Prasad v The State [2005] FJHC 544; HBA0001.2005 (29 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

JUDICIAL REVIEW NO. HBJ0003 OF 2005

BETWEEN:

RAMESHWAR PRASAD
APPLICANT

AND:

THE STATE
THE MINISTER FOR EDUCATION
& THE CHIEF EXECUTIVE OFFICER
FOR MINISTRY OF EDUCATION
1ST RESPONDENT

AND:

THE ATTORNEY GENERAL OF FIJI
2ND RESPONDENT

AND:

THE ACADEMIC BOARD
INTERESTED PARTY

Date of Hearing: 29th July 2005
Dates for Submissions: 12th, 26th August & 2nd September 2005
Date of Ruling: 29 September 2005

Mr. Maharaj for the Applicant
Ms. S. Tabaiwalu for the Respondents (and for the Interested Party)

INTERLOCUTORY RULING OF FINNIGAN J.

The Respondents herein seek leave to appeal out of time against my Interlocutory Judgment granting leave for the applicant to seek Judicial Review.

The hearing has been by written submissions and in their submissions the Respondents relied upon:

(1) Section 12(2)(f) of the Court of Appeal Act Cap. 12

(2) Rule 16 of the Court of Appeal Rules
(3) Section 20(1)(b) of the Court Appeal Act Cap. 12.

Under (1) the Respondents cannot appeal against the Interlocutory Judgment granting leave without the leave of the Judge or of the Court of Appeal. Under (2) Filing of the Notice of Appeal was required within 21 days of the Interlocutory Judgment. Under (3) Extension of the time within which a Notice of Appeal or an Application for Leave to appeal can be filed maybe granted by a Judge of the Court of Appeal.

Counsel for the Applicant relies on a further provision not cited by Respondents’ Counsel, namely:

(4) Rule 27 of High Court Rules.

Under (4) the Court of Appeal has powers to enlarge the times for filing and the powers given to this Court may only be exercised upon application made before expiry of the time period concerned.

It is common ground that the application before me has been filed 25 days out to time. Counsel for the Applicant relies primarily on Rule 27 and submits that this Court has no jurisdiction to entertain the present application. There is nothing to answer that in the submissions of Respondents’ counsel.

I think there is no jurisdiction in this Court for this application for leave to appeal. The Respondents may pursue it in the Court of Appeal if they wish. For that reason I will not comment on the merits of the proposed appeal. It is appropriate however to point out that in my interlocutory judgment I distinguished some of the authorities on which Respondents’ counsel relies on the ground that the decision in the present case was a “decision to lay, and to act on, disciplinary charges”. That is, the decision under review is the decision to transfer without completing procedures that should have followed the laying of disciplinary charges. I would have refused this application on its merits.

This application is dismissed, with costs to the applicant. As in the Interlocutory Judgment these will be applicant’s costs in the cause.

D.D. Finnigan
JUDGE

At Lautoka
29 September 2005