s application to have the witness, giving evidence at the time, excluded whilst legal argument took place. The Chief Magistrate considered Mr. Wilkinson had committed contempt of Court and ordered him removed from the Court and taken down to the cells for 5 minutes to ‘cool off’.

         

        After 5 minutes, the Magistrate ordered the return of Mr. Wilkinson and asked him to resume his seat in Court. Mr. Wilkinson replied that he proposed to withdraw to seek instructions. The Chief Magistrate then delivered a statement purporting to justify his actions. Shortly afterwards, the then Director of Public Prosecutions, Ms. Shameem, (‘the DPP’) saw the Chief Magistrate in Chambers along with counsel for the defence. She obtained an adjournment of the preliminary inquiry until 30 November 1998. On that date, she sought an order from the Chief Magistrate that the conduct of the preliminary inquiry be given to another Magistrate to conduct the hearing de novo.

         

        The grounds for this application were the perceived bias against the prosecution by the Chief Magistrate (particularly his detention of Mr. Wilkinson) as well as his general conduct of the case. An affidavit in support of the application was filed by an investigator who had been present through out the preliminary inquiry and an affidavit in opposition was filed by the respondent.

         

        The Chief Magistrate, on the same day, delivered a ruling in which he refused to disqualify himself. In his decision, the Chief Magistrate sought to justify his detention of Mr. Wilkinson: He stated that “The Court’s mind is not closed”. He did not refer at all to the well-known test for presumed bias by the Supreme Court in Koya v The State (Criminal Appeal CAV 002/97). He ordered the preliminary inquiry to resume before him on 1 December 1998.

         

        On that date, the DPP filed (a) an appeal to the High Court against the Chief Magistrate’s decision not to recuse himself and (b) an application to the High Court for stay of the preliminary inquiry pending resolution of the appeal.

         

        With commendable promptitude, the appeal and the stay application came before Byrne J in the High Court on 1 December 1998. The learned Judge heard extensive argument from the Director and from counsel for the present appellant. In a reserved decision issued on 13 January 1999, Byrne J. granted the stay application. On 20th January 1999, he ordered that the Chief Magistrate disqualify himself from the further hearing of the preliminary inquiry and the inquiry be sent to another Magistrate for a prompt de novo hearing. The respondent now appeals against Byrne J’s orders, principally the one requiring the preliminary inquiry to be conducted de novo before another Magistrate.

         

        Right of Appeal to this Court

         

        Counsel for the appellant acknowledged that his right of further appeal to this Court from the High Court was governed by s.22(1) of the Act, as amended in 1998. The relevant subsection provides

         

        “(1) Any party to an appeal from a magistrate’s Court to the [High] Court may appeal, under this Part, against the decision of the [High] Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only ...”

         

        The questions of law proposed by counsel for the appellant are in summary:

         

        [1]     What is the jurisdiction to the High Court to entertain an appeal from the Chief Magistrate’s refusal to recuse himself from the preliminary inquiry and to issue a consequential stay order?

         

        [2]     On a proper consideration of the record of the proceedings before the Chief Magistrate, was Byrne J right to presume bias against the Chief Magistrate?

         

        The first question posed is clearly one of the law. It involves consideration of:

         

        (a)     the extent of the right of appeal from a Magistrate to the High Court under s.308 of the Criminal Procedure Code-Cap 21 (‘The CPC’)

         

        (b)     the extent of the High Court’s inherent jurisdiction to control preliminary inquiries and

         

        (c)     the jurisdiction of the High Court over inferior Courts under the 1998 Constitution s.120 (6).

         

        The second question is, at best for the appellant, a mixed question of fact and law. Byrne J clearly adopted the correct test for presumed bias set out in Koya’s case, a Supreme Court decision binding on all Courts in this country. The only question is whether he applied it correctly to the facts of this case. It is doubtful whether this second question constitutes “a question of law only” in the words of s.22(1) quoted above.

         

        Jurisdiction of High Court to hear Interlocutory Criminal Appeal

         

        We deal first with whether s.308 of the CPC gave the respondent a right of appeal from the decision of the Chief Magistrate not to abort the preliminary inquiry and to order a fresh inquiry before another Magistrate.

         

        Before the 1998 amendment (to which reference will be made), the question whether interlocutory appeals in criminal cases were possible was open to some confusion. In Ramesh Patel v The State (Cr.App. AAU 0017 of 1996 and AAU0001 of 1997 - 18 July 1997) this Court expressly refused to follow an earlier decision of this Court in Tuiqaqa v R (CA 2/86, 21 March 1986) where the word ‘order’ s.308 (1) had been interpreted as any order made by a Magistrate in a criminal case. In Patel, the Court relied on the view of Mills-Owen, CJ in Asgar Ali v R (1964) 10 F LR 235 that ‘order’ in s.308 (1) had to read ejusdem generis with ‘judgment’ and ‘sentence’ (i.e. final order in the nature of a determination of a case). Patel followed an earlier decision of this Court to similar effect in Southwick v State (Cr. Appeal AAU020 of 1996 14 February 1997). All three cases were decisions of Benches of 3 Judges. There had been no pronouncement on the point either by a Bench of more than 3 Judges in this Court or by the Supreme Court. Some Judges in the High Court had followed Tuiqaqa. We mention these varying interpretations which must be presumed to have been known to the Legislature when it enacted the 1998 amending Act.

         

        Whichever view of s.308 (1) before the amendment be correct, in our view, the Legislature has put the matter beyond doubt with the 1998 amendment. We are inclined to the view, contrary to that of Byrne J, that the orders of the Chief Magistrate under review were ‘interlocutory’ and not final in that the Chief Magistrate’s judgment did not finally dispose of the rights of the parties. See Leece v R (1996) 86 A.Crim. R. 493. S.308, as amended in 1998, draws no distinction between interlocutory and final orders in the Magistrate’s Court. The relevant part of s.308 of the CPC as amended reads:

         

        “(1) Save as hereinafter provided, any person who is dissatisfied with any judgment, sentence or order of a magistrates’ court in any criminal cause or matter to which he is a party may appeal to the High Court against such judgment, sentence or order.

         

        Provided that no appeal shall lie against an order of acquittal except by, or with the sanction in writing of, the Director of Public Prosecutions.............

         

        (6) An order granting or refusing bail, including any condition or limitation attached to the grant of bail, may be the subject of an appeal to the High Court, either by the person granted or refused bail or by the Director of Public Prosecutions.

         

        (7) Without limiting the categories or sentence or order which may be appealed against, an appeal may be brought under this section in respect of a sentence or order which includes an order for compensation, restitution, forfeiture, disqualification, costs, binding over, absolute or conditional discharge, probation or community service.

         

        (8)An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case.”

         

        The intention of the Legislature in adding subsections (6) to (8) of s.308 must have included

         

        (a)   a desire to clarify the law regarding appeal rights in bail applications - a matter discussed by this Court in Southwick’s case.

         

        (b)   a desire for clarification of the categories of orders of Magistrates which could be the subject of appeal, given the circumstances of conflicting Court of Appeal decisions.

         

        In the new subsection 308(8), the Legislature made it clear that an ‘order’ can be appealed against although there has been no conviction. Obviously, this subsection could apply in a situation where an accused has been found guilty but discharged without conviction - and not uncommon fate for first offenders on less serious charges, for example. But the words of the amendment are not restricted to those sorts of situation. They enhance s.308(1) which speaks of any ‘order’, a word which one interpretation had restricted to final order. The opening words of s.308(7) reflect the notion that the categories of sentence and order embraced by s.308(1) are wide. We see no warrant for reading down the statute and hold that this order in question of the Chief Magistrate (i.e. the order refusing to disqualify himself) is susceptible to an appeal under s.308 of the CPC, even though it was made in committal proceedings.

         

        We are not impressed with the ‘floodgates’ argument that interlocutory appeals in criminal matters will increase because of this interpretation. We have sufficient faith in High Court Judges to deal swiftly and severely with frivolous appeals against Magistrates’ interlocutory orders, brought merely to buy time or to obstruct the criminal process. Only interlocutory appeals with the degree of seriousness demonstrated by this case should be entertained. Accordingly, we agree with Byrne J that the High Court had jurisdiction to hear the appeal under s.308 of the CPC.

         

        If it had jurisdiction to hear the appeal, then it follows inexorably that the High Court had power to order and stay the proceedings pending the hearing of the appeal. The High Court has inherent power to control its own process and to ensure that holding measures are taken pending the hearing of the appeal to enable the exercise of its appellate jurisdiction to be meaningful. See for an example, in the context of a statutory right of appeal, Pinson v Pinson (1991) 5 PR NZ 177. There, Smellie J. granted a stay of execution pending the hearing of an appeal from the Family Court to the High Court of New Zealand.

         

        S.120(6) of the 1998 Constitution provides

         

        “The High Court has jurisdiction to supervise any civil or criminal proceedings before a subordinate court and may on an application duly made to it, make such orders, such writs and give such directions as it considers appropriate to ensure that justice is duly administered by the subordinate court.”

         

        A similar provision is to be found in s.114(1) of the 1990 Constitution, but the words ‘on an application duly made to it’ did not there appear.

         

        Although that subsection of the Constitution gives authority for judicial review by the High Court of Magistrates’ Court proceedings, the fact that it is present in the Constitution gives support to the High Court’s general supervisory role. There is ample authority for construing constitutions liberally and not with rigid legalism.

         

        We see no difficulty as did counsel for the present appellant, with reconciling s.120(6) with s.120(3) of the Constitution which provides:

         

        “The High Court has jurisdiction, subject to the conferral by Parliament of rights of appeal and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of subordinate courts.”

         

        That subsection applies to appeals from decisions made in the ordinary course of a subordinate court’s business. The s.120(6) jurisdiction is wider and really expresses in clear terms the supervisory jurisdiction of that the High Court as an original court of superior jurisdiction has always enjoyed over subordinate courts. The subsection assists the interpretation we have given to s.308. We do not find it necessary to discuss the inherent jurisdiction point.

         

        Presumed Bias and Question

         

        Byrne J’s judgment sets out in some detail extracts from the record of the course of the preliminary inquiry before the Chief Magistrate. The ‘record’ comprised a written transcript and tape recordings. Some of the exchanges were omitted from the transcript and were found only on the tapes. Byrne J was critical of the Chief Magistrate because the written transcript was not complete and did not, for example, include the Chief Magistrate’s exact words used when ordering the detention of Mr. Wilkinson. We express no view of this and other personal criticisms of the Chief Magistrate which, as we have stated in our reasons for rejecting his application to be joined as a party to this appeal, are matters best considered by the Judicial Service Commission.

         

        Byrne J. listed instances, taken from the record, of alleged rebukes administered by the Chief Magistrate to Mr. Wilkinson. He recorded several instances of alleged unfortunate comments from counsel for the accused (present appellant) which provoked no censure from the Chief Magistrate yet which were, in Byrne J’s view, derogatory of Mr. Wilkinson.

         

        The Judge was critical of the Chief Magistrate allowing the accused to sit at the bar table without having asked Mr. Wilkinson for his comment. We do not think that this minor matter could possibly be taken as an indication of bias against the prosecution. In some jurisdictions, it is not unusual for an accused person to sit alongside or near his counsel in lower Court proceedings. In New Zealand, for example, accused persons, even in High Court trials, are required to enter the dock only for arraignment and verdict, unless there is a security risk. They are usually seated with escorts in the body of the Court not at the Bar table, relatively close to defence counsel.

         

        The various exchanges mentioned in Byrne J’s judgment were unfortunate and avoidable. Possibly, taken on their own, they may not have inclined the reasonable observer to conclude that the Chief Magistrate was biased against the prosecution.

         

        The test stated by the Supreme Court in Koya (supra) is “there is little difference between asking whether a reasonable and informed observer would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias.” The Supreme Court had there considered various formulations of the test of apparent bias made in other jurisdictions. On the facts in Koya’s case, the Supreme Court held that a fair-minded observer, knowing the facts, would not apprehend or suspect that the trial was affected by bias on the part of the presiding Judge.

         

        There may have been scope for greater objection by Mr. Wilkinson to the Chief Magistrate’s comments, along the lines discussed by the High Court of Australia in Vakauta v Kelly (1989) 167 C.L.R. 568. We think however that that authority should be applied with caution in the context of a lengthy preliminary inquiry where there were alleged to have been numerous remarks to which objection might have been taken. In Vakauta, the trial Judge made remarks critical of the defendant’s medical witnesses and of the defendant’s indemnifier. There was not a string of ongoing remarks.

         

        However, the decision of the Chief Magistrate to detain Mr. Wilkinson and the language used by him on that occasion were, in our opinion, enough on their own to justify a reasonable informed observer suspecting bias by the Chief Magistrate against the prosecution.

         

        From the transcript, it appears that Mr. Wilkinson was attempting to have a witness excluded whilst counsel argued about the appropriateness of a question to that witness. Mr. Wilkinson tried to make this point to the Chief Magistrate but was told to sit down. The Chief Magistrate stated that he wanted to listen first to counsel for the defence. Mr. Wilkinson had no quarrel with that position, so far as the legal objection was concerned, but tried to ask the Magistrate to have the witness excluded, since Mr. Wilkinson did not want the witness to hear the question articulated.

         

        Eventually, after Mr. Wilkinson said ‘I understand that, Sir, but I am asking that the witness not listen to the question’ the Chief Magistrate as recorded in the transcript is saying ‘Could you please take him downstairs for contempt of court. Take him downstairs for contempt of court for 5 minutes. Let him go and cool downstairs.’ Mr. Wilkinson then tried to explain the point once more. The written transcript then shows the Magistrate as saying ‘Take him downstairs. I’ll take 5 minutes break, you go downstairs now for disobeying my orders. Take him downstairs, 5 minutes downstairs. Cool down downstairs and after 5 minutes bring him up here. I’ll take a 5 minutes break.’

         

        What did not appear in the written transcript, but is on the tape recording are the following further remarks of the Magistrate: “You go downstairs right now. Take him downstairs. Drag him downstairs. Come on, take him downstairs. 5 minutes.”

         

        We think that the perception of the reasonable and informed observer would have been influenced by the following legal matters. First, if only the Magistrate had heard out Mr. Wilkinson, he would have discovered that he was not disputing the Magistrate’s ruling that he wished to hear first the defence argument over the validity of the question. All Mr. Wilkinson was seeking was that the witness be excluded during the argument. We express no view as to whether the Magistrate should or should not have acceded to Mr. Wilkinson’s request to exclude the witness for the duration of the argument. That is beside the point. The Chief Magistrate should have given Mr. Wilkinson the chance to say that he was requesting and order excluding the witness.

         

        Secondly, the summary power of punishing for contempt should be used sparingly and only in serious cases Izuora v. The Queen [1953] A.C. 329 The usefulness of the power depends on the wisdom and restraint with which it is exercised: to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended. Parashuram Detaram Shamdasani v King Emperor [1945] A.C. 264, 270.

         

        Thirdly, before any person can be committed for contempt, the Court must tell the alleged contemnor distinctly what the contempt is said to have been and then hear submissions from him or her. See Archbold (1998 ed) 28 - 117, quoted by Byrne J.

         

        In our view, the circumstances of Mr. Wilkinson’s detention, including the intemperate and non-judicial expression of the Magistrate “Drag him down”, would inevitably give rise in the reasonable and informed observer to an impression that the Magistrate was biased against the prosecution.

         

        We do not consider other matters referred to by Byrne J such as alleged racial references. The detention scenario is enough: the other matters can be dealt with by the Judicial Service Commission if that body thinks it appropriate so to do.

         

        We have referred to the facts because of the importance and unusual nature of this case. As indicated at the start of this judgment, we doubt whether there is a question of law only involved in the second ground of the appeal.

         

        We uphold the decision of Byrne J allowing the appeal from the Chief Magistrate’s refusal to recuse himself off the preliminary inquiry and to recommence the inquiry before another Magistrate. In the light of our judgment, a decision on the stay order is now academic.

         

        It is unfortunate that prosecution witnesses will have again to be troubled and there will be extra cost involved for both prosecution and defence. However, this is a necessary consequence of the conduct of the Chief Magistrate described above and in the interests of the proper administration of justice.

         

        Decision

         

        (a)          Appeals dismissed.

         

        (b)          Orders of Byrne J in the High Court affirmed.

Re a Barrister and Solicitor

        [1999] 45 FLR 59

        HIGH COURT OF FIJI ISLANDS

         

        RE A BARRISTER AND SOLICITOR

         

        [HIGH COURT, 1999 (Scott J), 19 March]

         

        Appellate Jurisdiction

         

        Legal Practitioner- disciplinary proceedings- unprofessional conduct- conduct unbecoming- Legal Practitioners Act (Cap 254) Part VIII.

         

        While dismissing an appeal against an adjudication by the Disciplinary Committee of the Fiji Law Society the High Court emphasised that the question of what amounts to professional misconduct is primarily a matter for the Disciplinary Committee.

         

        Cases cited:

         

        Allison v. General Council [1894] 1 QB 750

        Bhandari v. Advocates Committee [1956] 3 All ER 742

        Briginshaw v. Briginshaw (1938) 60 CLR 336

        D’Alessandro v. Legal Practitioners Complaints Committee Sup. Ct. of

                    Western Australia – 25/8/95

        Ex-parte Attorney-General (Cth), Re a Barrister and Solicitor

                    (1972) FLR (Aust)234

        In re a Barrister and Solicitor (1976) 11 ACTR 13

        In re A Solicitor (No. 2) (1924) 93 LJKB 761

        In re A Solicitor (1932) St. R. Qd 33

        In re A Solicitor [1956] 1 WLR 1312; [1956] 3 All ER 516

        In re A Solicitor [1975] 1 QB 475

        In re A Solicitor ex-parte The Law Society [1912] 1 KB 302

        Jones v. Dunkel [1959] 101 CLR 298

        Kerin v. Legal Practitioners Complaints Committee (1996) 67 SASR 149

        Myers v. Elman [1940] AC 282

        Re a Barrister and Solicitor (1972) FLR 234

        Re Hodgekiss (1962) 62 SR (NSW) 340

         

        Appeal to the High Court from a disciplinary committee of the Fiji Law Society.

         

        S. D. Sahu Khan for the Appellant

        H. Lateef for the Respondent

         

        Scott J:

         

        On 15 April 1998 a Disciplinary Committee of the Fiji Law Society found the Appellant guilty of one count of professional misconduct and one count of conduct unbecoming a barrister and solicitor contrary to section 61 (1) of the Legal Practitioners Act (Cap 254). This Act – the Act – and the relevant Rules thereto were repealed on 1 January 1998 by the Legal Practitioners Act, 1997 however the matters complained of occurred prior to the passage of the new Act and accordingly are subject to the former legislation.

         

        The Appellant appealed against the adjudication of the Disciplinary Committee on the amended grounds filed on 11 December 1998. He did so under the provisions of Section 74 (1) of the Act and the matter came before me under the proviso to the same Section by direction of the Chief Justice dated 21 May 1998.

         

        The part of the Act governing the discipline of legal practitioners is Part VIII (Sections 58 to 75). The Rules governing disciplinary proceedings are the Barristers and Solicitors (Disciplinary Proceedings) Rules (Cap 254 Subs page 5 – the Disciplinary Rules) and the Rules governing this appeal are the Barristers and Solicitors (Disciplinary Appeals) Rules (the Appeals Rules) (Cap 254 Subs page 21).

         

        On 3 July 1998 when the matter first came on for mention it emerged that the record of the proceedings before the Disciplinary Committee had not been prepared. It appeared that Rules 2 and 5 (1) of the Appeals Rules had been overlooked and that the secretary of the Disciplinary Committee had not been served with the originating Notice of Motion. I directed that the record be prepared and requested counsel to lodge written submissions. The record was filed in August 1998. The Appellant’s written submissions were filed on 12 December and the Respondent’s followed on 2 March 1999. On the day of the hearing Mr. Sahu Khan filed a supplementary submission which actually replaced the earlier submission. He also filed a list of authorities. I do not know when the submission and list of authorities were prepared but Chief Justice’s Practice Direction No. 1 of 1984 requires lists of authorities to be filed and exchanged no less than 48 hours before the hearing. One of the principal purposes of this practice is to enable both the tribunal and the other side to acquaint themselves with the nature of the case and the same considerations apply to written submissions. I do not favour the practice of producing voluminous lists of authorities and written submissions for the first time at the hearing.

         

        The facts which gave rise to the appointment of the Disciplinary Committee are as follows; page numbers refer to the record.

         

        On 11 August 1993 the then Secretary of the Fiji Law Society Mr. Subhash Parshotam wrote to the Appellant (18). He enclosed a copy of a letter dated 6 August 1993 which the Society had received from Mr. Narendra Prasad (the Complainant). According to Mr. Parashotam’s letter the complainant complained of the Appellant’s conduct as a Barrister and Solicitor but what the precise terms of the letter of complaint were I do not know since the compiler of the record, who did a thoroughly poor job, decided not to include it. The general nature of the complaint can however be gathered from the Appellant’s reply (19) the first sentence of the third last paragraph of which reads:

         

        “We have rendered full services to (the Complainant) in accordance with his instructions and am of the view that no monies are refundable to him.”

         

        It appears that Mr. Parshotam sent a copy of the Appellant’s letter to the Complainant on about 19 August 1993 and on 31 August he replied (21). The Complainant is a layman and the full details of his allegations against the Appellant are not easy to follow but the gist of his complaint is clear. The Complainant, who was the trustee of his father’s estate instructed the Appellant (22):

         

                  “(a)    to obtain Provisional Title No. 24844 from Registrar of Titles as the application of Provisional Title was already lodged by me.

         

                  (b)     to cancel the Power of Attorney issued to Mrs. Pushpa Krishna as the documents already were signed by me.

         

                  (c)     To preserve the trusteeship of my father’s estate; attending Court cases and keep me informed.”

         

        Accepting these instructions the Appellant took a fee of $5,000 from the Complainant. The Complainant’s case is that his instructions were not carried out and that when he remonstrated with the Appellant the Appellant told him to go and find another lawyer. In the first paragraph of the last page of his letter (25) the Complainant rejected the Appellant’s claim to have “rendered full services” to him. He challenged the Appellant to provide documentary evidence to support his claim to have negotiated on his behalf and attended Court. Another version of the same complaint can be found at page 12 of the record which is a copy of a letter sent by the Complainant direct to the Appellant on 27 July 1993.

         

        On 23 September (26) Mr. Parshotam sent a copy of the Complainant’s letter of 31 August to the Appellant and advised him that the matter would be considered by the Council of the Fiji Law Society to determine whether a prima facie case against the appellant had been established.

         

        On 24 September (27) the Appellant replied to Mr. Parshotam and accused the Complainant of lying.

         

        On 16 November Mr. Parshotam again wrote to the Appellant (28). The letter reads as follows:

         

        “I thank you for your letter of 24 September 1993.

         

        Further correspondence has ensued between the Complainant and I wherein I have been informed by the Complainant that he disputes the matters you said you have attended.

         

        In the premises, I now require you to furnish me an itemised Bill of Costs as to the matters you say you have attended to and the time spent on all such attendances. This request is made pursuant to sections 15, 33 (g) and 33 (j) of the Legal Practitioners Act and Rules 6.16 and 6.17 of the Code of Ethics.”

         

        On 7 December the Complainant made a formal complaint against the Appellant in form 1 of the schedule to the Disciplinary Proceedings Rules (5) to which was attached an affidavit of complaint in Form 2 (6). The central complaint was paragraph 2 of the affidavit which reads as follows:

         

        “(the Appellant) obtained the total legal fee of $5,000 in cash advance to do the complete work in connection with CT 24844 to which he has not done it.”

         

        On 14 June 1994 Mr. Parshotam also made a formal complaint against the Appellant (14). As appears from the supporting affidavit (16) the gravamen of Mr. Parshotam’s complaint was that the Appellant had not replied to his letter of 16 November 1993 (28).

         

        On 14 June 1994 Mr. Parshotam wrote to the Chief Registrar of the High Court advising him that the Council of the Fiji Law Society had directed him, under the provisions of Section 59 of the Act to request the Chief Justice to appoint a Disciplinary Committee to investigate the two charges against the Appellant (3).

         

        On 19 July 1994 the Chief Justice appointed a Disciplinary Committee (83). After one of the members had to be replaced a second Disciplinary Committee was appointed on 20 March 1995 (79).

         

        On 27 April 1995 the Secretary to the Disciplinary Committee wrote to the Appellant enclosing a Notice of in Form 4 of the Disciplinary Rules and attaching a copy of the two charges against him together with the supporting affidavits (74 – 77). It is important to note paragraph 4 of the Notice which reads:

         

        “You are required by the rules to furnish to every other party to the application and to me at least 14 days before the said 7 June 1995 a list (including a full description sufficient for identification) of all documents on which you propose to rely.”

         

        In due course the hearing, which had been adjourned to suit the Appellant, took place on 8 July 1995. The transcript of the proceedings is at pages 41 and 42. The Form 5 Disciplinary Order of the Disciplinary Committee is at pages 30 and 31 and a further Order of the Committee which sets out the Committee’s reasons for making their Order is at pages 33 to 35.

         

        As appears from the transcript and the statement of reasons the Appellant’s answer to the first charge was that so far as he was concerned the matter was at an end. This was because on 4 January 1994 the Complainant had written to him (43) suggesting that the dispute be settled upon refund to him by the Appellant of one half of the fee - $2,500. The Appellant’s Counsel (Mr. S. D. Sahu Khan) then produced a copy of a letter (44) which the Appellant affirmed that he had sent to the Complainant on 22 January 1994, accepting the offer. When asked by the Chairman of the Disciplinary Committee why this correspondence (which was of course by then 18 months old) had not been produced before as required by the Form 4 Notice “no satisfactory answer was given to this”.

         

        As also appears from the transcript and statement of reasons the Appellant’s answer to the second charge was to admit not replying to Mr. Parshotam’s letter but to submit that his failure was exculpated by his assumption “on reasonable grounds that the Complainant would withdraw the complaint”. No particulars of the “reasonable grounds” for the Appellant’s assumption were advanced.

         

        As will be seen from the Order (30) the Committee found that it had been “proved and admitted” that the Appellant had committed both offences with which he had been charged. The Disciplinary Committee then went on to form the opinion that the Appellant had “thereby been guilty of misconduct in his professional capacity and conduct unbecoming a solicitor”. It imposed a penalty of $200 on the first charge and $150 on the second. Contrary to what is stated in the original grounds of appeal filed on 18 May 1998 the Appellant was not censured.

         

        The amended grounds of appeal filed on 11 December 1998 are clear and unambiguous. It is not necessary to set them out in full here again. Mr. Sahu Khan’s written submission, despite my earlier criticisms, are a model of clarity and industry upon which he should be commended. Indeed without his invaluable research and assistance the Court, given the deplorably run down condition of the High Court library, would have been severely handicapped.

         

        The first ground of appeal relates to the first charge. It is that there was no evidence that the Appellant had charged the Complainant an unreasonably excessive fee. This submission involves two limbs: the first is the alleged lack of evidence, the second is the nature of that evidence.

         

        As to the first, the documentary evidence before the Committee, copies of which, as has already been noted, were sent to the Appellant on 27 April (74) consisted of the two supporting affidavits. Although the Complainant did not attend it can be seen from the transcript (42) that the Appellant was given an opportunity to and did in fact give evidence albeit that he chose to confine his evidence to the single issue of the letter of 24 January 1994 (44).

         

        Rules 8 and 9 of the Disciplinary Rules are relevant:

         

        “8 – If any party fails to appear at the hearing, the Disciplinary Committee may, upon proof of service on such party of the Notice of Hearing or without such proof if the Committee considers his attendance unnecessary proceed to hear and determine the application or complaint in his absence.

        9 – The Disciplinary Committee may in its discretion either as to the whole case or as to any particular fact or facts, proceed and act upon evidence given by affidavit:

         

        Provided that any party to the proceedings may require the attendance upon subpoena of any deponent to any such affidavit for the purpose of giving oral evidence unless the Disciplinary Committee are satisfied that the affidavit is purely formal or that the content thereof may be disregarded or that the requirement of the attendance of the deponent is made with the sole object of causing delay.”

