Cama v Attorney General [2008] FJHC 149; HBC0512.2005 (25 July 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBC 512 of 2005

BETWEEN:

METUISELA CAMA (as Chairman),
APAKUKI TUISUE (as Secretary) and
TIMOCI TUILELE as Treasurer of the
EAGLE OCEAN HARVEST YOUTH GROUP
Plaintiffs

AND:

ATTORNEY-GENERAL OF FIJI
Defendant

Coram: Hickie, J

Dates of Hearing: 11 and 12 June 2008

Counsel:
Mr V. Maharaj with Ms A. Maharaj for the Plaintiffs
Mr A. Pratap for the Defendant

Date of Decision: 25 July 2008

JUDGMENT

A. BACKGROUND

[1] On 11 October 2006, a report by the Fiji Islands Bureau of Statistics on ‘Labour Demand’ stated:

"As in other countries, open unemployment in Fiji is concentrated among the youth, with rates highest in the age group 15-19 and 20-24. Rates of unemployment are considerably higher for females than males in each age group."

According to that Report (complied from the 1996 Census Tables), 4.8% of the adult male population and 7.8% of the adult female population were unemployed. In relation to youth unemployment, the figures were far higher. For the age category 15-19 years, the figures were 14.8% males and 23.4% females, and for the age category 20-24 years, the figures were 9.2% males and 13.1% females. (See ‘Distribution of Unemployment by Age, Sex and Level of Education 1996’, Fiji Islands Bureau of Statistics, ‘Category: Labour Demand’, ‘Date: 11/10/2006’, Ministry of Finance and National Planning, http://www.fijichris.gov.fj/readstatistics.aspx?StatsID=23, accessed 21 July 2008)

[2] So what does all of this have to do with the application before me? It goes to the heart of why the Plaintiffs have persisted over some 13 years with their application to be granted by the Defendant a lease at Lami foreshore (on the outskirts of Suva) to set up a fishing deport and carry out their objectives of providing multi skill business training for unemployed youth, the background to which, I shall now explain.

[3] On 27 April 1994, a youth club was formed called the "EAGLE OCEAN HARVEST" and registered with the Ministry of Youth, Employment Opportunities and Sports (Registration Number 1171/307) ((Exh "1", Doc 1). As the Court of Appeal found in previous proceedings between these parties (See Attorney-General of Fiji v Cama (Unreported, Fiji Court of Appeal, No. ABU0021.2004S, 26 November 2004, Ward P, Barker and Tompkins JJA) [2004] FJCA 31 (Paclii: http://www.paclii.org/fj/cases/FJCA/2004/31.html, paragraph 5):

"It had started as a fishing group of young men but, over the following years, diversified into boat building, engine and automotive repairs and panel beating. Its operations were based in a large building situated at the Ministry's compound at Lami."

[4] On 12 May 1994, P. KUNATUBA for the Director of Fisheries, wrote to what appears to have been an internal distribution list of approximately 10 persons within that department as follows (Exh "2", Doc 1):

"You are all advised that after discussions with the Director of Youth ... some of our facilities shall be given over for their use. This agreement has been reached in our attempt to complement our programmes of work; particularly in the boat-building area (repairs and maintenance), where we have completely halted our operation.

The scheme as proposed by the Ministry of Youth augurs well with our attempt to channel fishing efforts away from traditional fishing grounds into offshore areas.

As such we shall fully support their program, hence, the approval for use of the hostel when in use by us as well as the Peter Hunt Shed for the repairs of other fishing vessels belonging to the Ministry of Youth. SFA M. Cama shall meanwhile, be our counterpart to this project.

I apologise for this belated notice, but as different arms of one body with a common goal, we should support one another. I would expect support from all quarters in this joint arrangement."

[5] Although the Plaintiffs had been granted use as from May 1994 (as per the above memorandum) for use of a hostel and a shed (known as the Peter Hunt Building) by the Director of Fisheries, they sought a more permanent home and thus, just on a year later, lodged an application on 25 May 1995 with the Ministry of Primary Industry for a parcel of land (LD Ref.No 78/49, F.B.K. no 3198 – Exh "2", Doc 15) to enable the Plaintiffs to set up a fishing deport and carry out its objectives of providing multi skill business training for unemployed youth.

[6] On 12 July 1995, C. EVENING (Principal Fisheries Officer T/S) wrote on behalf of the Acting Director of Fisheries to the "Director of Lands and Survey [sic] General" supporting the Plaintiffs request for a parcel of land (LD Ref.No 78/49, F.B.K. no 3198 – Exh "2", Doc 16).

[7] On 2 October 1995, M. LAGIBALAVU, the Acting Director of Fisheries, wrote to the Permanent Secretary for Agriculture, Fisheries, Forests & ALTA ufs DPS (Operations) concerning use of the "Peter Hunt Building at Fisheries, Lami" as follows (Exh "2", Doc 5):

"The Peter Hunt Building ... was constructed for storing aid equipment that were received from Japan in the 1980s.

It was also used to support the boat-building programme which used to run complimentarily [sic] with the Rural Fishermen Training.

The Japanese aid programme to Fisheries and the boat-building programme have both fizzled out.

In 1994, the Ministry of Youth (MOY) had promise [sic] support to a youth group whose members were the jobless and were roaming the streets of Suva. The MOY agreed to give this group, named "Eagle Ocean Harvest" (EOH) a defunct 33-footer fishing vessel which was given to the Kadavu Provincial Youth. The vessel was in need of major repairs (both hull and engine) when EOH picked it up ...

In recognition of the first class job done on the boat the EOH group was requested by the MOY to repair vessels belonging to the Lomaiviti Youth Group and Udu Village Youth group of Kabara, Lau ...

The Fisheries Division has found this youth group to be well behaved and dedicated. We (EOH Group/Fisheries) regularly meet. The group also submit progress reports to this office and the latest was report No.3 of 18/5/95.

The Fisheries Division ... strongly recommend that the "Peter Hunt Building" or part be transferred to the EOH Youth Group.’

[8] The transfer did not take place. The Plaintiffs, however, continued in their use of the building for a further 12 months when on 10 September 1996, M. LAGIBALAVU, the Acting Director of Fisheries, wrote to the Chairman of the "Ocean Youth Fishing Group" [sic] "to follow up on our ... meeting and discussion to the completion of the training of the group at Fisheries and ultilizing [sic] of the Fisheries [sic] Peter Hunt Building as your base". Apart from noting that "the group’s training on fishing operation had been completed and the group has developed its fishing activities into a commercial operation", the letter’s major concern was thus (Exh "2", Doc 9):

"The possibility of renting the PH building has been turned down by the Ministry since it would be difficult to be done in the way we (Eagle/Fisheries) wanted it. Government procedures in this matter would most likely result in neither Eagle nor Fisheries would end up using the building. We (Fisheries) would not like that and therefore would like to revert to our original situation that it stays with Fisheries and for its usage ... we have no choice but to advise that Eagle is to finish its activities with the building ... soon and to seek an alternative base."

[9] The following day, on 11 September 1996, M. LAGIBALAVU, the Acting Director of Fisheries, wrote to "Senior Fisheries Assistance – M Cama" concerning "your returning to normal duties at Fisheries" as follows (Exh "2", Doc 10):

"It was arranged that you were to assist the establishment and development of the ‘Ocean Youth Fishing group’ in the last 12 months. We have noted the progress the group has made and these are mainly due to your efforts.

This is then to advise that you are to finish with the current level of involvement with the company by the end of the month and to resume your duties at Fisheries on 1/10/96."

[10] Just under a fortnight later, on 23 September 1996, P. REDDY for the Director of Lands and Surveyor General, wrote to the Director of Fisheries concerning a parcel of land of 1860 square metres (Tiri Land west of Queens Road, Lami, LD Ref.No 60/737 – Exh "2", Doc 17) where the Plaintiffs sought "to develop a Fishing Related Business" and sought the views of the Director of Fisheries. It was subsequently confirmed by Counsel for the Defendant at the hearing of this matter on 12 June 2008, that his instructions were that LD Ref.No 78/49, F.B.K. no 3198 and LD Ref.No 60/737 were the same block of land and it would be correct for the Court if it was of the view to grant or decline the orders sought by the Plaintiff that it would be in relation to LD Ref.No 60/737.

[11] On 4 October 1996, P. K. KUNATUBA for the Permanent Secretary for Agriculture, Fisheries, Forests & ALTA, wrote to the Director of Lands and Surveyor General to confirm the Ministry’s support for the Plaintiffs’ application for use of LD Ref.No 60/737 of 23.9.96 (Exh "2", Docs 18 and 28).

[12] On 5 May 1997, C. SIMPSON (Senior Engineer, Projects & Planning) for the Ports Authority of Fiji, wrote to the Director of Lands and Survey supporting the Plaintiff’s proposal but proposing that the Authority take up the lease and giving an undertaking that it would be leased to the Plaintiffs for a nominal sum (Exh "2", Doc.20).

[13] On 20 October 1997, C. SIMPSON for the Ports Authority of Fiji, wrote to the Director of Fisheries advising that the Authority "has applied to the Director of Lands for the relevant foreshore lease and is awaiting the results of its application" which will then "be leased to the Eagle Ocean Harvest Group [the Plaintiffs] on completion" (Exh "2", Doc.21).

[14] On 29 October 1997, the Plaintiffs were given one month’s notice to vacate as per a letter from A. BATIWETI for the Acting Director of Fisheries to SFA (Senior Fisheries Officer) M. Cama (who was working with the Plaintiffs) at the "Ocean Eagle [sic] Youth Group" as follows (Exh "2", Doc 6):

"This is to inform you that we will be using the Dr. P. Hunt Building as our Aquaculture Feed Mill as soon as we receive our machinery.

For this I will request that your group vacate the premises by 29/11/97 to enable us to commence our work there immediately."

[15] On 14 November 1997, SFA M. Cama wrote to the Acting Director of Fisheries confirming his earlier meeting with the DPS(O) [Deputy Permanent Secretary (Operations)?] on 4 November 1997 (Exh "2", Doc "8"):

"The DPS (O) was surprised about this decision made since he had set our [sic] certain terms concerning my duty and the operation."

[16] On 18 December 1997, M LAGIBALAVU, the Acting Director of Fisheries, wrote to the Permanent Secretary for Agriculture, Fisheries, Forests "Re: Suspension of Salary: SFA M Cama, EDP 48090" (Exh "5") stating:

"We have made several attempts to contact SFA M Cama regarding his position with us ... Since we have not received any response from him, I wish to request for suspension of his salary until further notice. Your support and approval will be appreciated."

[17] On 30 December 1997, a second letter which could be termed a "Notice to Vacate" the Peter Hunt building was sent from A. BATIWETI for the Acting Director of Fisheries to "SFA M. Cama Ocean Eagle [sic] Youth Group" as follows (Exh "2", Doc 7):

"As you have not made any effort to move them I will give you until 02/01/98 to vacate.

Your groups [sic] failure to vacate ... will leave me no alternative but to evict them from the premises the following day ..."

The letter was copied to, amongst others, the Station Officer, Lami Police Station, with a notation: "I will need your assistance if I have to evict them."

[18] On 3 January 1998, a handwritten memorandum from PSAFF [the Permanent Secretary for Agriculture, Fisheries and Forests] [presumably still P. KUNATUBA?] was sent to the Commissioner of Police confirming a telephone conversation of earlier that day which had taken place between the two wherein the PSAFF stated "that the Ministry of Agriculture, Fisheries & Forests supports the move to remove the [Plaintiffs] ... from the Fisheries [sic] premises"(Exh "2", Doc.12).

[19] On 7 January 1998, S. LEVU for RATU TIMOCI VESIKULA, the Minister for Lands and Mineral Resources, wrote to the Deputy Permanent Secretary, Operations, Ministry of Agriculture, Fisheries, Forests and ALTA (to the attention of Mr Peni KUNATUBA), requesting "that you kindly reconsider your decision of terminating the occupancy of the Peter Hunt Building" by the Plaintiffs and "allow the Youth Group Temporary occupancy of the building "until the Department of Lands and Survey finds a permanent site for them"(Exh "2", Doc.13).

[20] Proceedings were commenced by the Plaintiffs on 17 June 1998 in the High Court at Suva (Civil Action No.HBC 318 of 1998S J) concerning damages suffered by them in terms of loss of equipment and income following their eviction by the Ministry of Agriculture, Fisheries and Forests on 3 January 1998. The Defendant admitted liability and damages were assessed by Scott J in the amount of $50,000.00 (Exh "1", Doc.2). Those damages were increased by the Court of Appeal (Civil Appeal No. ABU0021 of 2004S) to $75,000.00 together with interest at the rate of 5% per annum 17 June 1998 to 26 November 2004 (Exh "1", Doc.3).

