|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
JUDICIAL REVIEW
Judicial Review No. HBJ 47 of 2007
IN THE MATTER of an Application for Leave
to Apply for Judicial Review pursuant to Order 53 Rule 3
of the High Court Rules 1988
AND
IN THE MATTER of Commissions of Inquiry Act Cap. 47
AND
IN THE MATTER of the conduct, findings and decisions of
JOHN ROBERT CONNORS as sole Commissioner to Inquire into the
Magistrates Courts in Fiji on SYED MUKHTAR SHAH
Resident Magistrate, Nadi made on 22 November 2007
and on subsequent dates thereafter
BETWEEN
THE STATE
AND
MR JUSTICE JOHN ROBERT CONNORS
Commissioner for Magistrates Courts Inquiry
First Respondent
AND
ATTORNEY GENERAL OF FIJI
as the Nominal Respondent by virtue of the State Proceedings Act Cap. 12
Second Respondent
EX PARTE
SYED MUKHTAR SHAH Resident Magistrate, Nadi
Applicant
Appearances: Applicant: Mr K. Tunidau
Respondents: Mr BC Patel with Ms Karan (for the Attorney-General)
Date of Hearing: 4 March 2008
Date of Judgment: 7 April 2008
JUDGMENT
1. The Application
Mr Syed Mukhtar Shah, the Applicant, is Resident Magistrate in Nadi. He seeks leave to apply for Judicial Review under the Order 53 of the High Court Rules 1998. The Notice of Application for Leave states that the Orders sought in the substantive application are as follows:[1]
1.1 The application states the grounds as follows:
- The Honourable Court has to decide whether the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate Court Inquiry pursued the proper procedure in conducting the inquiry especially when he only subpoenaed the Applicant to be interrogated without allowing him a right to a fair hearing and or without providing him the allegation or evidence that the Commissioner had.
- Whether the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate Court Inquiry had the authority or right to seize the Nadi Magistrate Court files pending for decision or pending appeal in the High Court.
- Whether the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate Court Inquiry was properly and constitutionally appointed by His Excellency the Honourable President of the Republic of Fiji.
- Whether the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate Court Inquiry is within the scope of his appointment as stipulated.
- Whether the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate Court Inquiry followed the proper procedure collecting or personally calling witnesses against the Applicant without allowing him the right to cross-examine them.
- Whether the decision of the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate Court Inquiry was made in breach of his obligations and duties in accordance with the principles of Natural Justice and/or 1997 Republic of Fiji Constitution.
- The Applicant has as a result of the said decision, been deprived of the rights of a fair hearing or a fair decision.
- The Applicant believes that it is in the overall Justice of the case for these interim orders to be granted pending the prompt disposal of the substantive proceeding.
- That there will be no prejudice to the Respondent but there will be prejudice to the Applicant if the decision of the Respondent or the act of the Respondent is not stayed.
- That withholding of the interim orders would do more harm to the Applicants than granting it would do to the Respondents.
1.2 The Statement of the Applicant accompanying the Notice of Application repeats the above grounds and relief sought, except that it commences with a section setting out the decisions in relation to which Mr Shah ‘is seeking Judicial Review’:[2]
a) For a Declaration, Certiorari and mandamus against the decision of MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate’s court Inquiry.
b) For an Order for Certiorari to quash the decision of MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate’s Court Inquiry regarding any adverse finding against the Applicant without allowing him the right to be heard.
c) For an Order of Mandamus directed to the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate’s Court Inquiry to immediately release or hand over all files of Nadi Magistrate Court pending for decision and/or pending for appeal in the High Court.
d) For an Order that the decision of MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate’s Court Inquiry be stayed pending the hearing and determination of the Applicant’s application in the High Court of Fiji.
2. Notice of Opposition
The Notice of Opposition is short. It states opposition to the application for leave on three bases, with a reservation in respect of any additional grounds. No further grounds were sought to be added.
2.1 As with the application, the grounds of opposition are set out in full:
1. The Applicant has no arguable case in that:
(i) There has been no formal decision made by the Respondent to properly found an action in judicial review;
(ii) The application is premature since there has been no decision;
(iii) Even if there was a decision made as alleged by the Applicant on or about 22 November 2007, it is not a final decision for the purposes of the outcome of the Commission of Inquiry into the Magistrates Court.
2. That the challenge to the Respondent’s appointment as Commissioner of Inquiry is too late now as it was not made in time. The Respondent was appointed by His Excellency the President to be the Commissioner of Inquiry on 14 September 2007. The Applicant had never opposed or challenged that appointment until now.
3. No breach of Rules of natural justice or abuse of discretion in that:
(i) the inquiry was conducted in accordance with the requirements of the Commission of Inquiry Act;
(ii) the Applicant was accorded an opportunity to be heard at the inquiry; and
(iii) no such breach has been specifically particularized in the documents filed, save for bare assertions.
4. The Respondent reserves the right to adduce any additional grounds of opposition at the hearing of the leave application.
2.2 As to relief, the Notice of Opposition says:
3. Magistrates Courts Inquiry – Appointment, Powers and Terms of Reference
At the heart of this application is the Inquiry into the Magistrate’s Court (the Inquiry) currently being conducted by Mr Connors, appointed as Commissioner by the President of the Republic of the Fiji Islands. As is apparent from the instrument of appointment and Terms of Reference, copy of which is Annexure ‘A’ to Mr Connors’ Affidavit in Reply, Mr Connors’ brief is both substantial and wide. His powers are contained in instrument of appointment and Terms of Reference:[3]
THE PRESIDENT
REPUBLIC OF FIJI ISLANDS
(Commissions of Inquiry Act)
COMMISSION
RATU JOSEVA ILOILOVATU ULUIVUDA, President of the Republic of the Fiji Islands
TO: JOHN ROBERT CONNORS
GREETING:
KNOW YE that I, reposing trust and confidence in your integrity, knowledge, and ability, do hereby nominate, constitute, and appoint you, the said
JOHN ROBERT CONNORS
To be a Commissioner to inquire into the Magistrates Courts in Fiji:
And, in particular, to inquire into and report on:
And I hereby appoint you the said
JOHN ROBERT CONNORS
To be the sole Commissioner
And for the better enabling you to carry these presents into effect you are hereby authorised and empowered to make and conduct any inquiry or investigation under these presents in such manner and at such time and place you think expedient, with power to adjourn from time to time and place to place as you think fit, and so that these presents shall continue in force and any such inquiry may at any time and place be resumed although not regularly adjourned from time to time or from place to place:
And you are hereby strictly charged and directed that you shall not at any time publish or otherwise disclose, save to His Excellency the President, in pursuance of these presents or by His Excellency’s direction, the contents of any report so made, or to be made by you, or any evidence or information obtained by you in exercise of the powers hereby conferred on you, except such evidence or information as is received in the course of a sitting open to the public:
And I do further ordain that you have liberty to report your proceedings and findings under this Commission from time to time if you shall judge it expedient to do so;
And, using all due diligence, you are required to report to His Excellency the President in writing under your hands, not later than 1st day of June 2008, your findings and opinions on the matters aforesaid, together with such recommendations as you think fit to make in respect thereof:
And, lastly, it is hereby declared that these presents are issued under the authority of and subject to the provisions of the Commissions of Inquiry Act.
In witness whereof I have caused this Commission to be issued and the Seal of the Republic of the Fiji Islands to be affixed at Suva this 14th day of September 2007.
Witness: Ratu Joseva Iliolovatu Uluivuda
[Signed]
Ratu Joseva Iliolovatu Uluivuda
3.1 A number of features are discernable from the Terms of Reference, including:
3.2 Under the Commissions of Inquiry Act, the President has power ‘wherever he deems it advisable so to do’ to appoint a Commissioner or Commissioners ‘to inquire into any matter in which an inquiry would, in the opinion of the President, be for the public welfare’: s. 2 Hence the Inquiry is taken to be for ‘the public welfare’ and I do not understand the Applicant to be suggesting it is not, for the Applicant indicates that he is not averse to its continuing under another Commissioner. That is, under item 12. in the Notice of Application for Leave, Mr Shah states he seeks:
3.3 As the Application touches upon matters that are directly relevant to the Commissions of Inquiry Act, I refer to that Act and its content as relevant to those matters.