         

        No request was made by the Appellant for either the Complainant or Mr. Parshotam to attend the hearing personally. In these circumstances and given the course taken by the Appellant at the hearing I am satisfied both that the Disciplinary Committee acted on evidence and that it was reasonable for it to act on that evidence, principally affidavit evidence, which it had before it.

         

        The next question is whether the evidence constituted evidence of charging an unreasonably excessive fee. Citing a passage from D’Alessandro v Legal Practitioners Complaints Committee Sup. Ct. of Western Australia 25 August 1995, Mr. Sahu Khan submitted that there had been no examination by the Disciplinary Committee of what, in the circumstances of this case a reasonable fee would have been, no examination of the difficulty of the case, the novelty or complexity of the legal issues presented, the experience of the practitioner, the quality of his work, the amount of time spent by the practitioner on the matter, the responsibility involved and the amount or value of the subject matter in issue.

         

        Mr. Lateef’s answer to this submission was that the Disciplinary Committee had been unable to carry out such an examination for the simple reason that the Appellant had failed to reply to Mr. Parshotam’s letter of 16 November (28) the subject matter of the second charge. If, therefore, the Disciplinary Committee was driven to acting merely on the basis of evidence presented by the Complainant then the Appellant had nobody but himself to blame.

         

        As already seen, the essence of the Complainant’s complaint against the Appellant was that he had paid him $5,000 to perform certain legal tasks on his behalf but that he had failed to perform them. The Appellant’s only answer to this complaint was a denial coupled with the unsubstantiated assertions contained in his letter of 12 August (19) that he had rendered full services to the Complainant. It is also interesting to note that he claimed in this letter to have had “many months of negotiations with Mr. Anu Patel” whom he intended to call as a witness. In the event Mr. Anu Patel did not, as appears from the transcript, give evidence at the hearing (57).

         

        Strictly speaking there was no evidence at all to contradict the Complainant’s assertions although the Appellant could easily have answered them when he gave his evidence. It strikes me as specious to suggest that the Disciplinary Committee should have examined the work that the Appellant had done in order to establish whether the fee charged was excessive when the Appellant himself chose not to make such an examination possible by refusing to furnish particulars of the work which he claimed, in a letter, to have done. On the evidence before it I am of the view that the Disciplinary Committee was fully entitled to find that the Complainant’s allegation had been proved, in other words that the Appellant had done none of the things that he had been paid to do and that therefore the fee charged was not only unreasonably but indeed wholly excessive. No fee for doing nothing can be reasonable. This ground fails.

         

        The second ground of appeal suggests that the Disciplinary Committee was “estopped” from proceeding with the Complainant’s complaint on the ground that the Complainant had agreed to settle the matter on the basis of a refund of $3,000 and the return of his files (see letter from Messrs G.P. Shankar & Co to the Complainant dated 1 June 1995 – 48).

         

        This ground faces two major difficulties. The first is that the evidence that the Complainant reached an agreement on the basis of a refund of $3,000 and the return of the files is only contained in the letter which was written, not by the Complainant but by G.P. Shankar and Co. In passing it may be observed that it is odd, to say the least, that the Complainant should be negotiating settlement with the Appellant through another solicitor in June 1995 if, as stated by the Appellant on affirmation, the matter had been settled 18 months previously by the letter of 22 January 1994 (44). Of more significance however is the endorsement on the letter of 1 June 1995 (48) signed by the Complainant which clearly states that he is not prepared to withdraw in the absence of an admission of liability by the Appellant and repayment of the whole sum. The fact is, rightly or wrongly, the Complainant refused to withdraw the complaint and, as is clear from the third and fourth paragraphs of the reasons for the Order (34) this refusal was known both to the Disciplinary Committee and to the Appellant on the day of the hearing, the letter having been received by the Disciplinary Committee on about 1 June 1995 (47).

         

        The second and even more fundamental objection to this ground of appeal is that it overlooks Rule 20 (2) of the Disciplinary Rules which provides that:

         

        “No application or complaint shall be withdrawn after a Disciplinary Committee has been appointed to investigate it except with the leave of the Committee.”

         

        No application was made to withdraw either of the complaints either by the Complainant or by Mr. Parshotam. The matter of settlement whether actual or imagined, partial or complete was therefore irrelevant to the question of the Appellant’s guilt. This ground fails.

         

        The third ground of appeal is that the Disciplinary Committee misdirected itself on the onus and standard of proof. Mr. Sahu Khan cited In re A Solicitor (1932) St. R. Qd 33 as to onus and Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149 as to standard.

         

        While I accept the correctness and applicability of both these authorities I find that there is nothing in the papers before me to suggest that the Disciplinary Committee either reversed the onus of proof or applied a mere balance of probabilities test to the matters at issue before it. Mr. Sahu Khan suggested that paragraphs 5 and 7 of the reasons for Order (34) appeared to show that an onus had been unfairly placed on the Appellant. I disagree. The Appellant presented no answer in evidence to the Complainant’s claim that he had done no work for the fee which he had earned although he had ample opportunity to do so. Ever since Jones v Dunkel [1959] 101 CLR 298 it has been undoubted law that when a party who is capable of testifying fails to give evidence without explanation this failure may lead rationally to an inference that the party’s evidence would not help his case. The mere fact that the Disciplinary Committee commented on the Appellant’s failure to present any evidence in answer to the Complainant’s central allegation does not, in my view, suggest any reversal of the onus of proof.

         

        As to the standard of proof it is well known that in professional misconduct enquiries a high standard of proof is called for (see Bhandari v Advocates Committee [1956] 3 All ER 742 and Briginshaw v Briginshaw (1938) 60 CLR 336).

         

        Although as pointed out in Kerin (supra) it is undoubtedly a wise practice for tribunals of enquiry to make specific reference to the standard of proof, I do not believe that a failure in that regard necessary amounts to a fatal procedural defect particularly when, as here there, was no challenge offered to the basic facts which constituted the two complaints. This ground fails.

         

        The fourth ground of appeal suggested that the Disciplinary Committee misdirected itself when in the 7th paragraph of its reasons (34) it concluded that the admitted refund of $3,000 by the Appellant to the Complainant constituted an admission that the fee collected from the Complainant was unreasonably excessive.

         

        Mr. Lateef did not dispute his ground of appeal. He could not have done so. There may be many reasons for settling a dispute including the desire to avoid further litigation. These settlements may include repayment of sums claimed but such repayments do not constitute admissions. This ground of appeal succeeds.

         

        The fifth ground of appeal suggested that the Disciplinary Committee had erred in concluding that the Appellant’s failure to answer Mr. Parshotam’s letter of 16 November 1993 (28) constituted conduct unbecoming a solicitor. In support of this proposition Mr. Sahu Khan cited in re: A Barrister and Solicitor (1976) 11 ACTR 13. He supplemented this ground by additionally arguing that there was nothing to show that Mr. Parshotam had the authority of the council of the Fiji Law Society to send his letter to the Appellant and that accordingly the Appellant’s admitted failure to reply did not constitute a case of conduct unbecoming.

         

        As to the first point, the Supreme Court of the Australian Capital Territory (ACT) in 1976 expressed itself as follows:

         

        “Although we feel it is highly desirable that there be some sanction against neglect or refusal to reply to the Society’s letter regarding alleged misconduct we do not think that, taken alone, such refusal or neglect will necessarily amount to professional misconduct. It does not fit easily within the phrase “professional behaviour” which would seem to be aimed at the practice of the profession rather than dealing with a professional body of which the practitioner may or may not be a member.” (emphasis added).

         

        With the greatest respect to the Supreme Court I disagree both with its reasoning and its conclusions. It may also be noted that in Fiji membership of the Fiji Law Society by legal practitioners is compulsory.

         

        Neither the Act nor the Rules thereto define what constitutes professional misconduct or conduct unbecoming a Barrister and Solicitor. The Act is not at all exceptional in this regard. In the absence of a statutory definition to determine whether or not conduct amounts to either, the found circumstances are to be judged in accordance with the established meaning of the expression and the general nature of the conduct which is involved. Since at least 1894 it has been accepted that “professional misconduct” is conduct which would reasonably be regarded as disgraceful and dishonourable by Solicitors of good repute and competency (see Allinson v General Council [1894] 1 QB 750; In re: a Solicitor ex parte the Law Society [1912] 1 KB 302; Myers v Elman [1940] AC 282 and Ex parte Attorney-General (Cth), Re a Barrister and Solicitor (1972) FLR (Aust) 234.

         

        As was pointed out by Widgery CJ in In re: a Solicitor [1975] 1 QB 475, 484:

         

        “It has been laid down over and over again that the decision as to what is professional misconduct is primarily a matter for the profession expressed through its own channels, including the Disciplinary Committee.”

         

        His Lordship then went on to say:

         

        “I do not … for one moment question that if a properly constituted Disciplinary Committee says that this is the standard now required of solicitors that this Court ought to accept that that is so and not endeavour to substitute any views of its own on the subject.”

         

        According to the Law Report none of these authorities was considered by the Supreme Court of the ACT and neither did it consider the remarks of Owen J in Re Hodgekiss (1962) 62 SR (NSW) 340 who said:

         

        “Before proceeding to deal with the facts and in view of certain submission which were made to us I think it is desirable to state shortly my view as to the way in which the Court should approach an appeal of this nature. The Statutory Committee is a tribunal of practicing solicitors of standing appointed by the Chief Justice under the terms of the Legal Practitioners Act for the purpose of hearing charges of professional misconduct ….. Such a tribunal is eminently fitted to decide whether the conduct of a solicitor in any given set of circumstances amounts to professional misconduct and to determine what is the proper penalty to be imposed in any particular case. While an appeal from its decision to the court is in the nature of a rehearing the Court should give great weight to and be slow to differ from the Committees’ opinion that particular acts or omissions of a solicitor do or do not amount to professional misconduct and the Court should attach the same weight to a decision of the Committee as to the appropriate order to be made in a particular case (see In re A Solicitor (No. 2) (1924) 93 LJKB 761; Re a Solicitor [1956] 1 WLR 1312; [1956] 3 All ER 516).”

         

        In the present case the Disciplinary Committee formed the view that in all the circumstances (including the Appellant’s unexplained prescience - that, in November he could know that he would receive a letter from the Complainant the following January) his failure to reply to Mr. Parshotam amounted to conduct unbecoming a solicitor. This conclusion was not at all unusual or surprising: in the latter part of 1997 the Parliament of Fiji was of a similar general view when it passed the new Legal Practitioners Act which specifically provides in Section 85 (4) (a) that such failure may amount to professional misconduct. In my view the conclusion reached by the Disciplinary Committee was in the circumstances entirely reasonable and I am not disposed to interfere with it.

         

        As to Mr. Parshotam’s authority to write the letter of 16 November 1993 (28) it must be pointed out first, that this matter was not raised at the hearing and secondly that, unlike the Queensland Law Society Act the Act does not give the sole management of the Society to the Council. The Law Society in Fiji was, in 1993, a very different type of organisation from the Law Society in Queensland. It had no offices and no full time employees. The extent of its activity was largely dependent on the energy and enthusiasm of its President and Secretary. In the absence of any thing to suggest that Mr. Parshotam was not acting with the authority of the Council (and the reverse is, if anything, to be inferred from paragraph 6 of his affidavit (16)) omnia praesumuntur legitime facta donec probetur in contrarium. This ground of appeal fails.

         

        This sixth, seventh and eighth grounds were not argued.

         

        The ninth ground of appeal relies on the lapse of time between the hearing on 8 July 1995 and the ruling of the Disciplinary Committee which was not delivered until 15 April 1998. Mr. Lateef, a former President of the Fiji Law Society, was not proud of this delay and did not seek to excuse it. Such delays are clearly to be deplored and even amount to violations of human rights (see e.g. Section 29 (3) of the 1997 Constitution) but apart from suggesting that the Committee would not have been able to remember the demeanour of the witnesses three years later when credibility was not, as already explained, in issue, Mr. Sahu Khan was unable to advance any reason why a delay in delivering the ruling in the circumstance of this case could affect its validity. This grounds also fails.

         

        Ground 10 was not argued.

         

        The final ground of appeal, ground 11 was based on the Disciplinary Committee’s decision, taken after the close of the hearing, to write to the Complainant asking him whether he had in fact received the letter which the Appellant claimed to have sent him on 22 January 1994 (44 & 40). The Complainant replied in July 1995 denying that he had received the letter (37). Once again, Mr. Lateef did not attempt to defend what the Disciplinary Committee did but suggested it merely wanted clarification.

         

        In my view the Disciplinary Committee was quite wrong to act as it did. If it thought that the letter was crucial and it wanted further evidence from the Complainant on the matter then it should have adjourned the hearing to allow the additional evidence to be adduced either by affidavit or by the Complainant in person. It should then have afforded the Appellant an opportunity to rebut the evidence if he could.

         

        In most circumstances what the Disciplinary Committee did would certainly amount to an incurable breach of its obligation to comply with the rules of natural justice. In the circumstances of this case, however as already explained, it appears that both the Appellant and the members of the Disciplinary Committee were under the impression that the complaint could simply be withdrawn following settlement between the Appellant and the Complainant. Not only was that not the case because of Rule 20 (2) of the Disciplinary Rules but also, as was quite clear from the Complainant’s endorsement on the letter of 1 June 1995 (48), which letter was before the Committee at the hearing, the matter had not in fact been settled at all. Whether or not the letter of January 1994 was actually sent was therefore not an issue in any way determinative of the Appellant’s guilt.

         

        Of the 11 grounds of appeal filed all have failed or not been argued except ground 4. As repeatedly emphasised there was no evidence to contradict the Complainant’s fundamental assertions against the Appellant. In those circumstances there was no room for doubt as to the facts. Although the Disciplinary Committee was clearly wrong in drawing the inference that it did from the repayment by the Appellant of $3,000 to the Complainant there were, in my opinion more than sufficient facts and legitimate inferences to be drawn therefrom to found the general conclusion of professional misconduct reached by the Disciplinary Committee. There was, in other words, no substantial miscarriage of justice. The irregularity, of course, only affected the first charge.

         

        In all the circumstances the appeal fails and is dismissed.

         

        (Appeal dismissed.)

Shamshul Nisha v. Abdul Munif

        [1999] 45 FLR 246

        HIGH COURT OF FIJI ISLANDS

         

        SHAMSHUL NISHA

         

        v.

         

        ABDUL MUNIF

         

        [HIGH COURT, 1999 (Shameem J) 13 October]

         

        Civil Jurisdiction

         

        Equity- constructive trust- whether contributions in cash and in kind entitle the contributor to a share in the ownership of the family home.

         

        A mother and son shared the family home of which the son was the registered owner. The mother claimed that she had contributed to the home by donating building materials and furnishings and by helping with the mortgage. She claimed a half share in the property. The High Court HELD: that in the circumstances of the case it was clear that the parties had intended to share the property equally. Accordingly a constructive trust to that effect was imposed on the son.

         

        Cases cited:

         

        Banister v. Banister [1948] 2 All ER 133

        Baumgartner (1988) 62 AWR 29

        Doohan v. Nelson (1973) 2 NSWLR 320

        Gissing v. Gissing [1971] AC 886

        Grant v. Edward [1986] 2 All ER 426

        Hussey v. Palmer [1972] 1 WLR 1286

        Morris v. Morris (1982) 1 NSWLR 62

        Sheila Maharaj v. Jai Chand [1986] 1 AC 898

         

        Action for declaratory judgment in the High Court.

         

        V. Maharaj for Plaintiff

        Defendant In Person

         

        Shameem J:

         

        On 27th November 1998 Shamshul Nisha f/n Abdul Karim (the Plaintiff) filed originating summons in the High Court seeking an order that one half share in Housing Lease N0.328414 (Lot 18 on DP 6921) be transferred to her by Abdul Munif f/n Abdul Rasheed (the Defendant). The order was sought on the ground that the Plaintiff contributed substantially to the purchase of the said property conferring constructive and/or resulting trust of one half share in favour of the Plaintiff.

         

        The application was supported by the affidavit of Shamshul Nisha.

         

        On 6th April 1999, after several attempts at reconciliation between the parties, the Defendant filed an affidavit in reply.

         

        The matter was set for hearing on 15th July 1999. It continued on 4th October 1999 and 6th October 1999. The Plaintiff called Asesela Ravudi, Legal Officer, Housing Authority, (PW1) Shamshul Nisha (PW2) and Abdul Jalil (PW3). The Defendant gave evidence himself and called Selina Tuiloma from the Housing Authority (DW2) Asesela Ravuni (DW3) and Shareen Nisha (DW4).

         

        On hearing the evidence, it was apparent that the areas of dispute were limited. The Defendant is the Plaintiff’s eldest son. She lived formerly in the Muslim League Estate as a squatter but later moved with her family of four children to Lot 18 Moci Place, Nadawa, the Housing Authority lease which is the subject of the dispute. In 1992 , an application for loan assistance was made to the Housing Authority in the name of Abdul Munif. The Housing Authority offered assistance and lease over the property to the Defendant. He accepted on 12th March 1997. The Housing Authority file referred to in the evidence of Asesela Ravudi, shows that on 8th June 1992, the Plaintiff had made an application for housing assistance. However, by that time the contract with Abdul Munif had been concluded.

         

        The proprietor of the lease thereafter was the Defendant. In 1992, the Defendant was 24 years old. The Lease was issued to him on 11th March 1992.

         

        In September 1992, the Defendant agreed to transfer the whole of the property to his mother. Whilst his reason for so agreeing is in dispute, it is clear that some attempt was made to effect the transfer. On 25th September 1992, (Annexure D of the Plaintiff’s affidavit) the Housing Authority wrote to the Defendant in the following terms:

         

        “RE : TRANSFER OF LOT 18 ON DP 5921 NADAWA.”

         

        We refer to your application dated 8/6/92 and the Housing Authority are pleased to inform you of our consent to the transfer of the above property to Mr. Shamshul Nisha f/n Abdul Karim subject to the following conditions’:

         

        (a)        That a sum of full balance owing on the account concerned to the end of three calendar month period hereof that is to 8/12/92 be paid to us in full not later than the expiry of such 3 calendar month period as stipulated above ….

         

        (b)       That this transaction is registered with the Registrar of Titles or Registrar of Deeds within a period of 3 calendar months, failing which the consent as hereby given shall be deemed null, void and of no effect...”

         

        A further letter was sent to the Plaintiff on 30th October 1992 informing her that if she wished to seek financial assistance from the Housing Authority she would need to provide information and fill in the appropriate forms (Annexure D-1 to Shamshul Nisha’s affidavit).

         

        Those conditions were not complied with, and the property was not transferred to the Plaintiff. It remains in the name of the Defendant. In 1998 , the Plaintiff left the house and went to live with her married daughter.

         

        In her evidence before the court, the Plaintiff said that she had contributed to the repayments on the housing loan on the lease, to the Housing Authority. Although at paragraph 13 of her affidavit, she had said that only she had made regular payments to the Housing Authority between 1992 and 1996, in her evidence she agreed that the Defendant also contributed to the repayment. She was unable to say with any certainty how much she had contributed but said in re-examination that she had made all payments in respect of the receipts for $50 and $100. She always paid cash. The total amount of she said she paid was approximately $4000.

         

        The balance remaining on the loan is $8,342. The original loan amount was $6473.50 with interest at 11.5% per annum.

         

        The Plaintiff said in evidence that she did not know that she had no registered share in the property until 1996. She then asked the Defendant about it , and the Defendant agreed to transfer a half-share of the property to her. She said that he filled a form (Annexure D) agreeing to the transfer, and that she showed the form to her solicitors. When the Defendant discovered that she had consulted solicitors he tore the form up. However, the Plaintiff had kept a photocopy which is annexed to her affidavit.

         

        The Defendant said in evidence that the Plaintiff had contributed nothing to the property except for $200 worth of concrete blocks and the cost of laying a carpet in the house. He also agreed that the Plaintiff had bought furniture for the house and had generally helped to run and maintain the house. He said that he had made all repayments from his earnings as a signwriter and that he had earned his own living since he left school. He denied agreeing to transfer half-share of the property to his mother in 1997 and said that his earlier attempts to transfer were to escape the consequences of legal action brought against him by the Plaintiff’s brother.

         

        He denied forcing his mother to leave the house by assaulting her in 1998, and said that he was willing to contribute to her expenses if she agreed that she had told lies in court.

         

        Shareen Nisha, the Defendant’s wife gave evidence of the bad relationship between her husband and her mother-in-law and said that the Defendant had never assaulted his mother .

         

        It is clear having heard all the evidence that the Plaintiff did make contributions to the property, not only directly in the buying of building blocks, cement and timber, and in the paying of some instalments, but also indirectly in contributing towards the upkeep of the house and the family. Between 1992 and 1998 the Plaintiff, the Defendant and one other sibling lived in the house, and were supported by the earnings of the Plaintiff and the Defendant. “The Application for Housing Assistance” form (Annexure C) shows the Defendant’s weekly wage to be $100, the Plaintiff’s weekly wage to be $28.96 and the younger son Abdul Farook’s, to be $25.

         

        I accept the evidence of Shamshul Nisha that she made some contributions to the house and repayments, and I note that Abdul Jalil confirms her purchase of blocks for $1000.

         

        The question is whether the effect of her contributions creates a constructive trust in the Plaintiff’s favour.

         

        The leading local case on the creation of equitable trusts in property is Sheila Maharaj v. Jai Chand [1986] 1AC 898 a decision of the Privy Council reversing the judgment of the Fiji Court of Appeal.

         

        In that case the parties had lived together for twelve years in a de facto relationship. They had one child of their own. The Plaintiff had obtained land from the Housing Authority and had made all contributions for the financing of the home. The Defendant used her earnings to support the family.

         

        The Plaintiff sought vacant possession of the property. The Defendant claimed an equitable trust and estoppel. At page 125 of the Judgment, the Privy Council said:

         

        “The authority now classic is the speech of Lord Diplock in Gissing v. Gissing [1971] AC 886, 902 - 911, and later reviewed in the judgments of the Court of Appeal in Grant v. Edward [1986] 2 All ER 426, which concerned an unmarried couple. In such cases a contract or an express trust as at the time of the acquisition may not be established , because of lack of certainty or consideration or non-compliance with statutory requirements of writing; but a constructive trust may be established by an inferred common intention subsequently acted upon by the making of contributions or other action to the detriment of the claimant party. And it has been held that, in the absence of evidence to the contrary , the right inference is that the claimant acted in the belief that she (or he)would have an interest in the house and not merely out of love and affection.”

         

        The court held that as a result of the trust the Defendant had the right to continue to live in the house permanently with her children. However her right was “a personal right not amounting to a property interest diminishing the rights of the plaintiff’s lessor and mortgagee.”

         

        This application goes beyond an application to acknowledge a right not to be evicted, and a right to possession. This is an application for an order to transfer half share in the property to the Plaintiff.

         

        The purpose of the equitable doctrine of constructive trusts is to prevent the person with the legal interest in that property from behaving unconscionably . A presumption of advancement exists where the legal owner is related to the purported equitable owner, although of course this presumption may be rebutted, as it often is in family property disputes. In the early case of Bannister v. Bannister [1948] 2 All ER 133, the plaintiff had sold a house at a low price to the defendant on terms that she be permitted to live there rent free so long as she liked. The property was then transferred to the defendant. It was held that the defendant held the property on trust during the life of the plaintiff to allow her to live in it as long as she liked. The Court of Appeal held that in equity a constructive trust existed to prevent a legal owner from defeating a beneficial interest belonging to another.

         

        In Hussey v. Palmer [1972] 1 WLR 1286 the plaintiff had paid for an extension to the defendant’s home on a promise by the defendant that she could live there as long as she liked. She left and claimed to reimbursement to the value of her contributions.

         

        Lord Denning M.R. and Phillimore LJ held that the defendant held the property upon a constructive trust for the plaintiff of a beneficial interest proportional to the amount of her payment. Lord Denning said of the doctrine of constructive trusts at p.1290.’:

         

        “It is a liberal process, founded upon large principles of equity, to be applied in cases where the legal owner cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or the benefit of it or a share in it. The trust may arise at the outset when the property is acquired , or later on as the circumstances may require. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution.”

         

        In Gissing v. Gissing [1971] AC 886 Lord Diplock said at p.905:

         

        “A resulting, implied or constructive trust - and it is unnecessary for present purposes to distinguish between these three classes of trust - is created by a transaction between the trustee and the cestui que trust with the acquisition by the trustee of a legal estate in land whenever the trustee has so conducted himself that it would be unequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”

         

        The principle is not confined to interests in the matrimonial home. The court should look for evidence of the common intention of the parties when the property was acquired. A common intention can be construed where both persons contributed to the property in money work and labour (Doohan v Nelson (1973) 2 NSWLR 320).

         

        No such intention was found in Morris v Morris (1982) 1 NSWLR 62 where a plaintiff, living with his son and daughter-in-law, spent $28,000 building an extension to the defendant’s house. It was held that there was no intention to create a trust but that wider equitable principles created an equitable charge over the property in the sum of $28,000 with interest.

         

        Nor was such common intention found by High Court of Australia in Baumgartner v Baumgartner (1988) 62 AWR 29 where a woman in a de facto relationship gave her partner her earnings to meet household expenses including mortgage payments, thus allowing the loan amount to be more rapidly reduced than would otherwise be the case. However a constructive trust was nevertheless imposed to prevent one partner from unconscionably retaining the benefit of the other’s contributions (Mason C.J, Wilson and Deane JJ).

         

        There is ample evidence in the present case to construe the common intention of the parties. Although the defendant is the plaintiff’s son, and is the legal owner, I accept the plaintiff’s evidence that she thought she was so co-owner, and on that basis contributed in labour and money to the construction and upkeep of the house, and to periodic payments to the Housing Authority in respect of the loan. Furthermore, I accept that the defendant knew why the plaintiff was making such contributions and agreed that half of the property should be transferred to her in 1997.

         

        It is clear that it was the common intention of the parties that the plaintiff was not making contributions as an unconditional gift, but was investing in the future of her family, including her younger son. The presumption of advancement has therefore been rebutted by the evidence.

         

        Consequently, the principles of constructive trusts apply here to protect her interests. The question is to what effect? The plaintiff is unable to put an exact monetary value to her contributions direct and indirect. She no longer lives in the house, and the defendant continues to repay instalments to the Housing Authority. She simply asks for a half share. It is not clear how much of her weekly wage the plaintiff spent on the home and on family expenses between 1992 and 1996. However I accept that it was the intention of the parties in 1997, to share the properties in equal half shares. I accept that the defendant signed a consent to transfer form intending to give effect to this intention but later resiled from the agreement when he found that the plaintiff had consulted her solicitors.

         

        I therefore infer from these circumstances that the parties had intended to share the property equally, that the plaintiff believed that she was a co-owner, that she made contributions on that basis, and that she is entitled to a beneficial interest in half-share of the property.

         

        The defendant cannot now, in all conscience, insist that the plaintiff live elsewhere, nor can he deny, her beneficial interest in the property.

         

        I therefore find order that the defendant holds a half share in the property at 18 Moci Place Nadawa on trust for the plaintiff, that he must either allow her to live in the house for as long she wishes or with her consent, must pay her a half-share on the market value of the house.

         

        The defendant must pay the plaintiff the costs of this action to be taxed if not agreed.

         

        (Judgment for the Plaintiff.)

Shareen Wahidun Nisha v. Tucker Group (Fiji) Ltd

        [1999] 45 FLR 54

        HIGH COURT OF FIJI ISLANDS

         

        SHAREEN WAHIDUN NISHA

         

        v.

         

        TUCKER GROUP (FIJI) LIMITED

         

        [HIGH COURT, 1999 (Scott J) 10 March]

         

        Civil Jurisdiction

         

        Limitation- action in negligence- difference between physical and legal disability- Limitation Act (Cap. 35) Section 11, 16 & 17.

         

        The Applicant suffered injury to her hand but allowed the limitation period to elapse before commencing proceedings. The High Court explained the circumstances in which the limitation period could be extended and, dismissing the application HELD: (i) that the applicant’s injuries did not mean that she was “under a disability” and (ii) that the state of understanding of her injuries which she reached during the limitation period was such that her failure to commence proceedings could not be excused.

         

        Cases cited:

         

        Goodchild v. Greatness Timber Co. Ltd [1968] 2 All ER 255

        Kirby v. Leather [1965] 2 QB 367

         

        Interlocutory application in the High Court.

