State v Director of Town and Country Planning, Ex parte Singh [1997] FJHC 208; Hbj0020x.1994s (6 May 1997)

IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

ACTION NO. HBJ0020 OF 1994

BETWEEN:

STATE

AGAINST

THE DIRECTOR OF TOWN AND COUNTRY
PLANNING, SUVA CITY COUNCIL AND
HARIKISUN LIMITED

EX-PARTE: DIP SINGH AND TWO OTHERS

P.P. Sharma for the Applicant
S. Banuve for the 1st Respondent
R. Gopal for the 2nd Respondent
H.K. Nagin for the 3rd Respondent

Dates of Hearing and Submissions: 20th and 28th November, 11th December 1996,
28th January, 28th February, 1997.
Date of Interlocutory Judgment: 6th May 1997

INTERLOCUTORY JUDGMENT

On 28th February 1995 I gave the Applicants leave to apply for Judicial Review of certain decisions made by the First Respondent and Second Respondent affecting a property owned by the Applicants at 70 High Street, Toorak on which there is a dwelling house.

On 7th April 1995 I granted the Third Respondent leave to appeal to the Court of Appeal against my judgment.

The appeal was heard on the 16th of May 1996 and the Court of Appeal delivered its decision on the 4th of October 1996 dismissing the 3rd Respondent's appeal with costs to the Applicants.

The Applicants then submitted the Court of Appeal Order to the Registry for sealing and attempted to file Notice of Motion for Judicial Review in the High Court Civil Registry.

For reasons which have not been disclosed the Court of Appeal Order and Notice of Motion were returned to the Applicants' solicitors on several occasions for amendment.

Finally the Applicants were able to issue their Notice of Motion on the 13th of November 1996.

On the 20th of November 1996 the parties appeared before me when counsel for the 3rd Respondent supported by the other Respondents moved that the Court should dismiss the Applicants' Notice of Motion since it did not comply with Order 53(5)(4) of the High Court Rules 1988 in that the said Notice was not filed within 14 days after leave for Judicial Review was granted by this Court.

Order 53(5)(4) of the High Court Rules reads as follows:

"A motion must be entered for hearing within 14 days after the grant of leave."

The 3rd Respondent supported by the other Respondents argues that this rule is mandatory and not directory.

I directed the parties to deliver written submissions which they have now done.

The Respondents relied apart from Order 53 Rule 5(4) first on two passages from Judicial Review : Law and Procedure by R.J.F. Gordon. The first paragraph 8.01 merely restates Rule 4 but the second paragraph 8.02 reads:

"The content and timing of the affidavit necessarily mean that service of notice of the application must be effected within the fourteen-day period. Failure to do so will prevent an affidavit from being filed and the motion being entered for hearing."

It is therefore submitted that this is a mandatory provision which must be strictly complied with. They also rely on a decision of Scott J. in State v. Transport Control Board - Ex-parte: Shore Buses Limited and Ors Judicial Review No. 10 of 1992 - unreported judgment of 8th September 1992 and Shore Buses Limited & Ors v. The Minister for Labour and Industrial Relations the judgment of the Court of Appeal in Civil Appeal No. ABU0055 of 1955 delivered on 15th November 1996.

In the first case Scott J. applied the provisions of Order 53 very strictly and struck out part of an affidavit which was not in accordance with the rules.

In Shore Buses Limited & Ors v. The Minister for Labour and Industrial Relations the Court reaffirmed that there should be no undue delay in Judicial Review proceedings for reasons of public policy. At page 15 of its judgment the Court quoted the well known statement of Lord Diplock in O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237 at 280 that:

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of the decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision."

The Court also mentioned a passage from its judgment in Anuradha Charan v. Public Service Commission and Ors Civil Appeal No. 2 of 1992 - unreported judgment of 19th November 1993, page 28 where the Court observed:

"In a world of burgeoning bureaucracy and use of administrative powers by an increasing number of official bodies, judicial review is an essential means of redress. The special procedures are designed for a relatively straight forward and prompt determination of the case."

The Respondents argued that as leave to apply for Judicial Review was granted by me on the 28th of February 1995 the Applicants should have filed the substantive Motion for Judicial Review by the 14th of March 1995. They failed to do this and failed to give any reasons for the delay at that time.

They state that the 3rd Respondent filed its Notice of Appeal against my decision granting leave on the 23rd of March 1995. This Court granted leave to appeal on the 7th of April 1995 but, it is said even at this stage it did not occur to the Applicants to file the substantive motion for review.

I granted leave to appeal on 7th of April 1995, not the 27th as stated in the 3rd Respondent's submission, and the Respondents comment that the 3rd Respondent neither applied for nor obtained an order for stay pending its appeal from the High Court.

On this history the Respondents claim that the delay in filing the substantive motion in this case is therefore from the 14th of March 1995 to the 13th of November 1996 some 20 months.

Noting that the Applicants invoke Order 3 Rule 4(1) of the High Court Rules the Respondents submit that time cannot be enlarged under this rule which reads:

"The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings."

Because Judicial Review cases are alleged to be treated differently from other cases I shall deal with this submission immediately because in my judgment there is nothing in Order 3 which says that it does not apply to applications for Judicial Review. The Respondents also omitted to quote Order 3 Rule 4(2) which reads:

"The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period."