4. Commissions of Inquiry Act (Cap 47)
Commissioners appointed under the Commissions of Inquiry Act are duty bound ‘to make a full, faithful and impartial inquiry in accordance with the terms of the Commission and to report the result of the inquiry to the President accordingly; and also, when required, to furnish to the President a full statement of the proceedings of the Commission, and of the reasons leading to the conclusions arrived at or reported’: s. 5 The Applicant challenges the Commissioner in regard to this aspect in that he puts the impartiality of the Commissioner in issue.
4.1 The Applicant challenges the mode and method by which the Commissioner has conducted and is conducting the Magistrates Court Inquiry, at least insofar as it pertains to him (Mr Shah).
4.2 Under the Commissions of Inquiry Act, Commissioners are empowered to ‘make such rules for the conduct and management of the proceedings as they may think fit’: s. 8 and have the following powers:
(a) to issue summonses to witnesses in the form prescribed in the Schedule and to call for the production of books, plans and documents and to examine the witnesses and parties concerned on oath;
(b) to admit any evidence whether written or oral and whether or not such evidence would be admissible in civil or criminal proceedings;
(c) to admit to exclude the press from any meeting of the Commissioners;
(d) to exclude any person if necessary so to do in order to ensure the due conduct of the inquiry or to preserve order;
(e) to enter upon any land for the purposes of obtaining any information which may be of assistance to the Commissioners: s. 9
4.3 The Commissions of Inquiry Act makes mandatory that no evidence taken under it ‘shall be admissible against any person in any civil or criminal proceedings whatsoever, except in the case of a person charged under section 13 with false interpretation, or with giving false evidence before the Commissioners’: s. 11 Section 13 goes to the issue of interpretation of evidence and translation of documents only.
4.4 In relation to summonsing persons to appear, as section 9 notes, the Schedule contains the Form of Summons to be employed vis-à-vis witnesses. The position where a person summonsed does not appear is covered by section 14:
Any person who being summoned to attend as a witness or produce a document or other thing fails without reasonable cause so to do or refuses without reasonable cause to answer, or to answer fully and satisfactorily, to the best of his knowledge and belief any questions put to him by or with the concurrence of the Commissioners, and any person so summoned who attends but leaves the Commission without the permission of the Commissioners, is guilty of an offence and upon conviction shall be liable to a fine of one hundred dollars or to imprisonment for a term of three months:
Provided that no person shall be bound to incriminate himself and every witness shall, in respect of any evidence written by him for or given by him before the Commissioners, be entitled to the same privileges to which he would have been entitled if giving evidence before a court of justice.
4.5 Persons appearing before a Commissioner are entitled to legal representation if their conduct ‘is the subject of inquiry under this Act or who is in any way implicated or concerned in the matter under inquiry’. Such representation, by barrister and solicitor, is an entitlement ‘at the whole of the inquiry’ and any other person considering it ‘desirable that he should be so represented may by leave of the Commissioners be represented’ by barrister and solicitor: s. 15
4.6 Offences under the Commissions of Inquiry Act include using threatening or insulting language to the Commissioner or a Commissioner at any sitting of the Commission or to the Commissioner ‘at any other time and place in relation to or on account of his proceedings in the capacity of Commissioner’: s. 16 and threatening, insulting or injuring any person ‘on account of any evidence which he may give or has given before the Commissioners’ or hindering or deterring any person from giving evidence before the Commissioners: s. 12
5. Mr Shah’s Affidavit In Support
Mr Shah’s Affidavit in support of the motion for stay and leave for judicial review comprises some 61 paragraphs and 16 pages, with a substantial number of Annexures. He says that on 22 November 2007, he was subpoenaed to give evidence before the Inquiry. He states a number of concerns in relation to his appearance, from the beginning of the day in question, in relation to which he says:
5.1 The Affidavit continues by setting out what occurred ‘on commencement of the hearing proper’, where Mr Connors put a number of questions to Mr Shah. Examples which give a flavour of the concerns raised in Mr Shah’s Affidavit are set out here and in the following paragraphs:
He did not provide any documentary evidence or any allegation that I should answer but he went on to interrogate me as if I was an accused person on trial and as if he was a CID officer interrogating me for alleged serious offences: para 7
5.2 Mr Shah outlines his concerns, referring to various questions put to him. These include:
This sort of argumentative conduct on his part is certainly not in his terms of reference: para 8
In response I denied any such insinuations and further said that I am just doing my job of an independent judicial officer. Another reason I end up dong divorce cases is because we the Resident Magistrates’ in Nadi have an understanding that if one Magistrate is absent for any reason then the other Magistrate if possible may deal with the cases listed for that day. This way unnecessary adjournment is avoided and matters are disposed of: para 10
In my view a reasonable and fair minded Commissioner would only make such serious and demeaning allegation based upon some credible and tested evidence rather than relying upon statements of people more so of criminals whom I have dealt with. The impression with which I left the hearing was that the Commissioner is witch hunting and it appears he had a particular agenda against me: para 11
5.3 Amongst other matters raised in the Affidavit, Mr Shah says Mr Connors told him that ‘some file notes of [Mr Shah’s] observations in relation to a case involving assault charges were ‘a lot of garbage’, Mr Shah stating he was ‘surprised at [Mr Connors’] comments’. Then Mr Connors said Mr Shah is ‘threatening prosecutors and police officers’, and Mr Shah told him ‘this is not so’, saying he (Mr Shah) is yet to give a ruling in respect of contempt of court against people including some police officers. Then follow comments Mr Shah made to Mr Connors explaining further as to these matters. Mr Shah then says that Mr Connors ‘should have noted down my answers and then dealt with them in any way he wished in his report to His Excellency the President rather than arguing with me’: para 14
5.4 Several further examples are:
5.5 Mr Shah says that Mr Connors was ‘hostile’ towards him and that once Mr Connors had ‘stopped humiliating me, I handed him a copy of my submissions and I highlighted a few important points’: paras 22-24
5.6 The Affidavit goes on to set out some general concerns as to Mr Connors, including that he ‘is biased towards me when he subpoenaed only me while he only sent invitation to other magistrates although some serious complaints had been made against them’. That he was ‘continuously finding faults in whatever I said to him as if he was sitting on appeal in the High Court on a judgment from my Court; that Mr Shah considers ‘such behaviour on [Mr Connors’] part as not only threatening as well as intimidating but also very extraordinary’. He objects to the use of the term ‘garbage’ to refer to his file notes and: ‘If anything the Commissioner has made up his mind to report adversely against me’. Mr Shah then lists and refers to files he states Mr Connors has taken ‘without any justification’ which is ‘delaying the process of justice and the rightful avenues as far as those matters are concerned ...’ In matters where decisions are ‘pending he has interfered with my independence in due performance of my judicial function’: paras 26-30, 32, 33
5.7 Mr Shah objects to Mr Connors’ having ‘personal knowledge’ in that Mr Connors was a Judge in Lautoka High Court and Mr Connors’ spouse was a Magistrate and that personal knowledge ‘had been used by [Mr Connors] to berate me. This is the very reason why the enquiry should have been conducted by someone with absolutely no knowledge about people he was going to do the inquiry. His choice as Commissioner is very bad for this’: para 34
5.8 Mr Shah says he believes Mr Connors ‘has been discussing his findings to other authorities before his final report’,[4] basing this upon a memorandum sent by the Chief Magistrate to all Magistrates on 14 November 2007 saying that at the Inquiry it was brought to her attention ‘that some Magistrates do not accept filing of fresh charges or sit in the afternoon’ so she goes on to ‘remind everyone ... of our official time from 8am – 4.30pm and also Magistrates leaving the office during the day without appropriate arrangements made with me or their respective officer-in-charge, of there whereabouts ...’: para 47, Annexure SMS ‘4’
5.9 By letter of 3 December 2007, Mr Shah has complained to the Commissioner of Police about Mr Connors, and though his solicitors on 7 December 2007 ‘wrote to the Commissioner of Police referring to’ his earlier letter of 3 December 2007 and amongst other matters ‘raised serious questions about conduct of Commissioner Connors’. On 12 December 2007 Mr Shah’s solicitors ‘wrote to His Excellency The President of the Republic of Fiji Islands complaining about [Mr Connors] and bringing to his attention not only his questionable conduct but all relevant documents and requesting His Excellency to review and/or terminate [Mr Connor’s] appointment and to direct him not to further subject me to interrogation: paras 49-55.