         

        Ms.P. Narayan for the Plaintiff

        No appearance by the Defendant

         

        Scott J:

         

        This is an application for leave to commence an action for damages for negligence causing personal injuries notwithstanding that more than 3 years have elapsed since the accident.

         

        The only affidavit of facts is that of the Plaintiff filed on 30 October 1998. The Plaintiff formerly worked in a factory run by the Defendant. On 12 January 1994 her right hand was crushed in a pastry roller. Although her fingers were lacerated there was no bony injury and after treatment at the CWM Hospital she was sent home.

         

        In May 1994 she returned to work but owing to the pain in her hand she was unable fully to perform her former duties. Thereafter the condition of her hand appears to have deteriorated and by October 1995 she had been diagnosed as suffering from reflex sympathetic dystrophy a condition characterised “by a devastating amount of pain, swelling, discoloration and stiffness (caused by) vasomotor dysfunction of the sympathetic nervous system”. (see Exhibit C to the supporting affidavit).

         

        Following diagnosis the condition was treated quite intensively with various drugs and physiotherapy. The Plaintiff continued working but apparently her much-reduced performance was unacceptable to her employers and on 19 April 1996 she was told not to come back to work until she had fully recovered.

         

        According to the Plaintiff her health then deteriorated still further. She now complains that her hand is quite useless and that she is severely depressed. When she finally consulted solicitors with a view to initiating proceedings against her former employers she was told that the limitation period had expired on 12 January 1997.

         

        Under proviso (i) to Section 4 (1) (a) of the Limitation Act (Cap 35-the Act) claims for damages for negligence causing personal injuries must be brought within 3 years of the accident complained of. There are however two circumstances in which this 3 year period may be extended. The first is where the Plaintiff is “under a disability” (Section 11 of the Act) and the second is where the Plaintiff states that she was unaware (actually or constructively) of material facts relating to the cause of action until a date which:

         

        “(a)   either was after the end of the three year period relating to the cause of action or was not earlier than twelve months before the end of that period; and

         

        (b)    in either case, was a date not earlier than twelve months before the date on which the action was brought.”

         

                  (Section 16 (3) of the Act).

         

        Under Section 17 (1) of the Act any application for leave to commence proceedings within the extended period provided by Section 16 must be made ex parte but there is no specific procedure for invoking the provisions of Section 11.

         

        The relevant provisions of the Act are identical to the provisions of the English Limitation Act 1939 as amended by Section 2(1) of the Law Reform (Limitation of Actions, etc) Act 1954 and the Limitation Act 1963. A commentary on the procedure to be followed when applying under Section 2 of the 1963 Act (which corresponds to our Section 17 (1)) is to be found at Order 110 of the Rules of the Supreme Court of England and Wales 1967 Edn. Once again, there is no set procedure for invoking the disability provisions, Section 22 of the 1939 Act, which correspond with our own Section 11. Unfortunately our own High Court Rules do not deal with an application under the Act and therefore the relevant English procedure is applicable (see RHC O 1 r 7).

         

        It is not entirely clear on which provision the Plaintiff is relying. The application was filed on 30 October 1998 ex parte, presumably in accordance with section 17. The Chief Registrar ordered that the application be served on the Defendants but the Defendants have failed to appear. At the hearing of the application on 2 March 1999 the main thrust of Ms. Narayan’s submission was that the Plaintiff, as a result of her accident became disabled to such an extent as to fall within the provisions of Section 11. She did not, except peripherally, suggest that the facts fell within the provisions of Section 16 (3).

         

        Paragraph 36 of the Plaintiff’s affidavit is as follows:

         

        “I seek this honourable Court’s leave to institute legal proceedings against the Defendant out of time for the following reasons:

         

        (i)      I was injured due to the Defendant’s negligence and breach of statutory duty.

        (ii)      That I was unaware of the limitation period that applied in cases of personal injuries.

        (iii)     That the Defendant has acted in a manner that can only categorised as deception since it had placed me on a rehabilitation period and then terminating my employment after the lapse of 2 years since my injuries.

        (iv)     That I have suffered severe injuries with a very remote chance of recovering to full capacity.

        (v)     That I am unaware of the particulars on injuries I sustained.”

         

        Rather than getting enmeshed in technical procedural difficulties my view is that the best way to deal with the application is to consider both grounds which may afford a reason for extending the limitation period. The first is disability (Section 11).

         

        Pointing to Subsection 11 (3) Ms. Narayan suggested that although certain classes of persons were deemed to be under a disability this did not mean that disability was restricted to those classes. She suggested that on the evidence the Plaintiff had been so disabled by her accident and in particular was now suffering from such a disabling condition namely reflex sympathetic dystrophy that she should be regarded as falling within the section and therefore the limitation period should not apply.

         

        In my view this submission faces two major difficulties. The first is that the way the Section operates is by allowing a person under a disability to bring proceedings:

         

        “at any time before the expiration of (3) years from the date from the date when the person ceased to be under a disability …” (emphasis added),

         

        Since it is the Plaintiff’s case that she is presently under a disability I do not think that the Section applies to her.

         

        The second difficulty stems from the word “disability”. In law disability does not mean the same as “disabled”. Thus, a person who has suffered severe physical injuries may be disabled but will not usually thereby be under a disability. A legal disability is the same thing as a legal incapacity, the effect of which is to prevent certain classes of persons from entering into legal relations or performing certain legal functions. Examples include undischarged bankrupts sitting in Parliament (Constitution Section 71 (d)) or persons convicted of serious crimes sitting as assessors (Criminal Procedure Code – Section 267).

         

        Of course, in some cases a person who has suffered a severe accident may become both disabled and legally incapable. As was explained by the English Court of Appeal in Kirby v Leather [1965] 2 QB 367 where a person by reason of mental illness caused by an accident becomes incapable of managing his affairs as a reasonable man would do then he falls within the Section. Although it is here being suggested that the Plaintiff is suffering from a psychological condition as a result of her accident it is clear to me and indeed obvious from her affidavit that she is well able to manage her affairs. I do not find that her accident left her mental processes so impaired that she can be held to be under a disability by reasons of unsoundness of mind.

         

        While I do not wholly exclude the possibility that some form of disability other than infancy or unsoundness of mind might come with the provisions of Section 11 (3) I am satisfied that mere physical disability or even physical disability coupled with limited psychological complications does not. After all, the general purpose of Sections 4(1) (a) (i) and 11 (2) is to reduce the period within which a claim can be made following an accident involving personal injuries, not to extend it.

         

        I am satisfied that the Plaintiff has never been under a disability for the purposes of these proceedings and that accordingly Section 11 cannot apply to her.

         

        The next question is whether Section 16 (3) can help. Once again the English Court of Appeal offers guidance. In Goodchild v Greatness Timber Co Ltd [1968] 2 All ER 255 Lord Denning at page 257 explained the way in which the Section should be applied:

         

        “Take all the facts known to the Plaintiff or which he ought reasonably to have ascertained within the first 3 years about the accident and his injuries. Assume that he was a reasonable man and took such advice as he ought reasonably to have taken within those 3 years. If such reasonable man in his place would have thought he had a reasonable prospect of winning an action and that the damages recoverable would be sufficiently high to justify the bringing of an action – in short, if he had a “worthwhile action” – then he ought to have brought the action within the first 3 years. If he failed to bring an action within those 3 years, he is barred by the statute. His time will not be extended under the Limitation Act 1963 simply because he finds out more about the accident or because his injuries turn out to be worse than he thought. His time will only be extended if a reasonable man in his place would not have realised, within the first 2 or 3 years that he had a “worthwhile action”. Then, if it should turn out after the first 2 or 3 years that he finds out facts which make it worthwhile to bring an action, he must start it within 12 months after he finds out those facts. Then, and then only, will the time limit be extended so that he is not barred.”

         

        In the present case it is part of the Plaintiff’s own case that she was well into an intensive course of physiotherapy and had been diagnosed as suffering from reflex sympathetic dystrophy as early as October 1995, well within the limitation period. Although she states in paragraph 36 (v) of her affidavit that she was “unaware of the particulars of injuries I sustained” I find as a fact that she was aware of the essential nature and quality of her injury and its subsequent complications long before the limitation period expired. In these circumstances therefore I hold that Section 16 cannot avail.

         

        I have sympathy for the Plaintiff. This is not the first time that I have had to refuse leave to an applicant whose main reason for not commencing proceedings within the limitation period was either ignorance of the law or lack of funds. But the High Court cannot bend the law merely on the ground of sympathy. In some countries the law has been reformed to mitigate its harshness. Perhaps there is a case for such a reform here in Fiji.

         

        The application fails and is dismissed.

         

        (Application dismissed.)

Sheet Metal & Plumbing (Fiji) Ltd v. Uday Narayan Deo

        [1999] 45 FLR 80

        HIGH COURT OF FIJI ISLANDS

         

        SHEET METAL AND PLUMBING (FIJI) LIMITED

         

        v.

         

        UDAY NARAYAN DEO

         

        [HIGH COURT, 1999 (Fatiaki J) 14 April]

         

        Appellate Jurisdiction

         

        Small Claims Tribunals- rights of appeal therefrom- Small Claims Tribunal Decree 7/1991 Section 33.

         

        The Respondent to a claim in the Small Claims Tribunal appealed to the High Court against a Resident Magistrate’s refusal of his application for leave to appeal out of time against a determination of the tribunal. Dismissing the appeal, the High Court examined the limited nature of the right of appeal from a Small Claims Tribunal. It explained that there was no right of appeal except where the tribunal exceeded its jurisdiction or when the proceedings were conducted in a manner unfair and prejudicial to the appellant.

         

        Cases cited:

         

        Eagil Trust v. Piggott-Brown [1985] 3 All ER 119

        Hertz New Zealand Ltd v. Disputes Tribunal (1994) 8 PRNZ

        N.Z.I. Insurance N.Z. Ltd. v. Auckland District Court (1993) 3 NZLR 453

        Port v. Liddicoat (1988) D.C.R.

         

        Appeal to the High Court from the Magistrates’ Court.

         

        I. Razak and S. Chandra for the Appellant

        Respondent in Person

         

        Fatiaki J:

         

        On the 6th April 1999 after hearing extensive argument from counsel for the appellant company and the respondent in person, I dismissed the appeal for reasons which I now provide.

         

        This appeal arises out of an earlier unsuccessful application dated 14th April 1998 by the appellant to the Magistrates’ Court, Suva seeking an extension of time to appeal against a decision of the Small Claims Tribunal (Mr. D. Dass) delivered on the 13th of January 1998.

         

        Section 33(3) of the Small Claims Tribunal Decree 1991 (‘the Decree’) expressly provides that:

         

        ‘An appeal shall be brought by the filing of a notice of appeal, ... within 14 days of the Tribunal’s order.’

         

        Plainly therefore, in this case, the appeal before the Magistrates’ Court was brought some 2 1/2 months out of time and the appellant quite properly sought an extension of the time within which its appeal could be filed and which the Magistrates’ Court is empowered to grant pursuant to Order XXXVII rule 4 of the Magistrates’ Court Rules (Cap. 14).

         

        The application for extension of time was served on the respondent who appeared before the learned magistrate and opposed it on the basis that ‘there is no truth to the matters raised in the affidavit in support’.

         

        As the respondent appeared in person the learned magistrate decided to orally record the respondent’s reply on oath instead of ordering an affidavit in the usual manner. This occurred on 23rd April 1998 when the respondent and the appellant’s representative both testified and were cross-examined on oath.

         

        On 26th June 1998 the learned magistrate orally dismissed the appellant’s application. In her written Reasons for Decision subsequently provided, the learned magistrate properly and correctly directed herself as to the relevant principles to be considered in the exercise of her discretion to extend the time limited for the filing of an appeal. Thereafter she correctly identifies the reasons or grounds advanced by the appellant in seeking to excuse or explain the inordinate delay in filing its appeal and then, after considering the New Zealand District Court decision of Port v. Liddicoat (1988) D.C.R. as to the time when the appeal period begins to run, the magistrate makes two crucial findings of fact on the basis of the evidence placed before her by the parties. These were:

         

        (1)‘... that the orders made (by the Small Claims Tribunal) were declared at the conclusion of the hearing on the 13th January 1998, in the presence of the parties and each was thereby put on notice as to the contents of the order.’

         

        and later:

         

        (2)‘... that the intended appellant had evinced to him (the respondent) an intention not to comply with the SCT Order on the telephone on 13th January 1998 after the hearing and judgment (of the SCT).’

         

        Neither finding of fact was challenged on the appeal before me and accordingly binds the appellant in this so-called appeal against the learned magistrate’s refusal to extend the time limited for an appeal against the Order of the Small Claims Tribunal.

         

        I say ‘so-called appeal’ advisedly because while a perusal of the Notice and grounds of appeal filed before this court (at pp.1 & 3 of the record), sufficiently identifies the decision being appealed against (‘wherein the defendants motion to appeal out of time was dismissed’) no ground has been advanced which identifies any error in the learned magistrate’s refusal to exercise her discretion.

         

        Indeed both grounds of appeal if I may say so, directly relates to the merits of the appeal against the decision of the Small Claims Tribunal and not to the learned magistrate’s decision.

         

        Be that as it may I have additionally treated this as an appeal against the learned magistrate’s refusal to exercise her discretion to extend the time within which the appellant might appeal against the decision or order of the Small Claims Tribunal.

         

        In doing so, I have reminded myself that the decision being appealed against concerns the refusal by the learned magistrate to exercise a statutory discretion granted in the widest possible terms viz. ‘shall see fit to extend’.

         

        In such an appeal it is trite that an appellate court will not lightly interfere with the exercise of a judicial discretion and should only do so where it is satisfied that the magistrate has erred in principle by giving weight to something he ought not to have taken into account or failed to give weight to something which he had taken into account or was plainly wrong in its decision.

         

        In similar vein Griffiths L.J. said in Eagil Trust v. Piggott-Brown [1985] 3 All E.R. 119 at p.121:

         

        “... there is a heavy burden on an appellant to demonstrate to this court that the (magistrate) has either failed to apply well-settled principles or, alternatively, that his discretion can be attacked on what are colloquially known as `Wednesbury’ grounds.”

         

        In this case having independently considered the evidence before the learned magistrate; the relevant statutory provisions of the Decree and the Magistrates Court Rules; and her judgment, I am far from satisfied that the appellant has discharged the heavy burden placed on it. Additionally, having regard to the legislative scheme and procedure of the Small Claims Tribunal and the rather confined ambit of the right of appeal granted under the Decree, I am satisfied that an extension in the present circumstances would not be in the interests of justice.

         

        The appeal against the refusal of the learned magistrate to exercise her discretion to extend the time for appeal is accordingly dismissed. That is sufficient to dispose of this appeal but, in deference to the submission of counsel for the appellant, I have decided to consider the other grounds which counsel submits deal with the merits of the case.

         

        Before doing so however it is opportune that this Court make some general observations about the legislative intentions behind the creation of Small Claims Tribunals.

         

        The most obvious intention is that expressed in the long title of the Decree which reads: ‘A Decree To Establish Small Claims Tribunals in Fiji, To Provide Prompt and Inexpensive Relief to Claimants.’

         

        From this title alone one can discern the following legislative intentions:

         

        (1)     The Decree establishes Tribunals not Courts;

         

        (2)     The nature of the cases with which the Tribunal is concerned are small claims;

        (3)     The central purpose of the Tribunal is ‘to provide ... relief to claimants’; and

         

        (4)     By a process that is both prompt and inexpensive.

         

        Other distinguishing features of a tribunal are:

         

        (a)     That it is presided over by a referee who need not have legal qualifications and whose primary function is to attempt to bring the parties in dispute to an agreed settlement;

         

        (b)     Qualified and practising lawyers and professional advocates are excluded from its proceedings;

         

                  and

         

        (c)     Evidence before a tribunal need not be given on oath nor need it be oral or even originate from the parties to the dispute.

         

        With those introductory observations I turn to the grounds of appeal filed by the appellant.

         

        In supporting the first ground of appeal counsel for the appellant argued that the failure of the referee to hear or allow the respondent to make his submissions before he made his decision, amounts to a breach of the audi alteram partem rule which is so fundamental to the conduct of a fair trial that the time to appeal should have been extended in order to allow the appeal to proceed on its merits. Attractive as the submission may appear on first impressions, it is unsupported in this case and cannot be acceded to.

         

        The appellant’s own representative in his sworn evidence before the learned magistrate (at p.43 of the record) accepts:

         

        (1)     that on the 13th January 1998 he came down to the Small Claims Tribunal ‘to represent the (appellant) company on the instructions of ... the managing director’;

         

        (2)     that he was ‘in the Court room for about 45 minutes’; and

         

        (3)     that ‘(the referee) had told (him) to pay $1,900 to the Court and to that (he) didn’t agree. Later on (the referee) told (him) to bring a witness ...’

         

        Furthermore the referee’s record of proceedings (at p.38 of the appeal record) clearly records at ‘2.15 p.m.’, the presence of the appellant company’s representative and his answers to various questions that were asked of him including his disagreement ‘to replacing the old system with a new Solarmate Hot Water System or pay $1,900 to the claimant’.

         

        And at p.39 in his written decision the referee writes:

         

        ‘5.     The Respondent was not agreeable to replacing the system with a new system or pay $1,900 to the claimant;

         

        6.       The Tribunal having heard both the claimant and the Respondent ... is satisfied that the ... Hot Water System supplied and installed by the Respondent has proved to be faulty;

         

        7.       The Tribunal therefore orders the Respondent to remove the ... Hot Water System from the Claimant’s house at the Respondent’s costs and pay the Claimant ($1,900.00) through the Small Claims Tribunal within (14) days from the date of this ORDER.’

         

        Quite plainly, in light of the above fortified by the maxim ‘omnia praesumuntur rite esse acta’ which is applicable to public officers acting in the discharge of public duties, and, in the absence of any sworn evidence to the contrary, there does not appear to be any substantial basis or reason to doubt the accuracy and authenticity of the referee’s record. This ground of complaint is accordingly dismissed.

         

        The second ground of appeal on the merits reads:

         

        ‘That the learned magistrate erred in law and in fact by failing to properly consider the 3 year long term usage of the Solar System by the respondent while ordering the full refund to be paid by the appellant to the respondent of $1,900.00.’

         

        In this regard counsel for the appellant company highlighted the plain fact that the respondent was in actual possession of the solar water heater since September 1993 when it was first installed at his residence and continues to do so and as such, presumably has derived some benefit from it over the years since 1993. This benefit, counsel claims, was not considered or compensated for in the referee’s decision and is tantamount to an unjust enrichment to the respondent.

         

        Against that, must be weighed the respondent’s evidence as summarised by the referee in para.2 of his decision (at p.39 of the appeal record); the referee’s clear finding of fact that the hot water system ‘supplied and installed by the (appellant) has proved to be faulty’; and his subsequent order that ‘the (appellant) remove the hot water system from the (respondent’s) house’.

         

        Quite plainly in my view the referee’s composite order in this case was within the category of orders he was empowered to make under Section 16 of the Decree. Section 17 then provides that such an order ‘shall be final and binding on all parties to the proceedings ... and except as provided in Section 33, no appeal shall lie in respect thereof’.

         

        In this latter regard Section 33 of the Decree provides a right of appeal limited to the following two grounds:

         

        ‘(a)    the proceedings were conducted by the referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings; or

         

        (b)     the Tribunal exceeded its jurisdiction.’

         

        It is only necessary in this appeal, to consider ground (a).

         

        At the outset it must be noted that the form of wording used in ground (a) is unusual and is plainly distinguishable from a general right of appeal such as that conferred under Section 36 of the Magistrates Courts Act (Cap.14); Section 12 of the Court of Appeal Act (Cap.12); and on the Supreme Court under Section 122 of the 1997 Constitution.

         

        What is more ground (a) specifically refers to the manner in which the referee conducted the proceedings as the crucial concern of the right of appeal on that first ground. Furthermore not only must the conduct complained about be unfair to the appellant it must, in addition, prejudicially affect the result.

         

        As to the manner or procedure required to be followed by the referee in conducting a proceeding under the Decree these are principally to be found in Sections 24 to 29 (inclusive) under the heading ‘HEARINGS’. A cursory examination of these provisions serves to highlight the informal, non-adversarial nature of the proceedings before the Small Claims Tribunal and militates against a general appeal on the merits or for errors of law.

         

        The non-legalistic nature of a Tribunal proceeding is further exemplified by the requirement in Section 15(4) of the Decree that:

         

        ‘The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so ... shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.’

         

        I am fortified in my narrow view of the appellant’s right of appeal, by the observations of Thorp J. in N.Z.I. Insurance N.Z. Ltd. v. Auckland District Court [1993] 3 N.Z.L.R. 453 when he said of a similar right granted in the Disputes Tribunals Act 1988 (New Zealand), in identical terms to our ground (a) above, at p.458:

         

        ‘The essential matter (in the words used) ... is its specification of the basis for appeal against a referee’s determination as being the conduct of proceedings in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings. This formulation is both specific and unusual. On its ordinary grammatical construction it provides only a limited right of appeal, and requires any intending appellant to direct the (Court) to some unfairness in the form, and not simply the result, of the tribunal’s hearing.’

         

        and a little later in his judgment his honour said:

         

        ‘read on (its) own, and on the basis of (its) ordinary grammatical meaning, (the section) would not leave any careful interpreter in much doubt that the right of appeal (it) created was a special type of appeal, limited to cases of procedural unfairness (and does not extend to the correction of errors of law).’

         

        Even more trenchant is the view expressed by Greig J. in Hertz New Zealand Ltd. v. Disputes Tribunal (1994) 8 PRNZ where his honour said in rejecting the appeal in that case, at p.151:

         

        ‘... there is no appeal on the merits even if there is a clear and fundamental error of law in the conclusion of the Tribunal.’

         

        Quite plainly in my view not only is this second ground of appeal misconceived in so far as it seeks to question the merits of the referee’s decision without pointing to any procedural unfairness but further, in so far as it purports to be predicated on the difficult legal principle of unjust enrichment it fails to properly appreciate the function and nature of a non-legally qualified referee exercising what in effect is an equity and good conscience jurisdiction.

         

        In this latter regard can it not be said in good conscience that the inconvenience and damage suffered and the expenses incurred by the respondent since the installation of the defective solar water heater cancels out (for want of a better term) any unquantifiable benefits the respondent may have enjoyed over the past 3 years from being in possession of the hot water system? and is not the buyer of defective or unfit goods entitled to damages under the Sale of Goods Act (Cap. 230)? These considerations merely serve to re-enforce the broad nature of a referee’s jurisdiction.

         

        This second ground of appeal is accordingly dismissed as incompetent.

         

        (Appeal dismissed.)

Sivarosi Raikali v. The Attorney-General & The Commissioner of Prisons

        [1999] 45 FLR 313

        HIGH COURT OF FIJI ISLANDS

         

        SIVAROSI RAIKALI

         

        v.

         

        THE ATTORNEY-GENERAL & THE COMMISSIONER

        OF PRISONS

         

        [HIGH COURT, 1999 (Scott J) 10 December]

         

        Torts- false imprisonment- quantum of damages.

         

        Damages- false imprisonment- quantum and nature of.

         

        The Plaintiff who was a prisoner serving a life sentence released on licence was mistakenly reincarcerated for 11 months. The High Court explained the correct approach to the assessment of damages for the tort of false imprisonment in Fiji. It emphasised that such awards should bear a reasonable relationship to awards arising from other torts. It declined to award exemplary damages but awarded general damages of $1,000 per month.

         

        Cases cited:

         

        Attorney General v. Reynolds [1980] AC 637

        Broome v. Cassel & Co [1972] AC 1027

        Donselaar v. Donselaar [1982] 1 NZLR 97

        Holden v. Chief Constable of Lancashire [1987] 1 QB 380

        Marika Lawanisavi v. Kapieni - ABU 49/98

        Mataika v. Attorney-General HBC 507/92

        Nirmala Wati v. Hussain 32 FLR 1

        Rookes v. Barnard [1964] AC 1129

        Thompson v. Commissioner of Police of the Metropolis [1997] 3 WLR 403

         

        Assessment of damages by the High Court.

         

        I.V. Tuberi for the Plaintiff

        N. Barnes for the Defendants.

         

        Scott J:

         

        Section 99 (1) (a) of the 1990 Constitution (now repealed and replaced) gave the President of Fiji, acting on the advice of the Commission on the Prerogative of Mercy the power to grant convicted persons a pardon “either free or subject to lawful conditions”.

         

        The Plaintiff was convicted of murder in 1984 and was sentenced to life imprisonment. After serving 11 years imprisonment and following a successful application to the Commission, the President ordered his release subject to a 12 months Compulsory Supervision Order (CSO).

         

        During the currency of the CSO the Plaintiff committed a further offence for which he was sentenced to 18 months imprisonment. Upon learning of this fresh conviction the Minister of Home Affairs revoked the CSO.

         

        On 18 September 1997 the Plaintiff was released from prison having served the 18 months sentence but on 30 September 1997 the Chief Magistrate ordered that he be returned to prison to serve the balance of his life sentence on the ground that he had breached a condition of his CSO namely that he not re-offend.

         

        Some time after the Plaintiff’s return to prison doubts were raised as to the correctness of the Chief Magistrate’s order. The Commissioner of Prisons sought legal advice from the Attorney-General’s Chambers and in July 1998 he commenced proceedings for declaratory relief in the High Court (HBC 376/98). The question asked of the Court was whether Section 90 of the 1990 Constitution gave the President power to grant a pardon subject to a CSO.

         

        Following the hearing on 28 August 1998 the High Court (Byrne J) ordered that the Plaintiff be immediately released. On 1 September the Court ruled that a CSO may only be made by the Minister for Home Affairs under the provisions of Section 65 of the Prisons Act, Cap 86, that the President had no power to make a CSO and that therefore the Plaintiff had been unlawfully returned to and detained in prison. The present proceedings seeking damages for the tort of false imprisonment for the period of 11 months from 30 September 1997 to 8 August 1998 were commenced in February 1999. Liability has been admitted by the Defendants; the only question now is the proper quantum of damages.

         

        There is a very wide gap between the parties but fortunately both Counsel filed helpful and comprehensive written submissions. Mr. Barnes suggested that an appropriate award would be between $500 and $1000 per month resulting in a maximum award of $11,000. Mr. Tuberi, on the other hand, relying on 3 local decisions as well as 2 New Zealand authorities suggested a daily rate of $2500 for the whole 363 days of detention resulting in a claim for $907,500.00. Given this very wide difference between the parties it may be helpful briefly to indicate the general way in which the Courts approach these claims.

         

        An award of damages arising from false imprisonment has as its primary purpose compensation for the loss of the Plaintiff’s liberty and its consequences such as indignity, mental suffering, disgrace, humiliation and loss of reputation or social status. In addition, there may be recovery for any resultant physical injury, illness or discomfort where the imprisonment has had a deleterious effect on the Plaintiff’s health. Furthermore, any pecuniary loss which is not too remote is also recoverable.

         

        Awards of damages under these heads are termed compensatory and will be liable to aggravation or mitigation depending on the whole circumstances of the case. In addition to such awards there may, in special circumstances be an award of exemplary damages, the purpose of which is to punish the Defendant for inflicting the harm on the Plaintiff. Following the very important case of Rookes v. Barnard [1964] AC 1129 awards of exemplary damages are, absent specific statutory authority, only open for consideration either where there has been “oppressive arbitrary or unconstitutional action by servants of the government” or where the Defendant’s conduct was “calculated by him to make a profit for himself which may exceed the compensation payable to the plaintiff”.

         

        In computing the award under these heads there is, as pointed out by Lord Hailsham in Broome v. Cassel & Co [1972] AC 1027, 1073 a danger in hypostatising the different heads of damage. Although the element of compensation must obviously always be taken into account in arriving at a final award other elements such as aggravation, mitigation or exemplary damages “are not separate heads to be added mathematically to one another.” When making an award, although the Court will obviously indicate the principal factors taken into account in making its assessment, there is no need to specify the precise amounts awarded under each head (see Attorney General v. Reynolds [1980] AC 637, 662).

