Fiji Electricity Authority v Arbitration Tribunal [2007] FJHC 96; HBJ 14.2007 (27 July 2007)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO., HBJ 14 OF 2007

BETWEEN:

FIJI ELECTRICITY AUTHORITY
PLAINTIFF

AND:

THE ARBITRATION TRIBUNAL
DEFENDANT

Mr. P. Sloan for the Plaintiff
Ms N. Karan for Defendant
Mr. R.V. Singh for Interested Party

Date of Hearing: 26^th July 2007
Date of Ruling: 27^th July 2007

DECISION ON LEAVE

On 9^th May 2006 the Arbitration tribunal handed down an award. On 15^th June 2007 this application for judicial review was made. The applicant seeks a declaration that parts 1 and 3 of the award are unlawful, void and of no effect and further or alternatively certiorari to quash the award. The principal ground in support of the relief sought is that the Tribunal made an error of law as it departed from established principles of contract law in making an agreement between the parties in respect of matters in dispute.

The interested party submitted that the Tribunal is there to deal with matters in dispute and not simply to make awards on agreed issues. It submitted that the Tribunal can make an award as long as it did not conflict with a written law.

Both of these are arguable matters. The other issue is of delay. There has been a substantial delay in filing these proceedings. An explanation has been given in the affidavit for the delay.

Order 53 Rule 4 provides that leave may be refused if there is undue delay in bringing the proceedings. What emerges from the cases cited to me is the principle that prima facie in cases where certiorari is the remedy sought, a delay of three months is considered an undue delay which the applicant needs to explain. Hence a court may refuse leave on the grounds of delay unless it sees good reason or reasons for extending the time; but even if it considers that there is good reason, it may still refuse leave or where leave has been granted, then at substantive hearing, if in the opinion of the Court, the grant of relief is likely to cause substantial hardship to the rights of any person or cause substantial prejudice or is detrimental to good administration. Prejudice need not be to the parties; it can be to any person other then the parties.

The interested party has filed a short affidavit but it was not responded to. Matters such as how many members did not get the benefit of the award as a result of death, retirement or resignation would need to be considered.

The applicant appears to have an arguable case. I grant it leave and will consider fully the issue of delay together with other issue at the substantive hearing.

Jiten Singh
JUDGE

At Suva
27^th July 2007