5.10 Mr Shah believes he is ‘being victimised by [Mr Connors] because [I have complained against him to the Commissioner of Police’ and exposed an allegation made against him [Mr Connors] in June 2006 in respect of a court case handled by Mr Shah. He refers to ‘many letters ... written and widely circulated against such an appointment’ after Mr Connors was appointed by the President: para 57
5.11 He refers to a letter wherein comment is made as to Mr Connors’ having told another person ‘in advance about his intentions about enquiry’ so bringing ‘into question [Mr Connors’] credibility’: para 58
6. Mr Connors’ Affidavit In Response
Mr Connors’ Affidavit sets out the background to his Commission, appointment and steps taken by him, as well as the Terms of Reference. He states amongst other matters that he publicized the Inquiry through the media and announced thereby the holding of public hearings and called for interested people to register their interest so that their giving evidence could be facilitated. He says he ‘determined the procedure of the Inquiry pursuant to the powers vested in [him] by the Reference and by section 8 of the Commissions of Inquiry Act’. The procedure he adopted included, briefly:
6.1 Hearings were conducted at those centres on the published dates and:
In the course of the Inquiry I received allegations and complaints from the submitters against several magistrates. These have been put to various Resident Magistrates for their comment. There were far more allegations and complaints against [Mr Shah] than any other Resident Magistrate and some of these allegations are still the subject of investigation by me: para 10
6.2 Mr Connors’ Affidavit says that Mr Shah ‘came forward in response to the advertisements and [he] registered his interest to give evidence before’ the Inquiry:
He was scheduled to attend on 6 November 2007 in Nadi. Unfortunately, he did not turn upon that day. Instead he sent a clerk from the Nadi Magistrates Court to tell me that Mr Shah could not attend because he had to attend a funeral. I rescheduled a time for Mr Shah for 22 November 2007 at Nadi. On that day he appeared with his Counsel ... [His Counsel] was present throughout the hearing: para 11
6.3 At this stage, Mr Connors says he does not ‘intend to traverse any of the matters raised by [Mr Shah] pertaining to the conduct of the hearing on 22 November 2007’. He says that can be dealt with by him, ‘if necessary, at a later date’: para 11
6.4 Mr Connors goes on to outline what then occurred in relation to Mr Shah:
Consequently, I summoned [Mr Shah] to appear before me on 11 December 2007 but he did not attend on that day and instead sent in a medical certificate through his Counsel ... A new summons was served on [Mr Shah] to appear before the Commission on 5 February 2008 at Nadi. Due to an error, wrong venue was stated in summons and [Mr Shah] did not attend at the Metrological Office Conference Room where the other witnesses had turned up. [Mr Shah] I was subsequently told went to District Officer’s Conference Room and seeing no one there, he left: para 12
6.5 The Affidavit goes on to note that Mr Connors:
... need[s] to ascertain if there is evidence that has some probative value with respect to the allegations against [Mr Shah] and for that reason it is necessary to cause [Mr Shah] to attend before the Inquiry from time to time: para 13
6.6 He adds that he is ‘so empowered by the provisions of the Commissions of Inquiry Act to require [Mr Shah’s] attendance’. Further:
I have not concluded the Inquiry and accordingly have not written my report for deliver to the President. I have also not made any decision or finding with respect to [Mr Shah] or any other person or matter.
If prior to the conclusion of the Inquiry there is before me evidence that has some probative value which would lead me to make a finding adverse to {Mr Shah] then {Mr Shah] will be given an opportunity to address those issues and place before the Inquiry any additional material of probative value that he may wish to make: paras 14, 15
6.7 Mr Connors concludes that unless ‘allowed to proceeding according to the timetable set’ by the Inquiry he ‘will be hampered from report "to His Excellency the President in writing ... not later than 1st day of June 2008 the findings and opinions ... together with such recommendations..." as [he is] required to do by the Reference’: para 16
7. Mr Shah’s Affidavit In Reply[5]
In reply, Mr Shah says paragraph 10 of Mr Connor’s Affidavit ‘clearly show three things:
(a) That invitation was given to other magistrates by [Mr Connors] for comments against allegations and/or complaints against them whereas I was issued with a subpoena;
(b) The finding by [Mr Connors] that there were far more allegations and complaints against me than other magistrates; and
(c) The decision by [Mr Connors] to investigate the many allegations and complaints against me: para 4 (Affidavit’s emphasis)
7.1 Mr Shah refers to paragraphs 26-27 of his Affidavit in Support stating that therein he ‘criticized [Mr Connor’s] exercise of discretion to issue subpoena only against me other than other magistrates whom I had also realised serious allegations against [and he] verily believe[s] this exercise of discretion was unfair, intimidating and without a proper basis and/or consideration’:
Further, the issue of summons to compel my attendance before [Mr Connors] became more interesting after 22nd November, 2007. This was after I had complained about [Mr Connors] to His Excellency the President in writing and the Commissioner of Police, and my filing of this judicial review proceeding: para 6
7.2 Mr Shah then goes on to ‘set out ... what transpired’ after 22 November 2007. This includes the service of further summonses by police officers and the Chief Investigating Officer of the Fiji Independent Commission against Corruption (FICAC). He states that the service by these summonses was ‘very intimidating and humiliating’ causing ‘so much stress to my young family and a bad image of me to my neighbours’. He was ill and provided police with a copy of his ‘sick sheet’ on 10 December 2007. Service of the FICAC summons ‘was very intimidating and humiliating’ and was served on the date he was required to appear before Mr Connors, with Mr Connors ‘not explain[ing] why the summons was service in such manner: paras 6.1-6.5
7.3 The Affidavit in Reply says that a further summons was served on Mr Shah on 5 February 2008, this ‘by FICAC Officers’ in relation to an appearance scheduled for 11 February 2008 which Mr Shah did not attend, his solicitor appearing on his behalf and tendering a medical certificate. A further summons issued on 11 February 2008 and by letter of 14 February 2008 Mr Shah’s solicitors wrote to Mr Connors advising that ‘after [Mr Shah’s] medical review [he] was again advised that [he] was unfit to work pending further review on 18th February, 2008’: paras 6.7- 6.9
7.4 Then, states the Affidavit, when by letter of 15 February 2008 Mr Connors wrote advising Mr Shah’s medical certificate ‘was not accepted’ and ‘threatening action could be taken against [Mr Shah] under section 14[6] of the Omissions of Inquiry Act’, Mr Shah’s solicitors wrote by letter of the same date to Mr Connors ‘advising my not attending the Inquiry and my constitutional rights under section 25 of the Constitution’. By letter again of that date Mr Connors advised the proceeding ‘was stood over until 10am on 19th February, 2008, the letter ‘also warn[ing] my solicitor of a possible action under section 16[7] of the Commissions of Inquiry Act’: paras 6.10-6.12
7.5 Mr Shah states further that Mr Connors accepted Mr Shah’s solicitor’s arguments vis-à-vis a medical certificate and covering letter presented by his solicitor at an appearance before Mr Connors on 19 February 2008 in Suva. Then, states Mr Shah, Mr Connors ‘found that I had cause of a probative value to warrant further adjournment’ and a further medical report was ordered by 26 or 27 February 2008: para 6.13
7.6 On those latter dates, first Mr Shah ‘underwent major surgery’ and then was ‘visited by FICAC personnel who told me they were sent by [Mr Connors] and wanted to serve some papers to me’. Mr Shah told them to lave for he was ‘under great pain after my major surgery. This was quite demeaning to the least given my physical condition" para 6.14
7.7 Mr Shah says that the decision by Mr Connors to summons his attendance before him ‘on several occasions aforesaid and after being complained of corruption is understandable in the circumstances. Even my good health and respect of my dignity [Mr Connors] did not respect’. Mr Shah further complains that he ‘receive[d] telephone calls through my wife from the military asking on the status of my surgery. This I find quite alarming indeed’: paras 6.16, 6.17
7.8 The Affidavit says Mr Shah ’personally lodged a report against [Mr Connors] to the police at Lautoka Police State vide Lautoka Report No. 2301/08 against [Mr Connors] on 23 February 2008’. Mr Shah states he believes:
... my very long verbal interrogation on 22nd November, 2007 and the 17 page-written submission had adequately canvassed all allegations and complaints both by and against me from within the judiciary itself and without, and include specific cases I had dealt with or are currently part-heard by me. The decision by [Mr Connors] to further subpoena and interrogate me only arise after obtaining my answers and views at the Inquiry on 22nd November, 2007 and after have had canvassed my written submissions and Affidavit [in Support]: paras 7, 8
7.9 Having ‘called into question’ Mr Connors conduct and that of his spouse, Mr Shah asks ‘how will [Mr Connors] continue to conduct the inquiry fairly’ and states further: ‘It is no wonder [Mr Connors] had engaged FICAC officers to assist him in the investigations’ in that Mr Connors has ’deposed [in his Affidavit in Response] that as the result of the many complaints and allegations against [Mr Shah] he had to investigate them all’: para 10 (Affidavit’s emphasis)
7.10 Mr Shah says that any investigation ‘should be done after the final report is submitted to the President but not before. Otherwise [Mr Connors] should publicly declare that he is now investigating allegations and complaints against me and the due process of law under the Criminal Procedure Code and Constitution should be adhered to’: para 11
7.11 He raises further concerns about what he believes is involvement of FICAC in the Inquiry, saying this means that Mr Connors ‘is not independent and he had compromised himself by engaging FICAC’: paras 12-14
7.12 He concludes amongst other matters that the:
... tone of [Mr Connors] correspondence to [Mr Shah’s] solicitors, interrogation tactics, threats and intimidation tactics is sufficient evidence to show that he was not acting fairly in his conduct of the inquiry, is hell-bent in undermining [Mr Shah’s] integrity, reputation and did not appreciate [Mr Shah’s] family welfare by sending FICAC officers to serve subpoena at odd times of the morning ...