         

        In England in Thompson v. Commissioner of Police of the Metropolis [1997] 3 WLR 403 the Court of Appeal has comparatively recently given some helpful guidance which although primarily designed for juries contains a number of important principles, particularly those to be found at pages 415 to 419 of the report. They include:

         

        (a)     the total figure awarded in compensatory damages should not exceed what is considered to be a fair compensation for the injury the Plaintiff has suffered;

         

        (b)     exemplary damages will only be awarded in exceptional cases and only where it is considered that the award of compensatory damages is insufficient punishment for the defendant;

         

        (c)     in a “straightforward case of wrongful arrest and imprisonment” the starting point is likely to be ^500 for the first hour and ^3,000 for a period of 24 hours but that for subsequent days the daily rate will be on a progressively reducing scale; and

         

        (d)     awards of damages for false imprisonment should bear some reasonable relationship to awards for personal injuries (page 418 C-D).

         

        Before applying these principles to the facts of the present case I would offer a further observation. In Fiji incomes are very much lower than there are in more advanced countries. While overseas awards are helpful in evaluating proportionality they do not translate well into exact quanta. As recently pointed out by the Fiji Court of Appeal in Marika Lawanisavi v. Kapieni (ABU 49/98) there is a danger in paying too close a regard to awards in other jurisdictions where similar social and economic conditions do not exist. ^500 is equivalent to approximately F$1700 while ^3000 is equivalent to approximately F$10,000, both of which seem to me to be very generous amounts by comparison with current awards for damages for personal injuries in Fiji or by comparison with the Ministry of Labour’s published schedules of wage rates.

         

        As I see it, by far the most serious feature of this case is the length of time for which the Plaintiff was detained. When however it is borne in mind that the 11 months were in addition to 12 years which were lawfully served, that the original sentence was one of life imprisonment, that the CSO was revoked because the Plaintiff re-offended following his release, and that there is nothing in the Plaintiff’s supporting affidavit to suggest any other circumstances of aggravation then the injury suffered by the Plaintiff becomes altogether less severe then would otherwise be the case.

         

        As pointed out in Thompson (supra) the value of an extended period of incarceration is not to be calculated merely by multiplying the value of a short period such as that considered by Fatiaki J in Mataika v. Attorney-General HBC 507/92 where there was an award of $1500 (which clearly included an exemplary element) for an embarrassing, humiliating and reckless semi-public arrest and brief detention of a wholly innocent public servant (and see also Nirmala Wati v. Hussain 32 FLR 1).

         

        Mr. Tuberi, relying on Donselaar v. Donselaar [1982] 1 NZLR 97 argued that the Plaintiff was entitled to exemplary damages because of the “outrageous and contumelous way” in which the Defendant had acted. Although he did not specifically refer to Rookes v. Barnard (supra) I do not doubt that he also wished to submit that the Defendants’ actions were “oppressive, arbitrary or unconstitutional actions by servants of the government” and as such were capable of giving rise to an exemplary award.

         

        In Holden v. Chief Constable of Lancashire [1987] 1 QB 380 the Court of Appeal considered whether in every case falling within a Rookes v. Barnard category there should be an award of exemplary damages. It concluded that this was not the law and that what the Court had to do in each case was to consider all the circumstances and to decide whether such an award would serve any useful purpose.

         

        In the present case the main reasons for the Plaintiff’s prolonged incarceration were his own lack of legal representation, the opacity of the law and the endemic slowness of the legal process in Fiji. To his credit however it was, as has already been seen, in fact the 2nd Defendant who initiated the legal proceedings which eventually led to the Plaintiff’s release.

         

        No pecuniary loss is claimed. As pointed out by Mr. Barnes the claim for exemplary damages was not pleaded. In my assessment this is in any event not a case where the amount of compensatory damage to which I believe the Plaintiff is entitled will fail to remind the authorities to avoid imprisoning people without being absolutely sure that they are entitled to do so. In my opinion the approach advanced by Mr. Barnes is sound. With respect I find the Plaintiff’s claim for almost $1 million to be quite unrealistic and disproportionate. There will be an award to the Plaintiff of $11,000.00 which award will bear interest at the rate of 4% from the date of the filing of the Originating Summons until Judgment. I will hear counsel as to costs.

         

        (Assessment delivered.)
 

Surya Deo Sharma v. Jovesa Sabolalevu & The Attorney-General of Fiji

        [1999] 45 FLR 204

        COURT OF APPEAL OF FIJI ISLANDS

         

        SURYA DEO SHARMA
         

        v.

         
        JOVESA SABOLALEVU &

        THE ATTORNEY‑GENERAL OF FIJI

         

        [COURT OF APPEAL, 1999 (Tikaram P, Ward, Tompkins JJA)

        27 August]

         

        Civil Jurisdiction

         

        Limitation- proposed action for damages for personal injuries- principles governing grant of leave- Limitation Act (Cap 35) Sections 16, 17, 19 and 20.

         

        The High Court declined to grant leave to a proposed Plaintiff to commence proceedings for damages for personal injuries outside the 3 year period. On appeal, dismissing the appeal, the Court of Appeal explained the meaning and effect of Sections 16 and 17 of the Act and emphasised that the 3 elements of section 17 (3) and the requirements of Section 16 (3) must be fulfilled before the Court has jurisdiction to exercise its discretion whether or not to grant leave. The Court also pointed out that commencing proceedings before applying for leave will usually be fatal to the application.

         

        Cases cited:

         

        Coad v. Cornwell and Isles of Scilly Health Authority [1997] 8 Med LR 154.

        Permal v Sami and Saweta Civ App 19/85 (FCA Reps 88/10)

         

        Appeal against interlocutory decision of the High Court.

         

        R.Chand for the Appellant

        D.Singh for the Respondents

         

        Judgment of the Court:

         

        The appellant, the plaintiff in the High Court, applied for leave to commence an action for damages for personal injuries out of time. By a judgment delivered on 30 June 1995 Pathik J declined that application. The appellant has appealed.

         

        The sequence of events

         

        On 6 April 1990 the appellant suffered severe personal injuries as a result of a collision between a vehicle driven by him and a vehicle driven by the first respondent, owned by the Ministry of Forests represented b y the second respondent. He was admitted to hospital that day, discharged on 9 May 1990, readmitted on 28 July 1990 and discharged on 2 August 1991.

         

        On 19 October 1990 he was charged with dangerous driving. Following a defended hearing on 21 July 1994, he was acquitted.

         

        On 11 November 1994 the appellant through his solicitors filed a writ of summons claiming $2,457.50 special damages, general damages, and consequential relief. Three days later on 14 November 1994 the appellant through his solicitors applied for an order granting leave to the appellant to file and institute his claim for damages against the respondents, pursuant to s 17 of the Limitation Act (Cap 35) (‘The Act’). On 27 February 1995 leave was granted with the consent of counsel representing the respondents. Later, on the application of the respondents, the order granting leave was revoked. The application for leave, then opposed by the respondents, was heard by Pathik J. on 7 June 1995. Judgment refusing the application was delivered on 30 June 1995.

         

        The judgment

         

        In his decision the Judge sets out the facts, relevant statutory provisions, the authorities on the issue, and dealt with counsel’s submissions. He concluded:

         

        “In the outcome, on the facts I find that the plaintiff was dilatory in commencing his claim within the limitation period particularly when he was well aware of the nature and extent of his personal injury at the time of the accident or shortly afterwards and at the latest after his discharge from hospital in August 1991. In the circumstances of this case for the reasons given all of Mr. Chand’s arguments are devoid of merits and they have no legal basis.”

         

        Accordingly the appellant’s application was dismissed.

         

        The relevant statutory provisions

         

        An action for damages for personal injury shall not be brought after the expiration of three years from the date on which the cause of action accrued: s 4(1) of the Act. It is accepted in this case that the cause of action accrued when the accident occurred and the injuries were suffered on 6 April 1990. The time for commencing the action ended on 6 April 1993. The action commenced on 11 November 1994 was therefore 19 months out of time.

         

        Section 16 (1) provides that s 4 (1) shall not afford a defence in so far as the action relates to any cause of action in respect of which the court has, whether before or after the commencement of the action, granted leave, and the requirements of subs (3) are fulfilled. That subsection provides:

         

        “(3) The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which –

         

        (a)     either was after the end of the three‑year period relating to that cause of action or was not earlier than twelve months before the end of the period; and

        (b)     in either case, was a date not earlier than twelve months before the date on which the action was brought.”

         

        Section 17 relates to the application for leave. Relevant to an application made after the commencement of an action is subs (3):

         

        (3)   Where such an application is made after the commencement of a relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient ‑

         

        (a)     to establish that cause of action, apart from any defence under subsection (1) of section (4); and

        (b)     to fulfil the requirements of subsection (3) of section 16 in relation to that cause of action,

         

        and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 4.”

         

        It is apparent from these provisions that the crucial issue is the actual and constructive knowledge of the plaintiff under s.16(3). The appellant must show that the material facts relating to the cause of action including those of a decisive character were outside his actual or constructive knowledge until either after the 3 year period or not earlier than 12 months before the end of that period, that is not earlier than 2 years after the cause of action accrued.

         

        In respect of 17(3) a court can grant leave only if the uncontradicted evidence establishes the cause of action relied on, and the requirements of s 16(3) are fulfilled. The final ingredient of s 17 (3) is not easy to understand. It means that the appellant must show that, when he commenced the action on 11 November 1994, it was outside his actual or constructive knowledge that the matters constituting the cause of action had occurred more than three years before the action was commenced. All of the three elements of s 17(3) must be established.

         

        Section 19 defines the meaning of “material facts relating to a cause of action”. It provides:

         

        “19.   In sections 16 and 18 any reference to material facts relating to a cause of action means a reference to any one or more of the following:‑

         

        (a)     the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

        (b)     the nature or the extent of personal injuries resulting from that negligence, nuisance or breach of duty;

        (c)     the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.”

         

        Section 20 defines the meaning of “facts of a decisive character” referred to in s.16(3). The section provides:

         

        “20.   For the purposes of sections 16 and 18, any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 22 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that, apart from any defence under subsection (1) of section 4, an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.”

         

        On these statutory provisions we have two comments.

         

        First, it is apparent that the three elements of s 17(3), including the requirements of s 16(3), must be fulfilled before the court can grant leave. That emerges from s 17(3) providing that the court may grant leave “if but only if” the requirements of the subsection are fulfilled. If these requirements are not fulfilled, the court lacks jurisdiction to grant leave. No question of discretion arises.

         

        If the requirements are fulfilled the court “may” grant leave, that is the court then has a discretion. In exercising that discretion the court will have regard to such matters as the cause or reason for the delay, and whether, and if so to what extent, the defendant may have been prejudiced in his defence by the delay. Further the court can then consider whether, having regard to all the circumstances, it is just to grant leave.

         

        Secondly we emphasise the importance of these provisions limiting the right to bring actions for personal injuries. They can have a significant effect on any person who has suffered injuries as the result of the actions of another. The provisions of s 16 and s 17 are in our view, unnecessarily complex and difficult to understand. Indeed they can fairly be described as convoluted. This is an undesirable feature of legislation that can affect the lives of ordinary citizens. It is our recommendation that the authorities give active consideration to the re‑enactment of these provisions in a form that is simple, clear and easy to understand. A useful model is the provisions in the Limitation Act 1980 (UK), which fulfil these requirements, and which replaced the provisions of the 1963 UK Act, which were in terms substantially the same as those in the Fiji Act.

         

        The pleading submission

         

        Mr. Chand submitted that the application for leave should have been granted because the respondents did not in their statement of defence specifically plead the Act as required by O 18 r 7(a) of the High Court Rules 1988. That rule requires a party pleading subsequent to a statement of claim to plead specifically any relevant statute of limitation. The respondents had filed a statement of defence dated 30 March 1995. It did not plead the Act as a defence.

         

        We do not accept Mr. Chand’s submission that this omission should mean that the application for leave should have been granted. The action that the appellant had commenced, and the application for leave to continue those proceedings despite their having been commenced after the expiry of the limitation time, are separate proceedings. If the time for commencing the proceedings had expired when the action was commenced, leave is required. That requirement cannot be affected by the pleadings in the action already commenced.

         

        The knowledge of the appellant

         

        Mr. Chand submitted that the appellant only had knowledge of the material facts relating to the cause of action when his solicitors received the medical report of 21 February 1992 or from the date when the appellant was acquitted of the charge of dangerous driving on 21 July 1994. Time should begin to run from either of these dates. The first part of the submission requires consideration of s 19, the second of s 20.

         

        The medical issue requires, in terms of s 19(b), consideration of the respondent’s knowledge of the nature or extent of the personal injuries resulting from the first respondent’s claimed negligence. The appellant in his affidavit said that he received severe injuries in particular to his right leg which had compound multiple fractures. It required internal fixation as did the right knee cap. These were affixed on 12 April 1990 following which he suffered post operative wound infection. He deposes to suffering constant and continuous headache and pain on to his right leg from his hip downwards and also pain caused by the fixation. He was re-admitted to hospital on 28 July 1991 for further post operative measures and was discharged on 2 August 1991. Symptoms have continued to the present time.

         

        In our view, on that evidence, the conclusion is inescapable that the appellant knew or ought to have known the nature and extent of his personal injuries shortly after the accident and certainly during the course of his hospital treatment until his final discharge in August 1991. Further on 21 February 1992 a surgeon at the hospital provided to the appellant’s solicitors a letter describing the injuries and calculating his permanent disability at 20%. So by that date if not earlier the appellant knew the nature and extent of his injuries. This knowledge was well within the 3 year period which expired on 6 April 1993 and was earlier than 12 months before that date. It follows therefore that, in respect of his injuries, the appellant has failed to fulfil the requirements of s 16(3).

         

        We do not accept Mr. Chand’s submission that the appellant did not have knowledge of facts of a decisive character relating to the accident itself until the appellant was acquitted of the charge of dangerous driving on 21 July 1994. In terms of s 20, the appellant knew facts relating to the accident which a reasonable person, knowing those facts and having obtained appropriate legal advice, would have regarded as determining that an action would have a reasonable prospect of succeeding and resulting in the award of damages sufficient to justify the bringing of the action. The appellant was charged with the offence of dangerous driving on 19 October 1990. It is reasonable to assume that if the circumstances relating to the accident had not been adequately investigated before then, they would have been within a reasonable time after the laying of the charge.

         

        It follows from these conclusions that the appellant has failed to fulfil the requirements of s.16(3) because he had knowledge actual or constructive of facts of a decisive character well before the end of the 3 year period and earlier than 12 months before the end of that period.

         

        The appellant faces a further difficulty. The third ingredient of s 17(3) requires the appellant to establish that he had no actual or constructive knowledge, before commencing the action, that the matters constituting his cause of action had occurred more than three years before commencing the action. He cannot do so. Obviously, when he commenced his action on 11 November 1994, he knew that the cause of action had accrued more than three years before. That is obvious from the statement of claim. As was observed by this court in Permal v Sami and Saweta Civ App 19/85 (FCA Reps 88/10), cases where leave may be given after commencing an action would be rare. The court said at page 7 of the unreported judgment:

         

        “Generally speaking it can be stated that in virtually all cases leave should be sought before issuing a writ. If leave is sought after commencement of the action a court has no jurisdiction to entertain the application unless the applicant can satisfy the court that he did not know, and could not with reasonable diligence discover, that the material facts on which he based his claim had occurred more than three years before he issued the writ.”

         

        Discretion

         

        Mr. Chand submitted that even if the appellant had not fulfilled the requirements of s 16(3) and s 17(3), the Judge ought to have exercised his discretion by granting the application, on the grounds that the prejudice to the appellant from not granting the application is greater than the prejudice to the respondents from granting it.

         

        This submission cannot succeed. As we have pointed out, the court’s discretion arises only after the appellant has cleared the hurdles of s 16(3) and the three ingredients of s 17(3). If, as in this case, he stumbles and falls at either hurdle, no question of discretion can arise. In this respect, we point out that the Act contains no provision equivalent to s.33(3) (a) of the UK Act which provides that, in considering an application, the court shall have regard to all the circumstances of the case and in particular to the matters referred to in the subsection, a provision recently considered by the Court of Appeal in England in Coad v. Cornwell and Isles of Scilly Health Authority [1997] 8 Med LR 154.

         

        The Result

         

        The judge was correct in reaching the conclusion that the appellant’s claim is statute barred and the application for an order extending the time should not be granted.

         

        The appeal is dismissed. The respondent is awarded $1,000 costs inclusive of disbursements.

         

        (Appeal dismissed.)
 

The State v. The Director of Social Welfare ex parte Ana Ramoci Delana

        [1999] 45 FLR 169

        HIGH COURT OF FIJI ISLANDS

         

        STATE

         

        v.

         

        THE DIRECTOR OF SOCIAL WELFARE

         

        ex parte:

        ANA RAMOCI DELANA

         

        [HIGH COURT, 1999 (Shameem J) 11 August]

         

        Revisional Jurisdiction

         

        Public Service- appointments and promotions- how constitutional criteria are to be applied- Constitution (1997) Section 140.

         

        The Applicant complained that the Director of Social Welfare had miscarried his discretion when he rejected her application for promotion. The High Court found against the Applicant and HELD: that in balancing the considerations set out in Section 140 of the Constitution the appointing body had to be given a wide discretion, fettered only by considerations of reasonableness.

         

        Cases cited:

         

        Anuradha Charan v. Public Service Commission & Ors Civ. App. 2/92

                     (FCA Reps 93/661)

        R.W. (an infant) [1971] AC 682

        Westminister Corporation v. L&NW Railway [1905] AC 426

         

        Motion for judicial review in the High Court.

         

        I. V. Tuberi for the Applicant

        E. Walker for the Respondent

         

        Shameem J:

         

        On 28th May 1999 an Application for Leave to apply for Judicial Review of the decision of the Director of Social Welfare to promote one Narendra Prasad to Assistant Director (Operations) Social Welfare on 9th April 1999, was filed in the High Court pursuant to Order 53 Rule 3(2) of the High Court Rules 1988.

         

        The following relief was sought:

         

        (a)     An order of certiorari to quash the decision.

         

        (b)     An order of mandamus compelling the Director to appoint the Applicant as Assistant Director.

         

        (c)     Alternative to (b), mandamus to compel, the Director Social Welfare to re-advertise the post and that the provisions of Section 140(b) of the Constitution (Amendment) Act 1997 be complied with on selection.

         

        The grounds upon which relief is sought is

         

        (a)     The Respondent acted ultra vires the Constitution when he appointed Narendra Prasad as Assistant Director when the Applicant was better qualified.

         

        (b)     The decision of the Respondent to appoint Narendra Prasad was unreasonable.

         

        (c)     The Respondent had failed to appoint on merit and was in breach of the Applicant’s legitimate expectations.

         

        The Application was supported by the affidavit of Ana Ramoci Delana.

         

        On 11th June 1999, Counsel for the Respondent, Mr E. Walker agreed that leave should be granted. Leave was granted, and the matter set for hearing for 29th July 1999.

         

        The court had before it, the affidavit of Ana Ramoci Delana filed on 28th May 1999, the affidavit of Aseri Rika, Director of Social Welfare, filed on 10th June 1999, and an affidavit in response of Ana Ramoci Delana filed on 21st June 1999.

         

        In addition, counsel for the Applicant Mr V. Tuberi and counsel for the Respondent Mr E. Walker made both written and oral submissions.

         

        The facts of the case are simple. The post of Assistant Director (Operations) was advertised on 28th February 1999 in the Public Service Circular. The advertisement reads as follows:

         

        “POST

         

        ASSISTANT DIRECTOR (OPERATIONS)

         

        DUTIES

         

        Advise on Policy matters to the Director Consultancy, professional advice to the staff. Initiation of programmes relating to field and institutional services. Supervision of Senior Welfare Officers, Welfare Officers, Non-Government organisations and others seeking assistance. Advise and process all overseas applications for adopting Fiji children. Attend meetings, give lectures to different organisations, both government and non-government.

         

        QUALIFICATIONS

         

        An officer of high calibre. Qualifications required for appointment as Senior Welfare Officer and at least 3 years service in that grade or equivalent. Consistency good reports and ability to manage staff and resources. Must have demonstrated intellectual capacity, drive, determination and flair in existing grade.

         

        SALARY:         ADO1: $29,408 - $32,849"

         

        There were five applicants for the job. Four were qualified and were interviewed by the Social Welfare Department Staff Board, which was chaired by the Permanent Secretary for Justice, and comprised of three other members.

         

        The Staff Board interviewed the four qualified applicants and assessed each on the basis of the interviews and their Annual Confidential Report ratings.

         

        The Applicant was rated the highest at 220 marks, whilst Mr Narendra Prasad was rated second at 211 marks.

         

        The Staff Board then recommended that “Mrs Delana has acquired the necessary requisite experience for this post and has been exposed in performing the duties of the post. She is also the most senior officer in the Senior Welfare Officer grade.”

         

        The Applicant was then recommended for promotion to the post.

         

        The recommendation of the Staff Board was not accepted by the Head of Department, Aseri Rika. At Annexure B to his affidavit, Mr Rika minuted as follows on the 15th of April 1999.

         

        “I have taken into consideration the recommendation of the Staff Board and in view of the very close ratings of Mrs A. Delana and Mr N. Prasad I have decided to consider Mr Prasad for promotion to the post of Assistant Director Operations.

         

        My further justifications are as below:

         

        1.       The need to appoint an Indian officer in view of the inbalanced ethnic representation in the Department.

         

        2.       Mrs Delana has failed to prove her capabilities and potential whilst in the acting capacity. She did not maintain a cordial relationship with the subordinate staff.

         

        3.       The Acting Appointment was given to Mrs Delana due to her proximity to the vacant post to avoid any unnecessary movement of her staff.

         

        4.       The appointee to this position should be able to work in close consultation with the Director and be able to implement all decisions promptly and effectively.”

         

        The application to review the decision, is in effect, an application to review the decisions of the Director to reject the recommendation of the Staff Board and to appoint Mr Narendra Prasad to the post.

         

        In his submissions, Mr V. Tuberi for the Applicant submitted that the delegation of the powers of appointment by the Public Service Commission to Heads of Department was repealed by the Constitution Amendment Act 1997, that the Director had failed to appoint on merit as he was obliged to under Section 140(a) of the Constitution, and that he had disregarded Section 140(b) of the Constitution which provided that men and women should have adequate and equal opportunities for training and advancement. He submitted that the Applicant was clearly the most qualified of the applicants as she held a Diploma in Community Development, and a Bachelor of Arts Degree in Management and Sociology. In comparison, Mr Narendra Prasad held a Diploma in Community Development. He argued that the decision to appoint Mr Prasad was therefore an unreasonable one. He further argued that the need to achieve racial balance in the public service was an irrelevant consideration and that the Applicant had a legitimate expectation that the Director would honour the selection process through the Staff Board. He argued finally that it was unreasonable of the Director to override the decision of the Staff Board when it was chaired by his superior, the Permanent Secretary for Justice.

         

        In response, Mr E. Walker submitted that the delegation of powers of appointment was saved by Section 195(2)(i) of the Constitution (1997). He submitted that the Staff Board was merely an internal body set up by Departments to advise the Head of Department on staff matters.

         

        Mr Walker submitted that since the Staff Board had no legal status, the only issue was whether the Head of Department had acted reasonably in rejecting the recommendation to promote the Applicant.

         

        He argued that Section 140(a)(b)(c) and (d) of the 1997 Constitution should be construed to hold that whilst merit was paramount, the appointing authority should also consider ethnic balance. Mr Walker argued that gender, in comparison, was of limited relevance in appointments.

         

        As such, he argued that the Director had acted reasonably in exercise the power delegated to him particularly given the closing rating in the interview results of both applicants. He submitted finally that since the Applicant’s acting appointment, nor the recommendations of the Staff Board, are automatically followed by appointment, she could not have a legitimate expectation to be appointed. Mr Walker asked for the application to be dismissed.

         

        Appointment

         

        I turn firstly to the question of whether the Director of Social Welfare has powers to appoint to the post of Assistant Director.

         

        Legal Notice No. 138 of 1997 delegated to the Director of Social Welfare, powers given to the Public Service Commission under Section 127 of the 1990 Constitution, to make appointments, to promote, to transfer and to discipline in respect of all occupational groups.

         

        Section 195(2)(i) of the 1997 Constitution provides:

         

        “Despite the repeal of the Constitution .. .. .. 1990:

         

        (1)    all delegations that:

         

        (i)      had been given before that repeal by a commission or person referred to in the Constitution of 1990; and

         

        (ii)     were in force immediately before that repeal;

         

        continue in force, on and after that repeal, as if given by the corresponding commission or person referred to in this constitution.”

         

        Legal Notice No. 138 of 1997 states as follows;

         

        “Pursuant to the provisions of subsection (3) of Section 127 of the Constitution and Section 6 of the Public Service Decree 1990, the Public Service Commission (“Commission”) hereby delegates, subject to the provisions of the Constitution, to Permanent Secretaries and Heads of Departments listed in Schedule “A” hereunder, the Commission’s powers to:-

         

        (a)     make appointments (including power to confirm appointments and to make probationary and acting appointments), promotions .. .. .. .. in respect of all occupational groups.”

         

        I am of the view that this delegation to the Heads of Department specified in Schedule 2 of the Notice which includes the Director of Social Welfare is saved from repeal, by Section 195(2)(i) of the 1997 Constitution.

         

        As such, the Respondent had the power to appoint to the post which is in issue in this application.

         

        Ultra Vires and Unreasonableness

         

        Whilst the Respondent, in my view had powers to appoint and promote, he was obliged to exercise the powers reasonably, in good faith and on correct grounds. The process of judicial review is about a review of the decision-making process. It cannot be concerned with the merits of the decision itself.

         

        As Lord McNaughten said in Westminister Corporation -v- L & NW Railway [1905] AC 426 at 430 -

         

        “It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.”

         

        The Applicant say firstly that the Respondent was obliged to take into account the relevant considerations provided under Section 140 of the Constitution (1997).

         

        That section provides;

         

        “The recruitment of persons to a state service, the promotion of persons within a state service and the management of a state service must be based on the following principles:

         

        (a)     government policies should be carried out effectively and efficiently and with due economy;

         

        (b)     appointments and promotions should be on the basis of merit;

         

        (c)     men and women equally, and the members of all ethnic groups should have adequate and equal opportunities for training and advancement;

         

        (d)     the composition of the state service at all levels should reflect as closely as possible the ethnic composition of the population, taking account, when appropriate of occupational preferences.”

         

        Section 140 of the Constitution provides that in appointments and promotions, merit is relevant, ethnic composition of the institution is relevant, efficiency, effectiveness, and economy are relevant, and finally, gender is relevant.

         

        At paragraph 10 of his affidavit Aseri Rika, Director Social Welfare explained his decision as follows:

         

        “As advertised the Assistant Director (Operations) in the Department of Social Welfare must work closely with me as Director advising on policy matters and the management of staff within the Department in addition to other assigned duties. I verily believe that as Director I am able to promote the individual I think is best suited for the position provided the promotion is on line with the current appointment and promotion policies.”

         

        The qualifications relevant to the post were specified in the advertisement, already set out in this judgment. In particular the advertisement required a person with “consistently good reports and ability to manage staff and resources. Must have demonstrated intellectual capacity, drive, determination and flair in existing grade.”

         

        These criteria in addition to the requirement set out in Section 140 of the Constitution are the relevant considerations to be taken into account for appointment to the post.

         

        In his minute of 1st April 1999, the Director took into account ethnic representation, the Applicant’s ability to maintain a cordial relationship with the staff her ability to consult with the Director, and to implement decisions promptly and effectively.

         

        It is difficult to see how the Director erred in the exercise of this discretion.

         

        Mr Tuberi for the Applicant submits that the Respondent failed to give weight to the fact that she is a woman. In her affidavit, the Applicant at paragraph 15 deposes that;

         

        “. . . . it appears to me that the regime in the Department of Social Welfare was to establish a male oriented management team....”

         

        However there is no evidence before me that in rejecting the Staff Board recommendation the Respondent was in any way influenced by the Applicant’s gender. In the balancing of the considerations set out in Section 140 of the Constitution, the appointing body must be deemed to be given a wide discretion.

         

        The balancing of the Section 140 criteria is inevitably complicated when an appointing authority is faced with applicants who are men and women, and who are of many races. What weight should be put on race, and what weight on giving men and women equal opportunities of advancement?

