State v Minister for Information, Broadcasting, Television & Telecommunications, Ex parte Fiji Television Ltd (Application 1) [1997] FJHC 169; Hbj0012x.1997s (11 November 1997)

Fiji Islands - The State v The Minister for Information, Broadcasting, Television & Telecommunications, Ex parte Fiji Television Ltd (Application 1) - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

ACTION NO. HBJ0012 OF 1997

BETWEEN:

STATE

v.

MINISTER FOR INFORMATION, BROADCASTING, TELEVISION AND TELECOMMUNICATIONS

EX-PARTE: FIJI TELEVISION LIMITED

J. Howor the Applicant
N. Nand and E. Walker for the Respondent

Dates of Hearing: 23rd October, 3rd November 1997
Date of Ruling: 11th November 1997

RULING ON MOTION BY APPLICANT TO CROSS-EXAMINE
THE RESPONDENT ON HIS AFFIDAVIT SWORN ON 7^TH
OCTOBER 1997

The hearing of the substantive motion in this case has been fixed for the 17th of November until 21st November 1997.

In my interlocutory judgment of 30th July 1997 I ordered that pending the determination of the application for judicial review the Respondent be restrained from issuing or granting or giving effect to a decision to grant any licence under the Television Decree, 1992 to any person except the Applicant.

On pages 14 and 15 of my judgment I mentioned certain issues which I regarded as serious which I considered should be addressed on the hearing of the substantive motion. One of these which I stated at page 15 was this:

"Another serious question appears to me to be the apparent incongruity of the Respondent through its previous Minister granting the Applicant a Licence and accepting all fees payable thereunder even until now and then asserting, as the present Minister now does, that from the very beginning the Licence contravened the Fair Trading Decree.

If the Court is later to accept the Minister's claim that the Licence is contrary to the Decree then it seems that the only inference the Court can draw is that at all times, at least until the Minister's letter of 23rd May 1997, the Respondent condoned such breach and arguably did nothing to dissociate itself from what it now claims is a clear breach of the law."

I then elaborated on this question in the first paragraph on page 16 where I said:

"I agree with respect but in my judgment the general public also has an interest in seeing that Ministers of State behave fairly at all times and not unreasonably. It seems to me arguable that the public here may consider that the Minister's decision in revoking the Applicant's Licence contradicts that principle. It would appear that until the Minister's letter of 23rd May nothing had been heard of the Fair Trading Decree as far as this Licence was concerned."

Following my judgment I was informed on the 7th of August 1997 that the parties had agreed that the Applicant should file a further affidavit by the 4th of September on the serious questions to be tried and the Respondent file a supplementary affidavit by the 6th of October. Both affidavits were filed in the agreed time.

On the 15th of October the Applicant filed a Notice of Motion which is now before me requesting leave to cross-examine the Respondent Minister on his affidavit sworn on the 7th of October on the ground that in the interests of justice the Court should allow limited cross-examination of the Minister as to the incongruity of the Respondent's position in this matter. The application is opposed and I have heard and taken oral and written submissions by the parties on this one question.

For the Applicant it is submitted that if the apparent inconsistency in the Minister's position vis-a-vis the Fair Trading Decree of 1992 is not clarified it might be fatal to the Respondent's case. Accordingly it is submitted by Mr. Howard that the interests of justice require the Court to allow such cross-examination.

The Respondent submits in reply that I should not allow such cross-examination on the grounds:

(i) That the Applicant in the affidavits sworn and filed on its behalf by Peter Wilson the Chief Executive of the Applicant does not demonstrate any evidence of any conflict between the two affidavits filed by the Respondent namely on the 18th of July and 7th of October and those filed on behalf of the Applicant.

(ii) The Minister has filed a very full and comprehensive affidavit (of 7th October) and in 33 paragraphs has outlined all the necessary and relevant information which the Court should have including a number of annexures relating to the Minister of Finance's budget speech of 1996, various Cabinet decisions relating to the question of Television licences in Fiji and a report by the De-Regulation Review Panel purporting to outline what the Government is attempting to do to implement its policy of de-regulation. There are other annexures also but I do not consider it necessary to refer to them here.

(iii) Since there was a different Minister who gave the "exclusive licence" to the Applicant the present Minister cannot answer questions which can only be answered by that Minister.

(iv) The Applicant has not exhausted its remedies in that it has failed to ask for discovery or call for other material evidence from the Respondent.

(v) The Applicant has also failed to ascertain whether Government officials as opposed to the Minister could be called to give evidence.

I have been referred to numerous cases both English, New Zealand and local bearing on the question I have to decide on this Motion. From them it is clear that the Courts will allow cross-examination of deponents in applications for judicial review only in very limited circumstances.