That by requiring [Mr Shah] to attend the inquiry for the different dates aforesaid, even to the extent of not respecting [Mr Shah’s] medical status after being notified of medical evidence is an abuse of his reference and appointment.
... [Mr Connors] had clearly become very vindictive towards me for reasons best known to him and at the same time to the detriment of the high calling and reference bestowed upon him by the President: paras 15, 18, 19
8. Submissions for Applicant
Counsel for Mr Shah made submissions both written and oral. He outlined the basis of judicial review, namely that there must be standing to bring a claim; that there must be an arguable case; and that there must be grounds for judicial review, focusing on the law relating to illegality in the decision-maker’s acting ultra vires by unlawfully delegating power or fettering discretion, and taking into account irrelevant considerations; irrationality – by reference to the obligation to act reasonably; and procedural impropriety in respect of the rules of natural justice or procedural fairness in ‘failure to give each party to a dispute an opportunity to be heard’ and the rule against bias, by reference to a failure to conduct a consultation properly and failure to give adequate reasons.
8.1 Counsel in written and oral submissions concentrated upon the arguable case aspect. The decision or decisions at the basis of the application were said to be ‘the issuance of a subpoena’ by Mr Connors, ‘under his name, for the appearance of [Mr Shah] on 22.11.07’. This it was submitted:
... was a decision made by [Mr Connors] to compel [Mr Shah’s] attendance and appearance. To make a paradigm shift from a willingness to make voluntary submission to a compulsion by subpoena to appear before the Inquiry can only be made by an informed and decisive decision. That decision was expressed in the form of the summons issued for the appearance on 22.11.07: Applicant’s Written Submissions, para 5.1 (Written Submissions’ emphasis)
8.2 In oral submissions, Counsel emphasised the ‘paradigm shift’ aspect and the expression of the decision ‘in the form of the summons’. In oral and written submissions Counsel went also to the subsequent issuance of summons referred to in Mr Shah’s Affidavits. Accepting that Mr Connors ‘has the discretion to issue summons under section 9 of the Commission in Inquiry Act’, Counsel said that the ‘decision to invoke that statutory power can only be used sparingly and in exceptional circumstances’. Upon this basis, it was submitted that the decision by Mr Connors:
... to issue a subpoena on [Mr Shah] for 22.1..07 was an abuse of his discretion. The subsequent decision by [Mr Connors] to issue four more subpoena was illogical and irrational in view of [Mr Shah’s] sickness and injury that necessitated a major surgery ...
[Further] [t]he decision of [Mr Connors] to issue summons after 22.11.07 after being complained against by [Mr Shah] to the President, the Commissioner of Police and after being served documents pertaining to this proceedings makes [Mr Connors] a judge in his own cause: Written Submissions, paras 5.5, 5.7
8.3 It is also said that the ‘nature of [Mr Connor’s] interrogation on 22.11.07 has an irresistible inference that he had found [Mr Shah] guilty of improper and illegal conduct as a magistrate [by reference] to paragraphs 9.31-35’ of Mr Shah’s Affidavit in Support: para 5.6
8.4 In oral submissions, Counsel said that a ‘decision’ can take many forms and may not be ‘black and white’, and can be verbal (oral) and illustrated by notes. Here reference was made to Wade on Administrative Law, 6th edition, referred to in the written submissions. Counsel referred to the substantial number of cases with which Mr Shah has dealt as Resident Magistrate, Nadi over the long period of his being in that post, saying that this was an explanation for the ‘large number’ of complaints in respect of Mr Shah as contrasted by Mr Connors against other Magistrates. Counsel referred to the successive summonses issued by Mr Connors to compel Mr Shah’s attendance at the Inquiry despite Mr Shah’s readiness to appear voluntarily and his having prepared a written submission to the Inquiry. Exhibit 1A was a ‘Summons To Witness Under Section 9 of the Commissions of Inquiry Act’ issued on 14 November 2007 in respect of Mr Shah’s attendance on 22 November 2007.
8.5 Counsel said that Mr Connors ‘must disclose the reasons for requiring Mr Shah to come on summons or subpoena and can do that under the Commissions of Inquiry Act’. As to the power to subpoena (summons) Counsel said that this was not in the Terms of Reference and cannot be read into them; that the issuing of summonses is ‘outside the Terms of Reference’. He emphasised that the issuing of a subpoena (or summons) in relation to a particular issue in an Inquiry is comparable to the issuing of a search warrant, here referring to Counsel’s written submissions on this point.
8.6 Counsel also emphasised that Mr Shah had ‘no proper notice of allegations in relation to his sitting’ as a Magistrate in Labasa, Suva and elsewhere, or the names of complainants. He was asked questions from these cases or complaints on 22 November 2007 using words such as ‘I put to you ...’ Here Counsel referred to some of the matters outlined in Mr Shah’s Affidavit in Support. Counsel said it was unfair to Mr Shah as he has served sixteen years on the bench and during that time made rulings for and against litigants, and a ‘waterfall of complaints were put to him without notice’ by Mr Connors which was an ‘attack upon the integrity’ of Mr Shah ‘without a "fair go"’. Mr Shah should, said Counsel, be provided with allegations and complaints in writing with an opportunity for him to respond. The absence of this showed an ‘unfairness of the procedure in’ the Inquiry. Further, said Counsel, Mr Shah had ‘a right to cross-examine witnesses’ which was denied him.
8.7 Counsel made four points:
8.8 Counsel emphasised that the decision the subject of the application was that made to subpoena Mr Shah, and to ‘interrogate’ him. Further, there was no basis, it was said, for further summonses when Mr Shah had appeared for three hours on 22 November 2007 and provided a written submission. An ‘interrogation for three hours on 22 November 2007 was sufficient; and Mr Shah had ‘confronted all allegations so why were there subsequent subpoenas?’
8.9 In these circumstances, why were further summons issued? Reference was also made to the matters set out in Mr Shah’s Affidavits, namely as to the ‘use’ of FICAC to deliver summons, and that there was unfair treatment in the delivery of a summons at 5am when the family was still asleep. This led, said Counsel to ‘the only conclusion’ namely that Mr Connors ‘had a vested interest in relation to the summons’.
8.10 In conclusion, Counsel for Mr Shah submitted that all the matters adverted in Mr Shah’s Affidavits and in the submissions
provided Mr Shah with an arguable case for leave and a stay..
9. Submissions for Respondents
Counsel for the Respondents conceded Mr Shah had standing to bring an application for judicial review. He opposed the reading of Mr Shah’s second Affidavit on the basis that it did not conform to the consent orders made on 12 February 2008, namely that the Applicant be allowed to file an Affidavit in Reply within seven (7) days from 12 February 2008 and the Respondent be allowed 7 days thereafter to file any Affidavit in Response if they so desire’: File Note 12 February 2008
9.1 The Affidavit in Reply was filed on 28 February 2008. In reply, Counsel for Mr Shah adverted to difficulties experienced in filing the Affidavit and that the Affidavit had been provided unfiled and sealed later, with a courtesy to Counsel advising of the lateness of the Affidavit.