         

        In the balancing of these considerations the appointing authority must have a wide discretion fettered only by considerations of reasonableness. Whether another person may have decided to give greater weight to gender issues is irrelevant. As Lord Hailsham LC said in R.W. (An Infant) [1971] AC 682 at 700, two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be considered reasonable.

         

        In Anuradha Charan -v- Public Service Commission & Others Civil Appeal No. 2 of 1992, (FCA Reps 93/661) the Applicant had applied to review the decision of the Commission to promote other candidates over the Applicant. She had claimed that she was better qualified for the posts concerned.

         

        The High Court had refused the application. On appeal, the Court of Appeal said:-

         

        “Clearly the Commission must observe the proper rules and procedures in seeking and considering applications for vacancies. In so doing they must evaluate evidence of all aspects of the candidates’ abilities, qualifications and attitudes. Having done so, they are left with a discretion to decide the suitability of the candidate for the post under consideration. That discretion must include the right to decide, if based on proper grounds, that despite fulfilling all the stated qualifications, the candidate may still not be suitable. There may be many reasons why a particular person should not be appointed despite suitable qualifications on paper and there is no right of automatic appointment in the event that no other qualified person applies.”

         

        In the circumstances I can find no evidence on the material before me, that the Respondent acted unreasonably or that he took into account irrelevant considerations, or that he failed to take into account relevant matters.

         

        Nor can I accept Mr Tuberi’s argument that the Respondent was unreasonable in overriding the decision of his superior, the Permanent Secretary for Justice. It was agreed by counsel that the Staff Board had no legal status and was merely an internal consultative mechanism to assist the Head of Department in whom the power to appoint vests. This is also apparent from the report of the Board. As such, it seems very unusual that the Board should be chaired by a person outside of the Department.

         

        However, no evidence was provided to the court to explain the choice of chair of the Board. As such, I can only conclude that in chairing a body subject to being overruled by the Director, the Permanent Secretary accepted such a subordinate role.

         

        I cannot agree that the Respondent is always obliged to agree with the Staff Board simply because it is chaired by a Permanent Secretary. To accept that proposition would be to frustrate the advisory role the Board itself appears to have, as reflected in the report at Annexure “A” of the affidavit of Aseri Rika.

         

        Nor can I agree that the Applicant had legitimate expectations that were breached.

         

        The advertisement for the post clearly set out the criteria relevant to the appointment. It was on the basis of that criteria, and considerations of Section 140 of the Constitution that another person was appointed.

         

        In the circumstances and for the reasons set out in the judgment, I am not satisfied that the Respondent acted ultra vires and unreasonably in the exercise of his discretion to appoint Mr Narendra Prasad.

         

        I dismiss the application accordingly and order costs against the Applicant to be paid to the Respondent to be taxed if not agreed.

         

        (Motion dismissed.)
 

The State v. The Disciplined Services Commission ex parte Beniamino Naiveli

        [1999] 45 FLR 282

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        THE DISCIPLINED SERVICES COMMISSION

         

        ex parte

        BENIAMINO NAIVELI

         

        [HIGH COURT, 1999 (Fatiaki J) 19 November]

         

        Revisional Jurisdiction

         

        Public Service- Fiji Police Force- dismissal of gazetted police officer following conviction for criminal offence- whether a disciplinary enquiry must be held- Police Service Commission Regulations 24, 26 - Constitution, 1970 Section 135.

         

        The Applicant who was previously Assistant Commissioner of Police (Crime) sought judicial review of the decision of the Police Service Commission to dismiss him following his conviction of the criminal offence of abuse of office. The principal ground advanced was the failure of the Commissioner of Police to hold a disciplinary enquiry before recommending the Applicant’s dismissal. The High Court rejected this submission and HELD (i) Regulation 24 provides a procedure for dismissal independent of that laid down in Regulation 26 and does not require an enquiry to be held; and (ii) the applicant’s only right to be heard by the Commission was on the matter of the Commissioner’s recommendation.

         

        Case cited:

         

        State v. Police Service Commissioner ex parte Naiveli (HBJ 29 of 1994S)

         

        Application for leave to move for judicial review.

         

        N. Sadhu for the Applicant

        S. Kumar for the Respondent

         

        Fatiaki J:

         

        This is an opposed application for leave to issue judicial review proceedings against a decision of the Police Services Commission taken on the 21st of July 1998 dismissing the applicant from the Fiji Police Force. An earlier identical application was apparently aborted after leave had been granted over the respondent’s objection, owing to the substantial amendments that were sought to be made to the original motion after leave had been granted.

         

        On 1st September, 1999 after hearing counsel I refused leave for reasons which I now provide.

         

        The rather sorry chronicle of this matter dates back to March 1991 when the applicant was first charged with an offence of Abuse of Office whilst holding the position of Assistant Commissioner of Police (Crime). It may be conveniently set out as follows:

         

        (1)     18.3.91 applicant interdicted on half pay;

         

        (2)     12.6.92 applicant was convicted in the High Court for an offence of Abuse of Office and was fined $1,000.00 in addition to a suspended prison sentence;

         

        (3)     12.8.94 the Fiji Court of Appeal upheld the applicant’s conviction and sentence in Criminal Appeal No.4of 1992;

         

        (4)     24.8.94 the Commissioner of Police in a report to the respondent Commission recommended the applicant’s dismissal;

         

        (5)     25.8.94 the respondent Commission dismissed the applicant from the Fiji Police Force;

         

        (6)     28.9.94 applicant’s solicitors advised that an appeal to the Supreme Court against the decision in (3) above was pending and sought the vacation of the decision in (5) above;

         

        (7)     10.11.94 the respondent Commission replied upholding its decision in (5) above;

         

        (8)     25.1.95 the applicant obtained leave to issue Judicial Review against the decision in (5) above in Judicial Review No. HBJ 29 of 1994;

         

        (9)     4.8.95 Scott J. quashed the dismissal decision in (5) above and ordered costs against the respondent Commission;

         

        (10)   23.8.95 the respondent Commission appealed against Scott J’s decision in (9) above to the Fiji Court of Appeal (later confined to the indemnity costs awarded);

         

        (11)   20.11.95 the Supreme Court of Fiji refused the applicant special leave to appeal against the decision in (3) above;

         

        (12)   16.8.96 the Fiji Court of Appeal dismissed the appeal in (10) above and ordered costs against the respondent Commission

         

        (13)   24.11.97 the Commissioner of Police re-submitted to the respondent Commission his report in (4) above with the same recommendation;

         

        (14)   11.12.97 the applicant was dismissed a second time from the Police Force by the respondent Commission;

         

        (15)   1.6.98 the respondent Commission vacated its decision in (12) above and sought written submissions from the applicant;

         

        (16)   25.6.98 the applicant filed written submissions seeking permission ‘to retire voluntarily’;

         

        (17)   21.7.98 the respondent Commission rejected the request and affirmed the applicant’s dismissal (a third time) ‘from 12.6.92’;

         

        (18)   4.8.98 applicant’s counsel sought the respondent Commission’s reason(s) for its decision in (15) above;

         

        (19)   28.8.98 the respondent Commission replied to the request alluding inter alia to the applicant’s criminal conviction;

         

        (20)   26.10.98 further clarification was sought from the respondent Commission;

         

        (21)   8.12.98 the respondent Commission refused to elaborate on its earlier reasons disclosed in its letter at (17) above;

         

        (22)   24.3.99 application seeking leave to issue judicial review filed;

         

        (23)   26.3.99 respondent’s objection to leave filed;

         

        (24)   28.4.99 Motion to amend Notice of Motion applying for judicial review;

         

        (25)   12.5.99 leave granted by Pathik J. to the applicant to withdraw application in (22) above;

         

        (26)   10.6.99 Order granting leave to withdraw application in (22) above sealed;

         

        (27)   11.6.99 fresh application for leave to issue judicial review proceedings and respondent’s opposition to leave filed;

         

        (28)   22.6.99 respondent’s amended objection to leave filed;

         

        So much then for the chronology of significant dates which extends over a period of eight years during which time the applicant remained interdicted on half pay for at least three years; was ‘dismissed’ on no less than three separate occasions over four years; and three months was lost on an aborted application for judicial review.

         

        There can be no doubting that the applicant as the person directly affected by the respondent Commission’s dismissal decision has a sufficient interest to apply for judicial review. Equally there can be no doubting that having regard to the primary relief sought by the applicant and taking the latest dismissal decision of the respondent Commission taken on the 21st July 1998 at (17) above, there has been some delay in applying for judicial review.

         

        In this latter regard the respondent’s amended grounds of objection to leave states:

         

        ‘(1)    The application is out of time as per Order 53 r.4 since the decision to dismiss the applicant was reached on 21st July, 1998; and

         

        (2)     The respondent in reaching the decision to dismiss the applicant duly followed the procedure laid out in Regulation 24 of the Disciplined Services Commission Regulations and thus there was no procedural impropriety nor the decision was illegal.’

         

        As to (1) Counsel for the applicant submits that there has been no undue delay since there has been correspondence exchanged between the applicant’s solicitors

         

        and the respondent Commission after its dismissal decision seeking its reasons therefor and these were only finally concluded with the respondent Commission’s refusal on or about 8.12.98 [See: (17) to (21) above]. Thereafter Counsel states the applicant was hospitalised for several months and underwent surgery, but, in any event, any delay has not been undue.

         

        State Counsel submits that Order 53 r.4 of the High Court Rules 1988 is clear in laying down a three month time limit where the relief sought is an order of certiorari.

         

        Furthermore counsel submits that the reason or excuse advanced for the delay namely, counsel trying to obtain reasons or clarification from the respondent Commission for its decision, is plainly insufficient in so far it could have provided a substantive ground for seeking judicial review of the decision.

         

        In this regard it is noteworthy that Regulation 26(9) of the Police Service Commission Regulation merely obliges the Secretary of the respondent Commission to communicate to the officer concerned the decision of the respondent Commission but not the reasons for the decision. Needless to say if an officer is statutorily disentitled to the reasons for the (Commissions) decision any delay caused by a request for the same must be viewed in that context.

         

        A further more obvious reason is that the time limit is clearly imposed in the public interest on the applicant for judicial review to comply with, and as such, the court should be slow to countenance or sanction any attempt unilaterally to shift the onus of compliance or suspend the date from which time begins to run, onto the respondent.

         

        Having said that however I am not satisfied that the respondent Commission has provided any factual or evidential basis from which this Court could form any adverse opinion as to any hardship, prejudice or detriment to good administration that might have been caused by the applicant’s delay or by the grant of leave now and accordingly, I reject this first ground of objection.

         

        I turn next to the ground (2) of the amended objection which seeks to challenge the arguability of the applicant’s claim for substantive relief.

         

        Counsel for the applicant in seeking leave submits that the papers disclose that the applicant was denied natural justice in that he was dismissed without a hearing or, only as to punishment. This submission if I may say so, is predicated on the view that the respondent Commission has no power to summarily (for want of a better term) dismiss a gazetted police officer who has been convicted of a criminal offence, in the absence of a disciplinary inquiry conducted in accordance with Part VIII of the Police Service Commission Regulations.

         

        There is dictum in HBJ 29 of 1994 [op.cit at (8) above] per Scott J. that lends some support for Counsel’s submission where his lordship said (at p.7):

         

        ‘... there is nothing whatever in the wording of the Regulations under consideration to suggest the existence of a two track approach to disciplinary proceedings, the first an ‘abnormal approach’ under Regulation 23 for ‘serious’ criminal offences and the second under Regulation 24 for less serious criminal offences such as those listed under Regulation 18.’

         

        and later at p.12 where he says:

         

        Unfortunately neither counsel addressed me on the precise point which had emerged. Mr. Gates confined his submissions to Regulations 23 and 24 and Mr. Singh simply stood by his written submission without offering any explanation at all of how Regulation 23 could give the Respondent or anyone else the power to dismiss anyone given that neither the Respondent nor dismissal are even mentioned in it. Neither did he explain how the procedures laid down by Regulation 26(1) could possibly have been followed given that the Respondent never received a report from the Commissioner pursuant to Regulation 24 (the Appeal procedures not having been completed) and could not do so under Regulation 23 since that Regulation does not empower any body to send anything to anybody at all.’

         

        and finally at pp.13/14 where the following passages are to be found:

         

        ‘I have the gravest doubts as to whether the Respondent could act under Regulation 28 except following consideration of a report provided to it under Regulation 26(7). I am however entirely satisfied that Regulation 23 provides no procedure for dismissal, or for forwarding any report by the Commissioner to the respondent, that Regulation 24 only becomes operative following the exhaustion of the whole and entire appeal procedure available to an appellant and that the actual dismissal procedure by the Respondent must be commenced with a consideration by the Respondent of the report furnished to it under Regulation 24 following which it must decide whether or not a disciplinary inquiry should be held.

         

        It is interesting to note that convictions for a criminal offence by a gazetted officer do not necessarily result in dismissal although the idea that a very senior police officer could be found guilty of a serious crime... and not suffer dismissal seems strange. Regulation 24 requires the Commissioner to report the conviction to the Respondent ‘together with his recommendation as to punishment, if any’. Presumably if the recommendation is that there should be no punishment then no disciplinary inquiry will be held.’

         

        Counsel for the applicant accepted however, that it was not the respondent Commission’s decision not to hold a disciplinary inquiry that was being challenged but the decision dismissing the applicant from the Fiji Police Force. Needless to say the former decision is contained in the respondent Commission’s letter of 1st June 1998 and having regard to the applicant’s comprehensive submission that followed the letter without objection, it may well be that this issue must now be considered as having been waived.

         

        In this latter regard reference maybe made to the applicant’s grounds (a) to (d) which appear to assume that in the given circumstances, the respondent Commission was duty bound to hold a disciplinary inquiry pursuant to Regulation 26(1)(b) before imposing a penalty on the applicant.

         

        State Counsel for his part relies on the provisions of Regulation 24 of the Police Service Commission Regulations and submits that it was duly followed by the respondent Commission in reaching its decision to dismiss the applicant.

         

        Regulation 24 provides:

         

        ‘Where criminal proceedings have finally concluded (including the determination of any appeal) resulting in the conviction of a gazetted officer, the Commissioner shall report the matter, together with his recommendation as to punishment, if any, to the secretary who shall forward the report to the Secretary of the Commission for consideration by the Commission.’

         

        Having independently considered the scheme of PART VIII of the Police Service Commission Regulations, I am driven to the firm view that Regulation 24 provides an avenue or procedure for the dismissal of a gazetted officer without the holding of a disciplinary inquiry. My reasons for saying so are briefly as follows:

         

        (1)     There can be no doubting the power of the Respondent Commission ‘to remove officers from The Fiji Police Force’ or ‘to take disciplinary action’ ... (See: Section 129(1) of the 1990 Constitution and Sections 152(1)(b) & (c) of the 1997 Constitution).

         

        (2)     Regulation 26 of the Police Service Commission Regulations is silent on what happens where the respondent Commission decides not to hold a disciplinary inquiry as occurred in the applicant’s case;

         

        (3)     The decision not to hold a disciplinary inquiry does not in my view, necessarily or inevitably mean that the respondent Commission has therefore decided not to remove the officer concerned or is precluded from exercising such powers;

         

        (4)     Regulation 24 provides a procedure independent of Regulation 26, whereby a gazetted police officer who has been convicted of a criminal offence, may be dismissed without a disciplinary inquiry being first held;

         

        (5)     Regulation 24 is entirely predicated upon the conviction of a gazetted officer for a criminal offence, irrespective of whether or not there exists a disciplinary equivalent for the offence.

         

        In the applicant’s case, he was convicted for an offence of Abuse of Office: contrary to Section 111 of the Penal Code Cap.17 of which the Court of Appeal said, in dismissing the applicant’s appeal, in Criminal Appeal No. 4 of 1992, at (p.10):

         

        ... such offences strike at the very roots of the administration of law and order and justice in this country. Such an offence can be committed only by a person who is in a position of authority and trust.’

         

        Given the nature of the criminal offence with which the applicant was convicted after trial in the High Court and considering the position he held within the Fiji Police Force at the relevant time, it is difficult to imagine a more serious equivalent disciplinary offence, nor, in my view, would it serve any useful purpose to conduct a disciplinary inquiry into any disciplinary offence(s) that might have occurred during the course of the commission of the criminal offence by the applicant.

         

        (6)     In addition, Regulation 24 requires the Commissioner of Police ‘(to) report the matter, together with his recommendation as to punishment, if any,’ to the respondent Commission for its consideration.

         

        In my view the requirement that the Commissioner of Police consider the (disciplinary) punishment appropriate for the criminal offence committed merely serves to further emphasise the distinction between the (summary) procedure under Regulation 24 and that under Regulation 26(1). One is tempted to ask why consider the punishment and not whether disciplinary proceedings for dismissal should be instituted if a disciplinary inquiry is a pre-requisite to dismissal?

         

        Needless to say, Regulation 5 requires the Commissioner of Police in furnishing his report under Regulation 24 to enclose with it ‘... copies of all necessary supporting and relevant documents’, and one may well ask, what more needs to be proved or established against the applicant that could or would add anything to what he already knows and has been proven in a Court of law ? and who better to gauge the consequences to the Fiji Police Force of such a conviction or the retention of the convicted officer than its Commissioner?

         

        In my view the respondent Commission on receipt of the Commissioner’s report is only required to consider whether or not the Commissioner’s punishment recommendation (if any) should be confirmed, altered or rejected, and, it is only on this narrow limited aspect of the matter that the applicant has a right to be heard and not otherwise.

         

        In this latter regard having considered the contents of the affidavit deposed by the Chairman of the respondent Commission, its letter to the applicant’s counsel of 1st June 1998 and Counsel’s written submission in response, I was more than satisfied that the application for judicial review was doomed to fail on the merits and accordingly leave was refused.

         

        Where however no punishment has been recommended by the Commissioner of Police then my provisional view is that the respondent Commission is still obliged to consider whether or not to hold a disciplinary inquiry in terms of Regulation 26.

         

        Having said that however, I am more than satisfied that the respondent Commission had no power to back-date the applicant’s dismissal to any date prior to its actual decision and more especially to a date which bears no relationship to the respondent Commission’s decision in the exercise of its powers under Regulation 24. To that limited extent the applicant’s dismissal must be and is hereby altered to take effect from July 22, 1998.

         

        (Leave to move for judicial review refused.)
 

The State v. Graham Bruce Southwick & Visanti Petero Makrava

        [1999] 45 FLR 292

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v

         

        GRAHAM BRUCE SOUTHWICK

        & VISANTI PETERO MAKRAVA

         

        [HIGH COURT, 1999 (Pathik J) 19 November]

         

        Criminal Jurisdiction

         

        Crime: procedure- application for award of costs by accused. - Criminal Procedure Code (Cap 21) Section 158 (2).

         

        The High Court permanently stayed a trial after certain documents were lost. The first accused sought to recover his costs. The High Court noted that at no stage prior to the application for the stay had it been suggested that the prosecution was unreasonable or an abuse of process. Furthermore the accused was committed for trial after a prima facie case had been established. In the circumstances the application was refused.

         

        Cases cited:

         

        Latoudis v Casey. (1990) 170 C.L.R 534

        R v AB [1974] 2 NZLR 425

        R v Chapple and Bolingbroke (1892) 17 Cox 455,

        R v Maywhort 39 Cr. App.R. 107

        R v Michael Somes - (1992) 106 FLR 97 (1992) ACT SC 19

        R v Sam Scott SCC No.75 of 1990

         

        Application for costs in the High Court.

         

        R.A. Shuster for the State

        J. Stewart Q.C. with J. Howard for 1st Accused

         

        Pathik J:

         

        This is a motion dated 13 July 1994 by the first accused Graham Bruce Southwick (the “applicant”) for an order for costs pursuant to section 158(2) of the Criminal Procedure Code Cap.21 (the `Act’) to be paid to the applicant in this action.

         

        The said section 158(2) provides:

         

        “It shall be lawful for a judge of the High Court or any magistrate who acquits or discharges a person accused of an offence, to order the prosecutor whether public or private, to pay to the accused such reasonable costs as to such judge or magistrate may seem fit.

         

        Provided that such an Order shall not be made unless the judge or Magistrate considers that the prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the same.”

         

        The hearing of the motion took place on 21 July 1999 when I heard submissions from both counsel on the issue before me.

         

        In exercising its power under the above section the Court has a discretion in the award of costs provided firstly, in the words of the section the prosecution had ‘no reasonable grounds for bringing the proceedings’ or secondly, has ‘unreasonably prolonged the same’ It is on firstly that Mr. Stewart addressed the Court and based his submissions on that alone.

         

        The basis of the claim by the applicant has been given in considerable detail by the learned defence counsel. It is based upon a collection of circumstances and I shall merely give a summary of the facts and arguments put forward by Mr. Stewart.

         

        Background facts

         

        The applicant Southwick and one other Visanti Petero Makrava were committed for trial at the High Court at Suva following an Oral Preliminary Inquiry before the Chief Magistrate on 7 October 1998; Southwick was represented by Mr. Stewart whereas Makrava was represented by Mr. G.P. Shankar.

         

        The trial of this action in the High Court commenced on 30 June 1999 but had to be adjourned for a few days until 5 July 1999 because Mr. Southwick was immobile with his leg in plaster and unable to attend Court. Assessors were sworn in on 5 July 1999.

         

        Before the hearing commenced Mr. Shuster for the D.P.P. encountered difficulties in obtaining disclosure of certain documents pertaining to the charges. The Prosecution attempted to trace the documents but were unsuccessful. This led to Mr. Stewart making an application to Court for a stay of the proceedings, to which Mr. Shuster, after addressing the Court, conceded. I then made an order in the following terms:

         

        “I therefore in the exercise of the court’s inherent power, supported by the authorities that had been referred to by counsel, grant a permanent stay of the trial of this case, and to use the words in the Birmingham Case, the information will be marked “stayed”, on the ground that the continuation of the case would constitute a misuse of the processes of the court, and a fair trial was not possible.”

         

        Now I turn to the nature of the arguments presented to me on the present application for costs.

         

        Mr. Stewart’s submission

         

        Mr. Stewart submits that the Prosecution pay Southwick such reasonable costs as the court thinks fit under s158(2) of the Act. He makes three points: firstly, the Prosecution had no reasonable grounds for bringing these proceedings, secondly, that Court should exercise its discretion to order the Prosecution to pay all costs; and thirdly, that the costs claimed set out in appendix B of his written submission are reasonable and that the Court make the Order in that total sum.

         

        On firstly, counsel commenced to deal with each count in the Information when I interrupted him to clarify whether there was any need for him to deal with each count in this manner when there has not been any trial in the Court on the charges and no evidence has been adduced.

         

        Counsel responded by saying that costs should follow the event and here Mr. Southwick has been discharged for the reason that a fair trial is not possible because Count 1 was fatally flawed, and also because the Prosecution in some form, the Police or the D.P.P. had lost documents which made it not possible to have a fair trial. He further submitted that the only basis for which he was going through this process is because of the terminology in s.158(2) so that “such order shall not be made unless the Judge considers that Prosecution either had no reasonable grounds for bringing the proceedings or had unreasonably prolonged the stay but not suggesting in this case the proceedings have been unreasonably prolonged.”

         

        Mr. Stewart submitted that there were no reasonable grounds for bringing the charges and that is the basis of the application and that therefore Southwick be compensated in costs for the extraordinary expense to which he has been put by this prosecution.

         

        It is Mr. Stewart’s argument, that these charges should have been included in another case which has just been disposed rather than charged separately and tried separately thus leading to an abuse as it breached the established procedures.

         

        Mr. Stewart continued with his submission and commented on each of the counts in the Information.

         

        Counsel submits that the facts of a committal for trial is no basis for disallowing costs. He told the Court when asked, that he is entitled to costs “right from the beginning”.

         

        Mr. Stewart’s legal submission on costs are contained in his Skeleton Submission.

         

        He submits that costs should generally follow the event and that in this case the wording of s.158(1) & (2) should be construed in the light of modern authorities in Australia and England. He made reference to Australian cases on costs thus:

         

        R v Michael Somes - (1992) 106 FLR 97 (1992) ACT SC 19. Miles, C.J.

         

        “The practice in this territory was authoritatively laid down by a Bench of Three Judges in McEwen v Siely, a decision which was approved by the majority judgments in Latoudis v Casey.” (1990 170 C.L.R 534).

         

        Mason, C.J. said on p542

         

        “In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for the costs or to make a qualified order for costs.”

         

        The approach of Mason, C.J.

         

        “appears to treat a prosecution which has failed as one which should not have been brought clearly excludes as irrelevant on the exercise of the discretion to award or refuse costs, any consideration of the public duty to prosecute or the reasonableness of the decision to prosecute.

         

        His Honour referred at P544 to situations in which it would be appropriate to deprive a successful defendant of his costs where the defendant has brought the prosecution upon him or herself, when the defendant has declined an opportunity of explaining his version of an offence before charges are laid, or conducted a defence in such a way as to prolong the proceedings unreasonably.”

         

        R v Sam Scott SCC No.75 of 1990 costs Higgins, J. said

         

        “There is a threshold question as to whether it is just that a person accused of an indictable offence and committed to stand trial in the court should be financially penalised by properly incurring legal costs, if the accused fails or is withdrawn. I have no doubt that it is unjust. For the reasons approved by the Majority of the High Court in Latoudis v. Casey (1990) 170 C.L.R. 534 successful defendant in criminal proceedings should, ordinarily, be compensated by a costs order. Not to do so is effectively to deny an accused person right to legal counsel and/or to impose a substantial financial penalty for exercising such a right.

         

        “I further observe that if the risk of an adverse costs order is contrary to the interests of justice, and I agree that generally it is, it can be avoided, if the courts, in the interests of justice, endorse the right of the accused person to put the Crown to proof, and to take all proper interlocutory proceedings in support of a proper defence without risk of an order for costs.”

         

        As for practice in England, Mr. Stewart says that it is governed by Practice Direction (Costs in Criminal Proceedings) Cr. App. R. 89: Archbold 6-104.

         

        Defence Costs from Central Funds in the Crown Court

         

        “Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant’s costs order in his favour. Such an order should normally be made ... unless there are positive reasons for not doing so. Examples of such reasons are

         

        (a)     the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is;

         

        (b)     There is ample evidence to support a conviction but the defendant is acquitted on a technicality which has no merit.

         

        Mr. Stewart submitted that there is no evidence of either example in this case.

         

        He further said that under section 28(1)(d) of the Fiji Constitution:

         

        “every person charged with an offence has the right:

         

        (a)     to be represented, at his or her own expense, by a legal practitioner of his choice.

         

        He submitted that the allegations were so serious that the applicant “was therefore in jeopardy of losing his freedom and his livelihood. His companies, if he was convicted and sent to prison, would probably have gone into liquidation, and the employees would have lost their job”.

         

        Therefore he says that the applicant was justified in instructing senior Queen’s Counsel from England, together with Mr. John Howard, to represent him.

         

        The costs claimed, he says, are reasonable bearing in mind the seriousness of the allegations and the legal and factual complexities of the case.

         

        Mr. Shuster’s submission

         

        Mr. Shuster filed his written submission in reply to Mr. Stewart’s submissions.

         

        He outlined the sequence of events emphasising that at no time prior to date of trial i.e. 30 June 1999 nor after it, did Mr. Stewart or Mr. Howard at any time raise the matter of abuse of process in relation to the charges against the applicant.

         

        I think it is important that I ought to set out the chronology of events. It is as follows as stated by Mr. Shuster in his said submission:

         

        “3.     The case was set for a full hearing at the High Court in Suva on 30/6/99, at the request of Mr. Southwick’s Counsel, Mr. Stewart. It was listed for a six week trial.

         

        4.       In the meantime Mr. Makrava was tried in the High Court before Mr. Justice Surman on 21st of May 1999. He was acquitted by the Assessors on a charge of Corruption. The period for appeal ended in June, 1999.

         

        5.       On or about the 2nd week of June 1999 the Office of the Director of Public Prosecutions wrote to Messrs Howards and G.P. Lala’s solicitors requesting a meeting. On or about the 17/6/99 the Director of Public Prosecution’s Office received a phone call from Mr. Howard suggesting an earlier meeting between Counsel for the State, and himself. No call or acknowledgment was received from Messrs G.P. Lala Solicitors.

         

        6.       A meeting took place at 2.15 on Tuesday 22/6/99. Certain issues were raised, nothing concerning abuse of process.

