In re Application by Ovini Bokini [2008] FJHC 120; HBJ39.2007 (10 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ 39 OF 2007

IN THE MATTER of an application by
RATU OVINI BOKINI, SAKIUSA MAKUTU, RATU EPENISA CAKOBAU and RATU RATAVO LALABALAVU
for a Judicial Review under Order 53 of the High Court Rules 1983

AND

IN THE MATTER of a purported exercise by the
President of the Republic of the Fiji Islands of powers under Section 3 of the Fijian Affairs Act Cap 120
______________________________________

BETWEEN:

THE STATE

V

HIS EXCELLENCY THE PRESIDENT RATU JOSEFA ILOILOVATU ULUIVUDA and the
INTERIM ATTORNEY GENERAL AIYAZ SAYED-KHAIYUM
on behalf of the Interim Government
Respondents

EX-PARTE:

RATU OVINI BOKINI of Tavualevu, Tavua, Ba, Turaga na Tui Tavua,
RATU SAKIUSA MAKUTU of Cuvu, Nadroga/Navosa, Turaga na Ka Levu,
RATU EPENISA CAKOBAU of Mataiwelagi, Bau, Businessman and
RATU RATAVO LALABALAVU of Somosomo, Taveuni, Sea Captain.
Applicants

Mr. K. Vuataki with Mr. S. Komaisavai for Applicants
Mr. A.K. Narayan with Ms G. Hughes for Respondents

Date of Hearing: 5th May 2008
Date of Ruling: 10th June 2008

RULING

On 16th April 2008, I had granted the applicants leave for judicial review. The respondents are seeking leave to appeal against my decision. The application is made pursuant to Rule 26 of the Court of Appeal rules and under the inherent jurisdiction of this court. Since the issue of leave for judicial review is an interlocutory matter, leave of this court is sought under Section 12(2)(f) of the Court of Appeal Act. There is no dispute that my ruling was an interlocutory ruling as the effect of the ruling was not to bring the proceedings to an end.

The requirement for leave to appeal is designed to reduce appeals from interlocutory matters as much as possible. It is only in exceptional circumstances that leave to appeal on interlocutory orders is granted. A party seeking leave in such a case has to show that the primary court proceeded on incorrect principles of law or drew conclusions which could not be supported by facts and that some substantial injustice will result if that decision is not reversed: Niemann v. Electronic Industries Ltd – [1978] VicRp 44; (1978) V.R. 431.

Mr. Narayan submitted that leave should be granted because an error occurred in the manner in which the matter of delay was considered in the grant of leave. I had left, in the absence of full submissions, the issue of delay and its consequences to the substantive hearing.

Mr. Narayan stated that the significant issue he intends to raise is whether the issue of delay in judicial review proceedings should be considered at the leave stage or at the substantive hearing. He submitted that this is a novel issue and an important issue of far reaching consequences for judicial review proceedings in Fiji.

Order 53 rule 4(1) lies at the heart of his submissions. This Rule provides:

"Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant –

(a) leave for the making of the application, or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."

According to Mr. Narayan undue delay can only be raised at the leave stage whilst hardship, prejudice and detriment to good administration can only be raised at the substantive hearing.

Mr. Vuataki submitted that in Fiji the usual practice for the High Court is to deal with leave ex-parte but rules allow inter-parte hearing at leave stage. In the present case the court did not use the quick glance of documents method he submitted. He says that the issue of delay can be raised at the substantive hearing.

From the submissions I can see that while both Mr. Narayan and Mr. Vuataki agree that the issue of delay can be raised at the substantive hearing, they differ on the purpose for which it can be raised.

The Court of Appeal has considered this Rule on three separate occasions. These are the only cases I am aware of. In Harikisun Limited v. Dip Singh & Others – ABU 19 of 1995 the Court was of the view that the issue of hardship prejudice and detriment to good administration apply to paragraph (b) only. These matters it ruled could not be considered at the leave stage which is only concerned with delay.

Harikisun was fleetingly referred to in Colonial National Bank v. Arbitration Tribunal & Others – ABU 71 of 2004 where it stated that "in the absence of argument we express no opinion on the correctness of that conclusion" meaning that hardship, prejudice and detriment can only be raised at the substantive hearing.

In Fiji Public Service Association & Others v. Public Service Commission – ABU 10 of 2004 the Court stated that the above Rule "gives no guidance as to the matters which will be considered when deciding whether or not to grant leave except for Rule 3(5) which requires the court to be satisfied of the applicants’ standing in the matter and Rule 4 which provides that leave may be refused if the court considers there has been undue delay in making the application". It went on to say that "in England where the rules make similar provision, it has been held that issues of delay and standing should normally be left to the full hearing".

Full hearing would necessarily entail that all relevant material has been placed before the court. Does full hearing mean substantive hearing or a full hearing at the leave stage? If one has full hearing at the leave stage, then there is always the risk of two hearings and two appeals thereby delaying the resolution of the matter and be a burden on court resources and costly to litigants.

The rule as drafted is capable of more than one interpretation. It is a problem often faced in the judicial review proceedings so it is an issue of significant importance.

The applicant has given an undertaking to this court to prosecute the appeal expeditiously.

Accordingly I grant leave to appeal. There is to be no order as to costs as it is in the interest of administration of justice that this matter be clarified.

[Jiten Singh]
JUDGE

At Suva
10th June 2008