[21] Meanwhile, the Plaintiffs continued with their application for a lease of a parcel of land at Lami (LD Ref.No 60/737) "to develop a Fishing Related Business". On 5 February 1998, an arbitration "Fishing Rights Hearing" was held in Suva at which PUMALE REDDY, the Acting Senior Surveyor for the Director of Lands and Surveyor General, presented a submission (Exh "3"):

(a) That the Plaintiff "has strong backing from the Fisheries Department";

(b)That "the Department of Lands supports the applicants and will issue a development lease over the area after all issues have been finalised, one of which is the clearance of the Fishing rights claim";

(c) That, in addition, "general supportive comments were received" from each of the following authorities –

• (i) Department of Town and Country Planning;
• (ii) Department of Environment;

(iii) Native Lands and Fisheries Commission;

(iv) Ports Authority of Fiji (who wanted the lease to be issued to it, would undertake the development and "lease to the group for a nominal sum");
(v) Roko Tui Rewa Fishing Rights Owners.

[22] On 7 July 1998, the Independent Arbitrator "assessed the damage to be suffered by the fishing right owners and their descendants at two thousand three hundred and ninety nine dollars and seventy six cents ($2399.76)" (Exh "1", Doc.4).

[23] On 27 November 1998, a "Public Notice of Application for a Foreshore Lease" dated 26 October 1998 from the Director General, Maritime and Ports Authority of the Fiji Islands, appeared in the Fiji Islands Government Gazette, Vol.12, No.75, page 981, item 2171 (Exh "4") wherein it was stated:

"The term applied for is ninety-nine (99) years and conditions and rental will be those approved by the Minister ... A Development Lease will be issued to Ports and Maritime Authorities of Fiji who will sublet it to Eagle Ocean Harvest on a nominal rental .."

[24] On 28 November 1998, MACIU LAGIBALAVU, the Permanent Secretary of Primary Industries, wrote a memorandum to the Director of Lands Department "Re: Application for Lease on Tiri land West of Queens Road near Fiji Fish Ltd by Eagle Ocean" (Exh "2", Doc 25) stating at point 9: "We would appreciate that the applicant [sic] by Eagle Ocean to be turned down because it would jeopardize the Japanese Aid package for major Fisheries Port development in Suva, Fiji." (There is also a notation on that Exh"2", Doc.25: "This memo is in the Lands file LD60/737-2 Name of File: Eagle Ocean Harvest Youth Group")

[25] On 10 March 1999, Mr METUISELA CAMA wrote, on behalf of the Plaintiffs, to MR TIMOTE RUPENI, the Permanent Secretary of Lands, as follows (Exh "2", Doc 29):

(a) seeking his support to approve the lease;

(b) objecting to the Director of Fisheries alleged "interference";

(c) Highlighting that the Plaintiffs "have met the first twelve [of the 14] requirements or points ... in the [Lands Department’s] Procedure of processing Foreshore Applications";

(d) Noting that the final two requirements were –

• (i) Payment of "recompense to be held in the Land [sic]s Department’s Trust Account until the Minister has approved the lease" and "then transferred to Fijian Affairs Board in favour of Fishing Rights once lease is issued";
• (ii) "Processing application to issue of development lease ... 9 months-12 months".
  

[26] The "Procedure of Processing Foreshore Applications" involved 14 stages (See Exh "2", Doc 14).

[27] On 17 March 1999, MACIU LAGIBALAVU, the Director of Fisheries, wrote to the Director of Lands that "the Fiji Government had submitted a proposal to the Government of Japan" for Japanese aid assistance to establish a fishing port "at the site opposite Fisheries Division Headquarters at Lami" and sought:

(a) a "letter from Lands Department advising that the referred Land is [sic] been reserved for fisheries development"; and
(b) a "letter to advise that the area is zoned for industry development".

The Director of Fisheries added that "these documents need to be in Japan before the end of the month" and "would like to tend [sic] all the documents including the letters to Foreign Affairs by Friday" (Exh "2", Doc.24).

[28] On 8 April 1999, PUMALE REDDY for the Director of Lands and Surveyor General, wrote to the Plaintiffs (with a copy to the Director General of the Ports and Maritime Authority) advising that their application had been "turned down" (Exh "2", Doc.23) due to the following:

"1. That the Department of Lands has approved an application over the

same area in favour of the Department of Fisheries for development of a FISHERIES PORT which was approved by the Cabinet some years back

2. The funding for the PROPOSED PORT DEVELOPMENT is being sought from the Japanese Aid.

The letter also advised, however (due to the poor nature of this part of the copy a better quality copy of the letter was tendered as Exh "6"):

"Furthermore please be advised that your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries. In the meantime if you are still interested in a separate site could you lease identify an alternative site so that we can process your application over that site."

[29] Some six years later, on 5, 22 and 23 March 2005, public advertisements were placed by the Department of Fisheries in the Fiji Times concerning the "Fisheries Lami Redevelopment Project" and seeking expressions of interest "to undertake a civil upgrade of the existing badly deteriorated Fisheries Lami Jetty facility" (Exh "2", Doc.26).

[30] On 14 April 2005, the Plaintiff’s lawyers wrote to the Director Lands noting "that our client had applied to you for a lease of Foreshore Land at Lami to enable the Group to develop a fishing deport for the benefit of its members" and that had been declined as per the letter dated 8 April 1999. Further, before legal proceedings were commenced they sought clarification as to "your Department’s current position with regards to our client’s application" (Exh "2", Doc.30).

[31] On 3 June 2005, P. REDDY for the Director of Lands and Surveyor General replied to the above letter that (Exh "2", Doc.34).:

"Please be advised the concerns raised by the Group in your letter are being investigated.

In the meantime ... there are proposals by Fisheries Department to construct the Jetty/Wharf funded by Japanese Government at the original Fisheries Jetty near Tradewinds Hotel and not over the area earlier applied for by the Group.

A decision to reactivate the group’s application on the original site could be made once the proposal of the Jetty by Fisheries Department is finalised."

[32] On 12 September 2005, the Cabinet of the Government for the Fiji Islands, resolved in relation to the "Lami Fisheries Jetty Redevelopment Project" (as per the Cabinet Minute of JOWASA VOLAVOLA, Secretary to the Cabinet, Exh "2", Doc.32):

(a) That the "Government is not to proceed with the project";
(b) That "a long term plan on the proper usage and development of the entire Lami Bay area" was to be drawn up by the relevant authorities;
(c) That "the Japanese authorities" (who were providing aid for the project) would be so advised through the Ministry of Foreign Affairs and External Trade of this decision.

[33] These proceedings were commenced on 12 October 2005, where the Plaintiffs are seeking:

(a) A Declaration that they are entitled to be granted a lease at LAMI Foreshore having an area of 1860 square metres situated at west of Queens Road, Lami, contained in LD 60/737 based on a promise and/or commitment made by the Defendant such that the Plaintiffs formed a legitimate expectation that such a site would be allocated to them to conduct their activities; or

(b) In the alternative, damages at the rate of $4,000.00 per month for loss of income for such period as the Court may deem fit in the circumstances, with the suggestion that this be from 1 July 1998 (six months after they were evicted from the Peter Hunt Building) until the date of judgment.

B. THE HEARING

1. The documents tendered supporting the Plaintiff

[34] There were a number of documents produced in this matter from various government ministries, 11 of which could be said to be in support of the Plaintiff’s case, which can be summarised as follows:

(a) three from the Department of Fisheries –

• (i) The internal memorandum of 12 May 1994, from P. KUNATUBA, the Director of Fisheries (Exh "2", Doc 1), advising of the scheme and that SFA Cama would be the Department’s "counterpart to this project";
  
• (ii) The memorandum of 12 July 1995, from C. EVENING (Principal Fisheries Officer T/S) for the Acting Director of Fisheries, to the "Director of Lands and Survey [sic] General" supporting the Plaintiffs’ request for a parcel of land (LD Ref.No 78/49, F.B.K. no 3198 – Exh "2", Doc 16);
  

(iii) The memorandum of 2 October 1995, from M. LAGIBALAVU, the Acting Director of Fisheries, to the Permanent Secretary for Agriculture, Fisheries, Forests & ALTA ufs DPS (Operations) concerning use of the "Peter Hunt Building at Fisheries, Lami" (Exh "2", Doc 5) and that "The Fisheries Division ... strongly recommend that the "Peter Hunt Building" or part be transferred to the EOH Youth Group";

(b) one from the Ministry of Agriculture, Fisheries, Forests & ALTA;

The memorandum of 4 October 1996, from P.K. KUNATUBA, the Permanent Secretary for Agriculture, Fisheries, Forests & ALTA, to the Director of Lands and Surveyor General to confirm the Ministry’s support for the Plaintiffs’ application for use of LD Ref.No 60/737 of 23.9.96 (Exh "2", Docs 18 and 28);

(c)Three from the Ports Authority of Fiji;

(i) The memorandum of 5 May 1997, C. SIMPSON (Senior Engineer, Projects & Planning), Ports Authority of Fiji, to the Director of Lands and Survey supporting the Plaintiff’s proposal but proposing that the Authority take up the lease and giving an undertaking that it would be leased to the Plaintiffs for a nominal sum (Exh "2", Doc.20);

(ii) The memorandum of 20 October 1997, C. SIMPSON (Senior Engineer, Projects & Planning), Ports Authority of Fiji, to the Director of Fisheries advising that the Authority "has applied to the Director of Lands for the relevant foreshore lease and is awaiting the results of its application" which will then "be leased to the Eagle Ocean Harvest Group [the Plaintiffs] on completion" (Exh "2", Doc.21);

(iii) The "Public Notice of Application for a Foreshore Lease" dated 26 October 1998 from the Director General, Maritime and Ports Authority of the Fiji Islands, which appeared in the Fiji Islands Government Gazette, Vol.12, No.75, page 981, item 2171 (Exh "4") on 27 November 1998, wherein it was stated that they were seeking a ninety-nine (99) years lease and would in turn "sublet it to Eagle Ocean Harvest on a nominal rental ..";

(d) one from the Minister for Lands and Mineral Resources;

The memorandum of 7 January 1998, from S. LEVU for RATU TIMOCI VESIKULA, the Minister for Lands and Mineral Resources, to the Deputy Permanent Secretary, Operations, Ministry of Agriculture, Fisheries, Forests and ALTA ("Attn: Mr PENI KUNATUBA)", requesting "that you kindly reconsider your decision of terminating the occupancy of the Peter Hunt Building" by the Plaintiffs and "allow the Youth Group Temporary occupancy of the building "until the Department of Lands and Survey finds a permanent site for them" (Exh "2", Doc.13);

(e) one from the Department of Lands and Surveys;

The submission from PUMALE REDDY, the Acting Senior Surveyor for the Director of Lands and Surveyor General (Exh "3"), prepared for the arbitration "Fishing Rights Hearing" held on 5 February 1998 wherein it was indicated that the Plaintiffs not only had "strong backing form the Fisheries Department" and the Department of Lands "will issue a development lease over the area after all issues have been finalised, one of which is the clearance of the Fishing rights claim", but also all other affected groups were supportive including the Ports Authority of Fiji (who wanted the lease to be issued to it, would undertake the development and then "lease to the group for a nominal sum");

(f) two from the Director of Lands and Surveyor General;

(i) The letter of 8 April 1999, from PUMALE REDDY for the Director of Lands and Surveyor General, to the Plaintiffs (with a copy to the Director General of the Ports and Maritime Authority) (Exh "2", Doc.23) advising that ALTHOUGH their application had been "turned down" BECAUSE THE DEPARTMENT OF LANDS HAS APPROVED AN APPLICATION OVER THE SAME AREA in favour of the Department of Fisheries for development of a FISHERIES PORT WHICH WAS APPROVED BY THE CABINET SOME YEARS BACK", with such funding "being sought from the Japanese Aid", it did advise (Exh "6") "that your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries";

(ii) The letter of 3 June 2005, from the Director of Lands and Surveyor General to the Plaintiffs’ lawyers (Exh "2", Doc.34) that:

The Jetty/Wharf development funded by Japanese Government was to be "at the original Fisheries Jetty near Tradewinds Hotel and not over the area earlier applied for by the Group";

"A decision to reactivate the group’s application on the original site could be made once the proposal of the Jetty by Fisheries Department is finalised."

[35] In addition, there were two documents produced which, although on their face, seemingly support the Defendant’s claim (as to the priority of the proposed port development supported by Japanese Aid), could in fact be said to support the Plaintiff’s case (as an analysis much later in this judgment will explain), they being:

(i) The memorandum of 28 November 1998, from MACIU LAGIBALAVU, the Permanent Secretary of Primary Industries, to the Director of Lands Department (Exh "2", Doc 25) seeking that the application by the Plaintiffs be turned down "because it would jeopardize the Japanese Aid package for major Fisheries Port development in Suva"; and

(ii) The memorandum of 17 March 1999, from MACIU LAGIBALAVU, the Director of Fisheries, to the Director of Lands (Exh "2", Doc.24) that Japanese aid was being sought "to establish a fishing port" at the site opposite Fisheries Division Headquarters at Lami" and a letter was needed "from Lands Department advising that the referred Land is [sic] been reserved for fisheries development" and "that the area is zoned for industry development".