         

        7.       A further meeting took place at 2.35 on Tuesday 29/6/99 between State Counsel and Mr. Stewart Q.C. and Mr. Howard and a representative from G.P. Lala. Certain matters were raised. Nothing concerning abuse of process.

         

        8.       On 30/6/99 the Trial was called before the Honourable Mr. Justice Pathik; the case was adjourned to 5/7/99 due to an accident to Mr. Southwick.

         

        9.       A further meeting took place to agree facts at the office of Mr. Howard on Friday 2/7/99.

         

        10.     Again nothing was put forward indicating abuse of process.

         

        11.     The trial took place on Monday 5/7/99 when Assessors were sworn in. One declared he knew Mr. Makrava. He was discharged and the trial adjourned to the next day 6/7/99. Certain missing documents concerning a search warrant dated 10/7 were requested, by Messrs Howards and Co.

         

        12.     The State undertook to try to find them. On 6/7/99 the State requested a short adjournment to check on the contents of a Fax received from Mr. Shankar for Mr. Makrava. Mr. Shankar indicated documentation might exist which would be needed by his client. That document was faxed to the DPP’s Office 5/7/99. (exhibit 1).

         

        13.     On the 6/7/99 the State requested a short adjournment to try to locate the documentation requested, if they existed, in respect of the faxed request from Mr. G.P. Shankar.

         

        14.     This request was met with some slight objection by the Honourable Court, but was allowed.

         

        15.     The State checked with the Chief Manager of the NBF, Mr. Yee, The Manager of the Asset Management Bank Mr. Robert Escudier and the Samabula Manager of the NBF.

         

        16.     No other documents existed, at these offices.

         

        17.     The State Prosecutor returned and informed counsel for the defence.

         

        18.     As a result, the Defence at 2.15 p.m. Tuesday 7/7/99 told the State they were making an application for a stay alleging an abuse of process for the first time.

         

        It is the Prosecution’s contention that it had a strong case which was fully tested at the Oral Preliminary Inquiry before a Magistrate by the same Defence Counsel Mr. Stewart who also appeared in the High Court.

         

        It was on Friday 2 July 1999 that Defence Counsel just after 3.30 p.m. informed Mr. Shuster of the allegation of missing documents in respect of the Search Warrant dated 10 July 1997. On the State making inquiries and searches on Tuesday 6 July 1999 the State conceded that the Defence may not have had sight of those documents.

         

        It is Mr. Shuster’s submission that the Defence should have moved to have quashed the Information at a much earlier stage, rather than coming to trial, and in any event from 30 June 1999.

         

        Mr. Shuster argues that knowing that the co-accused Makrava had only just been acquitted of the charge of corruption should have challenged the Information and applied for the stay of indictment or of relevant counts. He referred the Court to Archbold 1-129. He says that the proper time to move to quash an indictment is before the accused has pleaded to it. [Archbold 1-240; R v Chapple and Bolingbroke (1892) 17 Cox 455, R v Maywhort 39 Cr. App.R. 107]

         

        He submits that the Prosecutor had proceeded on reasonable grounds in bringing the proceedings and has not unreasonably prolonged them.

         

        Mr. Shuster argues that the defence should have at the conclusion of Makrava’s case which was completed earlier requested an oral hearing before a High Court Judge suggesting abuse of process (Archbold 1-12J) but the Defence did not approach the Prosecution until 2.15 p.m. Tuesday 6 July 1999 to allege abuse of process. He said that Prosecution had within 18 hours (including night time) carried out an investigation and supported the quashing of the indictment on technical grounds beneficial to the Defendants. The defendants were lawfully committed by the Magistrate’s Court to stand trial.

         

        Determination of the issue

         

        The issue before me is whether to grant costs in all the circumstances of this case. In determining the issue the facts and circumstances relating to the action need to be considered, a detailed account whereof has already been given hereabove.

         

        By conferring in the Court the power to award costs, there is no doubt that in an appropriate case prosecution could be ordered by the Court to pay costs to defence under section 158(2) of the Criminal Procedure Code; and as far as the issue before me is concerned the said section sets out the criteria to which the Court must have regard in deciding whether to grant costs. An order cannot be made unless for the purposes of this application the Court considers that the prosecutor had no reasonable grounds for bringing the proceedings.

         

        For the determination of the issue I have helpful written and oral submission from both counsel and I have given due consideration to the arguments put forward by them. The applicant seeks an order for costs against the State in respect of taking of the depositions in the Magistrates’ Court and in respect of this trial. The costs are substantial.

         

        The determination of the issue of costs depends, in my view, on my findings whether on the facts and circumstances of this case, particularly bearing in mind the steps leading up to the trial of the action, the Prosecution had “reasonable grounds for bringing the proceedings”, to use the words of s158(2) under which this application is made.

         

        In order to justify his application Mr. Stewart adopted the method of outlining briefly the facts on each Count and submitted that on each of the Counts the Prosecution had no reasonable grounds for laying the charges.

         

        With the greatest respect for Mr. Stewart, in view of the facts surrounding this case I find this to be a highly inappropriate method of justifying unreasonableness particularly when what he stated by way of facts could not at this stage in the situation that has now arisen after the commencement of the trial, be tested by cross-examination. His approach is tantamount to him putting evidence himself before the Court from the Bar Table in expectation that the Court will accept them without going through the normal procedure of adducing evidence in a trial and allowing cross-examination and re-examination. For Mr. Stewart to approach the issue of costs in this manner is being wise after the event so to say. The Court did not get to the stage of hearing on merits. The trial did not even get off the ground apart from the swearing in of the assessors, adjournments and legal submissions.

         

        In this case as Mr. Shuster submits one cannot be oblivious to the fact that at no stage the defence raised the matter of unreasonableness of proceedings or abuse of process until after the Court had discharged the accused in the circumstances outlined hereabove. The oral Preliminary Inquiry in the matter proceeded without any mention of this aspect. Once the applicant was committed for trial in the High Court by the learned magistrate, it was the State’s duty to prosecute once it has sufficient evidence and in the words of Chilwell J “I would take a lot of convincing that it is the Crown’s duty always to adduce a perfect case” (R v AB [1974] 2 NZLR 425 at 431) who went on to say, and I adopt:

         

        “If Mr Ward’s submission were accepted there would be a great danger that prosecutors, instead of placing the evidence they have fairly before the Court, would tend to become persecutors and do their level best to bolster up every case by going to extraordinary lengths to close all possible gaps.”

         

        A quotation from the judgment of Mason C.J. in Latoudis v Casey (1990) 170 C.L.R. 534 has been referred to above regarding award of costs, but the following passage at 544 is also worth bearing in mind pointing to the fact that there can be cases when costs will have to be refused:

         

        “Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant’s costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.”

         

        Mason C.J. goes on to state:

         

        “I agree with Toohey J. that, if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs. Likewise, if a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, it would be just and reasonable to make an award for a proportion of the defendant’s costs.”

         

        Here the accused has by his conduct right from the time of the Preliminary Inquiry until his discharge brought the proceedings or their continuation upon himself by not having raised the issue that the Prosecution acted unreasonably or abused the process. An order for costs cannot be made in a case where, as Mr. Shuster argues, the accused is discharged on a technicality. Mr. Shuster submitted that “the prosecution within 18 hours (including night time) carried out an investigation and supported the quashing of the indictment on technical grounds beneficial to the defendants”.

         

        The applicant or his counsel did not raise the issue of unreasonableness which gave rise to the presumption that the prosecution had ample evidence to justify the commencement of the prosecution of the accused and therefore there was no need to reconsider the chosen form of the prosecution. In any case this was a matter which was properly investigated and in the view of the prosecution the case was not so thin that no prosecution should have followed.

         

        I find great merit in Mr. Shuster’s submission that the application for the quashing of the indictment or stay of the Counts should have been made long before the day of the trial (30 June 1999). An application could even have been made at the conclusion of Makrava’s case on charges of corruption which was concluded shortly before the commencement of this case.

         

        On the whole of the facts before me I am satisfied that the prosecution did have sufficient evidence to lay the information as was confirmed by the learned Magistrate who committed the applicant for trial. He was represented by the same counsel as in this case at the hearing before the Magistrate and cross-examined the State witnesses at some length. No evidence was given by the accused or called on his behalf.

         

        Conclusion

         

        To conclude, in all the circumstances of this case, one of the main factors to be borne in mind is whether the Prosecution acted reasonably in these proceedings. In the present case I find that the prosecution had ample evidence to justify the commencement of the prosecution of the applicant, and no need arose to reconsider the chosen form of the prosecution. After the Oral Preliminary Inquiry when the applicant was committed for trial to the High Court it was a clear indication of a prima facie case against the applicant. On this aspect the following passage from the English Practice Note recorded in (1952) 36 Cr. App. R.13 and reviewed in (1959) 43 Cr. App. R. 219 is apt:

         

        “Each case must be considered on its own facts as a whole and costs may and should be awarded in all cases where the court thinks it right to do so. It is impossible to catalogue all the factors which should be weighed. Clearly, however, matters such as whether the prosecution have acted unreasonably in starting or continuing proceedings and whether the accused by his conduct has in effect brought the proceedings, or their continuation, upon himself are among the matters to be taken into consideration.”

         

        In deciding whether to grant costs I have considered all relevant circumstances and for all of the reasons given by me I have come to the view that the applicant cannot expect to have costs awarded in his favour. The said section 158(2) does confer a discretion in the Court to make an order for costs but that discretion has to be exercised judicially which I have done bearing in mind that each case must be considered on its own special facts. In this case I find that no good grounds have been shown for the exercise of that discretion in the applicant’s favour.

         

        In this case which is a criminal proceeding a particular approach according to its own circumstances is required as already stated hereabove. As is clear from the provisions of s158(2) the mere fact that the accused has been discharged does not result in an order for costs being made in his favour, nor for the reasons that I have given after considering the submissions of the learned defence counsel that I ought to make the Order for costs.

         

        The application is accordingly dismissed. I make no order as to costs on this motion.

         

        (Application dismissed.)

The State v. Mark Lawrence Mutch

        [1999] 45 FLR 253

        HIGH COURT OF FIJI ISLANDS

         

        STATE

         

        v.

         

        MARK LAWRENCE MUTCH

         

        [HIGH COURT, 1999 (Pathik J) 26 October]

         

        Criminal Jurisdiction

         

        Crime: Evidence and proof- similar fact evidence- when admissible.

         

        The accused was charged with a number of offences involving indecency with children. The prosecution sought leave to adduce the evidence of other children who would testify that the accused had also indecently dealt with them. The High Court explained the law governing the admissibility of similar fact evidence and granted the prosecution’s application.

         

        Cases cited:

         

        Director of Public Prosecutions v Boardman [1975] AC 421,

        Harris v D.P.P. [1952] A.C. 694

        Makin v Attorney-General for New South Wales [1894] AC 57

        R. v. Doughty [1965] 1 All E.R. 560; [1965] 1 W.L. R. 331

        R v P [1991] 3 All E.R. 337 H.L

        Rex v. Sims [1946] 1 K.B. 531

         

        Ruling on admissibility of evidence in the High Court.

         

        Ms. Rachel Olutimayin with D. Goundar for the State

        M. Raza for the Accused

         

        Pathik J:

         

        The accused Mark Lawrence Mutch stands charged on eight counts as follows: First Count, rape; Second Count, indecent assault. The complainant on these counts is Martha Kayaga Fifita; Third Count, indecent assault - the complainant being Akosita Maria Makitalena; Fourth Count, indecent assault with complainant Tagimaca Viro; Fifth Count, Rape with complainant Mariana Nai Seru; Sixth Count and Seventh Count indecent assault with complainant Maria Salote Seru; and Eighth Count - indecent assault with complainant Elenoa Adicakau.

         

        The complainants in each of the above Counts have given evidence. Four other witnesses have also testified.

         

        The Prosecution now applies to court to adduce similar fact evidence and wishes to call as witnesses Ana Salauga, Frances Michale, Sereana Satish, Theresa Challottee and Yvonne Zian. Their statements are contained in the deposition. The prosecution has stated in its written submission the lines and passages in these statements on which it intends to rely in this application.

         

        Prosecution submission

         

        Ms. Rachel Olutimayin for the prosecution submitted that similar fact evidence is admissible in law. She stated that the probative force of the evidence of these proposed witnesses (girls) in support of the charges against the accused are sufficiently great to make it just to admit their evidence notwithstanding that it is prejudicial to the accused intending to show that he was guilty of other crimes. She referred the Court to one of the leading cases on the subject, namely, R v P [1991] 3 W.L.R. 161, H.L.

         

        Further, the prosecution desires to produce evidence to show the unlikelihood of coincidence, that is that the allegations are not coincidence. She said that this evidence will be admissible under the similar fact rule if explanation of it on the basis of coincidence would be an “affront to common sense; or would be against all probabilities”. If this is the case, then the evidence has the necessary probative force.

         

        The prosecution submitted that the similar fact evidence will be relevant to the issue of whether the accused’s conduct was accidental on the basis that a person may have one accident but is unlikely to have two or more accidents of a similar nature. The unlikelihood of coincidence is a rationale justifying reception of the evidence.

         

        Ms. Rachel referred the Court to Harris v D.P.P. [1952] A.C. 694 where Lord Wilberforce stated that the basic principle must be that the admission of similar fact evidence is exceptional and requires a strong degree of probative force. He said that “this probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses, bear to each other such a striking similarity that they must when judged by experience and common sense, either all be true, or have arisen from a cause common to the witness or from pure coincidence”.

         

        Ms. Rachel further submitted that the similar fact evidence which the prosecution intends to adduce from the witnesses involves indecent assaults of similar type to those alleged against the accused, the evidence goes further to show some other clear “signatures” (e.g. taking girls in the computer room, taking photographs of them, telling them to take their shower) which depicts the pattern of the accused’s offending and then it is admissible, as its probative value outweighs its prejudicial value.

         

        She finally submitted that the main issue would be credibility of the complainants, therefore similar fact evidence will assist the assessors to arrive at the truth and that the similar fact evidence ought to be admitted in the interests of justice.

         

        Defence submission

         

        Mr. Raza for the defence submitted that similar fact evidence to be admissible means that that would be corroborative evidence of the complainants. That is the only purpose for which similar fact evidence is admissible. He said that Makin v Attorney-General for New South Wales [1894] AC 57(P.C.) is still the guideline on the subject of similar fact evidence. He says that similar fact evidence refers to the commission of the crime and by having that admissible it says in fact that there is corroborative evidence of the charge. That is the basis upon which similar fact evidence can be admissible.

         

        Mr. Raza submits that before similar fact evidence is allowed to be admitted one cannot ignore the facts that have come before the Court and the evidence of the six complainants in the eight Counts. He submits that this is an attempt on the part of the prosecution to improve the prosecution case where there have been gaping holes in the evidence of the complainants in all the counts.

         

        The learned Counsel then goes through the evidence of each of the complainants on each Count and points out to Court the weaknesses in the prosecution evidence particularly the inconsistent statements in the evidence of each of the complainants. He said that the complainants have been discredited in cross-examination. In Count six and seven the complainant in these Counts Maria Salote Seru was declared hostile by the prosecution.

         

        On the law on the subject of admissibility of similar fact evidence he referred the Court to Blackstone’s Criminal Practice, 1997 at F 12.4 p.1988 et seq.

         

        Consideration of the application

         

        The circumstances which have given rise to this application to admit similar fact evidence has been briefly outlined hereabove together with the legal submissions of both counsel.

         

        I have carefully considered these submissions bearing in mind the nature of the eight Counts against the accused, the whole of the evidence that has been adduced

         

        through the said complainants and the law bearing on the subject of admissibility of similar fact evidence.

         

        The law

         

        The general rule as to similar fact evidence has been very clearly stated in Halsbury’s Laws Vol 11 4th Ed para 375 thus:

         

        “375. Similar facts: general rule. The prosecution may not adduce evidence tending to show that the defendant has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the defendant is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. The mere fact that the evidence adduced tends to show the commission of other offences, however, does not render it inadmissible if it is relevant to an issue before the jury; and it may be so relevant if it bears upon the question whether the acts in question were designed or accidental, or to rebut a defence which would otherwise be open to the defendant.

         

        In exceptional cases evidence that the defendant has been guilty of other offences is admissible if it shows that those offences share with the offence which is the subject of the charge common features of such an unusual nature and striking similarity that it would be an affront to common sense to assert that the similarity is explicable on the basis of coincidence. In such a case the trial judge has a discretion to admit the evidence if he is satisfied (1) that its probative value in relation to an issue before the jury outweighs its prejudicial effect and (2) that there is no possibility of collaboration between the witnesses.”

         

        Blackstone (supra) states the basic test as follows:

         

        “It has rightly been said that the principle upon which evidence of similar facts is admissible is easy to state but difficult to apply: see, e.g. Makin v Attorney-General for New South Wales [1894] AC 57, per Lord Herschell LC at p.65; Director of Public Prosecutions v Boardman [1975] AC 421, per Lord Hailsham at p.446.

         

        The statement of principle is easy, because it rests simply upon the notion of degrees of relevance. Evidence is inadmissible if it does no more than to suggest that the accused is the sort of person who might commit the offence charged, but admissible if it goes further and becomes part of the proof that he did commit it.”

         

        In the application of the general rule it is in the court’s discretion to exclude it as in circumstances stated by Halsbury (supra) at para 376 thus:

         

        “If it is sought to adduce similar fact evidence it must be shown that there is some specific connection both in regard to time and the nature of the events between the events sought to be adduced and those constituting the offence charged and the evidence must be probative in some real degree of that offence. Even where such evidence is strictly admissible the trial judge has a discretion to exclude it if its prejudicial effect is out of proportion to its probative value.”

         

        On the discretion of judge to exclude I refer to Harris v D.P.P. (supra) [quoting from 14(2) Digest (Reissue) para 4198] where it states:

         

        “It is a rule of judicial practice, flowing from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against accused, and to consider whether the evidence of similar facts which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed to make it desirable in the interests of justice that it should be admitted. If it can, in the circumstances of the case, have only trifling weight, the judge would be right to exclude it.”

         

        It is pertinent to note what was held in R v P [1991] 3 All E.R. 337 (H.L) which states the circumstances in which similar fact evidence is admissible. There it was held:

         

        “Evidence of an offence against one victim could be admitted at the trial of an allegation that the accused person had committed a crime against another victim if the essential feature of the evidence which was to be admitted was that its probative force in support of the allegations was sufficiently great to make it just to admit the evidence, notwithstanding that it was prejudicial to the accused intending to show that he was guilty of another crime. Although such probative force could be derived from striking similarities in the evidence

         

        about the manner in which the crime had been committed, there was no justification in restricting the circumstances in which there was sufficient probative force to overcome prejudice of evidence relating to another crime to cases where there was some striking similarity between the crimes since what had to be assessed was both the probative force of the evidence in question and whether the evidence of one victim was sufficiently related, either by striking similarities or in time and circumstances, to the evidence of another victim provided strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence.”

         

        Application of law to the facts of this case

         

        The complainants have already given evidence and they have been cross-examined at great length. What weight is to be given to their evidence has to be weighed in the light of the rest of the evidence to be adduced by the prosecution including the proposed similar fact evidence if allowed.

         

        At this stage the prosecution seeks a ruling from the Court whether it ought to be allowed to adduce similar fact evidence from the five prospective witnesses referred to hereabove based on portions of their statements to Police.

         

        Mr. Raza strongly objects to the admissibility of such evidence because, inter alia, in effect he submits that the complainants have performed dismally in the witness box while testifying in this Court. He asks how would the proposed evidence assist the prosecution.

         

        Be that as it may, as stated by the prosecution, that at this stage the ‘strength of the prosecution case does not become an issue’ and that the credibility of witnesses are to be decided by the assessors. The question is whether or not to admit evidence irrespective of the strength of prosecution case as at present.

         

        I have come to the conclusion, on the evidence before me, bearing in mind the nature of evidence proposed to be adduced particularly in the light of the nature of the charges in the eight counts, that the evidence of similar fact is admissible in this case and ought to be allowed to be adduced, for the evidence goes beyond showing a tendency on the part of the accused to commit crimes of the kind charged and is positively probative in regard to the offences charged. The following passage from the Digest (supra) para 4181 is pertinent in regard to Court’s duty in such a case:

         

        “There is no principle whereby “similar fact” evidence must be excluded if there is a serious question as to the correctness of the facts spoken to in the “similar fact” evidence. The question whether the evidence relating to the similar facts is accepted or not is one for the jury. If the judge is satisfied that such evidence, if accepted by the jury, goes beyond evidence of mere disposition, he should admit the evidence and leave it to the jury to make what they think of it.

         

        It is suitable and proper that the judge should consider whether he ought to give the jury a warning that the evidence is admissible only if it goes beyond mere evidence of disposition and that, if they think it relates to disposition only, they should disregard it, but there is no principle requiring such a warning to be given in every case, - R v. Rance, R. v Herron (1975) 120 Sol. Jo. 28; 62 Cr. App. Rep. 118, C.A.”

         

        As far as offences against children are concerned evidence of similar acts of indecency is admissible. On this the Digest (supra) at para 4278 states:

         

        “Although it is clear that on a charge of indecent assault on young children evidence of similar acts of indecency is admissible to enable the jury to decide whether visits of the children to accused person were in pursuance of a guilty or innocent association yet where the evidence of indecency is tenuous to a degree and where, even if the conduct is held to be indecent, it is a different form of indecency, then the trial judge can only exercise his discretion by excluding that evidence for its prejudicial effect would be overwhelming. - R. v. Doughty, [1965] 1 All E.R. 560; [1965] 1 W.L. R. 331; 129 J.P. 172; 109 Sol. Jo. 172; 49 Cr. App. Rep. 110, C.C.A.”

         

        I have already stated that on Counts 6 and 7 the complainant has been declared hostile and I need not say any more on what weight is to be put on her evidence at this stage. Also as admitted by prosecution in its submission that similar fact evidence will not assist its case in relation to rape counts in Counts 1 and 5 but on Counts 2, 3, 4 & 8 similar fact evidence will go a long way to support the evidence of the complainants and that it will throw some light on its case in relation to indecent assault charges.

         

        The evidence of the complainants and the proposed similar fact evidence intended to be adduced bear striking similarity to some of the Counts before the Court.

         

        The following passage from the judgment of Lord Goddard CJ in Rex v. Sims [1946] 1 K.B. 531 at 540 (C.A.) is apt:

         

        “That is a special feature sufficient in itself to justify the admissibility of the evidence; but we think it should be put on a broader basis. Sodomy is a crime in a special category because, as Lord Sumner said, “persons who commit the offences now under consideration seek the habitual gratification of a particular perverted lust, which not only takes them out of the class of ordinary men gone wrong, but stamps them with the hall-mark of a specialized and extraordinary class as much as if they carried on their bodies some physical peculiarity.” On this account, in regard to this crime we think that the repetition of the acts is itself a special feature connecting the accused with the crime and that evidence of this kind is admissible to show the nature of the act done by the accused. The probative force of all the acts together is much greater than one alone; for, whereas the jury might think one man might be telling an untruth, three or four are hardly likely to tell the same untruth unless they were conspiring together. If there is nothing to suggest a conspiracy their evidence would seem to be overwhelming. Whilst it would no doubt be in the interests of the prisoner that each case should be considered separately without the evidence on the others, we think that the interests of justice require that on each case the evidence on the others should be considered, and that, even apart from the defence raised by him, the evidence would be admissible.”

         

        Bearing in mind the nature of the charges and the evidence that has been so far adduced, I consider that I ought not to deny the prosecution the opportunity of adducing similar fact evidence. In this regard I have noted the following statements from the judgment of Lord Goddard in Sims (supra) at p.540 where it is stated:

         

        “The visits of the men to the prisoner’s house were either for a guilty or an innocent purpose: that they all speak to the commission of the same class of acts upon them tends to show that in each case the visits were for the former and not the latter purpose. The same considerations would apply to a case where a man is charged with a series of indecent offences against children, whether boys or girls: that they all complain of the same sort of conduct shows that the interest the prisoner was taking in them was not of a paternal or friendly nature but for the purpose of satisfying lust.”

         

        For these reasons, on the facts of this case, and taking into consideration the principles of law relating to similar fact evidence, in the exercise of my discretion, I grant the application.

         

        (Application granted.)
 

The State v. Minister for Communication, Works & Energy ex parte Fiji Television Ltd

        [1999] 45 FLR 229

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        MINISTER FOR COMMUNICATIONS, WORKS

        AND ENERGY

         

        ex parte

        FIJI TELEVISION LIMITED

         

        [HIGH COURT, 1999 (Byrne J) 28 September]

         

        Revisional Jurisdiction

         

        Administrative Law- judicial review- whether ministerial decision to increase licence fee a public law matter- whether decision subject to rules of natural justice. Television Decree 35/1992.

         

        Some years after Fiji Television began broadcasting under an exclusive licence the Minister decided vastly to increase the licence fee. On a motion for judicial review of this decision it was argued that the matter was purely contractual and did not raise matters of public law. It was also argued that the decision was within the limits of the Minister’s discretion. Rejecting these submissions and quashing the decision the High Court HELD: (i) the exercise of a contractual power contained in a statute raises an issue of public law and (ii) that the Minister’s decision was so unreasonable that the Court was entitled to review it.

         

        Cases cited:

         

        Associated Provincial Picture Houses Ltd. v. Wednesbury

                    Corporation [1948] 1 K.B. 223.

        Federal Airports Corporation v. Aerolineas Argentinas and

                    Others (1997) 147 ALR 649.

        Ha v. State of New South Wales (1997) 189 CLR 465.

        Instrumatic Ltd. v. Supabrase Ltd. [1969] 1 WLR 519.

        Kioa and Others v. West and Another (1985) 159 CLR 550.

        Luby v. Newcastle Under-Lyme Corporation [1964] 2 Q.B. 64.

        Nakkuda Ali v. Jayaratne [1951] AC 66.

        R. v. Metropolitan Police Commissioner Ex-parte: Parker [1953] 1 WLR 1150.

        R. v. East Berkshire Health Authority Ex-Parte: Walsh [1985] Q.B. 152

        Wootton v. Central Land Board [1957] 1 WLR 424

         

        Motion for judicial review in the High Court.

         

        G.E. Leung for the Applicant

        E. Walker for the Respondent

         

        Byrne J:

         

        Pursuant to leave to apply for Judicial Review which I granted on 22nd April 1998 of a decision of the Minister for Communications, Works and Energy made on the 6th of October 1997 or at the latest 9th of April 1998 that with effect from 24th June 1998 the annual Licence fee that the Applicant is required to pay was to be increased from $1,100.00 to $275,000.00 being $250,000.00 plus $25,000.00 VAT, the Applicant seeks by way of Judicial Review to challenge the Minister’s decision. In particular it seeks the following orders:

         

        (a)     An order for certiorari to quash the decision of the Respondent purporting to increase the television Licence fee of the Applicant;

         

        (b)     A declaration that the Respondent’s decision in adjusting and increasing the Applicant’s Licence fee is:-

         

        (i)      Unlawful;

         

        (ii)     In breach of the rules of natural justice;

         

        (iii)     Unreasonable; and

         

        (iv)    Unconscionable.

         

        (c)     An order for mandamus directing the Respondent to reconsider the matter and to exercise the discretion vested in him under Clause 3.2 of the television Licence reasonably and according to law;

         

        (d)     An injunction to restrain the Respondent from giving effect to his decision to increase the Licence fee to $250,000.00 plus 10% VAT;

         

        (e)     An order that the Respondent pay the Applicant’s costs on a full indemnity basis.

         

        In my Interlocutory Judgment on the application for leave to apply for Judicial Review I set out the relevant facts and background on pages 2 and 3 of my judgment and on pages 4 and 5 the grounds on which the Applicant argues the decision should be quashed.

         

        The principal contention of the Respondent is that Judicial Review should not be granted in this case because the Respondent has increased the Licence fee under the licence or contract it granted to or has with the Applicant. Thus, it is said, this is a matter of private law and does not raise any question of public law. Consequently the decision is not reviewable.