9.2 Counsel for the Respondents concluded by saying that the Respondents wished the application for leave to be heard and if at the end of the hearing the Court was minded to seek a response to Mr Shah’s Affidavit in reply then that should be made known.
9.3 Counsel submitted that the application for leave was out of time and here Counsel referred particularly to the writ of certiorari. Counsel for Mr Shah said that the time limits had been fulfilled as the decision complained of and relevant date was 22 November 2007.
9.4 In oral submissions, Counsel for the respondents said that the relief sought was untenable and there was no reasonable prospect of success. Amongst other matters he adverted to the fact that the present Inquiry is being conducted by a Commissioner alone without Counsel assisting which means that Mr Connors is obliged to ask questions of witnesses. Further as to the ‘decision’ sought to be reviewed, Counsel said that no where in the application is there a reference to the ‘decision’ being as to issuing of a summons. In any event, the summons in relation to the Inquiry hearing on 22 November 2007 was issued on 14 November 2007. He said that it appears that for Mr Shah it is now being argued that the issue of the summons is the ‘decision’ sought to be reviewed and that each time a subpoena is issued, the argument appears to be that this is a reviewable decision. However, he said, ‘on or about’ 22 November 2007 is the relevant date (per the application) and subsequent conduct cannot be looked at to indicate the past (22 November). Further, the Court cannot review a decision that a summons or subpoena issue, as that is not a decision that is final and determinative of substantive rights.
9.5 Counsel said that the Inquiry and hence Mr Connors is give ‘power for a purpose’. That a witness is compelled by summons does not mean that any adverse finding has been made. Rather it signifies that the Inquiry and hence Mr Connors has power to do that. The particular Applicant has here formed a perception that the issue of the summons is adverse but in the whole context of the Inquiry, said Counsel, this is not adverse.
9.6 In relation to conduct of the Inquiry, Counsel said, an oath is required of everyone in relation to the making of complaints. Mr Connors as Commissioner asks some of the magistrates to response. That there have been more complaints in relation to the Applicant (Mr Shah) means that the Inquiry needs to hear more from him. The Commissioner Mr Connors sets the procedure for the Inquiry.
9.6 Counsel said that Mr Shah has had 16 years of experience as a magistrate. He has a lawyer and appeared on 22 November with his own Counsel. The Inquiry has an inquisitorial procedure and without counsel assisting the Inquiry, the commissioner himself must undertake this role. What else can he do, questioned Counsel? He is lawfully required to question witnesses.
9.7 Counsel noted that six to seven medical certificates have been received by the Inquiry, however, this postdated the decision to issue the summons, and there was no ‘decision’ on the 22 November. The contention as to a ‘decision’ that is reviewable and that the medical certificates are associated with it is untenable, said Counsel.
9.8 As to procedural fairness, Counsel said that there is no entitlement to cross-examination and no entitlement to receiving information/matters in advance. Further, if the Inquiry had no power to compel witnesses this would mean that it could not conduct the Inquiry or carry out procedural fairness to reach a final conclusion. The Inquiry cannot be hamstrung in the earlier partner of the process, said Counsel, for again he emphasises that this would mean that its final conclusion could not be based in procedural fairness.
9.9 Counsel’s written submissions elaborated upon the oral submissions, opposing the application for leave on the basis that:
• There has been ‘undue delay’ in seeking a review of Mr Connor’s appointment as Commissioner so the application should be dismissed under Order 53 Rule 4(1) of the High Court Rules.[9]
9.10 By reference to the Terms of Reference of the Inquiry, Counsel observed (para 11.1-11.1.5) that the scope of the Inquiry is ‘very wide’ and that the Inquiry was appointed by the President for the ‘public welfare’: s. 2(1) Counsel added:
Relevantly, the Commissioner is required to make findings on the ‘conduct and performance’ of current magistrates; to make recommendations for the ‘elimination and prevention of any corrupt, improper or inefficient practices’ within the magistrates courts and to make recommendations for the ‘efficient and effective delivery of justice’ by the magistrates courts of Fiji: Written Submissions, par 11.2
9.11 Counsel noted:
9.12 Having cited a number of authorities in reference to each of the grounds and relief sought, Counsel for the Respondents concluded that Mr Shah:
... has not made out an arguable case for leave to apply for judicial review. None of the reliefs claimed are tenable at law or have any reasonable prospect of success at the substantive stage. Accordingly, the Respondents invite the Court to refuse leave and strike out the proceedings: Written Submissions, para 38
10. Basis of Application for Leave
Many matters are raised in the application for leave and the accompanying Affidavits. For the purpose of this application for leave, at least, these appear to me to crystalise in a contention that:
10.1 Mr Shah may also contend that there are serious errors of fact on the part of Mr Connors as to Mr Shah’s conduct as a Magistrate,[10] but I do not understand him to be saying that there is any error in law involved here, unless it were to be contended that Mr Connors has engaged in an error of law in the way in which he has used the Commissions of Inquiry Act in, for example, issuing summonses vis-à-vis Mr Shah to secure his attendance at the Inquiry. It seems to me, however, that this rather comes into the contention as to excess of jurisdiction and/or violation of natural justice or procedural fairness. There is also a contention that others are or have been involved in the process by Mr Connors, namely Fiji Police and FICAC. This relates to the service of summonses.
10.2 At this stage I note that the application proceeded inter-partes. Due to the importance and seriousness of the matter it appeared to me that it was appropriate to follow the Pickwick approach and, in any event, it has been the practice of this Court generally to do so.[11] Hence, both parties were heard from on the application for leave, as indicated by the earlier recitation of their submissions. This meant that one aspect at least was resolved in favour of Mr Shah’s application, namely as to standing.
11. Factors Governing Judicial Review
Generally four matters govern judicial review. In the application herein, first, is the Inquiry or Mr Connors as Commissioner a proper subject for a review application. Secondly, does Mr Shah have standing to bring an application – here, I note the Respondents conceded that Mr Shah has standing.[12] Thirdly, is judicial review the appropriate procedure or action for the loss Mr Shah claims to have suffered. Fourthly, do the actions of Mr Connor as put forward by Mr Shah provide grounds for review. Bound up in all this in the instant case is whether there is a ‘decision’, or Mr Shah has identified a ‘decision’ (or decisions), which is or can be subject to judicial review. The Respondents have also raised timeliness: is the application out of time at least insofar as certiorari is in issue.[13]
11.1 The principles of judicial review adopted by this Court in Fiji Public Service Association v. Civil Aviation Authority of Fiji and Attorney General of Fiji and Airports Fiji Limited (JR No. 015 of 1998L, 30 November 1998 are taken from O’Reilly v. Mackman [1983] UKHL 1; [1983] 2 AC 237, at 279 per Lord Diplock:
... I have widened the much-cited description by Atkin LJ in Rex v. Electricity Commissioner; Ex parte London Electricity Joint Committee Company [1920] 1 KB 171, at 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies ... by excluding Atkin LJ’s limitation of the bodies of persons to whom the prerogative writ might issue, o ‘those having the duty to act judicially’ ...
Wherever any body of persons has authority conferred by legislation to make decisions [judicial, quasi-judicial and administrative only] it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded him by the rule of natural justice of fairness, viz, to have afforded him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made. Therefore, as a most basic principle, an application for judicial review must show on the evidence, that one or more of the common law or statutory rights or obligations of the applicant has been adversely affected by the decision complained against.
11.2 At leave stage, the threshold is low. What needs to be established is ‘an arguable case’ to be resolved only by a full hearing of the application for judicial review. At this stage a full review of the facts is unnecessary. Nonetheless, a court is obliged to sufficiently pursue the material provide to determine whether an applicant raises an issue arguably involving an error in law, a serious error in fact; a violation of natural justice or procedural fairness, or an excess of jurisdiction by the decision-maker the subject of the application.
11.3 Counsel for Mr Shah stated the primary test for granting leave as ‘potential arguability’. That is, he says, ‘whether the materials before the court disclose matters which might, on further consideration, demonstrate an arguable case for the grant of relief claimed. It is not necessary to show an arguable case at the leave stage’, citing R. v. Director of Immigration; Ex parte Ho Ming-Sai (1993) 3 HKPLR 157:[14] Written Submissions, para 2.1
11.4 This construction has been followed in Hong Kong cases by judges in the first instance, [15] however has met with some lack of approval or at least critique, as is clear from Wong Chung Ki and Chan Shu Ying v. Chief Executive and Secretary for Constitutional Affairs (CACV 1/200, Civil Appeal No. 1 of 200, 20 June 2000). In Wong Chung Ki Keith, JA (at 6-7) in referring to the decision of the Court below observed that the test applied there:
... was the one which judges at first instance have been obliged to adopt since R. v. The Director of Immigration; Ex parte Ho Ming-Sai (1993) 3 HKPLR 157, at pp. 161 and 170. Kempster JA and Godfrey J (as they then were) said that the test was, to use the words of Kempster JA:
... whether the material before [the judge] disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought.