2. The documents tendered supporting the Defendant

[36] Conversely, there was only a short list of documents (three in all) which could be said to be against the Plaintiff’s case from the various government ministries which can be summarised as follows:

(a) Two from the Department of Fisheries –

(i) The letter of 10 September 1996, from M. LAGIBALAVU, the Acting Director of Fisheries, to the Chairman of the "Ocean Youth Fishing Group" [sic] (Exh "2", Doc 9) noting that after the sharing arrangement between the Plaintiffs and Fisheries had been turned down by the Ministry, Fisheries " .. have no choice but to advise that eagle is to finish its activities with the building ... soon and to seek an alternative base";

(ii) The memorandum of 11 September 1996, from M. LAGIBALAVU, the Acting Director of Fisheries, to "Senior Fisheries Assistance – M Cama" concerning "your returning to normal duties at Fisheries" (Exh "2", Doc 10) "to advise that you are to finish with the current level of involvement with the company by the end of the month and to resume your duties at Fisheries on 1/10/96";

(b) The Cabinet Minute of 12 September 2005 (Exh "2", Doc.32), resolving in relation to the "Lami Fisheries Jetty Redevelopment Project that the development for which Japanese aid had been sought was not to proceed and instead "a long term plan on the proper usage and development of the entire Lami Bay area" was to be drawn up by the relevant authorities".

3. The documents not produced

[37] What was not produced in these proceedings:

(a) The alleged Cabinet Minute of "some years back" (that is prior to 1999) referred to in the letter from PUMALE REDDY to the Plaintiffs of 8 April 1999 (Exh "2", Doc.23) that was "in favour of the Department of Fisheries for development of a FISHERIES PORT" and allegedly approved an application over the same area as where the Plaintiffs’ were seeking a lease and for which reason the Plaintiffs’ application had been "turned down";

(b) "A long term plan on the proper usage and development of the entire Lami Bay area" (post 2005) which was to be drawn up by the relevant authorities as referred to the Cabinet Minute of 12 September 2005 (Exh "2", Doc.32).

4. Oral evidence given

[38] Evidence was given at the hearing by MR METUSIELA CAMA on behalf of the Plaintiffs. He is the President of the group. He became involved with the group initially on secondment from the Department of Fisheries and then later in his own private capacity. He was able in his evidence to confirm the history of the matter. He was the only witness for the Plaintiffs.

[39] The Defendant called two witnesses:

(a) Mr A. TAMATA, Senior Surveyor, Ministry of Lands, Mineral Resources, Suva; and

(b) Mr JOHN AH TONG, Fisheries Technical Officer, Ministry of Agriculture, Forest and Fisheries at Lami.

[40] As the Plaintiffs have noted in their closing submissions:

"Defence witness Mr. Atamata [sic] in his sworn evidence confirmed that he was aware that the Plaintiffs had complied with up to criteria 12 [of the 14 criteria] but had no information on whether [the] compensation award had been paid to the Lands Department or not ... "

[41] Mr AH TONG in his evidence conceded that he only came to know of the Plaintiffs’ application for the foreshore lease "a couple of weeks back" prior to the hearing of this matter in June 2008 and was not present in 1996 having moved to Lautoka towards the end of 1993 returning to Lami in 2001, though he did visit Suva regularly during that approximate eight year absence. He also advised that even though the Cabinet decision of 2005 was "not to proceed" with the Japanese aid project, it was "not cancelled" and "we are still pursuing the project".

[42] Even though the Plaintiffs carry the burden of proving their case, the Defence case was, to say the least, troubling. Witnesses were not called who could have clarified documents such as the letter of 8 April 1999 (Exh "2", Doc.23 and Exh "6") whereby PUMALE REDDY for the Director of Lands and Surveyor General had written to the Plaintiffs advising that their application had been "turned down" because of the proposed port development "which was approved by the Cabinet some years back" and for which "funding ... is being sought from the Japanese Aid" but that "Furthermore please be advised that your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries."

[43] Instead, there was evidence of Mr TAMATA alluding to an alleged Cabinet decision of 1997 (which would support the claim in Mr REDDY’s letter of 8 April 1999), but it was left unexplained as to how he came to know of that alleged Cabinet decision. Did he actually sight a document or was it through a third party? Further, Mr TAMATA then appeared to qualify his evidence saying that it was "the Minister’s directive that the area be allocated to Fisheries". No documentation was tendered by the Defendant’s Counsel to assist and/or support Mr TAMATA in his recollections. Further troubling was the fact that Mr TAMATA left the Lands Department in 1992 returning in 1998 AFTER the alleged Cabinet decision or Minister’s directive of 1997.

[44] As the Plaintiffs have noted in their submissions:

"... the Defendant did not challenge nor called any witness who had personal knowledge of the matter to either confirm or contradict that letter [of 8 April 1999 (Exh "2", Doc.23 and Exh "6")]. No advance notice was given to the Plaintiffs under Civil Evidence Act 2002 section 4 to adduce hearsay evidence. Based on the principles of ... Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference can be drawn that the uncalled evidence would not have assisted ... the Defendant’s case."

[45] In my view, this is a significant submission as I shall explain in the next section.

5. Sections 4 and 6 of the Evidence Act and the principles of Jones v Dunkel

[46] Section 4 of the Evidence Act was recently considered at length by the Court of Appeal in Laisa Digitaki v Mobil Oil Australia Limited (Unreported, Full Court of Appeal, Civil Appeal No. ABU 0100 of 2006, 2 May 2008, Byrne and Hickie JJA).

[47] As was explained in Digitaki v Mobil at paragraph 16: "The Civil Evidence Act 2002 is divided into seven parts. Part 2 (Sections 3-9) deals with hearsay evidence. Section 4 specifies what notice is required when a party is to adduce hearsay evidence in civil proceedings. The important sections here are sections 4(1) and (4)". Those sections state:

"4 (1) A party proposing to adduce hearsay evidence in civil proceedings must, subject to the following provisions of this section, give to the other party or parties to the proceedings-

(a) a notice of that fact; and

(b) on request, the particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling the other party or parties to deal with any matters arising from its being hearsay.

...

(4) A failure to comply with subsection (1) or rules made under subsection (2)(b) does not affect the admissibility of the evidence but may be taken into account by the court-

(a) in considering the exercise of its powers with respect to the course of proceedings and costs; and

(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 6."

[48] Thus, as was also pointed out in Digitaki v Mobil at paragraph 17: "even if the notice provisions of Section 4 are not complied with, the evidence is still admissible; however, the ‘considerations relevant to weighing of hearsay evidence’ as outlined in Section 6 then apply". That Section reads:

"6. In estimating any weight to be given to hearsay evidence in civil proceedings, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(a) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(b) whether the evidence involves multiple hearsay;

(c) whether any person involved had any motive to conceal or misrepresent matters;

(d) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(e) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."

[49] There was no explanation from Counsel for the Defendant at the hearing or in his subsequent submissions as to why no notice was provided by the Defendant to the Plaintiffs prior to trial as required by Section 4 (1):

(a) that the authors of the various documents relied upon by Defendant were not going to be called to give evidence (and the reasons); and

(b) that such evidence was to be led through the hearsay evidence of Mr TAMATA and Mr AH TONG (and the particulars of that evidence).

[50] In light of the above, it is appropriate at this point that I indicate (as discussed in Digitaki v Mobil at paragraph 24 that I have "taken specific regard ‘as required by Section 6 of the Evidence Act ‘to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular’, the six criteria listed".

[51] As with Section 4 and the notice provisions, likewise with Section 6 and the penalty provisions, the Court was not provided with any explanation from Counsel for the Defendant at the hearing or in his subsequent submissions as to what considerations it should take into account "in estimating any weight to be given to hearsay evidence" pursuant to Section 6. It is significant that Counsel for the Plaintiffs has addressed the issue but Counsel for the Defendant has remained silent.

[52] Instead, Counsel for the Defendant has submitted:

"Exhibit 6 (Document 23) clearly states that the area of land applied for by the Plaintiff has been given to Department of Fisheries. However, if the development takes place the plaintiff will be accommodated in the proposed port development. The Defendant submits that the proposed development has not taken place and is still on hold. Further, the Plaintiff was asked to identify an alternative site but they failed to do so, had they done so they would not be facing the predicament today."

[53] With all due respect to Counsel for the Defendant, this is not what was said in a plain reading of that document. Rather the words used were: "Furthermore please be advised that your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries." It was then added that: "In the meantime if you are still interested in a separate site could you lease identify an alternative site so that we can process your application over that site."

[54] If Counsel for the Defendant wished to provide a different interpretation (rather than the plain reading which Counsel for the Plaintiff relied upon through the evidence of his witness), then it was up to Counsel for the Defendant to provide the author of that letter (PUMALE REDDY) or an explanation as to his unavailability.

[55] In "estimating the weight to be given to the hearsay evidence" of Mr. TAMATA and Mr AH TONG, "the court must have regard to the fact" that PUMALE REDDY was not called and "from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular ... whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness".

[56] As Counsel for the Plaintiffs stated in raising an objection at the hearing to Mr TAMATA’s evidence on this point:

" ... we do object to this witness actually giving evidence as what interpretation he has but he can’t speak anymore than what is in the letter itself. No notice has been given to me, I thought Mr Reddy might be called in light of this letters [sic] ..."

[57] That the Defendant has not only failed to provide PUMALE REDDY but any submissions in accordance with Section 6 (a) "whether it would have been reasonable and practicable ... to have produced the maker of the original statement as a witness", means that the Defendant must suffer a penalty in that an "inference can reasonably be drawn by the Court as to the reliability or otherwise of the evidence" and thus the weight to be attributed to the evidence of Mr. TAMATA and Mr AH TONG.

[58] On the issue as to the interpretation of the letter of 8 April 1999 (Exh "2", Doc.23 and Exh "6"), the Court gives:

(a) little weight to the evidence of Mr TAMATA as –

(i) he was working elsewhere in 1997 when the Cabinet decision or Minister’s directive was allegedly made (only returning to the Lands Department in 1998; and

(ii) there was no evidence given by him that he actually ever viewed any documentation with such alleged decisions; and

(b) no weight to Mr AH TONG (who was in Lautoka at the time, although he did visit Suva during this period), as he conceded in his evidence that he only came to know of the Plaintiffs’ application for the foreshore lease "a couple of weeks back" prior to the hearing.

[59] It also leaves METUSIELA CAMA on behalf of the Plaintiffs as the only contemporaneous witness as to what occurred between the parties.

[60] It must follow, therefore, that on this issue the Court rejects the submission of Counsel for the Defendant and accepts those of Counsel for the Plaintiffs.

[61] The four other significant documents, in my view, for which the authors and/or no contemporaneous witnesses were called by the Defendant were:

(a) The memorandum of 28 November 1998, from MACIU LAGIBALAVU, the Permanent Secretary of Primary Industries, to the Director of Lands Department (Exh "2", Doc 25) seeking that the application by the Plaintiffs be turned down "because it would jeopardize the Japanese Aid package for major Fisheries Port development in Suva";

(b) The memorandum of 17 March 1999, from MACIU LAGIBALAVU, the Director of Fisheries, to the Director of Lands (Exh "2", Doc.24) that Japanese aid was being sought "to establish a fishing port" at the site opposite Fisheries Division Headquarters at Lami" and a letter was needed "from Lands Department advising that the referred Land is [sic] been reserved for fisheries development" and "that the area is zoned for industry development";

(c) The letter of 3 June 2005, from P. REDDY for the Director of Lands and Surveyor General to the Plaintiffs’ lawyers (Exh "2", Doc.34) that:

The Jetty/Wharf development funded by Japanese Government was to be "at the original Fisheries Jetty near Tradewinds Hotel and not over the area earlier applied for by the Group";

"A decision to reactivate the group’s application on the original site could be made once the proposal of the Jetty by Fisheries Department is finalized" and

(d) The Cabinet Minute of 12 September 2005 (Exh "2", Doc.32), wherein it was resolved in relation to the "Lami Fisheries Jetty Redevelopment Project":

That the "Government is not to proceed with the project";

That "a long term plan on the proper usage and development of the entire Lami Bay area" was to be drawn up by the relevant authorities "taking into account the relocation of the existing facilities there and its financial implications".

[62] That MACIU LAGIBALAVU (as the then Director of Fisheries at the relevant time) was not called at the hearing by the Defendant was astonishing. Clearly, he "intervened" with the Plaintiffs’ application on 28 November 1998 seeking that it be rejected, only a day after the Ports Authority had published its and the Plaintiff’s intentions in the Government Gazette. He also wrote the letter of 17 March 1999 to the Director of Lands seeking letters of support to be included in a proposal seeking Japanese Aid for the port development. This was a month before PUMALE REDDY for the Director of Lands and Surveyor General in his letter of 8 April 1999 advised the Plaintiffs that their application had been "turned down" because of the proposed port development "which was approved by the Cabinet some years back" and for which "funding ... is being sought from the Japanese Aid".

[63] As for the letter of 3 June 2005, from P. REDDY for the Director of Lands and Surveyor General to the Plaintiffs’ lawyers (Exh "2", Doc.34), if this was the same PUMALE REDDY who had written to the Plaintiffs as discussed above on 8 April 1999 (Exh "2", Doc.23 and Exh "6"), then it surely highlights a major gap in the Defendant’s case. On the one hand, Mr REDDY was telling the Plaintiffs on 8 April 1999 that they had been refused because "the Department of Lands has approved an application over the same area in favour of the Department of Fisheries for development of a FISHERIES PORT which was approved by the Cabinet some years back" and for which "funding ... is being sought from the Japanese Aid". Then, six years later, Mr REDDY was saying that the proposed development to be funded by Japanese Aid was "not over the area earlier applied for by the Group" and further that "A decision to reactivate the group’s application on the original site could be made once the proposal of the Jetty by Fisheries Department is finalised". So what was the truth? We will never know.