In the English Court of Appeal in O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237 at p.257 Lord Denning M.R. commenting on the fact that since 1977 the boundaries of judicial review had been greatly extended, which he welcomed, said as to cross-examination:

"Another safeguard is to control the use of cross-examination. This can roam unchecked in ordinary actions, but is kept within strict bounds in judicial review. It is rarely allowed."

Similar views were expressed by Lord Diplock when the case went to the House of Lords. At pp.282 and 283 he said:

"It will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review. This is because of the nature of the issues that normally arise upon judicial review. The facts, except where the claim that a decision was invalid on the ground that the statutory tribunal or public authority that made the decision failed to comply with the procedure prescribed by the legislation under which it was acting or failed to observe the fundamental rules of natural justice or fairness, can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v. Bairstow [1955] UKHL 3; [1956] A.C. 14, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament. Nevertheless having regard to a possible misunderstanding of what was said by Geoffrey Lane L.J. in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 W.L.R. 1401, 1410 your Lordships may think this an appropriate occasion on which to emphasise that whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires."

The Fiji Court of Appeal approved Lord Diplock's statement in Civil Appeal No. 2 of 1992 Anuradha Charan v. Public Service Commission and 2 Others - unreported judgment of 19th November 1993 and this in turn was followed by Scott J. in Judicial Review No. 12 of 1993 the State v. Public Service Commission Ex-parte: Govind - unreported judgment of 7th November 1994. His Lordship refused an application for leave to cross-examine deponents of affidavits sworn on behalf of the Respondent when he said at page 2 of his judgment:

"Orders for cross-examination will only very rarely be made since it is the procedure adopted by the administrative body which is in question not the correctness or merits of the decision reached."

In Judicial Review No. 4 of 1991 State v. Public Service Commission Ex-Parte: Suruj Ram - unreported Judgment of 20th August 1993 I allowed cross-examination of both of the Applicant and another witness called on his behalf and the principal deponent of the Respondent on the question of whether the Applicant had been denied a fair hearing by the Respondent prior to his dismissal. No objection was taken by the Respondent to such cross-examination being allowed.

It is clear therefore that on applications for judicial review in Fiji the Courts have only rarely allowed cross-examination of deponents for the reasons given by Lord Diplock and to a lesser extent Lord Denning in O"Reilly v. Mackman.

I note however the remark of Ackner L.J., as he then was, in the Court of Appeal at p.263 of the report when he said:

"Although cross-examination may be rarely ordered, if the interests of justice require it to be allowed, it would be an erroneous exercise of discretion to refuse it."

In Reg. v. Waltham Forest London Borough Council Ex parte Baxter and Others (1988) 1 Q.B. 419 the English Court of Appeal and indeed both the Judge at first instance and the Divisional Court allowed without opposition cross-examination of members of a majority group on the Council who, at a private meeting before a Council meeting had opposed a proposed large rate increase but at the Council meeting nevertheless voted for the resolution for increased rates.

In some respects it seems to me there is a certain similarity between Baxter's case and the instant case in that in the instant case there is this apparent incongruity of a Government Minister being a party to a licensing agreement and three years later alleging that that agreement is illegal.

In the New Zealand Court of Appeal case of Minister of Energy v. Petrocorp Exploration Ltd [1989] NZCA 95; (1989) 1 NZLR 348 the Court consisting among other Justices of Cooke P. and Casey J. held that cross-examination in judicial review proceedings should only be allowed in special circumstances.

The Headnote of this case reads:

"In judicial review proceedings cross-examination is not permitted as of right, and in cases about Ministerial powers there is a delicate balance between the powers of the Minister and the role of the Court. When a Ministerial decision is challenged, it is important that the Court has reliable evidence of the reasons why the Minister acted in a particular way; and it is valuable and desirable that an affidavit should be made by the Minister personally. Thus, the Court should not allow a Minister to be cross-examined in such proceedings unless it is clearly necessary to enable the case to be disposed of fairly. Here the question in issue involved the interpretation of the Petroleum Act 1937 and the bearing on the Minister's responsibilities under that Act of the joint venture and what was done by the joint venture. All material facts could be established without cross-examining the Minister. The reasons for the challenged decisions were clear from the Minister's affidavit, the documents made available by the Crown, and the statement of defence, and nothing significant was likely to be gained by cross-examining the Minister about his opinions, understanding or purposes."

At p.354 Cooke P. delivering the judgment of the Court said:

"It is as well to mention that, if a Minister is unwilling to submit to cross-examination and his refusal is upheld by the Court in accordance with the general practice that we have indicated, there may be cases in which the weight to be given to the Minister's affidavit will be affected. This is a point on which it is impossible to generalise. As every Judge knows, an obviously self-serving affidavit not tested in cross-examination may have to be viewed with some reserve."

