The applicants are, as far as IR is concerned, seeking:
"An injunction that the First Respondent immediately cease totruct any building or any development in the Lots 1 and 2 ud 2 unless
and until the Minister makes a final decision under Section 5 of the Town Planning Act and or upon further order of this Honourable Court."
The applicants are applying for an interim/locutory order in the form of an injunction referred to hero hereabove which they are entitled
to make in an Application for Judicial Review.
Here, although an application was made separately from the application for leave for judicial review (but it is also one of the reliefs
sought in the application for Judicial Review), the proper time to consider it is now, that is immediately after leave has been granted
(Or.53 r.3(8)).
I therefore proceed to consider the application.
It is only the IR (and not the 2R & 3R) who wilaffected by the grant of an injunction and therefore he is e is applying for its
discharge.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Here the applicants have set out in their avits the relief that they are seeking which affect the rige rights of another and in this
case the IR particularly. He is in actual fact a 'third party' to the proceedings although cited as the IR and a party to the action.
The Application for Judicial R is against the 2R's decision made on or about 30th day of May, 1996 by rezoning the IR's LR's Lots
1 and 2 from Residential B to Industrial to permit him to operate an electric workshop being an industrial activity without, as alleged
by the Applicants, properly considering their objections.
Mr. Maharaj for the Applicants submitted that the status quo should be maintained. He said that pplication for Judicial Revl Review
is the "collective conduct" of the parties amenable to Order 53 which are primarily the 2nd to 3rd Respondents who have allowed IR to develop the property by
rezoning it in breach of Town Planning Act. He said that the issue of delay is not made out against the Applicants. He states that the balance of convenience must be with the
applicants. The injunction ought to continue as to refuse it would render otherwise and/or futile the Judicial Review so sought.
He submits that there is a serious question to be tried, and that the applicants will suffer irreparable injury for which damages
will not be an adequate compensation unless injunction is granted and that the balance of convenience favours granting the injunction.
Mr. Raza submits that the Applicants were fully aware of what IR was doing and they could have taken action long ago. They knew that
he started construction in June 1996 but they did not take appropriate action but waited until the building was half way to completion.
Their grievance lies with the 2R & 3R but not with IR. Mr. Raza says that there is no cause of action against IR.
Arguing against the grant of an injunction Mr. Raza says that the Applicants' remedy is against the Minister.
He questions why did have to wait for so long when the building is half-way up to make this application. For thir this reason the
application ought to be refused.
The granting of the injunction has to be considered in the light of the facts before the Court and of particular attention is the
fact that IR's building is already half complete. The IR has evidently become a beneficiary so to say of the said decision of the
2R. No doubt by putting a halt to the continuation of the construction work by an Order of Court is something which cannot be taken
lightly at all.
The question that arises in such a situation is, if the Appls are unsuccessful, who is o is going to compensate the IR if he is stopped
from completing his building. Mr. Maharaj says it is the 2R who should be made to compensate. If that is so and if that is possible
then what is the sense in stopping construction work at this stage for the question of compensation could be dealt with if and when
it arises in due course. It cannot be said that the Applicants failed to take action.
In actual fact it is a matter of some concern that the Applicants did not take this action marlier, particularly when ohen on their
own admission they came to know of the rezoning on 15 February 1996 through an advertisement of the Plan. They point a finger at
the Ombudsman that he took from 20th February 1996 until 17 July 1996 to tell them of their rights in this matter. Hence they did
not do anything earlier. They could have taken steps even when the IR was laying the foundation of the building. Why let the building
go up half way to completion and then institute proceedings? That is not acting promptly by any standard and the reason given for
this dilatoriness on their part is not helping their case, although I give credit to them for knocking every other door at their
disposal to bring home to those concerned the alleged nuisance that is being created as a result of 2R's decision.
I therefore agree with Mr. Raza that the Applicants did not act promptly. Or 53 r 4 does provid consequences for delay in y in applying
for relief, which states, inter alia, that the Court may refuse to grant any relief sought on the application, "if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to/or substantially
prejudice the rights of any person or would be detrimental to good administration."