[64] What the Court can say, however, is that it lends much weight to the submissions of the Plaintiff’s Counsel (cited above) that:

"Based on the principles of ... Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference can be drawn that the uncalled evidence would not have assisted ... the Defendant’s case."

[65] As for the Cabinet Minute of September 2005, Counsel for the Defendant attempted to lead evidence through Mr AH TONG as to its meaning. Again, Counsel for the Defendant provided no notice to Counsel for the Plaintiff prior to the hearing that he was going to rely upon such hearsay evidence through Mr AH TONG. It was also attempted to have Mr AH TONG provide evidence of an alleged "Cabinet decision of February 2007" of the Interim Government after ("we submitted another cabinet paper in February 2007") but there was no documentation provided (such as relevant Cabinet papers and/or minutes). Mr AH TONG did agree, however, that at present there is no development.

[66] Again, no explanation was provided from Counsel for the Defendant, either at the hearing or in his subsequent submissions, as to why no notice was provided by the Defendant to the Plaintiffs prior to trial as required by Section 4 (1):

(a) that the authors of these documents relied upon by the Defendant were not going to be called to give evidence (and the reasons); and

(b) that such evidence was to be led through the hearsay evidence of Mr TAMATA and Mr AH TONG (and the particulars of that evidence).

[67] Further, no explanation was provided to the Court from Counsel for the Defendant either at the hearing or in his subsequent submissions as to what considerations the Court should take into account "in estimating any weight to be given to hearsay evidence" pursuant to Section 6.

[68] For the reasons already discussed above in relation to the letter from Mr REDDY to the Plaintiffs (of 8 April 1999, the Court gives little weight to the evidence of both Mr TAMATA and Mr AH TONG in relation to their interpretations of the letter from Mr REDDY of 3 June 2005 (Exh "2", Doc.34) and the Cabinet Minute of 12 September 2005 prepared by the then Cabinet Secretary, JOWASA VOLAVOLA (Exh "2", Doc.32). Mr REDDY should have been called. As for Mr VOLAVOLA, if he has passed away, then surely other similar senior persons (such as from within Cabinet or at permanent secretary level) who were present and/or involved with such discussions could have presented them to Court to assist the Defendant’s case? As for any alleged Cabinet discussions of February 2007, this added nothing to the case other than confirming that at present there is no development.

6. What of the burdens of proof in this case?

[69] It is important that I set out for the parties the basis upon which I have reached my judgment. It is evident from the Defendant’s point of view in the way they conduced their case (as well as from their subsequent submissions), that they may have been under the erroneous belief that the Plaintiffs carried the sole burden, which, as I shall explain is not entirely correct.

[70] In this regard, I am mindful of the majority judgment of Barwick CJ, Kitto and Taylor JJ in the High Court of Australia in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at pages 167-168, ([1965] HCA 34, 16 July 1965, Austlii: http://www.austlii.edu.au/au/cases/cth/HCA/1965/34.html, at paragraph 4), when they said:

"The expression ‘burden’ or ‘onus’ of proof, ‘As applied to judicial proceedings . . . has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading -the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence’(Phipson on Evidence, 10th ed. (1963) par. 92) ... The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: ‘the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates’ (ibid. par. 95)"

[71] Thus, while the Plaintiffs have carried "the burden of proof as a matter of law and pleading -the burden, as it has been called, of establishing a case ... by preponderance of evidence", both the Plaintiffs and the Defendant have each carried "the burden of proof in the sense of introducing evidence". It is sometimes called the difference between ‘the legal burden’ carried solely by the Plaintiff throughout and ‘the evidential burden’ carried on a particular issue during the trial. And it is in this regard, that is, the evidential burden on a number of issues, in which I have found the Defendant’s case troubling as I shall explain during my analysis in the later part of this judgment as to what took place at the hearing of this matter, the evidence adduced therein and the findings I have made.

7. What remains from the evidence for the Court to resolve?

[72] What is interesting is that there appears to be no dispute as to the important role which the Group was playing in the community for unemployed youth and the success of its activities between 1994 and its eviction in 1998. That the group had to suffer eviction, the loss of their equipment, take legal proceedings for compensation and then wait from April 1999 (when it was promised that "your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries") until some six years later in April 2005, when, of its own volition, it engaged lawyers for an answer (once it saw the public advertisements appearing in the Fiji times of March 2005 concerning the "Fisheries Lami Redevelopment Project") is deserving of censure of those from the various Departments involved who allowed this to happen.

[73] How can members of the community have faith in the civil service (and particularly use those two words) if by all accounts a noble project has had to wait 13 years for an answer since they originally lodged an application on 25 May 1995 with the Ministry of Primary Industry for a parcel of land (LD Ref.No 78/49, F.B.K. no 3198 – Exh "2", Doc 15) to enable the Plaintiffs to set up a fishing deport and carry out its objectives of providing multi skill business training for unemployed youth? This is not to say that there have not been those within various departments who have provided valiant encouragement and support to the project, in addition to the Group’s Chairman, formerly SFA M. Cama, who was the Department of Fisheries "counterpart to this project".

[74] Whilst, as I have said, this is a noble project, as to whether the Plaintiffs’ have, however, satisfied the legal test of having a legitimate expectation for transfer of the land is another matter. That is, noble project or not, the nub of the issue for the Court to decide in this set of proceedings is:

(a) Whether the Court can declare that the Plaintiffs had a legitimate expectation for transfer of the said land at Lami?

(b) If so, whether the Court can make orders to assist in such transfer taking place?

(c) In the alternative, whether the Court should, and can, find an appropriate remedy in damages to compensate for loss of income and from what date noting that the Plaintiffs have waited from 12 May 1995, and, in particular, from 3 January 1998, for a final answer on some from of long term accommodation?

[75] In relation to their eviction from the Peter Hunt Building of 3 January 1998, the Plaintiffs commenced legal proceedings on 17 June 1998 seeking compensation with judgment eventually being delivered in the High Court of Fiji at Suva on 24 February 2004 and thereafter in the Court of Appeal for the Fiji Islands on 26 November 2004. That the matter took some six and a half years to resolve was a poor reflection on all involved (including the system of justice then operating). Be that as it may, the Court of Appeal awarded the Plaintiffs not only $75,000 in damages but interest at the rate of 5% per annum from 17 June 1998 until the date of delivery of its judgment on 26 November 2004.

[76] This second set of proceedings commenced on 12 October 2005 wherein the Plaintiffs sought an Order for Specific Performance in respect of the lease "to enable the Plaintiff to set up a fishing Depot and to carry out its other objectives" (See Statement of Claim, filed 12 October 2005, paragraph 9 and prayer 1 sought). The order sought remained the same in the Amended Statement of Claim filed on 1 September 2006 (see Amended Statement of Claim, filed 1 September 2006, paragraph 9 and prayer 1 sought). After the Defendant filed on 6 September 2006 their Statement of Defence to the Amended Statement of Claim, the Plaintiffs conceded in their Reply to Defence dated 7 November 2006 that they could not be granted an order for specific performance and thus the relief sought was a Declaration in lieu). In the alternative, the Plaintiff sought "damages at the rate of $4000.00 per month in loss of income for such period as the Court may deem just in the circumstances."

C. WHETHER THE COURT CAN DECLARE THAT THE PLAINTIFFS HAD A LEGITIMATE EXPECTATION FOR TRANSFER OF THE LAND AT LAMI?

1. The Defendant’s Submissions

[77] In their submissions, the Defendants have advanced two major arguments as to the law:

(a) That "a Declaration cannot be granted" as it is discretionary and, in this case, it must be noted that not only will the whole area "will be affected by the Proposal Development" but also that "the cabinet decision of September 2005 is current and therefore remains"; and

(b) That what should not be confused here is the difference between a legitimate expectation and the right to procedural fairness.

[78] In relation to the argument that a Declaration cannot be granted, the Defendant relies upon the following proposition that declaratory relief is a discretionary remedy such that "the relevant considerations for the exercise of discretion not being a matter which may be narrowly confined or precisely determined": Forster v Jodode Australia Pty Ltd (1972) 127 Ch R 421 at 437.

[79] In relation to the argument that there is a difference between a legitimate expectation and the right to procedural fairness, the Defendant has submitted:

(a) "... the concept of legitimate expectation ... related to a privilege, advantage or benefit to which there is no legal right ... may be substantive in nature or only procedural. However as Mason C.J. stressed in Quin [Attorney-General of New South Wales v Quin (1990) 170 CLR 1) at p.21 when applying the concept ... a Court must ‘avoid confusion between ... the expectation and the right to procedural fairness’": Pacific Transport Ltd v Khan [1997] FJCA 3 (Fiji Court of Appeal, Abu0021u.1996s, 12 February 1997, Thompson, Barker and Dillon JJA) (Paclii: http://www.paclii.org/fj/cases/FJCA/1997/3.html), page 6 endorsing the judgment of Pathik J in Dewa v University of the South Pacific [1996] FJHC 125 (High Court of Fiji, No.Hbj0007j.1994s, 4 July 1996) (Paclii: http://www.paclii.org/fj/cases/FJHC/1996/125.html);

(b) State v Suva City Council, Ex parte Island Buses Ltd [1997] 43 FLR 129; [1997] FJHC 73 (17 June1997, Fatiaki J) (Paclii: http://www.paclii.org/fj/cases/FJHC/1997/73.html).

2. The Plaintiffs’ Submissions

[80] In their submissions, the Plaintiffs have advanced two major arguments:

(a) That the Plaintiffs relied upon a promise to their detriment (of which the Defendant had knowledge) that a lease would come into existence and thus the Defendant should be estopped from "reneging" on their promise to grant a lease; and

(b) That the Plaintiffs had a legitimate expectation which although normally conducted by way of an application for judicial review can be pursued through a private action for mandatory orders.

[81] In relation to the argument that the Defendant should be estopped from "reneging" on their promise to grant a lease, the Plaintiffs have submitted the following:

(a) Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; ([1988] HCA 7, High Court of Australia, 19 February 1988, Mason CJ, Wilson, Brennan, Deane and Gaudron JJ) (Paclii: http://www.austlii.edu.au/au/cases/cth/HCA/1988/7.html);

(b) Coombe v Coombe [sic] [1952] EWCA Civ 7; (1951) 2 KB 215 at 220;

(c) "In the unlikely event an issue is raised by the Defendant that other causes of action or equitable reliefs ... had not been specifically pleaded, we would, in such a case submit that the Court has powers to depart from the particulars when the evidence otherwise establishes a cause of action pleaded": Dare v Pulham (1982) 148 CLR 658 at page 664.

[82] In relation to the issue of legitimate expectation, the Plaintiffs have cited in support the following:

(a) Council of Civil Service Unions v Minister for the Civil Service (supra) quoting Lord Fraser who in turn was citing Lord Diplock in O’Reilly v Mackman (supra);

(b) Bingham LJ in R v Board of Inland Revenue; Ex parte MFK Underwriting Agencies Ltd (1990) 1 All ER 91 at pages 110-111;

(c) "The concept of legitimate expectation is not limited to Judicial Review and has been held to be appropriate by private actions where there is ‘strong ingredient of a claim against a private party for mandatory orders’": KR Latchan Buses Limited v Attorney General and Ports Authority of Fiji [sic] (Fiji Court of Appeal, No.90 of 1985, Speight VP) citing Lord Scarman in Gillick v Western Norfolk Health Authority [1985] UKHL 7; (1985) 3 WLR 830 at page 837 and Lord Woolf in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1980] UKHL 10; (1981) AC 800.

D. THE FINDINGS OF THE COURT

1. The Crown Proceedings Act and State Lands Act

[83] According to Section 15(1)(b) of the Crown Proceedings Act (Cap 24):

(b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof".

Thus, in the present proceedings, the Court cannot order specific performance but can make a declaration in relation to the lease sought by the Plaintiffs.

[84] At the hearing of this matter, Counsel for the Plaintiffs indicated the strong preference of his clients for a declaration over an award of damages. If the Court decides to make such a declaration, but following which the Plaintiffs find that it is of no effect, then the Court will provide a mechanism in its orders for the matter to be relisted to hear argument solely on the question of appropriate damages as compensation.

[85] In relation to leases of foreshore, these are to be approved by the Minister pursuant to Section 21(1) of the State Lands Act (Cap 132) which states:

"Leases of foreshore to be approved by Minister

21.-(1) No lease of any Crown foreshore land or of any soil under the waters of Fiji shall be made without the express approval of the Minister and such approval shall not be granted unless the Minister declares that such lease does not create a substantial infringement of public rights.

(2) Before such approval is given or declaration made, the substance of the lease together with a sufficient description of the property intended to be comprised therein, shall be inserted by the applicant, with the prior approval of the Director of Lands-

(a) in two consecutive issues of the ordinary Gazette; and

(b) twice, within seven days of such first issue, in a newspaper circulating in Fiji, together with a notice calling upon persons having objections to the making of such lease to send them in writing to the Director of Lands not later than thirty days after the date of such second insertion in the Gazette.