That test was based on what Lord Diplock had said in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, at p. 644A:
If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.
In Ho Ming-Sai, the majority of the court accepted that statement. Their approach may have been different if they had had cited to them a case decided by the English Court of Appeal six months earlier – R. v. Legal Aid Board; Ex parte Hughes (1992) 24 HLR 698. At pp. 702-703, Lord Donaldson MR said:
Lord Diplock may well have been right in 1981 to have said [what he did] ... However, things have moved on since then. This was an ex parte application. In such a case leave is or should now only be granted if prima facie there is already an arguable case for granting the relief claimed. This is not necessarily to be determined on ‘a quick perusal of the material’, although clearly any in-depth examination is inappropriate. Furthermore, a ‘prima facie arguable’ case is not established merely by the disclosure of ‘what might on further consideration turn out to be an arguable case’ (my emphasis). It is only when there is clearly an arguable case that leave should be granted ex parte. Equally, it is only when prima facie there is clearly no arguable case that leave should be refused ex parte. Usually ex parte applications fall into one or other of these categories, but not always. There is also a small ‘I really need to know a bit more about it’ category and in such cases the aspirate course is to adjourn the application for an inter partes hearing ... This is quite different from a substantive hearing in that the respondent need only summarise its answer sufficiently to enable the judge to decide whether there is or is not an arguable case.
11.5 Keith, JA concluded on this point:
That there is a difference between the two approaches is in my opinion undeniable. Upon the Hughes test, the court grants leave only if it things that the applicant has an arguable case. Under the Ho Ming-Sai test, the court grants leave if it thinks that the court at the subsequent hearing may think that the Applicant has an arguable case. The Ho Ming-Sai test is appropriate if the rationale for obtaining leave is only to weed out those cases which are obviously hopeless, in which case the court would not investigate the case in any depth at all. On the other hand, the Hughes test is appropriate if it was intended that only those cases which are genuinely arguable should go to a full hearing, in which case the arguability of the case would have to be considered in a meaningful way.
The issue as to which is the correct test will have to be addressed at some stage, but I do not think that this is the appropriate case in which to do so, because in my view on either test the Applicant should be granted leave. However, it may be that the test should be a flexible one so that, for example, if the issue in the case is, say, one of statutory construction, the Applicant has to show that his construction is arguable, whereas if the issue in the case is, say, one of procedural unfairness, the applicant only has to show that once the facts are investigated, he may then have an arguable case that the decision challenged should be quashed. It is sufficient for me to state that I do not regard the present case as a relatively straightforward one ...: at 7
11.6 Keith, JA seeks to distinguish between cases or grounds so as to explain the existence of two tests, a potentially arguable case and an arguable case. In my opinion, the difference in cases or grounds simply means that one applies the arguable case test so as to take into account the circumstances and issues in each particular case. In any event, to use Keith, JA’s words, in my view the correct approach is to ‘consider the arguability of the case in a meaningful way’.
11.7 In Fiji, as earlier observed, an arguable case has been required for leave. In my view, this is the correct standard and I apply it rather than ‘potentially’ arguable case per Ho Ming-Sai. If this is a two-step process – application for leave, then application, the latter being the hearing of the substantive matter, can the first simply be a ‘potentially arguable case’? That implies that at the second step all that is necessary is an ‘arguable case’. Yet at the final stage what is necessary is a ‘winnable case’. That is, one must win or lose at the application stage and hence it is not an arguable case that is called for there, but a conclusive one, or one which persuades the Court, on the balance of probabilities, that the application is sound, the Applicant ‘right’ and hence they win their application; it is no good for the Applicant at this second and final stage simply to come up with an arguable case. If they cannot meet the test of conclusiveness on the balance of probabilities, then the application is not sustainable and the Respondents must succeed. On the basis of Ho Ming-Sai the alternative is that Respondents at final stage lose simply because the Applicant has ‘an arguable case’. Surely this cannot be so. In any event, this is not the law in Fiji.
12. An Arguable Case – Part I
A number of aspects of the application can be dealt with shortly. These are the President’s appointment of Mr Connors and the relief sought as to Mr Connor’s removal and replacement with an alternative Commissioner; the obtaining and retention of case files – and their requested release and handover; Constitutional breach; and timelimits governing judicial review, in particular certiorari. In each of these, as with the other aspects of an ‘arguable case’ dealt with below, it is important to emphasise that, as was said in Sitiveni Ligamamada Rabuka and Commission of Inquiry into the Deed of Settlement Dated 17 September 19923; In re Anthony Stephens v. Attorney-General of Fiji (JR No. 26 of 1993, 4 May 1995):
This Court is not concerned with a review of the decision which the Commission reached at the Inquiry but simply with a review of the manner or process in which the decision was reached. It is the decision-making process employed by the Commission of Inquiry in reaching its decision which is the primary concern of this Court: at 30
12.1 (a) Presidential Appointment of Commissioner: The relief sought in respect of a declaration that Mr Connors’ appointment as Commissioner ‘is null and void’ does not appear to be supported and in any event at minimum the President would in my view have to be joined as a party for any such declaration to be made, if the Court has the power to make it.[16] The President should have a right to be heard or at least to exercise an option of whether or not to be heard. As the President is not named in the application and hence is not represented before the Court, making a declaration directly relating to an appointment made by the President would infringe his rights and be a denial of natural justice or procedural fairness.
12.2 The application puts the question whether Mr Connors ‘was properly and constitutionally appointed by’ the President however no basis is put forward upon which this matter can be agitated. Perhaps the contention is that Mr Connors’ alleged bias against Mr Shah and the way he is alleged to have conducted the Inquiry vis-à-vis Mr Shah founds this aspect, however, I do not consider that there is an arguable case in the application and the material presented by Mr Shah vis-à-vis the process undertaken by the President to arrive at the decision to appoint Mr Connors.
12.2 The Order for Prohibition sought whereby the ‘Presidential reference for the inquiry may continue but with a different Commissioner’ falls in my opinion into the same category in that I do not believe the application discloses sufficient or any foundation to make an arguable case in this regard. Here, I observe again Mr Shah’s contention as to Mr Connors’ being biased against him, however there is no or no sufficient ground for bringing into question the President’s process of appointment – that is, the decision-making process by which Mr Connors became Commissioner.[17]
12.3 In any event, the way the application puts the matter is irresolvable:
8. AND/OR ORDER FOR PROHIBITION prohibiting the Commissioner from:-
...
d) Presidential reference for the inquiry may continue but with a different Commissioner.
12.4 Could this Court make an order for prohibition prohibiting the Commissioner from d) ‘Presidential reference for the inquiry may continue but with a different Commissioner’? If the Court were to make an order for prohibition ‘prohibiting the Commissioner from ... c) ... personally continuing with the inquiry due to his vested interest’: 8 and the President wished the Inquiry to continue then presumably some other person would have to be appointed. This simply highlights that insofar as the orders for prohibition are sought under item 8 both as to Mr Connors’ ‘personally continuing with the inquiry’ and the Inquiry’s ‘continuing but with a different Commissioner’, any action of this Court in granting such orders in the absence of the President as a party would, as earlier noted, be a denial of the right to be heard.
12.5 Further, what is the decision sought to be reviewed here? The decision of the President to appoint Mr Connors occurred according to the Notice of Objection on 14 September 2007. Apart from the challenge made by the Respondents to this aspect of the application in regard to its being out of time, it appears that all the matters raised by Mr Shah going to Mr Connors’ conduct are (apart from that relating to Mr Connors’ marital relationship with a former Magistrate) matters postdating the President’s process of appointing Mr Connors. Therefore they are irrelevant to the process of the decision made by the President to establish the Inquiry and appoint Mr Connors.
12.6 As to Mr Connors’ marital status, that predates the President’s decision to appoint Mr Connors and the process he undertook in so doing. However, in my view it would be drawing a long bow to say that there is an arguable case as to the President’s decision-making process hanging upon this factor.
