Kabara Development Corporation Ltd v Attorney General of Fiji [2004] FJHC 202; HBC0092.2004 (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0092 OF 2004

BETWEEN:

KABARA DEVELOPMENT CORPORATION LIMITED
PLAINTIFF

AND:

THE ATTORNEY GENERAL OF FIJI
1ST DEFENDANT

THE MINISTER FOR TRANSPORT & CIVIL AVIATION
2ND DEFENDANT

Mr. R. Matebalavu - For Plaintiff
Ms N. Basawaiya with } - For Defendants
Ms M. Lord }

DECISION

The plaintiff owns a vessel “Ta-i-Kabara”. It services seven islands in the Southern Lau group. It operates under a government franchise. The contract was initially for a period of three years from 1997 and then extended for ten years in 1999. It expires in March 2009. It is still a subsisting contract. The existence of this franchise agreement is not in dispute.

In February 2004 the Ministry of Transport & Civil Aviation invited tenders from interested bidders for provision of shipping serves to various islands including the areas granted to the plaintiff under the franchise contract so the plaintiff brought this action. In the motion before the court the plaintiff is seeking an injunction against the second defendant restraining him or his servants or agents pending trial from awarding or granting any contract for provision of shipping service under the Government franchise scheme to the area demarcated as Southern Lau.

Mr. Matebalavu submitted that the second defendant by inviting tenders was unilaterally trying to bring to an end a binding contract. This contract needs to be protected. He submits that the plaintiff is heavily reliant on the Government subsidy scheme and the plaintiff would suffer disastrous consequences. He conceded that an injunction could not be granted against the second defendant in view of Section 15 of the Crown Proceedings Act but the court could in lieu make a declaration.

Ms Basawaiya conceded that the court can grant a declaration but in doing so the court must first be satisfied with the requirements for injunctions as set out in the American Cyanamid case.

The plaintiff in trying to pursue the interim relief is faced with the formidable barrier in the form of Section 15(1)(a) of Crown Proceedings Act which reads :

15. - (1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require :

Provided that –

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties.”

Under the above section the court can make a declaration but can it make an interim declaration.

A declaration is an order of the court which declares with finality the nature of rights or obligations of parties in dispute before the court. As a declaration is a final order as to rights, it can only be made after parties have been heard and court is in position to declare conclusively what the rights of the parties are.

The effect of Section 21 of Crown Proceedings Act in England (similar to our Section 15) was considered in International General Electric Company of New York Ltd v. Commissioners of Customs and Excise 1962 1 Ch 784.

Plowman J in considering the section concluded –

“when you come to the question of a final injunction, no doubt a declaratory order may be made in lieu thereof, for that finally determines the rights of the parties. But it seems to me quite impossible to invent some form of declaration which does not determine the rights of the parties but is only meant to preserve the status quo.”

The House of Lords has also gone down the same road in expressing its view on grant of interim declarations against the Crown. In Inland Revenue Commissioners & Another v. Rossminster Ltd & Others – [1979] UKHL 5; 1980 AC 952 at 1027 C Lord Scarman expressed the view that:

“Under existing law only a final and conclusive declaration may be granted by a court. This means that, where the Crown is defendant or respondent, relief analogous to an interim injunction is not available ... For myself, I find absurd the posture of a court declaring one day in interlocutory proceedings that an applicant has certain rights and upon a later day that he has not.”

Counsels have not been able to point to any local case where an interim declaration has been granted against the State.

Accordingly given the clear wording of Section 15(1) of Crown Proceedings Act and the authorities cited above, I am of the firm view that I cannot grant the interlocutory reliefs as sought. The application is dismissed with costs summarily fixed at $250.00.

[ Jiten Singh ]
JUDGE

At Suva
6th May 2004