(3) All such objections made in accordance with the provisions of subsection (2) shall be considered by the Minister."

[86] Section 22(1) of the Crown Lands Act is a safeguard on the grant of leases as follows:

"Special provisions to be contained in leases of foreshore

22.-(1) Every lease of any part of the foreshore or of any soil under the waters of Fiji shall specify the purposes for which such foreshore or soil is required, and shall vest the same in the lessee free and discharged from all public rights and privileges which may have existed or may be claimed in or over every such foreshore so far as is necessary for carrying out the said purposes and shall contain such covenants and provisions as may be approved in each case by the Minister with regard to the construction and use of any works to be made and done upon the premises comprised in the lease and as to the time within which such works shall be commenced and completed.

(2) In the event of the lessee, his executors, administrators, assigns or successors, as the case may be, failing at any time during the continuance of the term of the said lease to use the property comprised therein for the purposes so specified as aforesaid then the Director of Lands may declare the lease forfeited and may enter upon and take possession of the premises.

(3) In the event of any alienated or native land abutting upon or adjoining any foreshore leased under the provisions of this Act, the lessee thereof shall pay to the owner of such land compensation for any rights that may be infringed and, in the event of any dispute as to the amount of such compensation, compensation shall be determined in the manner provided in the Crown Acquisition of Lands Act. (Cap. 135.)"

Thus, the purpose for which a lease has been granted must be specified and if that is breached then the Director of Lands may declare the lease forfeited. In addition, the lessee shall pay compensation to the owner/s of native land affected.

[87] Section 23 is a "save all" provision protecting the rights of the Crown of any land embanked or reclaimed under a lease:

"Saving of rights of the Crown to foreshore where land raised by execution of works

23.-(1) If any foreshore land or land to the seaward of any such land embanked or reclaimed under a lease made under the provisions of this Act or any former Ordinance at any time after the completion of such embankment or reclamation becomes raised in height or reclaimed, whether gradually and imperceptibly or otherwise, so as to be above instead of below the line of ordinary high-water mark, no person or body shall, by virtue of any title to any land which he or it was empowered to reclaim as aforesaid, have any estate, right or interest in or to the land so raised in height or reclaimed by reason that such raising or reclamation has been gradual and imperceptible, or has been wholly or partially caused by such embankment or reclamation as aforesaid.

(2) The right and title of such lands so raised and reclaimed shall continue vested in the Crown as if the same had continued subject to the flow and reflow of the ordinary tides."

[88] There is further protection in relation to the application of the above sections as stated in Section 24:

"Application of sections 21, 22, and 23

24. The provisions of sections 21, 22 and 23 shall not apply to any river or stream within Fiji nor shall they affect in any way the provisions of the Harbour Act in so far as it relates to the erection of private wharves, piers, jetties or landing places in any declared harbour. (Cap. 184)"

[89] As far as this Court is aware, a Harbour Act was passed in 1967 (Cap 160) which stated at Section 23(1):

"The Governor in Council may, subject to such conditions as he may deem fit, licence and permit any part of the tidal lands and waters of a harbor to be used or occupied for all or any of the following purposes: -

(a) the building or repairing of hips or vessels of any kind;

(b) the erection of and use of any boat-shed, landing place or wharf ..."

A Ports Authority of Fiji Act (Cap 181) was passed in 1975 and in the 1985 Revised Edition of the Laws of Fiji, Cap 160 became the Animals (Contagious Diseases) Act. Further confusing the matter is that it would appear at some stage the Crown Lands Act became the State Lands Act even though the Defendant in their Statement of Defence to the Amended Statement of Claim referred to the Crown Lands Act. Neither Counsel referred to the Ports Authority of Fiji Act in their respective submissions. Therefore, it is presumed that for the purposes of this case, the relevant provisions are within the Crown Proceedings Act and the State Lands Act.

[90] Thus, the FIRST FINDING of this Court is that if a lease was to be granted to the Plaintiffs then there is sufficient protection under the relevant legislative provisions of the Crown Proceedings Act and the State Lands Act for specific conditions to be applied such that if they were breached then the Director of Lands may declare the lease forfeited.

2. Estoppel

[91] It is clear from the evidence that the Plaintiffs relied upon a promise (to their detriment of which the Defendant had knowledge) that a lease would come into existence. As to whether the Defendant should be estopped (as the Plaintiffs have submitted in their closing submissions) from "reneging" on their promise to grant a lease has not been specifically pleaded.

[92] Paragraphs 9-12 of the Plaintiffs’ Amended Statement of Claim dated 1 September 2006, stated:

"(9) Prior to the eviction on 3rd January 2006 the Plaintiffs lodged an application with the Department of Lands for a piece of State Land at Lami Foreshore having an area of 1860 square metres situated at west of Queens road, Lami contained n LD 60/737 to enable the Plaintiff to set up a fishing Depot to carry out its other objectives.

(10) Via letter dated 8th April 1999 Department of Lands declined the Plaintiffs [sic] application on the grounds that it had already given approval to the Department of Fisheries to develop the said site as Fisheries Port which development was to be funded by Japanese aid.

(11) Department of Lands, however, in the same letter undertook to allocate a site in the same development to the Plaintiff once the development had been completed.

(12) Based on the above promise and or commitment made by the Department of Lands the Plaintiff had formed a legitimate expectation that a site would be allocated to it upon completion of the project as aforesaid and decided not to challenge and/o pursue the matter further with the Department of Lands.

(13) On or about 20th of September 2005 the Government of Fiji announced in Parliament and through the media that the proposed development of the Fisheries Port had been abandoned.

(14) Plaintiff alleges that the Defendant acted in bad faith and in breach of undertaking and commitment it gave to the Plaintiff in its letter of 8th April 1999 in failing to allocate a site to the Plaintiff and consequently the Plaintiff has suffered loss and damages in terms of loss of training to its members and loss of income at the rate of $4000.00 per month.

[93] Paragraphs 5-9 of the Defendant’s Statement of Defence to Amended Statement of Claim dated 6 September 2006, stated:

"5. THAT they admit paragraphs 9 and 10 of the Statement of Claim.

6. THAT they do not admit paragraph 11 of the Statement of Claim.

7. THAT they do not admit paragraph 12 of the Statement of Claim, and add that there is no basis for any legitimate expectation.

8. That they admit paragraph 13 of the Statement of Claim and add that Cabinet made a decision on 12 September 2005 to not proceed with the Lami Fisheries Jetty Development programme, which was funded and to be constructed by the Government of Japan and further, relevant authorities are to draw up a long term plan on the proper usage and development of the entire Lami Bay area and taking into account the relocation of the existing facilities there and its financial implications.

9. That they do not admit paragraphs [sic] 14 of the Statement of Claim, and add that ... there is no basis for the Plaintiff to have a legitimate expectation that it would be granted a lease over the subject land ..."

[94] Thus the Plaintiffs did not raise in their Amended Statement of Claim the statement: "That the Defendant should be estopped from "reneging" on their promise to grant a lease". They have, however, raised it in their closing submissions.

[95] On this issue, the Plaintiffs attempted to "pre-empt" the Defendant’s submissions noting (as cited above) that "In the unlikely event an issue is raised by the Defendant that other causes of action or equitable reliefs ... had not been specifically pleaded", then the Plaintiffs say "that the Court has powers to depart from the particulars when the evidence otherwise establishes a cause of action pleaded" and cite in support Dare v Pulham (1982) 148 CLR 658 at page 664

[96] The Defendant has not addressed this issue in their submissions.

[97] In Dare v Pulham (supra), the High Court of Australia stated:

"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ... they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ... and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207 ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at pp 111, 112, 127 ), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668)"

[98] With all due respect to the Plaintiffs, they have not raised a new cause of action, rather they are suggesting a different relief or remedy than that pleaded. The initial remedy sought was specific performance (which was conceded in the Reply to Defence dated 7 November 2006 could not be granted and thus relief of Declaration was sought in lieu) or damages. There was no mention of equitable estoppel.

[99] In relation to Waltons v Maher (supra) and Coombe v Coombe (supra), as cited by the Plaintiffs in support of their equitable estoppel argument, they do not assist in the present case.

[100] In Combe v Combe at 220-221, Lord Denning said:

"The principle, as I understand it, is that, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only by his word.

Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side-wind. Its ill-effects have been largely mitigated of late but it still remains a cardinal necessity of the formation of a contract, though not of its modification or discgharfge. fear that it was my failure to make this clear which misled Byrne J in the present case. He held that the wife could sue on the husband’s promise as a separate and independent cause of action by itself, although, as he held, there was no consideration for it. That is not correct. The wife can only enforce it if there was consideration for it."

[101] Similarly, in Waltons v Maher, as Mason CJ and Wilson J noted at pages 392-393, it was argued that the Appellant should be "estopped from denying the existence of a binding contract that it would take a lease of the respondents' premises ... and that the appellant pay to the respondent damages in lieu of specific performance of an agreement for a lease".

[102] This is not a case of an alleged binding contract. If there was to be a contract, it was to be between the Department of Lands and the Ports Authority. The Plaintiffs, in turn, were to hold a sub-lease with the Ports Authority for a nominal rent. That is, a third party was to hold the lease and to have paid the fishing rights. In any event, the case was not pleaded or argued on the basis of contract.

[103] Accordingly, the SECOND FINDING of this Court is that the equitable estoppel submission is not made out.

3. Whether the proceedings can be pursued through a private action rather than judicial review?

[104] This then leaves the second part of the Plaintiffs’ argument that the Court declare that the Plaintiffs had a legitimate expectation which although normally conducted by way of an application for judicial review can be pursued through a private action for mandatory orders and his citation in support of the judgment of Speight VP in KR Latchan Buses (supra) citing Lord Scarman in Gillick (supra).

[105] KR Latchan Buses was a judgment of Speight VP of the Court of Appeal with whom Roper and Holland JJA agreed. It involved a dispute between a private company which had been granted a lease by the Director of Lands to develop an "area for industrial use by reclamation" to which the Ports Authority of Fiji (PAF) "objected most vigorously" and "claimed that the Minister’s powers under section 21 of the Crown Lands Act were not unlimited, but must be exercised having regard to the powers and functions of the PAF and other public bodies – particularly those secured by section 11 of its Act".

[106] The PAF soon afterwards instituted legal proceedings seeking four declarations and two other orders. Amongst other matters, as Speight VP noted at page 13:

"It was argued that the form of PAF’s original proceedings was an abuse of process as it ought to have come before the court by way of Application for Judicial Review ... based on the view expressed in Gillick ... Although this course may sometimes commend itself to the Court it will not always be the case. Counsel failed to give a complete quotation from the relevant part of the judgment"

[107] Speight VP in KR Latchan Buses also at page 13, then went on to cite "an extract from the speech of Lord Scarman at page 847" in Gillick wherein he referred, in turn, to the judgment of Lord Diplock in O’Reilly v Mackman who at 285D "laid down a rule in these terms":

"Now that those disadvantages (i.e. those previously associated with prerogative order procedure) to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities."

[108] As Speight VP in KR Latchan Buses at page 15 noted, Lord Scarman in Gillick at page 848 stated that he did "not see Mrs Gillick’s claim as falling under the embargo imposed by O’Reilly’s case" and that "if I should be wrong in this view, I would nevertheless think that the private law content of her claim was so great as to make her case an exception to the general rule" and, further, that Lord Diplock in O’Reilly at page 285F had "recognised that the general rules which he was laying down admitted of exceptions", they being:

"where the invalidity of [the public authority’s] decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons."

As Speight VP in KR Latchan Buses also noted at page 15, Lord Scarman concluded in Gillick at page 848 that:

"Both these exceptions can be said to apply in the present case. Like Lord Diplock, I think that procedural problems in the field of public law must be left to be decided on a case by case basis."

[109] Thus Speight VP in KR Latchan Buses further at page 15 concluded on this issue:

"That has been the situation here – no such submission was put in the Supreme Court and the case was argued on the presently constituted proceedings without objection – and it has also a strong ingredient of a claim against a private party for mandatory orders, which made this type of proceeding not inappropriate."

[110] Now while this case does not include "a strong ingredient of a claim against a private party for mandatory orders", it is one "where none of the parties objects to the adoption of the procedure by writ or originating summons". There having been no objection by the Defendant either in its pleadings, at the hearing or in its written closing submissions, judgment will proceed on this basis.

[111] Accordingly, the THIRD FINDING of this Court is that the claim can be pursued through a private action for mandatory orders

4. Can the Court grant a Declaration?

[112] The Defendant has raised at paragraph 6.0 of its closing submissions three issues which it submits are a bar to the Court granting the Declaration sought, they being:

1. That the land under LD 60/737 is not the same area where a jetty will be built, however, the entire Lami Bay area will be effected by the proposed development;

2. That "a Declaration cannot be granted as the cabinet decision of September 2005 is current";

3. That –

"Declaratory relief is a discretionary remedy and ‘the relevant considerations for the exercise of discretion not being a matter which may be narrowly confined or precisely determined’ (Forster v Jodode Australia Pty Ltd (1972) 127 Ch R 421 at 437".

It is probably best to deal with each of these arguments separately.