12.7 Mr Shah has made a letter of complaint about the Inquiry and Mr Connors to the President: Affidavit in Support, paras 49-55 That he has or has not received a response to the letter is not disclosed in the application or supporting materials. Lack of a response is not raised in the application and I do not understand Mr Shah to be complaining that he has not yet received a response from the President. Hence, this aspect also is not a matter that provides a ‘decision’ (or failure to decide) which can be the subject of review or provide an arguable case. In any event, again the President would have to be joined as a party for this to be a part of an application and hence to enter the arena for consideration of whether or not an arguable case is disclosed.
12.8 (b) Release and Handover of Nadi Magistrates Court Files: The application asks whether Mr Connors ‘had the authority or right to seize the Nadi Magistrate Court files pending for decision or pending appeal in the High Court’. The Order of Mandamus sought to ‘immediately release or hand over all files of Nadi Magistrate’s Court pending for decision by the Resident Magistrate and or pending for Appeal in the High Court’ and the Order of Prohibition in respect of ‘Interfering with the Court process and tampering and/or seizing Court Files where judgment or trial is pending’ are also able to be dealt with briefly.
12.9 In my opinion, the Terms of Reference provide Mr Connors with the authority and right to ‘seize’ Nadi Magistrate Court files pending for decision or pending appeal in the High Court’ just as the Terms of Reference provide him with the authority and right to take into the Inquiry’s custody files from other Magistrates Courts and files at different stages of progress through the justice system. I can find no basis in the material for saying that in deciding to do this he applied any wrong principle of decision-making susceptible to judicial review. As noted below, the files would appear to be essential for the purposes of the Inquiry albeit one would accept that the files should not be retained for an unreasonable time: litigants’ rights to speedy justice must be respected. At the same time, both ‘speed’ and ‘justice’ are contained in this right, rather than conclusion of cases at all costs. There is no basis in the material upon which it may be said that, again, any wrong principle has been applied by Mr Connors in his decision to retain files for the Inquiry or a lack of decision to return them.
12.10 If complaints which appear to have some foundation or give rise to a need for inquiry have been made about or in respect of particular files then the Inquiry is duty-bound to inquire into them, so long as this inquiry is within reasonable bounds, particularly having regard to the need for any outstanding decisions on those case to be made and written by the relevant Magistrate, or to progress from the Magistrates Courts through the appellate system. A decision to effect this would not appear to infringe Mr Shah’s rights. If there is a basis for saying Mr Connors has made a decision not to return the files in a timely manner consistent with his responsibilities to the Inquiry or so as to infringe upon the rights of Mr Shah or anyone else in breach of natural justice or procedural fairness, this is not apparent from the material before the Court.
12.11 The application and supporting material do not in my opinion disclose an arguable case in respect of the matter of the files and any decision that may be said to have been made or failed to have been made in relation to them. As Commissioner Mr Connors has a role, duty and responsibility to operate in accordance with the Terms of Reference and these focus specifically upon matters in the Magistrates Courts of Fiji. It would be difficult (and in my opinion impossible) to carry out the Inquiry as he is bound to do in conformity with the Terms of Reference without obtaining files. Without such files in his possession for proper and detailed perusal not only could it be argued that he is remiss in ignoring the terms of his Commission, he would be hobbling the Inquiry so that any report he might make would be inadequate. The President is entitled to ore than this.
12.12 A declaration is sought that Mr Connors ‘breached [Mr Shah’s] right when he interrogated [him] on 22nd November 2007 without sufficient evidence ...’ (Emphasis added)
12.13 This appears to confirm that decisions by Mr Connors to obtain and retain for perusal files relating to cases in respect of which complaints have been made about Mr Shah have no prospect of judicial review at least by reference to the material presently before the Court. Mr Shah would appear on his own terms to be advantaged by decisions made by Mr Connors to have the files, and Mr Shah effectively wishes him to do so (albeit he simultaneously and explicitly seeks their return). Mr Shah’s expressed concern is that Mr Connors have evidence, and sufficient evidence, upon which to question him.
12.14 A decision by Mr Connor to have no reference to files, or a superficial reference to them, would be a different matter: such a decision may well give grounds for review as being remiss as to Mr Shah’s rights and the Inquiry’s scope.[18]
12.15 Mr Shah appears to concede this in that he provided a written submission to the Inquiry and wrote it prior to 6 November 2007 (the day he was originally scheduled to appear before the Inquiry). According to Mr Shah’s Affidavit in Reply:
... my very long verbal interrogation on 22nd November, 2007 and the 17 page-written submission had adequately canvassed all allegations and complaints both by and against me from within the judiciary itself and without, and include specific cases I had dealt with or are currently part-heard by me. The decision by [Mr Connors] to further subpoena and interrogate me only arise after obtaining my answers and views at the Inquiry on 22nd November, 2007 and after have had canvassed my written submissions and Affidavit [in Support]: paras 7, 8
12.16 It must be doubtful that Mr Shah would have written, in advance of presenting himself at the Inquiry – voluntarily as he had intended on 6 November 2007 – a submission ‘including specific cases I had dealt with or are currently part-heard by me’ had he not considered it important that the Inquiry be aware of these, that it have reference to them, and that it be properly informed about them. It must be taken that on that basis Mr Shah would expect Mr Connors to have reference to the files of the ‘specific cases’.
12.17 At the heart of this aspect, most importantly, is there a ‘decision’ nominated in the application as having sufficient connection with the files so as to be subject to judicial review? Nothing in the material before me, including submissions, indicates that Mr Shah challenges an actual decision relating to the files or their retention. Mr Shah’s sole reference in the material to a decision in terms at least of identify its date, is that to 22 November 2007 or ‘on or about’ that date. It seems apparent that Mr Connors’ decision to obtain and retain files must have been made before 22 November 2007 and at least some time before that date.[19]
12.18 A perusal of Mr Shah’s Affidavit in Support indicates that Mr Connors asked questions of him about particular cases. The implication of what is said by Mr Shah in that Affidavit and Mr Connors’ questions put to him that day is that Mr Connors was directing his questioning from a knowledge of particular files. This knowledge it appears to me could have been gleaned only from accessing and reading the files. Mr Shah refers to a number of cases about which Mr Connors questioned him. It would have taken Mr Connors at least some time to go through the files in order to ask the questions Mr Shah states were put to him. This is why I conclude that Mr Connors must have had the files before, and at least some time before, 22 November 2007 and indeed before 6 November 2007.
12.19 On Mr Shah’s material it seems that Mr Shah had knowledge prior to 6 November 2007 that Mr Connors had the files or at least some of them, for as noted he wrote a submission prior to 6 November 2007 wherein he referred to ‘specific cases’.
12.20 Referring to ‘decisions’ for the purpose of judicial review, in ‘Application for Leave for Judicial Review: A Practical Note’, Professor Johannes Chan of the Faculty of Law, University of Hong Kong, comments that a decision ‘can take many forms and may not be described as such’:
It may take the form of a letter, a circular, a memo, minutes of a meting, a ruling, an order, etc. [Nonetheless it] is necessary to particularise the decision with a fair degree of details: who made the decision? When was it made? What was the gist of the decision? How was it related to the Applicant? What was the statutory basis of the decision?[20]
12.21 Saying that in most cases ‘this is rather straight forward’, Chan notes, however, that in a number of situations ‘complications may arise’. He identifies four situations of complexity, none of which appears to apply in the instant case.
12.22 These include:[21]
12.23 In the present application, one may infer from the material that Mr Shah challenges a decision of Mr Connors to obtain and retain the files which Mr Shah says he should not have accessed or at least not be retaining and should be ordered to be returned. However, in my opinion for the purposes of judicial review and a leave application, the Applicant is under an obligation to state with some specificity the decision or decisions the Applicant challenges. It is not the role of the Court to draw inferences from the material, and speculative inferences at that. This I consider is particularly so where the Applicant is legally represented and also, as in this case, where the Applicant is an extremely experienced lawyer having been a Resident Magistrate for some sixteen years.