In my view sub-rules (1) and (2) are very wide in their language so that I do not accept the submission that Order 3 Rule 4 could not be invoked by the Applicants here.

In its comment on the equivalent English rule of the High Court at page 16 of the Supreme Court Practice 1988, repeated in later volumes, the authors say in part:

"The object of the rule is to give the Court a discretion to extend time with a view to the avoidance of injustice to the parties (Schafer v. Blyth [1920] 3 K.B. 143, p.143; Saunders v. Pawley [1884] UKLawRpKQB 3; (1885) 14 Q.B.D. 234, p.237). "When an irreparable mischief would be done by acceding to a tardy application, it being a departure from the ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but in other cases the objection of lateness ought not to be listened to and any injury caused by delay may be compensated for by the payment of costs" (per Bramwell L.J., in Atwood v. Chichester [1878] UKLawRpKQB 4; (1878) 3 Q.B.D. 722, p.723, C.A.). A special circumstance, however, such as excessive delay may induce a Court in its discretion to refuse to extend the time (per Jessel M.R., Eaton v. Storer [1882] UKLawRpCh 230; (1882) 22 Ch.D. 91, p.92 C.A.). The strictness of procedure in open Court is somewhat relaxed in Chambers (per Brett L.J., Carter v. Stubbs [1880] UKLawRpKQB 89; (1880) 6 Q.BD. 116, p.121, C.A.). On the other hand application to enlarge the time for an appeal when the litigant has had his trial and lost, will not generally be granted unless there is material on which the court can exercise its discretion (Ratnam v. Cumarasamy [1965] 1 W.L.R. 8; [1964] 3 All E.R. 933, P.C.).

The R.S.C. as to time have to be observed, and if substantial delay occurs without any explanation being offered, the court is entitled, in the exercise of its discretion, to refuse the extension of time, e.g. to serve a notice of appeal from the Master to the Judge in Chambers, even though the delay could be compensated for by costs and no injustice would be done to the other party."

The Applicants contend that once the Notice of Appeal was filed by the 3rd Respondent the Applicants were not able to file their Notice of Motion for Judicial Review. They submit that they were 7 days out of time when filing the Notice of Motion when the 3rd Respondent filed its Notice of Appeal. The reason they gave for this was because they were in the process of perfecting the said Notice.

Thus they say because they were during this time liaising with the High Court Civil Registry and perfecting the Notice they have not been guilty of not pursuing their application for review as were the Applicants in Shore Buses Limited v. The Minister for Labour and Industrial Relations (supra).

The Applicants also deny the claim by the Respondents that there has been delay of 20 months. They say that the relevant periods of time within which their Notice of Motion was to be filed were:

(a) 1st March 1995 and 15th March, 1995; or

(b) 5th October 1996 and 19th October 1996.

They submit that this Court should ignore the period between 23rd March 1995 on which the Notice of Appeal was lodged by the 3rd Respondent and 4th October 1996 when the Court of Appeal dismissed the appeal because, it is submitted, the Applicants could not file the Notice of Motion during this latter period since the Appeal was pending.

I accept this submission. Whilst strictly-speaking the Applicants could have filed the Notice of Motion during that time in my view it would have been pointless and quite possibly a waste of money to do so. Whilst no doubt the Applicants were reasonably confident that they would succeed in the appeal there was no guarantee that they would and if they failed there is little doubt that the 3rd Respondent would have obtained an order for costs rendered unnecessary by such filing. I consider the Applicants' caution was justified. I consider it was common prudence for the Applicants not to have filed Notice in that time lest the Court of Appeal upheld the appeal when there would be a reasonable likelihood of the Applicants not only having to pay the Respondents' costs in the Court of Appeal but also the costs associated with any Notice of Motion for review.

The courts have long recognised the problems encountered in determining whether a provision is to be regarded as mandatory or directory. They have equally conceded that no formula is available to resolve those difficulties. As Lord Penzance said in Howard v. Bodington [1877] UKLawRpPro 14; (1877) 2 P.D. 203 at 211:

"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory."

In my opinion the delay by the Applicants in filing their substantive motion is only minor and I find there is sufficient reason for it. The Respondents make no submission that they will be prejudiced in any manner if this Court extends the time for the Notice of Motion to be filed. Accordingly I grant them leave to file the Notice of Motion for Judicial Review on the 13th November 1996, and as this has already been done I declare such filing to be in order. I dismiss the 3rd Respondent's application with costs to be taxed if not agreed.

JOHN E. BYRNE
J U D G E

Legislation and cases referred to in judgment:

High Court Rules 1988 Order 3 Rule 4, Order 53 Rule 5(4).
Supreme Court Practice 1988.
Howard v. Bodington [1877] UKLawRpPro 14; (1877) 2 P.D. 203.
Judicial Review : Law and Procedure R.J.F. Gordon.
Shore Buses Limited & Ors v. The Minister for Labour and Industrial Relations Civil Appeal No. ABU0055 of 1995 - unreported judgment of Court of Appeal of 15th November 1996.
State v. Transport Control Board - Ex-parte: Shore Buses Limited and Ors. Judicial Review No. 10 of 1992 - unreported judgment of Scott J. of 8th September 1992

No other cases referred to in argument.

HBJ0020X.94S