Ramans Emporium Ltd v Kumar [1999] FJHC 28; Hba0006j.98b (27 April 1999)

Fiji Islands - Ramans Emporium Ltd v Kumar - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL APPEAL NO. 6 OF 1998

BETW/p>:

RAMANS EMPORIUM LIMITED
Appellant/
Plaintiff

AND:

f/n Arjun
Respondent/
Defendant

Mr. A. KohliKohli for the Appellant
Mr. S. Prasad for the Respondent

JUDGMENT

This is an Appeal brought by the appellant further to the withdrawathis action by its counsel Mr. Kohli when the Learned MagisMagistrate Anirudh Kuver Esq. made an Order stating that "summons withdrawn and the action struck out. Plaintiff to pay defendant's costs to be taxed in the absence of agreement".

Grounds of Appeal

The Grounds of Appeal are contained on pages 3 to 7 of the Record. In short they boil down to this that (a) the Magistrate failed to act judicially in the exercise of his discretion whether to grant adjournment to the appellant (original/plaintiff) and failed to take into account all relevant considerations, (b) the Magistrate was biased in exercising his discretion whether to grant or not to grant adjournment, (c) that he erred in law in refusing to disqualify himself after objections from counsel on the ground outlined by him and that (d) he was wrong in awarding costs to the Defendant against the Plaintiff.

Background to the case

The evidence as contained in the Record at page 75 is relevant to the decision of the issues in this Appeal.

The hearing of the action was set down for 22 June 1998. It came before Mr. Kuver, but Mr. Kohli thought that in view of the practice, according to his understanding, it should be heard by Mr. Shah but Mr. Kuver disagreed with him and persisted in hearing it. Whereupon Mr. Kohli asked for adjournment to which Mr. S. Prasad, counsel for the defendant objected. Upon being asked by Mr. Kuver whether he wants him to disqualify himself instead of "beating around the bush" Mr. Kohli replied in the affirmative; and when asked for reasons, Mr. Kohli gave reason which was not accepted by Mr. Kuver 'as true'. Mr. Kuver went on to say "it will be ridiculous if magistrates disqualified themselves from hearing for such frivolous reasons. The application is refused". Whereupon Mr. Kohli said 'I withdraw the action' and Mr. Prasad asked for costs which was allowed to be taxed if not agreed.

Consideration of the grounds

I have considered the submissions made by both counsel.

It is clear from evidence that the action was set down for hearing, and whether it was before Mr. Shah or Mr. Kuver it is of moment. Mr. Kuver was prepared to hear it despite objections from Mr. Kohli that he should not hear it for reasons advanced by him which the Magistrate did not accept. The application for adjournment was refused whereupon Mr. Kohli withdrew the action.

Principles governing disqualification for bias

In deference to the lengthy submissions of Mr. Kohli when he hammered the point of 'bias' and 'disqualification' I ought to set out the principles governing disqualification on bias. I can do no better than state the principles which has been set out with great clarity by KIRBY A-CJ (as he then was) in Galea v Galea (1990) 19 NSWLR 263 at 277 which is as follows:

"The principles governing disqualification for bias are not in doubt. They have been stated in a series of recent judgments of the High Court of Australia and of this Court see, e.g. R v. Watson: Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, Vakauta v Kelly [1989] HCA 44; (1989) 63 ALJR 610; 87 ALR 633; (1989) Aust Torts Reports 180-277; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358."

Justice Kirby goes on to say (ibid.):

"The actuality and appearance of impartial justice in the courts is such an important feature of our administration of justice that a judge should not sit to hear a case if, in all circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: see Dawson J in Vakauta (at 612, 637, 68, 941). All of the above cases involve the suggestion of apprehended bias arising not from the development of the judge's thinking during the course of the trial (and as a result of the evidence and his reaction to it) but from preconceptions which existed at the outset and became plain."

Further he said (ibid.):

"It is acknowledged that the conclusion that there is a reasonable apprehension of bias on the part of a judicial officer should not lightly be drawn: see McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at 525, approved by Toohey J loc. cit. (at 617; 645). But Vakauta and Grassby v The Queen [1989] HCA 45; (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened Vakauta and Grassby restate the importance attached to this abiding value of our legal system. They are correctives to any suggestion that the professionalism of judges is such that they can always be presumed to shake off prejudice and overcome preconceptions. In many cases they may be able to do this. But the question remains always whether the hypothetical lay observer, representing the public, would reasonably apprehend that they have not."

His Honour concludes (ibid. 278) by saying:

"Although JRL is a case quite different from the present, it does illustrate the fact that the test for the appearance of impartiality is not one applied only at the outset of proceedings or in respect of preconceptions. From first to last, from beginning to end, the appearance of an impartial and unprejudiced mind on the part of a judicial officer is of the essence of the system of justice. If at any point there is a loss, in fact or appearance, of that impartiality the trial will thereafter miscarry. The litigant who can establish such a miscarriage has not had a trial according to law. Subject to other arguments, for example, as to waiver, the litigant is entitled to a re-trial."