[113] The problem with the Defendant’s first submission (that the land under LD 60/737 is not the same area as the proposed development) is that the Defendant’s position has changed as follows:

(a) The original letter of refusal of 8 April 1999 from PUMALE REDDY for the Director of Lands and Surveyor General to the Plaintiffs ("Exh "2", Doc.23 and Exh "6") advised that their application had been "turned down" because:

"That the Department of Lands has approved an application over the SAME AREA in favour of the Department of Fisheries for development of a FISHERIES PORT which was approved by the Cabinet some years back.

"Furthermore please be advised that your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries."

(b) The second letter of refusal of 3 June 2005, from P. REDDY for the Director of Lands and Surveyor General to the Plaintiffs’ lawyers (Exh "2", Doc.34) advised that:

"The Jetty/Wharf development ... was to be ... NOT OVER the area earlier applied for by the Group ...

A decision to reactivate the group’s application on the original site could be made once the proposal of the Jetty by Fisheries Department is finalised".

(c) The evidence of Mr TAMATA of 11 June 2008 and that of Mr AH TONG of 11 and 12 June 2008 was that the entire Lami Bay area will be affected.

[114] So from the Defendant’s own documents and witnesses, they have provided three different advices over a nine year period as to whether or not the land sought by the Plaintiffs under LD 60/737 is the same area as that of the proposed development (for which Japanese Aid was sought):

(a) 8 April 1999 – "Same area" and "your company will be accommodated";

(b) 3 June 2005 – "Not over" but "a decision to reactivate the group’s application could be made once the [development] proposal is finalised"; and

(c) 11 and 12 June 2008 – "Including" the site as the entire Lami Bay area will be affected.

[115] In addition, there were the admissions from both Mr TAMATA and Mr AH TONG, given in their oral evidence at the hearing, that neither of them was working with the Fisheries at Lami when the Plaintiffs’ application was first lodged – Mr TAMATA was then working for the Housing Authority and Mr AH TONG was with Fisheries at Lauktoka, though he did visit Suva. Further, even though Mr TAMATA returned to the Lands Department as from 1 January 1998 and Mr AH TONG to Lami in 2001, they both admitted that they had NEVER seen, prior to the hearing on 11 and 12 June 2008, the submission by PUMALE REDDY, the Acting Senior Surveyor for the Director of Lands and Surveyor General, presented on behalf of "Department of Lands and Surveys" as their submission to the arbitration "Fishing Rights Hearing" which was held in Suva on 5 February 1998 (Exh "3") in which Mr REDDY stated:

(a) That the Plaintiff "has strong backing from the Fisheries Department"; and

(b) That "the Department of Lands supports the applicants and will issue a development lease over the area after all issues have been finalised, one of which is the clearance of the Fishing rights claim".

[116] The Court also notes (as discussed earlier), that P. REDDY as the author of the letters of 8 April 1999 and 3 June 2005 was not called as a witness nor was any explanation provided by the Defendant as to his unavailability. The Defendant instead, relied upon the oral evidence of Mr TAMATA and Mr AH TONG as to various proposals over the past decade. No specific details were provided by the Defendant such as detailed maps and proposals, the Cabinet Minute of "some years back" or the oral evidence, if not of the then relevant Minister, at least of the permanent secretaries from the two relevant departments coverings lands and fisheries as well as perhaps the Ports Authority.

[117] In any event, no development has taken place since P. REDDY’s advice to the Plaintiffs of 3 June 2005 and, indeed, from the evidence of the Defendant’s own witnesses, nothing can allegedly take place because of the bar of the Cabinet decision of September 2005.

[118] In the Court’s view, this 13 year wait is simply unacceptable. Therefore, should the Court find that a legitimate expectation was created, then, as no development has proceeded since 1999 (when it was given as the reason for the Plaintiffs being initially "turned down"), any declaration granted can be made subject to any future development.

[119] In relation to the Defendant’s second submission that the Cabinet decision of September 2005 is current and operates as a bar to any development, the problem with this argument is:

(a) The previous Cabinet decision of "some years back" (if there was one, presumably from sometime in the 1990s) that was mentioned in the original letter of refusal of 8 April 1999 from PUMALE REDDY for the Director of Lands and Surveyor General to the Plaintiffs ("Exh "2", Doc.23 and Exh "6") did not operate as a bar (and indeed the Plaintiffs were assured "that your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries";

(b) The Court can still make a declaration and if, subsequent to that decision, it is found that "a long term plan on the proper usage and development of the entire Lami Bay area" has been finally drawn up by the relevant authorities and approved which cannot accommodate the Plaintiffs, then surely the Plaintiffs can return to the Court seeking damages (as an alternative) so they can purchase their own lease and/or premises elsewhere. In the meantime, it would seem that various plans have been in existence from well before April 1999 but nothing has proceeded. If, and when, a plan is finally approved and does procced, then surely such an eventuality can be made part of the conditions of any lease, that is, that the lease is taken subject to any future development taking precedence.

[120] In relation to the third argument as to why a declaration cannot be made, and the Defendant’s citation of Forster v Jodode Australia Pty Ltd (supra), the following can be said. It is not clear as to the point of the Defendant’s submission as a close reading of their citation of the judgment of Gibb’s J at page 437 will reveal (paragraph 9 of Paclli), when he said:

"9. It is neither possible nor desirable to fetter the broad discretion ... by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. (1921) 2 AC 438, at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration:

"The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."

Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna (1964) 1 WLR, at p 225:

"After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." (at p438)

[121] Applying Lord Dunedin’s reasoning in Russian Commercial and Industrial Bank to the present case:

(a) The declaration sought is real not theoretical;

(b) The Plaintiffs have a real interest to raise it; and

(c) The Defendant (on behalf of the Department of Lands and government) is someone who a true interest to oppose the declaration sought.

[122] Further, also applying Lord Radcliffe’s statement in Ibeneweka v Egbuna to the present case, if a declaration is granted it will be "with a proper sense of responsibility" together with the finding that "there are circumstances that call for their making", that is, that there was a legitimate expectation held by the Plaintiffs created and breached by the Defendant.

[123] Accordingly, the FOURTH FINDING of this Court is that a declaration can be made if the Court so finds that there was a legitimate expectation created in the Plaintiffs by the Defendant.

5. Was there a legitimate expectation?

[124] We can now come to the nub of the case: Was there a legitimate expectation created in the minds of the Plaintiffs by the behavior of the Defendant (and it various employees)? The Defendant has submitted that there is a difference between a legitimate expectation and the right to procedural fairness citing the Fiji Court of Appeal in Pacific Transport Ltd v Khan (supra) that " ... as Mason CJ in Quin (supra) at p.21 [stated] when applying the concept ... a Court must ‘avoid confusion between ... the expectation and the right to procedural fairness’". That is, a right to procedural fairness is different from a Court declaring that a Defendant has created in a Plaintiff a legitimate expectation. Not only was this view held to be correct by the Fiji Court of Appeal in Pacific Transport Ltd v Khan they also endored the judgment of Pathik J in Dewa v University of the South Pacific (supra).

[125] It is interesting to read Dewa in its entirety. In a comprehensive judgment, Pathik J cited at pages 19-24 the following in support of the proposition of a "legitimate expectation" even though a person has no legal right as such:

(a) Lord Denning MR in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149;

(b) The House of Lords in O’Reilly v Mackman [1983] UKHL 1; (1983) 2 AC 237 and Re Findlay (1985) AC 318;

(c) Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 wherein he stated that:

"It must affect such other person either:

(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or

(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a 'legitimate expectation' rather than a 'reasonable expectation,' in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might be entertained by a 'reasonable man,' would not necessarily have such consequences)."

(My emphasis)

As Pathik J noted: "Lord Fraser ... (at p.401) supplemented the above analysis by observing that such expectation may arise by an express promise or, by implication, from past practice."

(d) An article by Ramnik Shah, ‘Estoppel and Legitimate Expectation’, NLJ, 3 Nov., 1995, page 1615 wherein he said:

"What conclusions may be drawn from these cases? Clearly where an unequivocal statement is made, either as to the existence of a status or as to the course to be followed in given circumstances the authorities making the statement would be estopped from asserting the contrary if the person to whom or for whose benefit it is made has relied on or acted upon it or seeks to do so. The position may be less certain where a claimant to some right or concession seeks to establish it by reference to a general practice or note of guidance, for not only would its precise terms have to be looked at but also whether the claimant fulfilled them to the letter. Every case must turn on its facts." (My emphasis)

[126] So what has occurred in the present case? The important dates from the chronology set out at the beginning of this judgment (from correspondence and/or matters of which the Plaintiffs were aware) would seem to be thus:

(a) The Plaintiffs lodged an application on 25 May 1995 for a parcel of land (Exh "2", Doc 15);

(b) On 7 January 1998, S. Levu for the Minister for Lands and Mineral Resources wrote to the Deputy Permanent Secretary, Operations, Ministry of Agriculture, Fisheries, Forests and ALTA, requesting that the Plaintiffs have temporary occupancy of the Peter Hunt building "until the Department of Lands and Survey finds a permanent site for them" (Exh "2", Doc.13);

(c) On 5 February 1998, an arbitration "Fishing Rights Hearing" was held in Suva;

(d) On 7 July 1998, the Independent Arbitrator "assessed the damage to be suffered by the fishing right owners and their descendants at two thousand three hundred and ninety nine dollars and seventy six cents ($2399.76)" (Exh "1", Doc.4);

(d) On 27 November 1998, a "Public Notice of Application for a Foreshore Lease" dated 26 October 1998 from the Director General, Maritime and Ports Authority of the Fiji Islands, appeared in the Fiji Islands Government Gazette, (Exh "4") wherein it was stated that "A Development Lease will be issued to Ports and Maritime Authorities of Fiji who will sublet it to Eagle Ocean Harvest on a nominal rental ..";

(e) On 8 April 1999, the Director of Lands and Surveyor General wrote to the Plaintiffs advising that their application had been "turned down" (Exh "2", Doc.23) due to the fact that the Department of Lands had approved an application over thesame area in favour of the Department of Fisheries approved by Cabinet someyears back (to be funded by Japanese Aid). The letter also advised, (Exh "6") that "your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries."

(f) Some six years later, on 5, 22 and 23 March 2005, public advertisements placed by the Department of Fisheries in the Fiji Times concerning the "Fisheries Lami Redevelopment Project" and seeking expressions of interest "to undertake a civil upgrade of the existing badly deteriorated Fisheries Lami Jetty facility" (Exh "2", Doc.26);

(g) On 14 April 2005, the Plaintiff’s lawyers wrote to the Director Lands noting the letter dated 8 April 1999. Further, before legal proceedings were commenced they sought clarification as to "your Department’s current position with regards to our client’s application" (Exh "2", Doc.30);

(h) On 3 June 2005, the Director of Lands and Surveyor General replied to the above (Exh "2", Doc.34) that "... there are proposals by Fisheries Department to construct the Jetty/Wharf funded by Japanese Government ... not over the area earlier applied for by the Group" and "A decision to reactivate the group’s application ... could be made once the proposal ... by Fisheries Department is finalised."

[127] As the Plaintiffs have stated at paragraph 14 of the closing submissions:

"... the Plaintiffs’ application for a Foreshore lease had never been rejected. Assurance of grant of lease kept on coming, either directly form the Director of Lands or through Ports Authority of Fiji, following development at some future date".

[128] The assurances which the Plaintiffs kept receiving particularly throughout 1998 contrasts with the advice of 8 April 1999 (Exh "2", Doc.23), that the Department of Lands had approved an application over the same area in favour of the Department of Fisheries "approved by Cabinet some years back".

[129] As the Plaintiffs have also stated in their closing submissions (at paragraph 15):

"We do not know what was the exact decision of the cabinet some ‘years back’. No direct evidence has been adduced by the Defendant on this issue. We take it ‘some years back’ from 8/4/99 could well be before or around when the Plaintiffs’ had lodged an application for a lease in 1995 ... the Plaintiffs should have been advised immediately or within a reasonable time after they had lodged an application, that no lease can be issued. On the contrary, the evidence is, that the Plaintiffs were allowed to go through the various steps in the ‘procedure for application for foreshore lease’ ... much to their detriment and expense ..."

[130] What makes matters worse is that after having had an expectation created over four years from mid-1995, the Plaintiffs were further mislead in the letter from PUMALE REDDY of 8 April 1999 (Exh "2", Doc.23) in that although they were advised that their application had been "turned down" due to the fact that the Department of Lands had approved an application over the same area in favour of the Department of Fisheries approved by Cabinet some years back (to be funded by Japanese Aid), the letter also advised (Exh "6"), that "your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries."

[131] As the Plaintiffs have further stated in their closing submissions (at paragraph 17): "In light of the response the Plaintiffs patiently waited for proposed development to take place." In fact, they waited a further six years when, after seeing the public advertisements placed by the Department of Fisheries in the Fiji Times of March 2005 concerning the "Fisheries Lami Redevelopment Project" seeking expressions of interest "to undertake a civil upgrade of the existing badly deteriorated Fisheries Lami Jetty facility" (Exh "2", Doc.26), they had their lawyers write to the Director Lands on 14 April 2005 noting the earlier letter from PUMALE REDDY of 8 April 1999 and seeking clarification as to "your Department’s current position with regards to our client’s application" (Exh "2", Doc.30).

