State v Minister for Justice, Ex parte Citizens Constitutional Forum Ltd [2005] FJHC 443; HBJ0001.2005 (19 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ0001 OF 2005

BETWEEN:

THE STATE

v.

THE MINISTER FOR JUSTICE AND
ATTORNEY GENERAL OF FIJI
FIRST RESPONDENT

RATU JOPE SENILOLI
SECOND RESPONDENT

EX-PARTE: CITIZENS CONSTITUTIONAL FORUM LIMITED
APPLICANT

Ms Seeto & Ms Fa for Applicant
Mr. S. Sharma for First Respondent
No Appearance for Second Respondent

Date of Hearing: 15th September 2005
Date of Ruling: 19th October 2005

RULING ON DISCOVERY

This is a motion for discovery of first, - a medical report made by three specialist doctors and which the first respondent relied upon,

Secondly, government policy on compulsory supervision application and requirements and thirdly names of witnesses and all documents relevant to release of the second respondent.

That the court has powers to order discovery is not in doubt – Order 53 Rule 8. The power to order discovery must be seen in the context of judicial review proceedings which are markedly different from ordinary private law proceedings. Judicial Review is not usually concerned with making findings of fact. A more restrictive approach to discovery ought to be taken in judicial review proceedings.

The first respondent in his affidavit sworn on 16^th August 2005 explained that he received an application for Compulsory Supervision Order from the first respondent together with a copy of medical report prepared three years earlier. He was not prepared to consider the application on basis of an outdated report and called for a medical report from a panel of three doctors who were asked to report their findings without any recommendations.

The applicant in its original substantive application for judicial review relied principally on newspaper clippings which suggested some form of impropriety on part of the first respondent. The onus is on the applicant to show why the document is vital to the proceedings. The applicant is really seeking disclosure of some documents in the hope that something might emerge which would prop up its case. The application is more in the nature of a fishing expedition; the applicant is saying the decision is flawed, wrong and unreasonable and is hoping that the medical report and other documents might reveal some evidence to show unreasonableness or some other allegation of impropriety.

One of the documents the applicant wishes to see a medical report on the first respondent. It is a report personal to him. It is not an official government document. The second respondent has not consented to the report being disclosed. It is a document containing medical matters personal to the first respondent and obtained in a relationship of some confidence. Disclosure of such report would infringe the right to privacy.

Accordingly I disallow the application.

[ Jiten Singh ]
JUDGE

At Suva
19^th October 2005