Charan v Shah [1994] FJHC 94; Hbj0014j.1994s (17 August 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBJ0014 OF 1994

BETWEEN:

SURESH SUSHIL CHANDRA CHARAN and
ANURADHA CHARAN trading as
Checkpoint Restaurant of 4 Evelyn
Place, Nasese, Suva
Plaintiffs/Applicants

AND:

SYED M. SHAH
the Resident Magistrate,
Magistrate's Court, Government
Buildings, Suva
- First Respondent

AND:

SUVA CITY COUNCIL
of the City of Suva
- Second Respondent

AND:

ATTORNEY-GENERAL OF FIJI
- Third Respondent

First Applicant in person.
Tamara Jayatilleke for the Second Respondent
D. Singh for the Third Respondent

Date of Hearing: 17th August 1994
Date of Judgment: 17th August 1994

JUDGMENT

The Applicants apply for leave to judicially review the decision of the Suva Magistrate's Court constituted by M.S. Shah, Resident Magistrate on the 13th of July 1994 in Action No. 1654/90 wherein it was ordered:

(a) That the Applicants/Plaintiffs pay $800.00 costs to the Suva City Council.

(b) That $239.20 paid to the Applicants on 20th of November 1992 by the Council be refunded to the Defendant Council with 10 percent interest from 20th of November 1990 until the date of payment in full to the Council.

(c) The Applicants' application for costs be dismissed.

(d) The Applicants' Notice of Intention to Appeal be struck out.

I have heard submissions this morning from the First Applicant and by Mr. Singh counsel for the Second Respondent.

At the beginning of the proceedings I asked the First Applicant why he had not exhausted his rights of appeal to this Court from the decision of the Magistrate's Court of which both Applicants now seek Judicial Review.

Mr. Charan replied that he considered the Applicants had no right of appeal because the Learned Magistrate had ordered that the Applicants' Notice of Intention of Appeal be struck out.

I pointed out to Mr. Charan that this did not prevent his wife and himself appealing the decision but he appears not to have understood what I said.

In my judgment the law in this case is clear namely that where an Applicant for leave for judicial review has not exhausted all other remedies available to him, particularly that of appeal, this Court should not entertain any application for leave.

In my judgment in Action No. 18 of 1991 State v. Mohammed Shamsudin Sahukhan s/o A.H. Sahu Khan and Jitendra Maharaj - Ex-parte: Iosevo Visaboto also known as Isoefo Vosaboto delivered on the 4th of May 1992 I referred to some of the relevant authorities on this question namely:

(i) R. v. Battle Justices, ex parte Shepherd and Another (1983) Criminal L.R. 550;

(ii) R. v. Epping and Harlow General Commissioners, ex parte Goldstraw (1983) 3 All E.R. 257 at 262; and

(iii) R. v. Chief Constable of Merseyside Police, ex parte Calveley (1986) 1 All E.R. 257.

In R. v. Battle Justices, ex parte Shepherd and Another the Q.B. Divisional Court refused an application for an order of certiorari quashing a compensation order made by Justices of Peace on the ground that they had not exhausted the procedure available to them of first appealing to the Crown Court.

Similarly in R. v. Epping and Harlow General Commissioners, ex parte Goldstraw in which the Applicant sought Judicial Review of assessments of the Income Tax Commissioners the application was refused on the ground that the Applicant had not exhausted the other remedies which were available to him. Lord Donaldson M.R. said at page 262:

"But it is a cardinal principle that, save in the most exceptional circumstances, that jurisdiction will not be exercised where other remedies were available and have not been used."

In Calveley's case he repeated those words when actually granting Judicial Review to Police Officers who had been unfairly dismissed because His Lordship together with the other two members of the Court, May L.J. and Glidewell L.J. held that on the particular facts exceptional circumstances existed.

It is true that in the Sixth Edition of his book on Administrative Law at pages 714 to 716 Professor Wade criticizes these dicta and says that they reflect a novel attitude which does not appear to be based on authority but may be due to the increasing pressure of applications for Judicial Review, which had become so numerous.

Professor Wade however admits that these are formidable dicta but that in reality the Courts are better than their word. When genuine grounds for Judicial Review are alleged, it is the refusal rather than the grant of review which is the exceptional course.

In my judgment this is the law in Fiji and understandably so.

In my view the application for leave for Judicial Review is misconceived and cannot be entertained by this Court.

In addition to the cases I have just mentioned counsel for the Second Respondent referred to R. v. Secretary of State for the Home Department, ex parte Swati (1986) 1 All E.R. 717 in which the Court of Appeal confirmed the principle I have just stated and in doing so referred inter alia to Calveley's case.

I am satisfied that the application for leave for Judicial Review is scandalous, frivolous and vexatious and constitutes an abuse of the process of this Court.

I accordingly make the orders sought in the Third Respondent's Summons to strike out the Applicants' application for leave to appeal for Judicial Review dated 28th July 1994. I further order the Applicants to pay the Respondents' costs to be taxed if not agreed.

JOHN E. BYRNE
J U D G E

Cases and authorities cited in judgment:

(1) R. v. Battle Justices, ex parte Shepherd and Another (1983) Criminal L.R. 550.
(2) R. v. Epping and Harlow General Commissioners, ex parte Goldstraw (1983) 3 All E.R. 257 at 262.
(3) R. v. Chief Constable of Merseyside Police, ex parte Calveley (1986) 1 All E.R. 257.
(4) Sixth Edition, Administrative Law - H.R. Wade

No other case cited in argument.

HBJ0014J.94S