[132] Eventually, just under two months later, on 3 June 2005, P. REDDY on behalf of the Director of Lands and Surveyor General replied to the above (Exh "2", Doc.34) that the proposal to be funded by Japanese Aid was "not over the area earlier applied for by the Group" and "A decision to reactivate the group’s application ... could be made once the proposal ... by Fisheries Department is finalised."

[133] This is an important admission for five reasons:

(a) That it clearly conflicts with the reason contained in PUMALE REDDY’s earlier letter of 8 April 1999 as to why the initial application was "turned down" – in 1999 he advised that the proposed development was over the same area as the Plaintiffs’ application; in 2005, he advised that the development was not over the same area;

(b) That it also kept the expectation "alive" that the Plaintiffs’ application could be reactivated "once the proposal ... by Fisheries Department is finalised";

(c) That six years later from April 1999 to April 2005, the development was still predicated on the receipt of Japanese Aid;

(d) That (as noted earlier) the Defendant did not call PUMALE REDDY as a witness in relation to the letters of 8 April 1999 or 3 June 2005;

(e) That other than relying upon the Cabinet Minute of 12 September 2005, the Defendant did not have any witness produce documentary evidence of any finalised development proposal. Indeed, it appeared from the evidence of both of the Defendant’s witnesses, that nothing has been finalised since the letter to the Plaintiffs of 3 June 2005.

[134] Following the views of Lord Diplock in Council of Civil Service Unions (supra) it would seem that is arguable on the evidence that the behavior of the Defendant has deprived the Plaintiffs "of some benefit or advantage" which they had "received assurance from the decision-maker that it will not be withdrawn" such that it was "a 'legitimate expectation' rather than a 'reasonable expectation’ ... to indicate that it has consequences to which effect will be given in public law" or as Lord Fraser said "an express promise". As to whether it goes as high as suggested by Shah (cited above) that the Defendant "be estopped from asserting the contrary", I am not so sure (particularly when it has not been pleaded or argued by the Plaintiffs at the hearing). For this Court, the question will be: "Has there been a 'legitimate expectation' created rather than a reasonable expectation so as to make a declaration to that effect?"

[135] Apart from the correspondence by the Defendant to the Plaintiffs of 8 April 1999 and 3 June 2005, the Plaintiffs point to the Defendant’s 14 step "Procedure of Processing Foreshore Applications" (Exh "2", Doc.14) and the evidence that the Plaintiffs had fulfilled 12 of these 14 steps. What remained outstanding was for the Ports Authority who was holding the main lease to pay the recompense for the fishing rights and then await the processing of the application which was to take 912months.

[136] The evidence seemed to suggest that after the Arbitrator had decided on 7 July 1998 that the fishing rights recompense be assessed in the sum of $2399.76, the proposal had been advertised on 27 November 1998 in the Fiji Islands Government Gazette (Exh "4"), whereby "A Development Lease will be issued to Ports and Maritime Authorities of Fiji who will sublet it to Eagle Ocean Harvest on a nominal rental ..."

[137] The decision the Plaintiffs then received (some nine months after the arbitrator’s award of July 1998) was that of 8 April 1999 (Exh "2", Doc.23) advising that their application had been "turned down" due to the fact that the Department of Lands had approved an application over the same area in favour of the Department of Fisheries approved by Cabinet some years back (to be funded by Japanese Aid), but also advising (Exh "6"), that "your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries."

[138] Everything seemed to be going along well for the Plaintiffs until 10 March 1999, when Mr METUISELA CAMA wrote, on behalf of the Plaintiffs, to the Permanent Secretary of Lands (Exh "2", Doc 29) seeking his support to approve the lease, objecting to the Director of Fisheries alleged "interference" and highlighting that the Plaintiffs "have met the first twelve [of the 14] requirements or points ... in the [Lands Department’s] Procedure of processing Foreshore Applications".

[139] A week later, on 17 March 1999, MACIU LAGIBALAVU wrote on behalf of the Director of Fisheries to the Director of Lands that "the Fiji Government had submitted a proposal to the Government of Japan" for Japanese aid assistance to establish a fishing port "at the site opposite Fisheries Division Headquarters at Lami" and sought a "letter from Lands Department advising that the referred Land is [sic] been reserved for fisheries development" as well as that it had been zoned industrial, and adding that "these documents need to be in Japan before the end of the month" (Exh "2", Doc.24).

[140] That MACIU LAGIBALAVU was not called as a witness is significant. It is even more so when one reads the hand written copy of amemorandum of 28 November 1998 from MACIU LAGIBALAVU as Permanent Secretary of Primary Industries to the Director of Land Department (Exh "2", Doc.25)cited in the earlier part of this judgment which stated at point 9:

"We would appreciate that the applicant [sic] by Eagle Ocean to be turned down because it would jeopardize the Japanese Aid package for major Fisheries Port development in Suva, Fiji

[141] This was only a day AFTER on 27 November 1998, a "Public Notice of Application for a Foreshore Lease" from the Director General, Maritime and Ports Authority of the Fiji Islands had appeared in the Fiji Islands Government Gazette, (Exh "4") stating that "... A Development Lease will be issued to Ports and Maritime Authorities of Fiji who will sublet it to Eagle Ocean Harvest on a nominal rental ..."

[142] It is also significant that the Defendant called no witness from the Ports Authority as to what actually took place.

[143] So on the one hand the Plaintiffs were being lead to believe as at 27 November 1998 that they had satisfied the first 12 of the 14 procedures (with the Ports Authority to pay the finish rights compensation and thus satisfy procedure 13). Further, they were being lead to believe that they had the support of all relevant government departments. This legitimate expectation had been created by those departments remembering:

(a) On 4 October 1996, P. K. KUNATUBA for the Permanent Secretary for Agriculture, Fisheries, Forests & ALTA, wrote to the Director of Lands and Surveyor General to confirm the Ministry’s support for the Plaintiffs’ application (Exh "2", Docs 18 and 28);

(b) On 5 May 1997, C. SIMPSON (Senior Engineer, Projects & Planning) for the Ports Authority of Fiji wrote to the Director of Lands and Survey supporting the Plaintiff’s proposal but proposing that the Authority take up the lease and giving an undertaking that it would be leased to the Plaintiffs for a nominal sum (Exh "2", Doc.20);

(c) On 20 October 1997, C. SIMPSON for the Ports Authority of Fiji wrote to the Director of Fisheries advising that the Authority "has applied to the Director of Lands for the relevant foreshore lease and is awaiting the results of its application" which will then "be leased to the Eagle Ocean Harvest Group [the Plaintiffs] on completion" (Exh "2", Doc.21);

(d) That even when the Plaintiffs had been evicted on 3 January 1998 from the peter Hunt Building, four days later, on 7 January 1998, S. LEVU for RATU TIMOCI VESIKULA, the Minister for Lands and Mineral Resources, was writing to the Deputy Permanent Secretary, Operations, Ministry of Agriculture, Fisheries, Forests and ALTA, requesting "that you kindly reconsider your decision of terminating the occupancy of the Peter Hunt Building" by the Plaintiffs and "allow the Youth Group Temporary occupancy of the building until the Department of Lands and Survey finds a permanent site for them" (Exh "2", Doc.13);

(e) That on 5 February 1998, an arbitration "Fishing Rights Hearing" was held in Suva at which PUMALE REDDY, the Acting Senior Surveyor for the Director of Lands and Surveyor General presented a submission (Exh "3") that not only did the Plaintiffs have "strong backing form the Fisheries Department" and that "the Department of Lands supports the applicants and will issue a development lease over the area after all issues have been finalised, one of which is the clearance of the Fishing rights claim" but that "general supportive comments were received" from all affected government departments and authorities including the Ports Authority of Fiji (who wanted the lease to be issued to it, would undertake the development and "lease to the group for a nominal sum") as well as the Roko Tui Rewa Fishing Rights Owners.

[144] Surely at that stage, more than a reasonable expectation had been created?

[145] But the matter went further. On 7 July 1998, the Independent Arbitrator "assessed the damage to be suffered by the fishing right owners and their descendants at two thousand three hundred and ninety nine dollars and seventy six cents ($2399.76)" (Exh "1", Doc.4) followed by on 27 November 1998, a "Public Notice of Application for a Foreshore Lease" appearing in the Government Gazette inserted by the Ports Authority advising that it would hold the head lease and in turn sublet to the Plaintiffs.

[146] Surely at that stage, much more than a reasonable expectation had been created? The Plaintiffs were clearly being lead into believing that all was proceeding. They were not, however, even given an inkling as at November 1998 that all was not right.

[147] No witness was called by the Defendant at the hearing to explain the change in position between 5 February 1998 when PUMALE REDDY wrote the submission for the Fishing Rights Arbitration that "the Department of Lands supports the applicants and will issue a development lease over the area after all issues have been finalised, one of which is the clearance of the Fishing rights claim", and his letter of 8 April 1999 when it was alleged that there was prior approval of "an application over the SAME AREA in favour of the Department of Fisheries for development of a FISHERIES PORT which was approved by the Cabinet some years back".

[148] Further, no witness was called by the Defendant as to why the Plaintiffs were not informed of the memorandum of 28 November 1998 from MACIU LAGIBALAVU as Permanent Secretary of Primary Industries to the Director of Land Department (Exh "2", Doc.25) asking the Plaintiffs’ application "be turned down because it would jeopardize the Japanese Aid package for major Fisheries Port development in Suva, Fiji". Significantly, there was no mention in that memorandum of any prior approval of "an application over the SAME AREA in favour of the Department of Fisheries for development of a FISHERIES PORT which was approved by the Cabinet some years back" (as later claimed in the letter of 8 April 1999 to the Plaintiffs). Surely, if this had been the case, MACIU LAGIBALAVU would have simply reminded the Director of the Lands Department of the earlier Cabinet decision of "some years back" and not needed to ask that the Plaintiffs’ application "be turned down because it would jeopardize the Japanese Aid package"? Also, presumably this was the same person who, as the Acting Director of Fisheries, had written on 2 October 1995, in support of the Plaintiffs to the Permanent Secretary for Agriculture, Fisheries, Forests & ALTA ufs DPS (Operations) concerning their use of the "Peter Hunt Building at Fisheries, Lami". If so, in that letter, there is also no mention of the Cabinet approval of "some years back".

[149] Indeed, the advertisement from the Ports Authority appeared in the Government Gazette on 27 November 1998 when a day later, MACIU LAGIBALAVU, as the Permanent Secretary of Primary Industries, was seeking that the Director of the Lands Department put the "kybosh" on it on the basis that "it would jeopardize the Japanese Aid package for major Fisheries Port development in Suva".

[150] It was only because of the Plaintiffs’ own initiative seeking details as to the progress of their application which led to the Defendant replying to them on 8 April 1999 through the letter from PUMALE REDDY (some four and half months after the memorandum of 28 November 1998 from MACIU LAGIBALAVU as Permanent Secretary of Primary Industries to the Director of Land Department) to reveal the alleged "truth" as to what had happened – that there had been (allegedly) a prior "application over the SAME AREA in favour of the Department of Fisheries for development of a FISHERIES PORT which was approved by the Cabinet some years back". There was no mention of Mr LAGIBALAVU’s alleged claim of 28 November 1998 that "it would jeopardize the Japanese Aid package for major Fisheries Port development in Suva".

[151] Significantly, neither P. K. KUNATUBA, nor C. SIMPSON, nor PUMALE REDDY, nor MACIU LAGIBALAVU, were called by the Defendant to give evidence at the hearing.

[152] As noted earlier in this judgment, the Plaintiffs are correct in their submission that: "Based on the principles of ... Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference can be drawn that the uncalled evidence would not have assisted ... the Defendant’s case."

[153] Whilst the Plaintiffs have carried the onus of proving their case, they have satisfied, as Pathik J noted in Dewa (supra) referring to Lord Fraser in Council of Civil Service Unions (supra) "that such expectation may arise by an express promise or, by implication, from past practice". Clearly, this is what has occurred here through the following behavior of the Defendant:

(a) Express promises and written statements of support (as shown in the many documents in existence from 1995 onwards tendered at the hearing);

(b) Past practice of the 14 point procedure;

(c) Holding of the arbitration fishing rights hearing on 5 February 1998 with all government departments in support (with no mention at that time of any Cabinet decision of "some years back" which would have negated not only proceedings with the fishing rights hearing but the Plaintiff’s entire application);

(d) Advertising by the Ports Authority in the Government Gazette;

(e) The letter from PUMALE REDDY of 8 April 1999 that even though the application had been turned down "your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries."

[154] What compounds even further the creation of the legitimate expectation is that even six years later, on 3 June 2005 Exh "2", Doc.34), P. REDDY on behalf of the Director of Lands and Surveyor General advised (that the proposal to be funded by Japanese Aid was "not over the area earlier applied for by the Group" (as was advised in the letter of 8 April 1999 as the reason for refusal) and "A decision to reactivate the group’s application ... could be made once the proposal ... by Fisheries Department is finalised."