         

        On pages 5 to 8 of my first judgment I mentioned the authorities, both text-book and decided cases, on which the Respondent relied in his submissions opposing the granting of leave and my comments thereon. I shall not repeat them here verbatim but shall make some comments now on the expanded submissions settled by senior counsel for the parties. First however I must say something about the first submission by the Respondent about the correct date of the decision. This was not submitted originally by the Respondent but in the submissions prepared by Dr. Geoffrey Flick S.C. of Sydney it is said that the operative decision was made by the Minister on 9th of April 1998. It is therefore argued that the existing Application cannot competently review that decision; a fresh Application needs to be filed - the Applicant cannot merely seek to amend its existing Application.

         

        This is the first time this submission has been made because in the application for leave the Respondent accepted that the correct date was the 6th of October 1997. This apparently is because on 9th April 1998 the Minister wrote to the Applicant stating that the Government wished to revoke its earlier decision, wrongly stated as the 16th of October 1997, and that the new date for payment of the increased Licence fee was to be 1st July 1998. The letter concluded, “Fiji Television is given the opportunity to make submission to this office on this matter at the latest by 12 June, 1998”.

         

        Not surprisingly the Applicant disputes this claim and submits:

         

        (a)     There was, in reality, only one relevant decision by the Minister which is the subject of this review, namely the decision to increase the annual licence fee to $250,000.00 per annum plus VAT. That is the decision, regardless of whether it was made on 6th October 1997, or on 9th April 1998.

         

        (b)     Alternatively, by its conduct in permitting the current proceedings to follow the course described in the chronology (including without limitation, the fact that the Respondent did not raise this fact prior to my granting leave on 22nd April 1998), it is unconscionable for the Respondent to seek to rely on this procedural point and the Respondent ought to be estopped from so doing.

         

        (c)     Further, or alternatively, if the decision on 9th April 1998 is to be regarded as a later and separate decision from that made on 6th October 1997, it is submitted that it is appropriate, and, indeed, a matter of common sense, that the present proceedings should be amended so as to refer to the decision on 9th April 1998. Such an amendment would be made for the purpose of determining the real question in controversy between the parties and is therefore within the discretion of the Court pursuant to RHC Order 20 Rule 7(1).

         

        I agree with the Applicant’s submissions on this and since the Respondent can point to no prejudice which it might suffer if the date 9th April 1998 were substituted for 6th October 1997 I grant the Applicant leave nunc pro tunc to prosecute this application as if it were an application for Judicial Review of the decision made on 9th April 1998. This should satisfy the apparent sensitivity the Respondent feels about the correct date.

         

        This very technical point having now been disposed of, I turn now to the Respondent’s submissions on the substantive Motion.

         

        The Respondent’s Contentions in Summary

         

        In summary form, the Respondent contends that:

         

        •        the decision to increase the licence fee is simply a decision in accordance with the terms of the licence and cannot - for whatever purposes - be characterised as a tax;

         

        •        the decision is not susceptible to judicial review;

         

        •        there has been no improper exercise of discretion;

         

        •        the Applicant is not entitled to natural justice;

         

        •        if the Applicant is entitled to natural justice, it has been afforded procedural fairness;

         

        •        the decision is not unreasonable;

         

        •        the Applicant has not discharged its onus of establishing any ground of review.

         

        Furthermore, the Respondent Minister contends in the alternative that this Court should exercise considerable reluctance in reaching a conclusion that any ground of review has been established or that any judicial discretion should be exercised favourably to the Applicant in circumstances where the Minister’s decision has been the subject of concurrence by Cabinet.

         

        I shall deal with these submissions in that order.

         

        I have serious reservations about the first submission. In Ha v. State of New South Wales (1997) 189 CLR 465 the High Court of Australia held that an amount equal to 75 or 100 percent of the value of tobacco sold during a relevant period could not be regarded as a mere fee for a licence required as an element in a scheme for regulatory control of businesses selling tobacco. By analogy I think it can be said that in the instant case, the very size of the increase in the licence fee in proportion to the quantum of the licence as originally set and the circumstances in which the level of the original licence fee was set, indicates in all probability in my view that what is now sought to be levied by the Respondent is not, in truth, a licence fee at all. However because of the clear views I have formed about other aspects of this case, but especially the magnitude of the proposed increase, I find it unnecessary to express a concluded opinion on this point.

         

        The Respondent then submits that the decision is not susceptible to Judicial Review because he says the licence records the contractual obligations of the Applicant. He then quotes several authorities, one being the well-known English Court of Appeal decision R. v. East Berkshire Health Authority Ex-parte Walsh [1985] Q.B. 152 and Lewis, Judicial Remedies in Public Law at 50.

         

        In my first judgment of the 22nd of April 1998 at page 6 I distinguished this case from the present on the facts because the Court of Appeal was there concerned with the dismissal of a nurse by an English Health Authority which the Court held was not judicially reviewable on the ground that there was no element of public law involved or, as the Court put it, no statutory underpinning of the employment relationship. In my judgment the Television Decree provides the necessary underpinning for the present application, a fortiori when one considers the scheme of the Decree and the nature of the powers being exercised by the Minister and the mixed character of the licence which has been granted to the Applicant.

         

        Section 4 of the Television Decree (35/1992) empowers the Minister to issue a Television Broadcasting Licence containing such terms and conditions as he may determine to any person. Sub-section 4 empowers the Minister to require payment of a licence fee of such amount as the Minister may determine. The Respondent submits that the regulation of the quantum of the fee is entirely within the domain of the licence.

         

        In my first judgment on page 7 I said this in answer to a similar argument:

         

        “If the Respondent’s arguments are correct then it would follow in my view that any exercise of a ministerial discretion under Section 4 or indeed any other part of the Decree, no matter whether it be unlawful, unreasonable or ultra vires the Decree, cannot be challenged in a court of law because the Minister has purported to act in accordance with such a contractual undertaking. I know of no legal authority, nor has any been cited to me, to support the proposition that where a Minister of State exercises a statutory power which results in the grant of a licence which may contain many if not all of the attributes of a contract to do something, the exercise of that ministerial discretion is not subject to review.

         

        In my judgment that cannot be right. Here the Minister was at the material time exercising public law functions and statutory powers. He is the holder of a public office. Therefore the exercise by him of any discretionary power under the Television Decree must be governed by the purposes of that Decree and any restrictions or powers expressed or implied vested in him under the Decree and that power must necessarily be subject to relevant public law principles, for example he must exercise it reasonably, lawfully, and in the public interest. Put another way this means that he must not act arbitrarily, capriciously or in bad faith. If he failed to do so then in my opinion any person aggrieved or adversely affected by the exercise of the power would be entitled to have recourse to Judicial Review.”

         

        I summarised my views on this question on page 8 of my judgment when I said this:

         

        “It matters not in my view that the Minister or his agent has entered into a commercial arrangement through a contract or a licence if that document is based on a statute or in this case a Decree. Thus in Applications for Judicial Review 2nd Edition by Aldous and Alder p.112 the authors state:

         

        “Even where a power is essentially contractual, the presence in a given case of an additional statutory element or even the exercise of a general governmental policy might possibly convert a contractual private law issue into one of public law.”

         

        Having given further thought to the matter in the light of the submissions received on the substantive Motion I am not prepared to resile from the views I then expressed. In my judgment the fons et origo of this matter must be the Television Decree.

         

        In Lewis, Judicial Remedies in Public Law the author says at page 50 under the heading “Contract”:

         

        “Judicial Review is not, however, available to enforce private law rights.”

         

        But further down on the same page under the heading “Power to Contract” the author says this:

         

        “The courts have been prepared to grant judicial review of decisions by public bodies to enter into contracts. Statute may confer a specific or a general power to contract. In such cases the decision to contract could be regarded as an exercise of statutory power, albeit one that may result in the creation of private law contractual rights.”

         

        In my judgment the latter remarks apply to the instant case. I consider as I said at page 9 of my previous judgment that the licence in this case is not a mere private contract but an agreement based on a statutory instrument namely a Decree made by the then Government of the country and having the full force of law. As such I hold that any decision made by a relevant authority clearly acting under the Decree is subject to Judicial Review by the Courts.

         

        Interestingly I note that in the Respondent’s submissions on the leave application he said that “The Respondent does not contest that the decision is an appropriate one for Judicial Review”. I take that statement to mean that the Respondent was prepared to admit that the Applicant had an arguable case, a view which he then proceeded to contradict in his remaining submissions and of course in the present submissions.

         

        For these reasons I consider that Judicial Review is available to the Applicant.

         

        The Respondent then contends that the Applicant has not established that any matter referred to the Minister for his consideration by the Applicant has not been properly considered. It is said that the rejection of an applicant’s submission is no proof of any failure of consideration; any contrary proposition would be an impermissible attempt to review the factual merits of a decision as opposed to its legality.

         

        In Wade, Administrative Law, 7th Edition 1994 at 952 dealing with appeals against discretionary decisions the author says, “But in fact the Court may allow such an appeal if it appears that the tribunal’s decision produces manifest injustice - Wootton v. Central Land Board [1957] 1 WLR 424 at 432 - or is “plainly wrong” - Instrumatic Ltd. v. Supabrase Ltd. [1969] 1 WLR 519. In that case at page 521 Lord Denning M.R. said:

         

        “In such cases, if the tribunal exercises its discretion in a way which is plainly wrong, it errs in point of law, and its decision can be reviewed by the courts.”

         

        In his previous edition at page 39 Professor Wade states:

         

        “It is a cardinal axiom....that every power has legal limits, however wide the language of the empowering Act. If the court finds that the power has been exercised oppressively or unreasonably (emphasis added), or if there has been some procedural failing, such as not allowing the person affected to put forward his case, the act may be condemned as unlawful. Although lawyers appearing for government departments often argue that some Acts confer unfettered discretion, they are guilty of constitutional blasphemy. Unfettered discretion cannot exist where the rule of law reigns. The notion of unlimited power can have no place in the system. The same truth can be expressed by saying that all power is capable of abuse and that the power to prevent abuse is the acid test of effective judicial review.”

         

        At page 40 he then goes on to state that it is to be assumed that when Parliament confers powers, it intends that those powers be used fairly and with due consideration of the rights and interests of persons whose interests would be adversely affected. In the present case it is noteworthy that the legislation in question was promulgated by Decree. Arguably therefore, the level of scrutiny that the courts might wish to bring over decisions sourced from a Decree would be higher than where an elected Parliament enacts legislation.

         

        In my judgment the outstanding feature of this case is the magnitude of the proposed increase which is in percentage terms 24,000 percent, to which the Applicant has indicated its most strenuous opposition.

         

        In Lewis op. cit., at page 53 the author states:

         

        “The courts have been prepared to superimpose public law principles onto contractual situations, and to ensure the observance of those principles by way of judicial review. They are prepared to do this even if the effect of granting a public law remedy is to vary the rights existing under a contract as for example, where a decision to terminate a contract is quashed and the contractual provisions then revived.” (Judicial Remedies in Public Law, 1992, p.53)

         

        I am firmly of the view that the Minister does not have unfettered discretion and that to the ordinary informed observer of the facts of this case an increase of that magnitude can only mean that the Minister has abused his discretion in the purported exercise of his powers to vary and increase the Applicant’s fee under Clause 3.2 of the Licence.

         

        I quote again from Professor Wade in his 6th Edition at page 388:

         

        “Parliament constantly confers upon public authorities powers which on their face might seem absolute and arbitrary. But arbitrary power and unfettered discretion are what the courts refuse to countenance. They have woven a network of restrictive principles which require statutory powers to be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empowering Act.”

         

        In my judgment that passage says all that needs to be said about the proposed increase. The courts will not stand idly by when they consider that one party to a contract, which I find as here has a statutory basis, has attempted to act unfairly towards the other party. It is a cardinal principle of our law that the State must always be the perfect litigant; to hold otherwise would mean that the public could not have any trust in the Government it has elected. That is something which the courts within the limits of their powers have steadfastly refused to condone.

         

        On the facts of this case I am satisfied that the Minister was obliged by law to exercise his discretion reasonably and he failed to do so.

         

        The Respondent Minister next contends that the Applicant is not entitled to either natural justice or an opportunity to be heard and to make submissions. In the way in which the law of natural justice has developed since Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 these two concepts now virtually mean the same thing, namely that where any person’s rights are adversely affected by a decision of an administrative body the person affected by the decision normally has a right to be heard and to make submissions.

         

        The Respondent argues that the rules of natural justice are not applicable here by reason of:-

         

        •        the fact that the subject-matter of the exercise of discretion is inherently commercial and the fact that the Applicant consented to a right reserved to the Minister to vary fees without exacting any reciprocal right to be heard;

         

        •        the fact that the Television Decree, 1992 expressly confers no entitlement to be heard or to make representations;

         

        •        the fact that the Applicant retains no “right” to continue broadcasting or to continue broadcasting free of a term conferring an entitlement to increase fee subject to no express constraint.

         

        Involved in this submission there seems to be a suggestion that the decision under review was legislative rather than administrative. If the Respondent means to argue this then I reject it because I am firmly of the opinion that the decision here was administrative.

         

        In Federal Airports Corporation v. Aerolineas Argentinas and Others (1997) 147 ALR 649 the Federal Court of Australia on appeal held, upholding the decision of the Court below, that a determination fixing a charge under Section 56 of the Federal Airports Corporation Act (1986) (CTH) was made in the execution or administration of that Act and is administrative rather than legislative in character. I would hold the same of the licence fee in issue here. Furthermore in Kioa and Others v. West and Another (1985) 159 CLR 550 at 619 Brennan J. observed:

         

        “The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted...

         

        Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.”

         

        One of the cases on which the Respondent relies in support of this proposition is Nakkuda Ali v. Jayaratne [1951] AC 66. It is, if I may say so with respect, curious that this case should be relied on by the Respondent because it was criticised most severely by Professor Wade in his 7th Edition at pages 508 and 509. That decision and the decision of the Queen’s Bench Division in R. v. Metropolitan Police Commissioner Ex-parte: Parker [1953] 1 WLR 1150 were described by Professor Wade in these terms:

         

        “These two notorious decisions threatened to undo all the good work of earlier judges. They exposed English law to the reproach that, though a man must be heard before being expelled from his trade union or his club, he need not be heard before being deprived of his livelihood by a licensing authority.” (7th Edition p.509)

         

        It is true that the decision in the instant case does not deprive the Applicant of its livelihood but the increase in my judgment is so unreasonably high, given the material in the hands of the Minister at the relevant time, as to quite possibly make it difficult for the Applicant to continue operating if the fee is imposed.

         

        This was an important part of the Applicant’s submissions to the Government when applying for its first licence. It had submitted a Business Plan to the Government which is exhibited to the affidavits filed on behalf of both the Applicant and Respondent.

         

        Then the Respondent submits that in any event the Applicant was accorded natural justice because it says that in the letter informing the Applicant of the decision of the 9th of April the letter stated:

         

        “Fiji Television is given the opportunity to make submissions to this office on this matter at the latest by 12th June 1998”

         

        Instead of taking up the Respondent on this offer it is said that the Applicant consciously chose a course of litigation rather than a course of making submissions. Thus it is argued it is disingenuous to contend, as does the Applicant, that it is legally inappropriate for the company to engage in discussions on this issue is now sub judice because:

         

        •        the matter was not sub judice until the seeking of leave on 22nd April 1998.

         

        •        the mere commencement of litigation would not preclude the making of such submissions as the Applicant saw fit to advance.

         

        I think there is some force in this submission and that the Applicant was wrong in at least not making some submissions after the receipt of the Minister’s letter. However, by the same token, it has never since been suggested by the Respondent that it was open to negotiation on the increase. Indeed this is the first time such a suggestion has come from the Respondent. Nevertheless it may well be that faced with such a large increase, the Applicant considered its chances of persuading the Respondent to change his mind were not likely to be very high. There was of course the newspaper cutting annexed the affidavit of the Applicant filed in support of its application for leave on the 19th of January 1998 that the Government was not going to change its mind.

         

        It is possible that in its letter of the 9th of April 1998 the Respondent meant to convey that some six months later the Respondent was prepared to adopt a less intransigent attitude. The fact is however that the letter of 9th of April did not say so.

         

        I have already dealt with the question of unreasonableness but must comment on a further submission by the Respondent that:

         

        “The sole touchstone advanced by the Applicant as to alleged unreasonableness or oppressiveness of the decision sought to be reviewed is the touchstone of the Applicant’s asserted ability or inability to finance such a fee increase. Adverse commercial consequences of a decision cannot transform an otherwise lawful administrative decision into an unlawful administrative decision. An increase in fees may be assumed to have a greater adverse commercial consequence than the retention of a nominal fee. But the applicant has failed to establish any greater consequence. Such evidence as is sought to be relied upon is in totally inadmissible form.”

         

        In support of this submission the Respondent cites Luby v. Newcastle Under-Lyme Corporation [1964] 2 Q.B. 64 where Diplock L.J. said at p.72:

         

        “The court’s control over the exercise by a local authority of a discretion conferred upon it by Parliament is limited to ensuring that the local authority has acted within the powers conferred. It is not for the court to substitute its own view of what is a desirable policy in relation to the subject-matter of the discretion so conferred. It is only if it is exercised in a manner which no reasonable man could consider justifiable that the court is entitled to interfere.”

         

        I accept that statement of the law, coming as it does from Lord Diplock, but consider that in this case the proposed increase is such that no reasonable man could consider it justified and that therefore the court is entitled to interfere.

         

        As to this the Applicant contends that an arbitrary increase of this magnitude would be unreasonable on any licence, regardless of the depth of the licensee’s pocket. I remind myself that Cabinet accepted representations made to it that a licence fee of $250,000.00 per annum for the first three years and a fee of one million dollars per annum from year four would destroy the economic viability of the Business Plan and Cabinet’s knowledge that “a zero licence fee” was a key assumption in the Business Plan.

         

        To summarise, I consider that the proposed increase was so high as to be unconscionable and unreasonable for the reasons I have given and I therefore order that:

         

        (1)     certiorari go to quash the decision of the Respondent purporting to increase the Television Licence fee of the Applicant;

         

        (2)     I make an order for mandamus directing the Respondent to reconsider the matter and to exercise the discretion vested in him under Clause 3.2 of the Television Licence reasonably and according to law.

         

        I further order that the Respondent pay the Applicant’s costs to be taxed if not agreed.

         

        Finally I must express my thanks to the efforts of counsel in providing me with such full submissions including particularly their references to the volume of case-law relevant to this application. I hope I have been able to do justice to those submissions in this judgment.

         

        (Judicial review granted; certiorari and mandamus issued.)
 

The State v. The Permanent Arbitrator & Ors ex parte Warwick Fiji Ltd.

        [1999] 45 FLR 211

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        1. PERMANENT ARBITRATOR,

        2. ESEKAIA NAWELE &

        3. NATIONAL UNION OF HOTEL & CATERING EMPLOYEES

         

        ex parte:

        WARWICK FIJI LIMITED

         

        [HIGH COURT, 1999 (Byrne J), 31 August]

         

        Revisional Jurisdiction

         

        Employment- misconduct by employee- whether dismissal harsh and unreasonable.

         

        A grievor who had been dismissed by his employer succeeded before the Permanent Arbitrator who ordered his reinstatement. On a motion for judicial review of the Arbitrator’s decision the High Court examined the proper approach to be taken to an allegation that a decision is harsh and unreasonable. It concluded that the Permanent Arbitrator had erred in his evaluation of the grievor’s conduct and quashed his Award.

         

        Cases cited:

         

        Farley v. Lums (1917) 19 WALR 117.

        Grundy Teddington v. Willis (1976) ICR 323.

        Laws v. London Chronicle (Indicator Newspapers) Ltd. [1959] 1 WLR 698.

        Monsanto Chemicals (Australia) Ltd. v. The Amalgamated Engineering

                    Union (1958) 90 CAR 26.

        Pearce v. Foster 17 QBD 536.

        Wilson v. Racher (1974) 1CR 428.

         

        Motion for Judicial Review in the High Court.

         

        G.P. Lala for the Applicant

        J.N. Madubuike-Ekwe for First Respondent

        T. Naivaluwaqa for Second and Third Respondents

         

        Byrne J:

         

        This is an application for Judicial Review of an Award of the Permanent Arbitrator of the Arbitration Tribunal given on the 30th of July 1998 in which the Arbitrator held that the dismissal by the Applicant of the Second Respondent Esekaia Nawele on the 10th of April 1997 was harsh and unreasonable and the order of the Permanent Arbitrator that Mr. Nawele be re-instated from the date of his termination without loss of privileges. The Arbitrator also directed that the re-instatement was to be subject to a warning being placed on Mr. Nawele’s file for the incident in which he was involved on the 13th of March 1997 and that the warning be valid for a period of 12 months from the date upon which Mr. Nawele resumed duty.

         

        Prior to the termination of his employment, the Second Respondent had been employed by the Applicant (hereinafter referred to as “the Warwick”) for some thirteen years originally by the Hyatt Regency Fiji and he continued at the hotel as an employee when the Warwick took over management of the hotel. At the time of his dismissal Mr. Nawele was employed as an Assistant Bar Manager. He was also the Union representative of the Third Respondent.

         

        It has never been disputed that on 13th March 1997 Mr. Nawele and approximately 100 other staff of the Warwick attended its Monthly Staff General Meeting. Evidence was given that the purpose of these meetings was to allow management to inform staff of recent developments and forthcoming events, but they were also open for general discussion initiated by staff.

         

        Just before the end of the meeting during discussion time, Mr. Nawele addressed those present. The evidence which the Arbitrator accepted was that Mr. Nawele belittled the management of the hotel and particularly its General Manager, Mr. G. Meyer. Among other things he made a generally unfavourable comparison between the Warwick’s management of the hotel and that of the Hyatt and stated that since the arrival of the General Manager Mr. Meyer, in particular, there had been a decline in the hotel’s operations. Among other things, he accused the management of stealing from the government by not paying taxes of certain employees and described guests as prostitutes, drug addicts and alcoholics.

         

        It was common ground that a week after the meeting, on 20th March 1997, the General Manager wrote a letter to Mr. Nawele disputing the allegations made by him and giving him 7 days from the date of receipt “to reply in writing supported by evidence”.

         

        It warned that “failing this management will instigate disciplinary action against you for insubordination, dishonesty and for blatantly making allegations at this management in total contravention of the legally binding collective agreement between your Union and this Company”.

         

        On 29th March 1997, not having received a written response the Warwick’s General Manager wrote to Mr. Nawele stating among other things that because he had received three written warnings under the collective agreement together with the fourth referring to the incident of 13th of March 1997, “termination clause is to be applied effective Tuesday 01 April 1997”. The letter then continued rather curiously, “Again I have no other alternative but to discipline you with a more serious disciplinary action, that is to suspend your services effective Tuesday 1st April until further notice”.

         

        In his Award the Arbitrator correctly noted that the parts of this letter I have just quoted appear to have been contradictory in as much as the General Manager purported both to terminate Mr. Nawele and to suspend his services from 1st of April pending further discussions with the General Manager and the Union’s then General Secretary.

         

        In his Award the Arbitrator found for reasons which I consider immaterial in view of the clear conclusion I have reached in this case that all three warnings which the Applicant had given Mr. Nawele were invalid. More to the point in my judgment is what the Arbitrator said at page 7 of his Award and I quote:

         

        “Having considered the Warwick’s version of the events against Mr. Nawele, the Tribunal is of the view that, despite what might have been good reasons for the concerns, Mr. Nawele displayed gross insubordination by making those concerns known in the way that he did at the meeting. Evidence was given that as Union representative, Mr. Nawele had direct access to the General Manager, and it was the practice for the two to discuss Union concerns on a one-to-one basis in the General Manager’s office. By choosing to bring his concerns up in the presence of approximately 100 staff members, and to personalise them against members of management, the Tribunal finds that Mr. Nawele was deliberately seeking to embarrass them. The tribunal can draw no other conclusion.

         

        Accordingly, he was deserving of some disciplinary sanction for this behaviour, but whether termination was the appropriate remedy in the circumstances will, for the reasons given earlier, depend on the processes followed and the validity of the 3 previous warnings on which the Warwick purported to reply.”

         

        This raises the question which is the subject of this application whether Mr. Nawele’s remarks at the staff meeting were such as to justify the Applicant dismissing him. The Applicant contends that they were and seeks orders of certiorari quashing the Award and various declarations.

         

        When the parties appeared before me on the 1st of October 1998 I gave the Second and Third Respondents leave to file and serve an Affidavit in Reply by the 22nd of October. No such affidavit was ever filed nor have I received any submissions from the Second and Third Respondents. I can only presume them therefore to rely on the submissions they made before the Permanent Arbitrator.

         

        There is much law on the question of when an employer is entitled to dismiss an employee for misconduct. The question of when a dismissal can be termed “harsh and unreasonable” was considered by a very experienced Arbitration Commissioner in Australia, Senior Commissioner Chambers in Monsanto Chemicals (Australia) Ltd v. The Amalgamated Engineering Union (Australian Section) (1958) 90 CAR 26 at 31 who said:

         

        “The dismissal to be `harsh and unreasonable’ must be of a nature very different from the normal case. For the employee dismissed to be concerned, embarrassed financially, disturbed in the normal pattern of his life is not sufficient, unless it can be shown that the employer created all these or like difficulties by effecting dismissal without regard for all the reasonable and fair considerations one is entitled to expect in the employer/employee relationship. A clear breach of discipline in the form of a refusal to comply with a lawful order to perform work within his trade would ordinarily not be considered as providing support for a claim that the employer had been harsh if dismissal of the employee concerned resulted. A summary dismissal may be harsh, for example, if flowing from an employee’s failure to perform a function which would have placed him in serious danger, and it may be unreasonable to dismiss an employee without seeking an explanation in certain conditions. It would be unreasonable to expect an employee called back to stand down without pay for such period as was necessary for management to produce the labouring assistance required.”

         

        In deciding whether the dismissal was fair it was held in Grundy Teddington v. Willis (1976) ICR 323, that:

         

        “The tribunal’s decision must take into account whether in the circumstances the employer acted reasonably in treating their reason as a sufficient reason for dismissing the employee. This question must be determined in accordance with equity and the substantial merits of the case.”

         

        In England the Employment Appeal Tribunal said of the approach which a Tribunal should take in deciding a dismissal was unfair:

         

        “The function of the tribunal as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band it is fair, if it falls outside it is unfair.” - Iceland Frozen Foods Ltd v. Jones (1982) IRLR 439 at 442.

         

        In Farley v. Lums (1917) 19 WALR 117, Farley had been asked to perform a task, which, if done would require that he work 15 minutes overtime. It seems that the request was objectively justified and Farley would have been paid overtime. But Farley responded by saying “It’s a bit bloody hot keeping a man waiting so damn long.” He was summarily dismissed and he sued for wrongful dismissal. McMillan C.J. (with whom Rooth J. agreed), at 118, held that the dismissal was justified. It was held that:

         

        “Everything depends on the circumstances under which the language was used. I am not going to say that a man should be dismissed because he uses the word “bloody or ...damn,....” but under the circumstances of this case I can see nothing which justified the servant using language as that to a master who was speaking to him quietly, and who had done nothing to bring about remarks of that kind.”

         

        With respect to this case I venture to suggest that nowadays at least in Australia the words used by Mr. Farley would not result in his dismissal because it seems to me attitudes to the use of coarse language generally have become more liberal, some people might aver unfortunately. It seems to me that in the present industrial climate in Australia such language would result in at worst a serious reprimand being delivered to the employee.

         

        It may well be however that in Fiji that would not be so.

         

        In a more recent case, Wilson v. Racher (1974) ICR 428 Edmund Davies L.J. (as he then was) said this about such cases at 430:

         

        “The test is whether the plaintiff’s conduct was insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant. The application of such a test will, of course, lead to varying results according to the nature of the employment and all the circumstances of the case. Reported decisions provide useful but only general guides each case turning upon its own facts ..... (A) contract of service imposes upon the parties a duty of mutual respect.”

         

        The last case I mention on this question is Laws v. London Chronicle (Indicator Newspapers) Ltd [959] 1 WLR 698 where Lord Evershed M.R. said at p. 700:

         

        “..... the question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.”

         

        In my judgment the Permanent Arbitrator was correct in describing the remarks of Mr. Nawele at the staff meeting as he did but I consider he fell into error in not holding that these remarks constituted a very serious breach of the employer-employee relationship which in my view justified Mr. Nawele’s dismissal. Principal among the obligations imposed by the common law on employees is the duty of fidelity and good faith. These terms embrace every aspect of an employee’s duty towards his employer, varying according to the nature of the obligations.