On tspect of the requirement to act promptly I refer to the following passage from the book k JUDICIAL REVIEW by SUPERSTONE & GOUDIE at 346 and 347:
"The first and important point for the adviser is that an application can be out of time because not promptly even though it
isit is within the three month period. In Re Friends of the Earth Ltd [1988] JPL 93 a challenge to the grant of planning permission for the Sizewell power station was held not to be made promptly even though (by one
day) within the three month period. Cases where third parties (eg the beneficiary of a planning permission) are likely to have committed
themselves to expenditure on the strength of the decision are cases where there is a particular need to pay regard to the injunction
to act 'promptly'. This point was stressed by the Court of Appeal in R v Independent Television Commission, ex p TV NI Ltd, (1991) Times, 30 December, CA, with Donaldson MR stating the Courts reluctance to intervene in a way which would adversely affect market dealings
undertaken in good faith."
In REGINA v INDENT TELEVISION COMMISSION, EON, Ex parte TV NI Ltd and Another Dec., 30, 1991 The Times Law Reports C.A. 606 it was held:
"Applicants seeking leave to move for judicial review were required to act with tmost promptness particularcularly where third
parties' rights might be affected. It was not correct to state that there was a three-month period in which to make such an application."
In the Judgment in that case, LORD DONALDSON M.R. is repoto have said:
"Referring to R v Panel on Take-overs and Mergers, Ex parte Datafin plc ([1987] QB 815) his Lordship said that the court was always extremely reluctant to intervene in a way which would adversely affect market dealings
undertaken in good faith and in ignorance that apparent certainties were in fact not certain at all.
Uncertainty in the market did occur, but uncertain the form of judicial review was an entirely different mant matter........................
It had been stated in the prhat all applicants had three months in which to apply for leave to move for judicial revieweview. That
was not correct. Applicants in such matters, which could affect good administration, had to act with the utmost promptitude since
so many third parties were affected. The present applicants had not done so."
Therefore, for not having acted promptly in seeking an injunctive f in all the circumstances of this case the application forn for
interlocutory injunction can be refused on this ground alone.
On the cants' application for injunction to continue and IR's application for its discharge, I musI must say that after considering
the submissions of counsel I am not satisfied that the Applicants' case is of sufficient strength to enable me to let the interim
injunction continue any longer.
As was said by LORD DIPLOCK in AMERICAN CYNAMID v ETHICON LTD (H.L.(E)) 1975 AC at 405, "the grant of an interlocutory injunction is a remedy that is both temporary and discretionary". The principles governing the granting of interlocutory injunctions are set out in his judgment.
The rule is that the Court must be satisfied that tplicants' case is not frivolous or vexatious and that therethere is a serious question
to be tried. Once that is established, the governing consideration is the balance of convenience.
No doubt there is a serious question to be tried. Also it cannot be said thatApplicants' case is frivoloivolous or vexatious. In the
case before me I have to consider where "the balance of convenience lies". On the facts outlined above as far as IR is concerned, particularly when his building is half way up, the Applicants will not suffer
any greater hardship than at present if the building is completed, which the IR will do at his own risk with full knowledge of this
action if the judgment goes against him. In my view the balance of convenience favours the refusal of the relief sought. In this
regard I have borne in mind the following passage for the judgment of LORD DIPLOCK in AMERICAN CYNAMID (supra) 406:
"The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he
could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial;
but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against
injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated
under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must
weigh one need against another and determine where "the balance of convenience" lies.
To conclude, upon considering the affidavits filed herein and the submissions of both counsel, for the reasons I have given, I consider
that in the exercise of my discretion I ought not to grant the relief sought, namely, injunction against the IR. The application
for interlocutory injunction is refused and the interim order for injunction is discharged.
The costs are to be in the cause.
D. Pathik
Judge
At Suva
29 August, 1996
Hbj0014d.96s
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