The word "justice" is much used in decisions of all Courts and in the submissions of the parties to cases but I think it relevant for the purposes of this Motion to refer to the Oxford English Dictionary primary meaning of the word namely,

"The quality of being (morally) just or righteous; the principle of just dealing; just conduct; integrity rectitude. (One of the four cardinal virtues.)"

What then does justice require in the present case? Can it be said on the present material before the Court that the Respondent has followed the principle of just dealing towards the Applicant? In my opinion it is open to the Court without the addition of any further evidence such as I would hope might be elicited by cross-examination of the Minister to conclude that the Respondent has not behaved in a just or righteous manner towards the Applicant.

In my interlocutory judgment I extended an invitation to the Minister by what I considered to be the clearest implication to refer in his second affidavit to the apparent incongruity of the Respondent's stance towards the Applicant on the question of the Fair Trading Decree. In my opinion he has ignored my invitation since he does not even refer to the question as though he thought it irrelevant. If this be the Minister's position then for reasons which I gave in my judgment on the 30th of July I do not agree with it.

In Minister of Energy v. Petrocorp Exploration Ltd. the lower Court (High Court) had already ordered that Ministry officials be produced for cross-examination and Cooke P. in the Court of Appeal noted this and was of the view that nothing further could be relevantly gained or be of assistance to the Court by allowing cross-examination of the Minister. He further noted at p.352 that the Minister made a candid, frank and sufficiently full affidavit extending why he had acted in a particular way. He then observed at 354 (35):

"What has just been said might not apply if the Minister's purposes and the considerations which moved him were not so clear."

On the present material I am not satisfied in this case that the Minister's purposes and the considerations which moved him are as clear as they could be and, in fairness to the Applicant in my judgment, should be.

During the course of argument I mentioned the Australian High Court decision of Jones v. Dunkel [1959] HCA 8; (1959-60) 101 CLR 298 which concerned the failure of the driver of one of the motor vehicles involved in a fatal accident to give evidence at the hearing of the action. At pp.320-321 Mr. Justice Windeyer with whom Justices Kitto and Menzies agreed quoted from Wigmore on Evidence 3rd Ed. (1940) Vol. 2, p.162:

"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would there by be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted."

Mr. Justice Windeyer then added his own comment:

"This is plain common sense."

It is submitted by the Respondent that Jones v. Dunkel does not apply here for three main reasons:

(1) The case is not on judicial review. The general law on evidence which applies to civil and criminal proceedings, does not apply to Order 53 cases.

(2) The action was one of negligence which in all common law jurisdictions is tried on oral evidence. In Jones' case there was a jury trial and hence the need for the jury to have before it all factual evidence, since the jury would decide on facts.

(3) The case was decided in 1958 well before Australia or England adopted a judicial review procedure as we know it today. Hence Jones v. Dunkel decision must be read with caution.

I do not agree with this submission. I see nothing in Jones v. Dunkel which requires the statement of Wigmore to be confined to cases other than applications for judicial review. As Mr. Justice Windeyer said, Wigmore's comment is simply common sense. As I have been informed that if unsuccessful on this motion the Respondent may take this case to at least the Court of Appeal, I should say that on the substantive hearing if the Minister does not give evidence I will feel myself free to apply Jones v. Dunkel if I think it desirable.

For these reasons I consider that in this case the Court should allow cross-examination of the Minister limited only to the question of the apparent incongruity of the Respondent's position in relation to the granting of the licence to the Applicant and the Fair Trading decree and I so rule. Costs will be in the cause.

JOHN E. BYRNE
JUDGE

Cases referred to in ruling:

Civil Appeal No. 2 of 1992 Anuradha Charan v. Public Service Commission and 2 Others - unreported judgment of 19th November 1993.

Jones v. Dunkel [1959] HCA 8; (1959-60) 101 CLR 298.

Minister of Energy v. Petrocorp Exploration Ltd. [1989] NZCA 95; (1989) 1 NZLR 348.

O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237.

Reg v. Waltham Forest London Borough Council Ex parte: Baxter and Others (1988) 1 Q.B. 419.

State v. Public Service Commission Ex parte: Govind - unreported judgment of Scott J. of 7th November 1994.

Judicial Review No. 4 of 1991 State v. Public Service Commission Ex parte: Suruj Ram - unreported judgment of Byrne J. of 20th August 1993.

The following additional cases referred to in argument:

Eshugbayi Eleko v. Government of Nigeria [1931] UKPC 37; (1931) A.C. 662.

R. v. Inland Revenue Commissioners, Ex parte: T.C. Coombs & Co. (1991) 2 A.C. 283.

Judicial Review Handbook by Michael Fordham 1994.

Hbj0012x.97s