Before Mr. Kohli withdrew the action there were exchange of words between counsel and his Worship and that led to an application that the Magistrate should disqualify himself from hearing the action.

No doubt it was open to Mr. Kohli to raise these matters for it was held in Galea v Galea (supra) 263 (by Kirby A-CJ, Meagher J.A. agreeing) that:

"A judge is disqualified from hearing a case, if in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved; this principle applies irrespective of whether the suggested source of disqualification existed at the commencement of the trial or arose from an event which occurred during its conduct."

The Magistrate in the judicial exercise of his discretion rejected the counsel's assertions in respect of 'bias' and 'disqualification' and refused the application for adjournment. He was justified in doing so. The following passage from the judgment of Kirby A-CJ in Galea (supra) at 278 is pertinent in any consideration of an application for disqualification and that is what the Magistrate must have had in mind when he refused the application:

"I first remind myself of Mason J's warning in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 that judicial officers should not too readily submit to an application that they should disqualify themselves from sitting. Such applications are increasingly made nowadays:

"...Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

Now to the issues in this appeal, after all that exchange of words when adjournment was refused Mr. Kohli decided to withdraw the action without stating any reason. That is what he in his wisdom decided to do as he had the carriage of the action.

In that situation the Magistrate had no alternative but to strike the action out and award costs to the respondent.

On the evidence, I find that the Magistrate exercised his discretion judicially in both refusing adjournment and not disqualifying himself for alleged bias. It is not for the appellate Court on the evidence as it stood to question the exercise of discretion. If applications of this nature were entertained too readily then it will hamper the administration of justice and early disposal of cases in the Courts. When adjournment was refused counsel found a way out by 'withdrawing' the action without stating any reason and re-commencing it this time in the High Court.

In the circumstances I find that there are no merits in the first three grounds of appeal and they fail.

As to the fourth ground of appeal, namely costs, Mr. Prasad argued that the "Appellant has two concurrent actions pending in the High Court on the same facts. On 24/6/98 the Appellant filed a Writ of Summons in C.A. No. 39/98 on the same facts. On 7th day of August, 1998 the Appellant filed these grounds of Appeal. Surely, this is a blatant abuse of Court process by the Appellant".

I find that there is merit in Mr. Prasad's argument. When Mr. Kohli decided to commence fresh proceedings this time in the High Court on the same facts right on the heels of the withdrawal of action then it is useless and a sheer waste of time quibbling about refusal of adjournment and failure of Magistrate not disqualifying himself because of alleged bias. This certainly is an abuse of the process of the Court.

I see no substance in the ground of appeal that the magistrate was wrong in awarding costs against the plaintiff.

In the circumstances of this case it was well within the Magistrate's power and discretion to make the Order for costs (vide Or XXXIII rr 2 & 3 of Magistrates' Courts Act Cap. 14).

The appellate Court will not interfere from the exercise of discretion on costs unless there has been 'any violation of principle or misapprehension of facts' even though there has been leave to appeal. (In re Gilbert, Gilbert v Huddlestone [1885] UKLawRpCh 35; 28 Ch.D. 549 at 551 Young v Thomas [1892] UKLawRpCh 60; [1892] 2 Ch. 134 C.A.). Bowen LJ in Gilbert (supra) at 551 said:

"...the order he (judge) has made as to costs is not less a discretionary order, and must be treated as the Order of a Judge who has better means of knowing the circumstances than the Court of Appeal can have."

In this case the action was withdrawn, the defendant will most definitely be entitled to costs and the Magistrate could not refuse to award costs to the defendant. In Ritter v Godfrey [1920] 2 K.B. C.A. 47 at 48 LORD ATKIN L.J. laid down certain guiding principles as hereunder when a judge exercises his discretion over costs:

In the case of a wholly successful defendant the judge must give him his costs unless there is evidence (1) that the defendant brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.

For having compelled the defendant to appear and then withdrawing the action, it is consistent with justice that the plaintiff was rightly ordered to pay costs to the defendant. The authority for this proposition is to be found in the following words of THE MASTER OF THE ROLLS in DAVEY v DURRANT 24 Beav. 410 (1858), 53 ER p416 when he said:

"I think the Plaintiff cannot abandon one mode of proceeding and adopt another without paying the costs to which he has put the other party on the former proceeding. The Plaintiff must pay the Defendant what is proper before he can compel him to answer the interrogatories, and he must also pay the costs of this application."

The above observation is applicable to this case particularly when another action has been commenced without paying the costs of this one.

For these reasons I find there is no merit in any of the grounds of appeal. This appeal is therefore dismissed with costs in the sum of $300 against the plaintiff.

D. Pathik
JUDGE

At Labasa
27 April 1999

Hba0006j.98b