In re Richard Krishnan Naidu [1998] FJHC 182; Hbj0007.1998 (1 May 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 7 OF 1998

RE: RICHARD KRISHNAN NAIDU

Applicant in person
S. Banuve for the Respondent

DECISION

This is an opposed application for leave to move for Judicial Review.

The brief facts are not in dispute and may be summarised.

The 1998 Hong Kong Rugby 7's Competition was to be held from 27 to 29 March. Fiji Television operates two channels. The first, Television 1 is free to air while the second, Sky, is a channel which subscribers must pay to see. Fiji Television wished to cover the competition live on Sky and to broadcast recorded and delayed coverage on Television 1.

The Minister of Communication, Works and Energy took the view that in the interests of the viewing public Fiji Television should broadcast its live coverage of the competition on Television 1 rather than Sky. On 16 March he sent the Chief Executive of Fiji Television a letter headed "Ministerial Direction" directing Fiji Television to broadcast the competition live on Television 1. As revealed in the letter (Ex B to the Applicant's supporting affidavit) the Minister advised Fiji Television that he was acting under powers which he stated were vested in him under the provisions of Sections 10(1) and 10(3) of the Television Decree 35/1992.

On 20 March this Application was filed however on about 24 March Fiji Television decided that it would not challenge the Minister's direction and that it would in fact broadcast live coverage of the competition on Television 1 free to air. In a letter sent to the Daily Post (Exhibit 1K 2 to the Minister's affidavit in opposition) the Applicant acknowledged:

"That the legal proceedings will not (unfortunately) have a practical effect on the Minister's direction ... The issue is accordingly academic. So I am not troubling the Court for an early hearing."

The application was set down for hearing inter partes on 29 April.

In legal argument Mr. Banuve conceded that given the substance of Section 10 of the Decree and the nature of the Minister's direction there was at least an arguable case that the Minister had (which was not conceded) exceeded his powers. The granting of leave was not therefore opposed on that ground. What however was suggested was (i) that the Applicant had no locus standi to bring the proceedings and (ii) that the proceedings were clearly doomed to fail on the ground that they served no useful purpose.

The questions of locus and purpose though logically separate are often intertwined (see IRC v. National Federation [1981] UKHL 2; [1982] AC 617; [1981] 2 All ER 93). In order to establish locus an applicant must show that he has been affected by the decision in question in some concrete sense (R v. Independent Broadcasting Authority ex parte Whitehouse (1984) The Times 14 April) while failure to establish that an injustice has been suffered will weigh against judicial intervention (R v. Secretary of State ex parte Everett [1988] EWCA Civ 7; [1989] 1 All ER 655, 659).

In R v. Legal Aid Board ex parte Bateman Nolan J observed that:

"In some cases it will be necessary to decide whether the application for judicial review is well founded in substance before determining the question of the applicant's interest".

In the view I have formed of this matter this is such a case.

The reliefs sought by the Applicant are two-fold. First, a declaration that the Minister acted unlawfully and secondly, an order for certiorari to remove and quash the direction. As to the first Mr. Banuve suggested that as conceded in his letter by the Applicant the matter has now merely academic or in other words hypothetical. He quoted from Alder and Alder, Applications for Judicial Review 1993:

"Because the declaration is not tied to any other form of relief special rules have been developed to discourage people from seeking declarations which have no practical consequence. [the] law does not encourage the giving of advisory opinions by the Courts and so the principle has developed that a declaration will not issue in respect of academic or hypothetical issues or where it would serve no useful purpose".

He emphasised that:

"Essentially there must be a genuine dispute between the parties based upon existing facts, where a declaration will have a practical effect".

So far as certiorari was concerned Mr. Banuve was content to observe that the direction having been complied with and the broadcast having long gone to air certiorari would simply be pointless.

In answer to those submissions Mr. Naidu argued that the mere fact that the matter complained of could not be reversed did not mean that the litigation must come to an end. He wished the Court to pronounce the direction bad in law. He submitted that it was a dangerous precedent in a matter of general public importance; the matter was not at all hypothetical, the facts, in other words the direction, still exist.

Although I accept that the extent and legality of the Ministers powers in the field of broadcasting are matters of great public importance I do not think that in the circumstances of this case there is any scope at all for judicial review. As has been noted it is not the function of the Court to give legal advice or guidance but to grant redress for the infringement of legal rights and Mr. Naidu was really quite unable to point to any legal right of his which, as events turned out, had been infringed. He suggested that the Minister's direction may give rise to a claim for damages but conceded that such a claim had not in fact been made and that were it to be made it would have to be made by Fiji Television which was not a party to these proceedings and which had not apparently initiated legal proceedings as a result of the direction complained of.

It is a fundamental principle that the Court will not act in vain (Malloch v. Aberdeen Corpn [1971] 1 WLR 1578). Although Mr. Naidu and the Minister may disagree about the meaning of Section 10 of the Decree I am satisfied that there is no dispute between them based on existing facts where a declaration would have a practical effect. I am also satisfied that the removal and quashing of an expired direction would be quite pointless.

I suspect that these proceedings may have had some peripheral value in highlighting a number of important issues to which Section 10 of the Decree may give rise. I am however firmly of the opinion that a motion to review the direction of 16 March is doomed to failure.

The application for leave to move for judicial review fails and is dismissed.

M. D. Scott
Judge

1 May 1998

HBJ0007.98