[155] Another three years have passed and still nothing further has been finalised. Is it little wonder that in the meantime the Plaintiffs have commenced litigation asking this Court to find in their favour and declare that a legitimate expectation has been created by the behaviour of the Defendant? It has all the hallmarks of what Fatiaki J held in State v Suva City Council (supra) at pages 136-137 (pacilli page 9):

"But where the particular decision taken is at variance with a well established policy or practice then the court can and will interfere where such long standing practice has given rise to a legitimate expectation on the part of the claimant that the practice will continue to be adhered toand not be unilaterally and abruptly departed from in the absence of any good cause for such departure or an over-riding public interest."

[156] The Defendant has argued that the alleged "good cause for such departure or an over-riding public interest" is the Cabinet decision of 12 September 2005 in relation to the "Lami Fisheries Jetty Redevelopment Project" that "a long term plan on the proper usage and development of the entire Lami Bay area" was to be drawn up by the relevant authorities. The problem with this argument, as discussed below, is that nothing has happened, that is, the alleged "good cause" or "an over-riding public interest" has not eventuated.

[157] Accordingly, the FIFTH FINDING of this Court is that there was a legitimate expectation was created in the Plaintiffs by the behavior of the Defendants.

6. The alleged bar of the Cabinet decision of September 2005 and the proposed foreshore development

[158] At this point, I should state that the Court granted the parties a timetable for filing of submissions as follows:

(a) Submissions by Plaintiffs to be filed by Friday, 20 June 2008;

(b) Submissions in Reply by Defendant to be filed by Friday, 27 June 2008; and

(c) Liberty for the Plaintiff to Reply within seven days thereafter, i.e. by Friday, 4 July 2008.

[159] The parties complied with the first two Orders, however, the Court Registry misplaced the Plaintiffs’ submissions and a photocopy had to be provided. Later, the original submissions were located which had clearly been stamped as received on 20 June 2008. In addition, the Plaintiffs chose to submit a two page "Brief Reply" to the Defendant’s submissions. That Reply was not filed by 4 July 2008 as ordered but on 16 July 2008. In view of the fact that the judgment had not been written at that stage (due to my involvement with the recently completed Court of Appeal sittings) combined with the fact that the Court Registry had previously misplaced the Plaintiffs’ original submissions, I directed that the Brief Reply be accepted and that no late filing fee be imposed.

[160] So, what of the Defendant’s claim as to the alleged bar to the Plaintiffs’ application because of:

(a) the Cabinet decision of September 2005; and

(b) the proposed foreshore development of the entire Lami Bay area?

[161] It is the Court’s view that this alleged "bar" has been sufficiently rebutted by the Plaintiffs’ Counsel in his Brief Reply of 16 July 2008 wherein he submitted:

"(a) The grounds upon which [the] Plaintiffs’ application had been declined [on 8 April 1999] was no longer valid as the Fiji Government ‘pulled the plug’ as it were on the Japanese aid;

(b) In any event even if the Government has any long term plan (in respect of which no evidence was adduced) the proposed development does not cover the area applied for by the Plaintiff.

(c) Exhibit 2 Document 34 [the letter of 3 June 2005] must be given literal interpretation in the absence of any evidence given by the author of the letter.

(d) Defendant cannot claim that the cabinet decision made in 2005 is current in the absence of any direct evidence to support that assertion."

[162] The evidence from Mr TAMATA on these issues was that the Cabinet decision of 2005 "is still current" and that "any foreshore application in that regards will not be processed until the authorities have drawn up a long term plan on the Bay". On this latter issue his evidence was:

"Q: But there is no current plans of any development as far as you know?

A: I have not seen any plan on that

Q: You have not seen any plan?

A: No"

[163] Similarly, the evidence from Mr AH TONG was that "everything is on hold ... because of the Cabinet decision for the authorities to draw a long term plan".He disputed the newspaper reports of September 2005 which claimed that in relation to the Japanese aid project "Cabinet had decided to dump the plan". He preferred that it had just decided "not to proceed". Regardless of that Cabinet decision, he then claimed that "We are still pursuing the project despite whatever because the Fiji Government has paid $4.2 million to Japanese Authorities. We request the assistance because Fiji Government got no money." In support of his evidence, he did not produce any draft plan or proposal, any details as to what stage such plan or proposal had reached for approval, or how far along in a time line such plan or proposal was from being ready to be placed before the interim government for consideration let alone approval.

[164] Thus, apart from both witnesses agreeing as to the "holding" impact of the 2005 Cabinet decision, Mr TAMATA claimed that he had not seen any current development plans, while Mr AH TONG said that although "everything is on hold", Fisheries "are still pursuing the project". Apart from no documentation being produced at Court to support his claim, there was also no precise detail as to whether any proposal affected the area applied for by the Plaintiff. The Defendant stated in his submissions that Mr AH TONG claimed "that the entire Lami Bay area will be affected". The Plaintiff replied on this point: "no evidence was adduced".

[165] All that can be said is that just over three years on from the letter of 3 June 2005 (from Mr REDDY to the Plaintiffs) and just under three years on from the Cabinet decision of 12 September 2005, no "long term plan on the proper usage and development of the entire Lami Bay area" has been placed before Cabinet and no evidence of any such proposal placed before this Court.

[166] Further, it is important to note that Mr TAMATA is a Senior Surveyor with the Ministry of Lands and Mineral Resources and Mr AH TONG is a Fisheries Technical Officer with the Ministry of Agriculture, Forest and Fisheries based at Lami. With all due respect to each of them, they were not the witnesses one would expect to have appeared at Court and given evidence in such a case. As noted earlier, one would have expected such witnesses to have been, if not from within Cabinet, then at permanent secretary level, who were present and/or involved with such discussions and could have presented them to Court to assist the Defendant’s case.

[167] It is also arguable that on a plain reading of the Cabinet minute of 12 September 2005, whether this is in fact a bar as the Defendant has submitted. Indeed, on one reading of it, it was simply a Cabinet decision not to proceed with the "Lami Fisheries Jetty Redevelopment Project" and for the relevant authorities to "draw up a long term plan on the proper usage and development of the entire Lami Bay area" which, just under three years later, would appear not to have happened.

[168] In relation to any current development plans, the evidence from Mr TAMATA (being that he had not seen any such current development plans) is of no weight. The evidence of Mr AH TONG was, at times, so general that it also did not do much to assist the Court. Further, there was little explanation as to the difference, if any, between the advice contained in Mr REDDY’S letter of 3 June 2005 (that "... there are proposals by Fisheries Department to construct the Jetty/Wharf funded by Japanese Government ... not over the area earlier applied for by the Group") and any current proposals being drafted for the area, apart from the Defendant’s unsubstantiated and undocumented claim "that the entire Lami Bay area will be affected". Again, as noted above in relation to the analysis of what took place at the hearing of this matter, no documentary evidence was provided of an alleged further submission to Cabinet in February 2007. Mr AH TONG did agree, however, that at present there is no development.

[169] Thus, the SIXTH FINDING of this Court is that the legitimate expectation created in the Plaintiffs by the behavior of the Defendants has not been defeated by the alleged "good cause" or "an over-riding public interest" of a long term plan on the proper usage and development of the entire Lami Bay area, as the latter has not eventuated.

Further, if and when, such a plan is approved, then any lease which has been granted prior to that approval can be made conditional upon that plan and/or subject to it.

7. Have the Plaintiffs the capacity to resume as a youth group with the primary focus of boat building training?

[170] On this point, it is important to return to the beginning of this judgment and one of the original documents cited in this case, that being when M. LAGIBALAVU as the then Acting Director of Fisheries, wrote to the Permanent Secretary for Agriculture, Fisheries, Forests & ALTA ufs DPS (Operations) on 2 October 1995, concerning use of the "Peter Hunt Building at Fisheries, Lami" (Exh "2", Doc 5) wherein he stated his strong support of the Plaintiffs and their use of the Peter Hunt Building as follows:

"The Peter Hunt Building ... was constructed for storing aid equipment that were [sic] received from Japan in the 1980s.

It was also used to support the boat-building programme which used to run complimentarily [sic] with the Rural Fishermen Training.

The Japanese aid programme to Fisheries and the boat-building programme have both fizzled out.

In 1994, the Ministry of Youth (MOY) had promise [sic] support to a youth group whose members were the jobless and were roaming the streets of Suva. The MOY agreed to give this group, named "Eagle Ocean Harvest" (EOH) a defunct 33-footer fishing vessel which was given to the Kadavu Provincial Youth. The vessel was in need of major repairs (both hull and engine) when EOH picked it up ...

The Fisheries Division has found this youth group to be well behaved and dedicated. We (EOH Group/Fisheries) regularly meet. The group also submit progress reports to this office and the latest was report No.3 of 18/5/95.

The Fisheries Division ... strongly recommend that the "Peter Hunt Building" or part be transferred to the EOH Youth Group.’

[171] If this had occurred, rather than the Plaintiffs subsequent forceful eviction (which lead to later success in the previous court proceedings)followed by their application for a lease which created the legitimate expectation which has lead to further success today, then the Department of Fisheries and the EOH Youth Group may well have been celebrating 14 years of a successful partnership rather than three sets of court proceedings. Also, what of the wasted opportunities which could have been devoted to assisting the unemployed youth of Suva than in fruitless court proceedings?

[172] Counsel for the Defendant has at paragraph 7.0 of his submissions suggested that "the Plaintiffs have not carried out any work as a Youth Group since 1999, nor have they made any effort to work [with] the Fisheries Department if they were genuinely concerned about its youth". In the Court’s view, the Plaintiffs should be praised for having kept their dream alive (in the face of, if not outright deceit, then bureaucratic "interference"). As Counsel for the Plaintiffs noted at paragraph 20(a) of their submissions:

"The evidence from Mr. Cama was that members of his Group are doing voluntary work currently building a church at Vatuwaga Bhindi Industrial Subdivision. He said as soon as the site is made available the Group will continue with its boat building training."

[173] The Court accepts the evidence of Mr CAMA that the Plaintiffs have kept the object of their group together over the past few years through a land-based building project and they are still registered and ready to "commence where they left off" so to speak.

[174] Thus, the SEVENTH FINDING of this Court is that the Plaintiffs have the capacity to resume as a youth group with the primary focus of boat building training once granted the Declaration.

E. CONCLUSION

[175] To reiterate, it took four years from mid-1995 until 8 April 1999 for the plaintiffs to be told that their application had been "turned down" because of an alleged Cabinet decision of "some years back" but with a promise that "your company will be accommodated within the proposed port development to be undertaken by the Department of Fisheries" which obviously, kept their expectations alive.

[176] It then took another six years until 3 June 2005 (only after the plaintiffs had engaged lawyers after sighting development advertisements in the press) for the Plaintiffs to be advised that the reason for the initial refusal was incorrect that the proposed development with Japanese Aid was "not over the area earlier applied for by the Group" but again with a promise that "A decision to reactivate the group’s application on the original site could be made once the proposal of the Jetty by Fisheries Department is finalised."

[177] Another three years have now passed and no decision has been taken "to reactivate the group’s application on the original site".

[178] Thus after 13 years, the Plaintiffs are still no further despite all the promises. Accordingly, I cannot but find that there has been the creation of a legitimate expectation.

[179] I might also say that when one reviews what has occurred to the Plaintiffs in this matter, it reminds of the term coined by Carleton Kemp Allen, a Professor of Jurisprudence at Oxford University some 70 years ago, when describing the then civil service in Britain as "Bureaucracy Triumphant" (see C.K. Allen, Bureaucracy Triumphant, Oxford University Press, 1931.) The BBC television series of the 1980s, "Yes Minister", also comes to mind of "a gently hypocritical world filled with doubletalk" (see http://www.bbc.co.uk/comedy/yesminister/index.shtml).

[180] It follows, therefore, that this Court will grant the Plaintiffs the declaration they seek in relation to the lease of the said land. I will not make any alternative order for compensation. I will, however, make an Order to hear further argument on that issue should the Plaintiffs find that within 28 days of this judgment that they have been frustrated in putting the declaration into effect.

[181] Finally, the Court notes that the Group’s initial registration list of 27 April 1994 appeared to be all male and, possibly, from only one ethnic group (Exh "1", Doc.1). In a modern diverse society this is not appropriate nor when one takes note of the brief statistics in relation to youth unemployment to which I referred at the beginning of this judgment. The Court is going to take this into account to be reflected in the eventual conditions it will impose as part of the Declaration it will make as part of its judgment.

[182] Accordingly, the Orders of this Court are as follows:

1. That this Honourable Court declares that EAGLE OCEAN HARVEST YOUTH GROUP is entitled as against the State to a lease over 1860 square metres of land situated at Tiri Land west of Queens Road, Lami, LD Ref.No 60/737 subject to a number of conditions to be agreed between the parties within 28 days of the date of this Judgment or, in the alternative, to be imposed by the Court.

2. That the Plaintiffs have liberty to relist the matter on 7 days notice to seek in the alternative an award of damages should they find that within 28 days of this judgment that they have been frustrated by the Defendant’s representatives in putting the above Declaration into effect.

I will now hear from the parties in relation to:

(a) Whether they wish to go away and try and negotiate what conditions should be part of the Declaration or whether they each wish to make submissions for the Court to impose such conditions; and

(b) Costs.

Thomas V. Hickie
Judge

Solicitors:
Maharaj Chandra & Associates, Suva, for the Plaintiffs
Office of the Solicitor-General, for the Defendant