         

        In Mr. Nawele’s case, considering his position as an Assistant Bar Manager and a Union representative, in my judgment he had a duty not to say or do anything which could be construed as contrary to the hotel’s interests. He must have realised when he made the remarks that it was very likely that the hotel’s reputation would be tarnished. In my view his remarks were calculated to engender distrust and lack of confidence by hotel staff in their employer which, as the Arbitrator also found, could not be justified.

         

        Last century in Pearce v. Foster 17 QBD 536 at 539 it was said that:

         

        “The rule of law is, that where a person has entered into the position of servant, if he does anything incompatible with the due and faithful discharge of his duty to his master, the latter has a right to dismiss him.”

         

        I am therefore satisfied on the evidence before the Permanent Arbitrator that he erred in finding the conduct of the Warwick in dismissing Mr. Nawele harsh and unreasonable. If that term could be applied to anybody in my judgment it should have been applied to Mr. Nawele. Further I consider that the penalty imposed by the Permanent Arbitrator in respect of the remarks was totally inadequate and amounted in my view to a mere tap on the wrist when a far more stringent penalty was required.

         

        I therefore uphold the motion for Judicial Review and order that certiorari go to bring before this Court the Award of the Permanent Arbitrator and then quash the same. In my judgment the penalty imposed by the Arbitrator constitutes Wednesbury unreasonableness for the reasons I have given.

         

        (Judicial Review granted: award of Permanent Arbitrator quashed.)
 

The State v. P.S. for Justice & Secretary, PSC ex parte Metuisela Waqanisau

        [1999] 45 FLR 126

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v

         

        PERMANENT SECRETARY FOR JUSTICE &

        SECRETARY, PUBLIC SERVICE COMMISSION

         

        ex parte

        METUISELA WAQANISAU

         

        [HIGH COURT, 1999 (Scott J) 30 June]

         

        Revisional Jurisdiction

         

        Public Service- disciplinary proceedings- bias- extent of delegation allowed to Public Service Commission- Constitution (1997) Sections 127 (3) & 157 (1)- Public Service Commission (Constitution) Regulations 1990, Part V.

         

        The Applicant was dismissed from the Public Service. He sought judicial review of the decision to dismiss him. The High Court quashed the dismissal. It HELD: (i) that the applicant was given no opportunity to be heard on the question of penalty (ii) that the PSC failed to give reasons for its decision and (iii) that the proceedings were fatally flawed since the Permanent Secretary had acted both as prosecutor and as Judge in the same cause thereby breaching both the Rules of Natural Justice and the requirements of the Regulations.

         

        Cases cited:

         

        Akbar Buses v TCB - (C.A. 9/84-FCA Reps 84/40)

        General Medical Council v Spackman [1943] AC 627

        Pacific Transport v Khan (ABU 21/96 - FCA Reps 97/3)

        Permanent Secretary for Public Service Commission v Epeli Lagiloa -

                    (ABU 38/96 - FCA Reps 97/578)

        R v Lancashire County Council ex parte Huddleston [1986] 2 All ER 941

        State v TCB ex parte Peni Company Ltd HBJ 22/94S

        The State v PSC ex parte Michael Raman – HBJ 13/1994S

         

        Motion for judicial review inthe High Court.

         

        I.V. Tuberi for the Applicant

        E. Walker for the Respondents

         

        Scott J:

         

        The Applicant moves for judicial review of a decision taken by the First Respondent on 16 October 1998 to dismiss him from the Public Service. No complaint is made directly against the Second Respondent who was technically the Applicant’s employer but these proceedings raise the important question of how far the Second Respondent’s delegation of its powers to the First Respondent was compatible with the due exercise of disciplinary proceedings and as such the Second Respondent is obviously at least an interested party.

         

        The following affidavits were filed:

         

        (i)         Applicant’s affidavit in support filed 14 December 1998;

        (ii)        1st Respondent’s 1st affidavit filed 27 January 1999;

        (iii)       1st Respondent 2nd affidavit filed 10 March 1999; and

        (iv)       Applicant’s affidavit in reply filed 6 April 1999.

         

        By agreement with counsel written submissions were also to be filed. Mr. Tuberi with his usual diligence filed a most helpful written submission on 4 May. Mr. Walker failed to file anything and made no oral submissions: not, it must be said a very impressive performance.

         

        On 30 August 1995 the Applicant was appointed on one year’s probation as a clerical officer (Affidavit in support – Exhibit B). Confirmation of the 12 months appointment was to be subject to a pass in the H1 examination. So far as I can gather there has been no pass and no confirmation of the appointment but in the absence of any point being taken on this by either counsel I propose to treat the Applicant as being a de facto confirmed appointee and as such a person entitled to the protection conferred on him by Regulations.

         

        Towards the end of September 1997 two complaints were received against the Applicant who was at that time working as a counter clerk in the Office of the Registrar of Companies. The first complaint was made by Mohammed Arsad Khan (First Respondent’s second affidavit – Exhibit E) while the second was made by Mathew Hill (First Respondent’s second affidavit – Exhibit A). The complaint in both cases was that the Applicant had solicited payment for himself for performing his duties. Both complaints were referred by the Administrator General (Mr. W. A. Archibald) to the 1st Respondent.

         

        On 6 October 1997 the 1st Respondent charged the Applicant with four major disciplinary offences contrary to Regulations 36 (a), (q) and (t) of the Public Service (Constitution) Regulations 1990 (the Regulations) (FRG 18/12/1990) (supporting affidavit – Exhibit C). The Applicant was required to answer the charges within 14 days pursuant to the provisions of Regulation 41 (2).

         

        The Applicant’s first answer was sent to the 1st Respondent on 16 October (supporting affidavit – Exhibit F) and following further correspondence a second and expanded answer was sent by the Applicant to the 1st Respondent on 14 April 1998 (supporting affidavit – Exhibit M).

         

        On 22 September 1998 the Applicant was interviewed by the 1st Respondent in relation to the charges. Also present at the interview was Principal Assistant Secretary Mrs Viniana McGoon. On 14 October 1998 the Applicant was again interviewed by the 1st Respondent and Mrs. McGoon. The record of these interviews is Exhibit C to the 1st Respondent’s second affidavit.

         

        On 16 October the 1st Respondent advised the Applicant that his employment in the Public Service had been terminated (supporting affidavit - Exhibit M).

         

        The Applicant impugns the 1st Respondent’s decision to dismiss him on 4 grounds:

         

        (i)         bias;

        (ii)        failing to hear the Applicant;

        (iii)       failing to give reasons; and

        (iv)       unreasonableness.

         

        It will be convenient to take these four grounds in the order (ii), (iii), (iv) and (i).

         

        In view of the correspondence exhibited to the affidavits and the two interviews between the Applicant and the 1st Respondent and Mrs. McGoon it cannot in my view plausibly be argued that the Applicant was not given a fair opportunity to answer the charges brought against him. It is however apparent that no opportunity was given to the Applicant to address the question of penalty after the 1st Respondent reached the decision to find him guilty. While it might be argued that in view of the seriousness of the charges a hearing as to penalty “would have made no difference” such arguments are not viewed with favour in administrative law (see e.g. General Medical Council v Spackman [1943] AC 627, 644). Furthermore, the Fiji Court of Appeal has made it quite clear in Permanent Secretary for Public Service Commission v Epeli Lagiloa (ABU 21/96 - FCA Reps 97/578 at p. 16) that a public servant must be given an opportunity to be heard both as to guilt and as to penalty. This ground succeeds.

         

        As will be seen from the letter of dismissal the 1st Respondent neither advised the Applicant in respect of which charge he had been found guilty nor provided reasons either for reaching findings of guilt nor for imposing the penalty of dismissal.

         

        The matter of giving reasons has frequently been considered by the Courts and it is surprising and disappointing that once again the guidance given by the Courts has been ignored. In Akbar Buses v TCB (C.A. 9/84 - FCA Reps 84/40) the Fiji Court of Appeal recommended that brief reasons for administrative decisions should always be given. In State v TCB ex parte Peni Company Ltd (HBJ 22/94S) having cited Rv Lancashire County Council ex parte Huddleston [1986] 2 All ER 941, I advised that where a decision making body had failed to give reasons by the time proceedings for Judicial Review were commenced it should always give its reasons in its affidavit in answer filed in the proceedings. In Pacific Transport v Khan (FCA Reps 97/3) the Fiji Court of Appeal again strongly recommended that in all cases of this kind brief reasons for the decision should be given. As pointed out in Khan where the circumstances are not such that the reasons for the decision can otherwise satisfactorily be ascertained the failure to provide reasons will amount to a fatal procedural defect.

         

        In the present case the four charges arose from two entirely unconnected incidents, the evidence relating to which was quite distinct and required separate evaluation. There is nothing in the papers to show the process by which the 1st Respondent arrived at the conclusion either that the Applicant was guilty as charged or that he should be dismissed. Ground (iii) also succeeds.

         

        As to unreasonableness it is my opinion that on the materials presented it was open to the 1st Respondent to reach the conclusions at which he arrived. This is not an appeal against the merits of the 1st Respondent’s decision but is a judicial review of the procedure employed to reach those conclusions. Ground (iv) fails.

         

        The final ground, bias, gives me the most concern. At the relevant time the Public Service Commission’s powers to discipline public servants were contained in the Regulations which were made pursuant to Section 157(1) of the Constitution. While these Regulations have been repealed (see Constitution 1997, Public Service Act 8/1999, Public Service Regulations 1999 (LN 48/99) and Public Service (Appeal) Regulations 1999 (LN 49/99)) I am of the view that the question of bias raised by the Applicant is likely to be of continuing relevance.

         

        In addition to the Regulations it is also important to refer to a delegation of powers which was made on 27 November 1997 by the Public Service Commission under the provisions of Section 127 (3) of the 1990 Constitution and Section 6 of the Public Service Decree 1990 (see LN 138/1997). Section 127 (3) was repealed by Section 195 (1) of the 1997 Constitution while Section 6 was repealed by Section 33 (1) (c) of the Public Service Act 8/1999. It appears therefore to me that the delegation itself has been repealed although it is not necessary finally to determine that matter for the purposes of these proceedings.

         

        As is well known the disciplinary provisions of the Regulations are contained in Part V. Regulations 41 (1), 41 (5), 41 (6), 41 (8), 44 (1), 44 (4), 45 (1), 46, 48, 49, 50 (1), and 50 (2) are all particularly relevant.

         

        Without going into detailed examination of these Regulations it is clear that Part V envisages that where it is suspected that a public servant has committed a disciplinary offence the public servant is to be charged either by his Permanent Secretary or Head of Department. Where the charge is disputed the Commission is then to proceed to consider and determine the matter. Where substantial issues of fact are raised, a disciplinary tribunal should be appointed to hear the evidence and find the facts (see The State v PSC ex parte Michael Raman – HBJ 13/1994S.) Regulations 45 and 46 set out the way in which the tribunal should proceed and when the tribunal has reached its findings it is to report to the Commission (Regulation 47). After considering the tribunal’s report the Commission then advises the public servant of its findings and, as already seen should then provide the reasons for its conclusions.

         

        In the present case the 1st Respondent apparently thought that he could exercise all the powers conferred on the Commission by Part V of the Regulations by virtue of the delegation to him of powers in Legal Notice 138/1997. In my opinion, although the delegation is somewhat ambiguous, he was mistaken. I reach this conclusion for two reasons.

         

        First, the Commission’s powers which are delegated to Permanent Secretaries are specified by and limited to those powers which are set out in paragraph 2 (i) - (xv) of the delegation. Although the powers to appoint a disciplinary tribunal (Regulation 44), to impose penalties (Regulation 51) and to determine appointment, retirement and resignation (Part III) were delegated the general powers of the Commission under Part V were not.

         

        Secondly, the general scheme of Part V, as has already been seen, involves the prosecution or presentation of charges by a Departmental Head, usually a Permanent Secretary, to the Commission which then considers the charges laid. Mr. Tuberi’s case was that the procedure adopted by the 1st Respondent amounted to the 1st Respondent acting both as prosecutor and judge in the same cause and as such fundamentally breached one of the major rules of natural justice: nemo iudex in causa sua. I agree. In my opinion it was quite wrong for the same person, the 1st Respondent, to charge the Applicant, to investigate his own complaint, to determine its truth and then impose sentence. The procedure adopted by the 1st Respondent was, in my opinion, inconsistent and incompatible with the requirements of Part V of the Regulations and was therefore incorrigibly flawed. Ground (i) succeeds.

         

        The disciplinary charges brought by the 1st Respondent against the Applicant were serious. Although I am satisfied that certiorari should issue to quash the 1st Respondent’s finding of guilt and the Applicant’s dismissal from the Public Service I do not think that the matter should be allowed to rest there. The charges should now be referred to the Commission as required by Regulation 41 and the disciplinary proceedings against the Applicant should then continue according to law.

         

        (Motion granted; dismissal quashed.)

The State v. The Public Service Commission ex parte Amenatave Tawake

        [1999] FLR 110

        HIGH COURT OF FIJI ISLANDS

         

        THE STATE

         

        v.

         

        THE PUBLIC SERVICE COMMISSION

         

        ex parte

        AMENATAVE TAWAKE

         

        [HIGH COURT, 1999 (Byrne J), 27 May]

         

        Revisional Jurisdiction

         

        Public Service- General Orders- failure to convey substance of Annual Confidential Report- whether G.O. 215 mandatory or directory- Public Service Decree 40/1990 Section 10.

         

        The Applicant sought judicial review of a decision not to promote him. He argued that he had not been given an opportunity to rebut criticisms of him contained in Annual Confidential Reports as was required by General Orders. The Court dismissed the motion and HELD: (i) G.O. 215 was merely directory and (ii) the failure to comply with G.O. 215 had made no difference to his promotion prospects.

         

        Cases cited:

         

        Anuradha Charan v. PSC & Ors – Civ. App. 2/92 (FCA Reps 93/661)

        Celik (Ali) and Celik (Hanife) v. Secretary of State for the

                    Home Department (1991) Imm. A.R. 8, C.A.

        Coney v. Choyce [1975] 1 WLR 422.

        Malloch v. Aberdeen Corporation [1971] AC 1578

        Ram Karan Cheta v.Attorney-General – Civ. App. 56/76 (FCA Reps 77/463)

        Regina v. Ministry of Defence ex parte Murray TLR 17-12-1997

         

        Motion for judicial review in the High Court.

         

        T. Savu for Applicant

        S. Kumar for Respondent

         

        Byrne J:

         

        The Applicant has been employed in various capacities by the Government of Fiji since the 15th of January 1972 first as an unestablished staff until the 4th of March 1975 when he became a Civil Servant.

         

        Early in 1995 he was appointed the Stores Officer II (Stock Control Section) of the Government Supplies Department until on the 10th of April 1996 he was appointed Acting Stores Officer I (Despatch) Government Pharmacy until the 8th of August 1997 when he was relieved of that position and another person Mr. Mitieli Maraiwai was promoted to the substantive position of Stores Officer I (Despatch) Government Pharmacy.

         

        By leave which I granted on the 26th of June 1998 the Applicant seeks Judicial Review of the decision to appoint Mr. Maraiwai.

         

        I granted leave on one question only namely whether the failure of the Respondent, which is not denied, to comply with General Order 215 of the Public Service Commission General Orders rendered the decision to appoint Mr. Maraiwai a nullity. I took written submissions on the question.

         

        General Order 215 is part of a section of the General Orders dealing with Confidential Reports and reads as follows:-

         

        “Communication of Reports to Officers - Confidential Reports will not be shown to the Officers on whom they are written. But the substance of the report made on an Officer’s work or conduct included in a report will be conveyed to him by the Officer instructed to do so, and this will be done at an interview, to be followed by a brief memorandum, a copy of which will be attached to the report. Before any Reporting Officer begins to fill in a report, he must study the current Circular instructions on procedure. Communications to an Officer of this nature should, if at all possible, be couched in sympathetic terms and with the object of encouraging and enabling him to overcome his shortcomings.”

         

        In support of his application the Applicant has filed two affidavits, the first sworn on the 3rd of October 1997 in support of his application for leave to apply for Judicial Review and the second sworn on the 11th of March 1998 in support of his Motion for review.

         

        An affidavit opposing the Applicant’s application was sworn by Umesh Chand an Administrative Officer in the Ministry of Finance and that Ministry’s representative on the Government Supplies Department Staff Board which prepared a report on applications for the vacancy of Stores Officer I (Despatch).

         

        The burden of the Applicant’s case is that because he was not granted his rights under General Order 215 he was unable to refute two adverse reports made against him which he says prevented him from being appointed to the position now held by Mr. Maraiwai.

         

        He applies for certiorari to quash the decision to appoint Mr. Maraiwai, an order of mandamus directing the Government Supplies Staff Board to properly fill in the Annual Confidential Report (ACR); an order of mandamus directing the Commissioner, Ministry for Finance to recommend to the Public Service Commission that the Applicant is fit for promotion to the position of Stores Officer I, and an order of mandamus directing the Public Service Commission to appoint the Applicant to that position. He also seeks a declaration that the Public Service Commission has acted in breach of the rules of natural justice in failing to appoint him to the position.

         

        In response to the Applicant’s affidavit the Respondent in its affidavit states that after advertising the vacancy for Stores Officer I a total of fourteen applications were received. The Staff Board then considered the applications and prepared a report for the Permanent Secretary for Finance. That report, a copy of which is annexed to the Respondent’s affidavit, gives personal particulars about the various Applicants for the position and makes comments on each Applicant giving a brief history of their previous employment.

         

        The Report on Mr. Tawake concludes with this paragraph:

         

        “Mr. Tawake has passed the Trade Tests III, II and I and has a service of 21 years. Mr. Tawake’s Annual Confidential Report ratings for 1994 is Good, Fitted for Promotion for 1995, Good, Highly Fitted for Promotion and for 1996, Fair, Not Yet Fitted for Promotion.”

         

        The report on the successful Applicant Maraiwai concludes with these words:

         

        “The rating for 1995 was Satisfactory, Fitted for Promotion and for 1996, Good, Fitted for Promotion.”

         

        It should be added for the purpose of completeness that whereas the Applicant had been employed in the Public Service for some 25 years Mr. Maraiwai had been employed for only 6 years and is 2 years older than the Applicant.

         

        Three other annexures to the Respondent’s affidavit are relevant. The first is a Memorandum dated 27th of March 1995 from the Acting Controller of Government Supplies to the Applicant dealing with his work performance and I quote it in full omitting formal parts:

         

        “I have discussed with you about your work performance following a verbal report received from your superior officer in the Ministry of Health. You have been a Stores Officer II for almost five years and you are eligible for advancement to a higher post.

         

        Unfortunately, you cannot be considered for further progression unless you have shown a marked improvement in your work performance and attitude. Meanwhile it would be necessary to transfer you to a new locality. This will give me an opportunity to closely observe your performance.

         

        You should, therefore, make a genuine effort to produce a high standard of work and also a change of work attitude and be advised that your performance will be reviewed after six months.”

         

        Less than two months later on the 18th of May 1995 the Acting Controller of Government Supplies sent another memorandum to the Applicant which is headed “Concern”. It is desirable to quote this memorandum also omitting formal parts. It reads:

         

        “I refer to your memorandum referenced EDP 18115H of 09/05/5.

         

        Your allegation against the Senior Administrative Officer for unfairly administering your transfer is not true. Please be advised that discussions regarding staff matters including transfers of officers are done by the Staff Board in my presence.

         

        In your case, your transfer from the Ministry of Health was initiated by that Ministry. Arrangement was immediately made to post you to the Department of Mineral Resources, but our proposal did not eventuate as a result of the strong objection by the Permanent Secretary for Lands and Mineral Resources.

         

        Other efforts were made later to post you elsewhere, but with no success. Finally it was decided that you be temporarily posted to the Headquarters pending decision on your permanent posting when opportunity arises.

         

        Meanwhile, it would be advisable that you should concentrate on your work and try to improve your performance as was stressed in my letter of 27/03/95.”

         

        The third annexure is the Memorandum from the Government Chief Pharmacist dated 4th December 1996 to the Controller of Government Supplies. Attached to the memorandum is a 2-page document called performance appraisal of Mr. Tawake. I quote from it the following paragraphs:

         

        “The supervision role is not being undertaken effectively. Mr. Tawake is frequently absent from his work station and supervision cannot be achieved in the absence of the supervisor.

         

        Mr. Tawake does not have the desired rapport with staff to extract desired work outcomes. His approach is usually aggressive and lacks personnel management skills. In monthly meetings with the packing staff (unestablished), concern has been raised about the aggressive nature of Mr. Tawake’s personality.

         

        Mr. Tawake is not a suitable role model for his staff and therefore, it is difficult to extract discipline from his staff given his personal performance. He does not command the respect of his subordinates.

         

        Relationship with Senior Staff: Mr. Tawake is a member of the Senior Staff committee at Government Pharmacy and contributes his ideas whenever the opportunity arises. He generally works well with other staff.

         

        Ability to Carry-out Instructions: Any job-related instructions given to Mr. Tawake have been carried-out efficiently.

         

        General Conduct: Concern has been raised with Mr. Tawake regarding his frequent absences from work. In particular, his use of sole Government Pharmacy transport without liaising with the Executive Officer which has caused transport difficulties at Government Pharmacy. These issues have been raised verbally with Mr. Tawake on several occasions with little improvement.

         

        Apart from this, his general conduct is deemed to be satisfactory.”

         

        Although it is common ground that the Applicant could not be allowed to see the memorandum of the 4th of December 1996 I have no doubt, and he does not deny it, that he saw the memoranda of the 27th of March and 18th of May 1995. It thus must have been obvious to him that his work was not giving satisfaction to his employer and he was invited in the clearest terms to improve his performance. I am entitled to assume in view of the appointment of Mr. Maraiwai that the Respondent was not satisfied that the Applicant had improved his work performance.

         

        In his affidavit of the 3rd of October 1997 the Applicant annexes various reports of Government Pharmacy Senior Staff Meetings which the Applicant attended from the 7th of May 1996 to 1st of July 1997. The Applicant remarks that in none of these reports was there any adverse criticism of him by his senior colleagues. I do not find this surprising for the simple reason that it would be unlikely that staff members of equal status would criticise one of their colleagues on the way he performed his work. More to the point I think is the remark in the Performance Appraisal about his relationship with ordinary staff. Of course the Applicant may not have known of this or if he did may deny the allegations against him. This is part of his argument on the failure by the Respondent to comply with Order 215.

         

        Notwithstanding that I can not bring myself to believe that the Applicant could not have been aware of any allegations made by ordinary staff about his behaviour at staff meetings and his alleged aggressiveness.

         

        I have been referred to various case law and begin with the remarks of the Court of Appeal in Civil Appeal No. 56 of 1976 Ram Karan Cheta v. The Attorney-General of Fiji in its unreported judgment of the 25th of March 1977 (FCA Reps 77/463). At pages 10 to 11 the Court said this:

         

        “We do not find the construction of these General Orders a straight forward task. They are not, or have not been in the past, the same as regulations made under statutory authority, but are more in the nature of instructions and conditions evolved by a giant corporation for the regulation and guidance of its staff. By virtue of section 17(3) of the Public Service Act, 1974, they are part of the conditions of service, but are for the internal use, guidance, assistance and general conduct of employees. Hence we think that any purely legal approach to their construction could be too cramping; considerations arising from the common sense of an employer-employee situation could well be relevant.”

         

        In Malloch v. Aberdeen Corporation [1971] AC 1578 at page 1595 Lord Wilberforce said of the Plaintiff’s claim that he had been denied a hearing after he had been dismissed as a teacher:

         

        “The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”

         

        In Regina v. Ministry of Defence, ex parte Murray reported in the Times Law Reports of 17th December 1997 Mr. Justice Hooper with whom Lord Bingham of Cornhill, Lord Chief Justice concurred in a separate judgment said that:

         

        “Judicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion than that reached was realistically possible.”

         

        In Celik (Ali) and Celik (Hanife) v. Secretary of State for the Home Department (1991) Imm. A.R. 8, C.A. referred to in CLY p.486 1991 item 1969, it was said:

         

        “Refusing the applications, that (1) there is no principle of law that says that unfairness can never be ignored if a fair hearing would not have made any difference to the decision taken;.......”

         

        Staughton L.J. said:

         

        “Ordinarily, if there has been improper procedure, one needs to be roundly convinced that the impropriety made no difference before one should refuse to act upon it.”

         

        By Section 10 of the Public Service Decree No. 40 of 1990 the General Orders are said to be for the internal use, the guidance, assistance and general conduct of employees. The question I have to answer is whether General Order 215 is mandatory or merely directory so that I can treat the failure of the Respondent to comply with Order 215 as a mere irregularity.

         

        In Coney v. Choyce [1975] 1 WLR 422 Templeman J., as he then was, had to consider whether failure to comply with various Education Act regulations rendered a decision of the Secretary of State a nullity. Templeman J. held that it did not and said at page 433:

         

        “For the reasons which I have given, I accept that by and large, putting it shortly, the breaches of the regulations did not make any difference.”

         

        In this case I am satisfied that Order 215 is merely directory and that failure to comply with it by the Respondent has not rendered the decision against the Applicant a nullity. I adopt what was said by Hooper J. in Regina v. Ministry of Defence that despite the Respondent’s failure to consult with him in the manner stated in Order 215 it must have been clear to the applicant on any objective review of his work performance that the reasons why he was passed over for promotion would have been easily discernible to him and that no other conclusion than that reached was realistically possible.

         

        In Civil Appeal No. 2 of 1992 Anuradha Charan v. Public Service Commission and Others in its unreported judgment of the 19th of November 1993 (FCA Reps 93/661) on a case in some ways similar to the instant the Court said at pages 19 and 20:

         

        “Clearly the Commission must observe the proper rules and procedures in seeking and considering applications for vacancies. In so doing they must evaluate evidence of all aspects of the candidates’ abilities, qualifications and attitudes. Having done so, they are left with a discretion to decide the suitability of the candidate for the post under consideration. That discretion must include the right to decide, if based on proper grounds, that despite fulfilling all the stated qualifications, the candidate may still not be suitable. There may be many reasons why a particular person should not be appointed despite suitable qualifications on paper and there is no right of automatic appointment in the event that some other qualified person applies.”

         

        I am not persuaded that the failure by the Respondent to follow Order 215 was fatal to the Applicant’s prospects of promotion. I find that he had been given various warnings about his work performance and it is reasonable to conclude that this was taken into account by the Commission when refusing his application for promotion.

         

        I accordingly order that the application for Judicial Review is dismissed but I decline to make any order for costs.

         

        (Motion dismissed.)

Viliame Cavubati v. Adi Koila Nailatikau & Anr.

        [1999] 45 FLR 136

        HIGH COURT OF FIJI ISLANDS

         

        VILIAME CAVUBATI

         

        v.

         

        ADI KOILA NAILATIKAU & THE RETURNING OFFICER

        FOR LAU FIJIAN PROVINCIAL COMMUNAL CONSTITUENCY

         

        [HIGH COURT, 1999 (Shameem J) 27 July]

         

        Civil Jurisdiction

         

        Elections- election petition- whether requirement that petition be signed personally by the petitioner is mandatory or directory- Electoral Act 1998 Sections 144, 145, 146 and 147.

         

        The Petitioner who narrowly missed election sought a recount. The High Court dismissed the petition. It HELD: that the requirement that a petition (other than one filed on behalf of the Attorney-General) be signed by the petitioner personally was mandatory and failure to comply with the requirement could not be waived.

         

        Cases cited:

         

        Cameron v. Fish (1904) 1 CLR 314

        Damish McTule [1951] 1 All ER 725

        Devan Nair v. Yong Kuan Teik [1967] 2 AC 31

        Evans v. Crichton Brown (1981) 147 CLR 169

        Griffiths v. Evans [1953] 2 All ER 1364

        Jolly v. District Council of Yorketown (1968) 119 CLR 347

        Josefa Rusaqoli v. Attorney-General & Anr - 40 FLR 81

        McDonald v. Keats & Ors (1981) NSWLR 268

        Nile v. Wood (1987) ALR 52

        Perrill and the Poll for the Electoral Division of Boothby (