Narayan v Shell Fiji Ltd [2000] FJHC 206; HBC0360D.99L (31 January 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HBC 0360 OF 1999L

BETWEEN:

SHIU NARAYAN f/n Sita Ram
1st Plaintiff

AND:

DUKHRAN INVESTMENTS LTD.
2nd Plaintiff

AND:

SHELL FIJI LTD.
Defendant

COUNSEL: Mr S. Sahu Khan for Plaintiffs
:Mr H. Lateef for Defendant

Hearing: 21st January 2000

Decision: 31st January 2000

DECISION

This is an application for disqualification for the court to desist from hearing any further application in the proceedings.

On 7th December 1999, the Plaintiffs made an application in the Lautoka High Court for an injunction to restrain the Defendant from taking possession of a service station in Sigatoka pursuant to its contractual powers. That application was refused on 10th December.

A dispute then appears to have arisen as to whether the Defendant was then free to take possession. Two orders were filed in the High Court at Lautoka, and Gates J heard and allowed an ex parte application by the Plaintiffs to strike out an order filed by the Defendant.

The Plaintiffs then appealed against my decision to refuse the injunction, to the Court of Appeal. A stay application is pending in the High Court, and the appeal and an injunction application are pending in the Fiji Court of Appeal. I am told by counsel for the Defendant that an application will be made under Order 20 Rule 10 of the High Court Rules to amend the Order of the Court.

The basis of this application to disqualify myself from further hearing these proceedings is that one Daven Chand (son of the 1st Plaintiff) had heard a conversation between counsel for the parties during which Mr Lateef had told Dr Sahu Khan that he had seen the Judge in chambers and discussed with her the Orders sealed in the High Court. Counsel for the Plaintiff submits that such disclosure creates a reasonable apprehension of bias, and suggests that the court has pre-judged an issue which is still for determination of the court.

The Defendant objects to the application relying on the affidavit of Shavila Kumar, Law Clerk. That affidavit deposes that Mr Lateef did see the Judge in December 1999 to bring to her attention the Order sealed by the Plaintiffs. The affidavit does not disclose the details of the discussion. Indeed, only Mr Lateef could have sworn such a detailed affidavit. He did not do so (presumably because he wished to continue to appear as counsel in these proceedings).

Mr Lateef submits that there is no reasonable apprehension of bias because there is no evidence that the judge had made a decision, or had expressed an opinion in the matter.

He conceded that his act of visiting the judge in chambers was improper and ill-advised.

The test for bias is whether an informed observer, would have a reasonable apprehension that the tribunal is biased, or would consider that there is a real danger of bias.

In Amina Koya -v- The State Criminal Appeal No. CAV0002/97, the Supreme Court considered the English test of real danger or real likelihood of bias, against the Australian test of reasonable apprehension of bias. The Court said:

“.... there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias .... In the determination of that ground the record of the trial, showing how it was conducted by the trial judge, is of fundamental importance.”

In this case what is of fundamental importance, is exactly what transpired in chambers when Mr Lateef saw me. Unfortunately, Mr Lateef has not filed an affidavit and the Plaintiffs do not know the details of that conversation. If there had been full disclosure, it is possible that this application would not have been made.

In the circumstances the only facts at the disposal of “the reasonable and informed person” is that counsel saw the judge in chambers privately on a matter which was pending before the court (the injunction application being an interlocutory matter), and that the details of that visit have not been fully disclosed for the hearing of this application.

In the circumstances I agree that the reasonable person would have a reasonable suspicion of pre-judgment and bias and I allow this application.

I will refer this file to the Deputy Registrar for the file to be allocated to another judge.

Nazhat Shameem
JUDGE

At Suva
31st January 2000