Re Richard Krishn Naidu [1998] FJHC 93; Hbj0007.1998 (10 July 1998)

Fiji Islands - Re: Richard Krishn Naidu - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW NO. HBJ 7 OF 1998

IGN=CENTER>RE: RICH RICHARD KRISHNAN NAIDU

DECISION

This is an applic for leave to appeal against my Decision herein dated 1 May1 May 1998 in which I refused the Applicant leave to move for Judicial RevSuch a refusal is interlocurlocutory (Suresh Charan v. Shah FCA Reps 95/84) and accordingly leave to appeal against my Decision is required by section 12 (2) (f) of the Court of Appeal Act (Cap 12).

As may be seen from my earlier Decision the fundamental ground for refusing leave was that events had overtaken the direction which it was sought to impugn. The question of law presented to the Court for resolution was hypothetical. The Applicant in other words could not demonstrate any infringement of his legal rights requiring remedy.

At the hearing of the present application Mr. Naidu for the first time referred to 4 authorities:

(i) R v Birmingham Juvenile Court ex parte Birmingham CC [1988] 1 WLR 337;

(ii) R v Nottingham Justices ex parte Davies [1981] 1 QB 38;

(iii) R v Bromley Licensing Justices ex parte Bromley LVA [1984] 1 WLR 585;

(iv) R v Leicester Crown Court ex parte DPP [1987] 1 WLR 1371.

It was submitted that in each of these cases the matter complained of had been overtaken by events and yet the Court had proceeded to grant Judicial Review. It was therefore argued that I had erred in law in refusing leave and accordingly should grant leave to appeal.

With sufficient industry and research it is usually possible to find a passage in a reported case which tends to support almost any proposition of law but as is well known exceptions tend to the general rule while examination of the whole of the case cited often results in a rather different picture emerging.

In the first, second and fourth cases now cited by Mr. Naidu the questions at issue were the making of care orders without hearing evidence, the principles governing successive applications for bail and the procedure for obtaining access to suspected persons' bank accounts. In the first case two Judges had reached contradictory conclusions, in the second the application though hopeless was live and in the third the Court accepted that the primary Judge's decision which was being questioned was most likely to be repeated. So far as can be gathered from the 4 Judgments no preliminary objection was raised to the granting of relief on the ground that the question at issue was merely academic or hypothetical. In the third case the Respondents were not represented and although the Court analysed the law no relief was in fact granted.

I do not find that the new authorities cited by Mr. Naidu really advance the matter: I do not consider that I erred in the exercise of my discretion to refuse leave in the particular circumstances of this case. I also question the propriety of counsel effectively re-running the original argument (now supplemented by additional authorities which should have been presented on the first occasion) on an application for leave to appeal.

In my view the predominant matters which I should now be taking into account are those most helpfully set out by Pathik J in Hussein v. National Bank of Fiji HBC 97/92 where the principles formulated by Murphy J in Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431, 441 were considered.

Although my refusal of leave was indeed interlocutory I am satisfied that the subject matter of Mr. Naidu's action was one of general importance. My refusal of leave if undisturbed had the effect of finally determining the action. In these circumstances leave to appeal will be granted.

A.M.D. Scott
JUDGE

10 July 1998