Heffernan v Byrne [2007] FJHC 143; HBM 105.2007 (24 October 2007)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION
CIVIL ACTION NO. HBM 105 OF 2007

IN THE MATTER OF an Application by ANGENETTE MELANIA HEFFERNAN for Constitutional Redress and Relief under the provisions of section 41(1) of the Constitution.

BETWEEN:

ANGENETTE MELANIA HEFERRNAN
(Applicant)

AND:

1. JOHN EDWARD BYRNE
2. ANTHONY HAROLD CUMBERLAND THOMAS GATES
3. AIYAZ SAYED-KHAIYUM
(Respondents)

Mr. S. Kofe for Pillai, Naidu & Associates for the Applicant
Mr. R. Prakash for the 1^st Respondent
Mr. C. B. Young for the 2^nd Respondent
Mr. A. K. Narayan with Mr. S. Sharma for the 3^rd Respondent

Date of Hearing: 24th October 2007

Date of Decision: 24th October 2007

DECISION

[1] This is my Decision on the applicant's Motion dated 12 October 2007 to recuse myself from this case on the grounds stated in the Motion.

[2] Counsel Mr. Kofe who appeared on instructions from Mr. Naidu did not argue the grounds of objection as he says he was merely instructed to receive the Court's Ruling. He knows nothing about the matter.

[3] On 5^th October when the matter was first called Ratu Joni Madraiwiwi on instructions raised objections to my hearing on grounds that I am not constitutionally appointed and my age.

[4] He was told to apply formally which Mr. D. Naidu whose brief it is filed Motion and affidavit dated 12 October 2007.

[5] After hearing counsel Mr. Kofe who had nothing to put before the Court, I find that the application is frivolous to say the least and is a clear case of abuse of the process of the Court.

[6] I have never in my fifty years as a legal practitioner, of which 35 years as a judicial officer with 15 years of which as a Judge, had seen or presented to Court such nonsense which is much worse when this has come from some senior counsel who are firing bullets from behind the curtain and sending a very junior and inexperienced solicitor to appear before me with no proper instructions and who is unable to argue the objections raised. These counsel have sent him to do the dirty work.

[7] I will not tolerate such stupidity. I have to keep the dignity of the Court and will not allow counsel to get away lightly from their stupidity and their conduct at the bar and towards the Bench for their contemptuous behaviour towards the Court.

[8] Only two points were raised for me to recuse myself.

[9] All I need say that both the grounds have no merits whatsoever.

[10] I can see from the applicant's affidavit that she has been advised by counsel on the objections raised. She herself very rightly goes by what her counsels have advised her. She specifically says that I as a Judge am not likely to be 'biased' if I hear the constitutional redress case.

[11] I must say that as far as I am concerned no one should have fear appearing before me. The fault that I have is that I give too much hearing and sometimes bend over backwards and give all parties full chance to present their case.

[12] Because the objections were publicised I ought to make it clear and this should be known to counsel that as the Constitution, which is intact, I was appointed a judicial Officer (First Class Magistrate now Resident Magistrate) - 35 years ago in 1972 and with a short break as Administrator-General and Public Trustee of Fiji. I was appointed a Puisne Judge in 1993 under the Constitution by the then Governor-General and later by His Excellency the President of the Republic of Fiji Islands.

[13] My present appointment is by the President. There is not a single day's break in the service in the last 35 years and when the present application objecting came before me I was still under the previous appointment and not after December 5^th 2006 as alleged by Mr. Naidu. I have now been re-appointed by His Excellency the President of the Republic of Fiji Islands.

[14] As for appointment beyond the retiring age is concerned, as we all know the Constitution is still intact for our purposes.

[15] It is abundantly clear that retiring age does not apply to a High Court Judge when appointed under sections 137(6) and 132(3) of the Constitution. Even Ratu Joni said to me once that I can 'carry on for ever' and I told him that when he raised this objection before me on 5^th October 2007.

[16] As a Judge I am duty bound to hear this case which has been put before me. As Judges we have taken Judicial Oath to hear cases etc without fear, favour or ill-will.

[17] In these circumstances my appointment cannot be questioned in a Court of law by any lawyer who knows his work and who knows the law.

[18] I will sound a warning that if any lawyer is minded to follow suit as in this case will suffer serious consequences to himself/herself and will be reported to the Fiji Law Society.

[19] The lawyers, if they have any respect for the Judges they should leave them alone for they have been appointed properly by the President under the Constitution.

[20] A lawyer's function is to appear before a Judge and put his client's case to him/her and not question his authority or his appointment unless held otherwise by a competent authority.

[21] On the question of costs, I do not think it is the fault of the applicant. She has been wrongly advised.

[22] I will award costs against the solicitor personally Mr. Dorsami Naidu of Pillai, Naidu & Associates whose brief it is and who has signed all necessary documents, for ill-advising the applicant to make such frivolous application knowing that he has no leg to stand on. He did not have the audacity to appear before me in person or send Ratu Joni who appeared before me earlier on and did not have the courtesy of informing the court that for some good reason he is unable to attend rather than his counsel saying when asked 'he is in the West'.

[23] If all counsel involved in this case think that by this kind of behaviour before the Court they will cripple the Court system they should think twice before they dig their own grave.

[24] Two senior counsel have travelled long distances for the case twice to argue only to find that the applicant's Counsel Mr. Kofe is unable to present his case.

[25] Because of the two counsel's conduct towards the Bench in making an application of this kind, I bring my comments to the attention of the President, Fiji Law Society for his information and perhaps bring it up on Continuing Legal Education on the subject of 'Bench and the Bar' for both young and old members of the profession.

Court: Order

[26] It is ordered that the applicant's application for recusal of 12^th October 2007 be dismissed for want of prosecution.

[27] It is further ordered that Dorsami Naidu Esquire, solicitor for the applicant personally pay costs thrown away which I assess as follows:-

(a) Pay Mr. R. Prakash, solicitor for the 1^st Respondent the sum of $2500.00 within 10 days.

(b) Pay Mr. C.B. Young, solicitor for the 2^nd Respondent the sum of $3500.00 within 10 days.

(c) Pay Mr. A. K. Narayan, solicitor for the 3^rd Respondent the sum of $3500.00 within 10 days.

[28] It is further ordered that the substantive matter of Constitutional Redress be now proceeded with before me.

D. Pathik
Judge

At Suva
24 October 2007