12.24 If I am wrong in this, then it remains in question as to what decision or decisions are challenged in respect of the material. I observe that Mr Shah in the Affidavit in Reply to Mr Connors’ Affidavit said amongst other matters that there was revealed in the latter a ‘finding’ by Mr Connors ‘that there were far more allegations and complaints against me than other magistrates’ and that there was a ‘decision’ by Mr Connors ‘to investigate the many allegations and complaints against me’: para 4 (Affidavit’s emphasis)
12.25 These matters can be viewed as ‘decisions’ referable to the date specified in the application – on or about 22 November 2007 – with the reservations I have expressed as to the fact that Mr Connors must have decided well prior to 22 November 2007 to access files. It appears to me that, in any event, on the authorities these decisions if they are decisions complained of in the application are within the scope of Mr Connors’ inquiry.[22]
12.26 (c) Constitutional Breach: The application says amongst other matters that a question for the Court is ‘whether the decision of [Mr Connors] ... was made in breach of his obligations and duties in accordance with the ... 1997 Republic of Fiji Constitution’. Taking ‘the decision’ to relate to the decision said by Mr Shah to have been effected on 22 November 2007, what is the basis of the contention that a decision or decisions by Mr Connors impugned the Constitution? What is posited here?
12.27 This makes even more evident the need for clarification in the material as to what ‘decision’ or ‘decisions’ of (or about) 22 November 2007 are challenged. If an application for leave is to be successful it needs to disclose the basis upon which it is sought, and to identify in some discernable terms the decision or decisions sought to be impugned. Even if it is taken (as Counsel’s submissions suggest) that the decision challenged is that of Mr Connors to summons Mr Shah to appear on 22 November 2007 before the inquiry, how is it said that the process by which Mr Connors went about making that decision involves Constitutional breach?[23]
12.28 I do not consider in the circumstances of the present application as aforesaid that it is the duty of the Court to search for the basis of the contention as to Constitutional breach or to fashion an argument by way of inference in this regard. In my opinion it is not possible to say that there is an ‘arguable case’ here.
12.29 A second way in which Constitutionality is raised is vis-à-vis Mr Connors’ appointment, or the President’s appointment of Mr Connors, per the Statement of Applicant item c) of the grounds which asks whether he ‘was properly and constitutionally appointed’ by the President. Again, it may be speculated that the contention here goes to Mr Connors’ having been a High Court Judge in Lautoka for a part of the period Mr Shah has been Resident Magistrate in Nadi, and to Mr Connors’ marital status – his spouse having been a Magistrate in Lautoka (and possibly relieving in Nadi) in a period overlapping with Mr Shah’s time as Nadi Resident Magistrate. If this is the material put forward to support this aspect, what is the Constitutional basis? If it is not, then upon what basis is the proposition advanced? I do not consider that there is a basis for granting leave here.[24]
12.30 (d) Certiorari: Counsel for Mr Connors says Mr Shah’s application for certiorari is out of time. As noted, the timelimit under Order 53 vis-à-vis certiorari is three months.[25] This is an outward timelimit and the authorities consider that even within the three month period, if there is discernable delay that is unjustified or not based upon cogent reasons put forward by the Applicant, then such application should be refused.
12.31 Documents constituting Mr Shah’s application, consisting of a Notice of Application for Leave to Apply for Judicial Review Under Order 53, Rule 3(2), Statement of Applicant, Notice of Motion, the notice to the Respondent advising as to the steps to be taken if the Respondent opposes the application (headed ‘Important’), and the Supporting Affidavit of Mr Shah are all stamped as having been filed in the High Court Registry, Suva, on 21 December 2007. The Affidavit, Notice of Application and Statement of the Applicant bear a further High Court stamp, date being 17 January 2008. The Notice of Motion and document titled ‘Important’ bear the date-stamp 21 December 2007 only.[26] I observe by reference to the file that the appearance of two date-stamps on some at least of the primary documents appears to be because the file was transferred to Lautoka High Court Registry because, Mr Shah being Resident Magistrate Nadi, that Registry rather than Suva Registry was considered to be the appropriate Registry to handle Mr Shah’s application.[27] In the event, the file was returned to Suva Registry, the civil judge in Lautoka declining to handle the matter.[28]
12.32 In any event, the Court accepts that the application was filed on 21 December 2008 and any delay in its coming before the Court for hearing was not of the Applicant or his solicitors’ doing and that the relevant filing date vis-à-vis timelimits is 21 December 2008.
12.33 The application refers to certiorari in a number of instances:
12.34 In the Notice of Application and the ‘relief sought’ section of the Statement of Applicant, the date of ‘the decision’ is said to be that ‘pronounced on or about the 22nd November 2007’. No date is given for ‘the decision’ in that part of the Statement of the Applicant setting out ‘the decisions which he is seeking Judicial Review’.
12.35 In respect of seeking an order of certiorari ‘to quash the decision’ of Mr Connors ‘regarding any adverse finding against’ Mr Shah ‘without allowing him the right to be heard, there is no timelimit problem here, at least in the conventional sense. Rather, the opposite prevails: there is a ‘time advance’ in that no adverse finding (or decision) has yet been made against Mr Shah as it appears from all the material that Mr Connors has not yet reported, his report being due to go to the President on 1 June 2008.[29]
12.36 In the Notice of Opposition, Mr Connors says the application ‘is premature since there has been no decision’ and ‘even if there was a decision made as alleged by the Applicant on or about 22 November 2007, it is not a final decision for the purposes of the outcome of the Commission of Inquiry into the Magistrates Court’: para 1(ii)(iii)
12.37 Mr Connors says further in his material that should there be any prospect of an adverse finding, then prior to completing his report and making any such finding, he would advise Mr Shah (and this it would seem applies to any other person in relation to whom such a finding may be in prospect or possibility) so as to enable him to take advantage of a right to be heard or right of reply:[30]
I have not concluded the Inquiry and accordingly have not written my report for delivery to the president. I have also not made any decision or finding with respect to [Mr Shah] or any other person or matter.
If prior to the conclusion of the Inquiry there is before me evidence that has some probative value which would lead me to make a finding adverse to [Mr Shah] then [Mr Shah] will be given an opportunity to address those issues and place before the Inquiry any additional material of probative value that he may wish to make: Affidavit, paras 14, 15
12.38 Insofar as Mr Connors’ appointment as Commissioner is concerned and if that is the decision or a decision sought to be reviewed, a problem faced by Mr Shah here is that his application sets the ‘decision’ time as 22 November 2007 thereabouts. However, Mr Connors’ material indicates that he was appointed on 14 September 2007: Affidavit, para 2
12.39 Arguably, Mr Shah was unaware until he attended on 22 November 2007 and was summonsed to do so by Mr Connors, of the ‘bias’ he now perceives in Mr Connors’ conduct of the Inquiry, at least as regards himself.[31] On the other hand, at the date of the announcement of Mr Connors’ appointment (appearing in the Government Gazette of Friday 14 September 2007: Affidavit in Reply, para 2, Annexure ‘A’9), Mr Shah was aware of:
12.40 Mr Shah was also aware of the nature of the Inquiry to be headed by Mr Connors, its scope and relevance to him as a Magistrate and hence to the cases upon which he has sat and his role and conduct as a Magistrate – just as every Magistrate in Fiji would have to be taken to be aware of the nature of the Inquiry, its scope and relevance to her or him as a Magistrate and hence to the cases upon which s/he has sat and her/his role and conduct as a Magistrate.
12.41 Further as to when Mr Shah should or can be taken to be aware of the Inquiry’s being headed by Mr Connors, Mr Connors states that radio and newspaper advertisements appeared before the first public hearing on 17 October 2007, and he held his first public hearing on 17 October 2007 at the Law Reform Commission Conference Room in Suva, with the public invited: Affidavit, para 5 Being an interested person and like other Magistrates directly affected by the holding of the Inquiry, it is difficult to accept that Mr Shah would have had no knowledge both of the Inquiry and Mr Connors’ heading it at minimum by this time.
12.42 The authorities are consistent in holding that time limits have meaning and should be adhered to. In State v. Public Service Commission; Ex parte Sevuloni Nsalasala (1997), the High Court emphasised this, saying:
The strictness with which the Courts approach time-limits in judicial review proceedings was recently reaffirmed in R. v. Institute of Chartered Accountants in England and Wales ex-parte Andreou (1996) 8 Admin. LR 557 ... were the Court of Appeal (UK) in refusing leave to appeal against a refusal to extend time to begin judicial review proceedings:
Held:
(1) The purpose of the procedure governing applications for judicial review is to prove a simplified and expeditious means of resolving disputes in the field of public law.
(2) This purpose would be frustrated if the relatively leisurely and casual approach to time-limits which characterises civil litigation in the field of private law were to be adopted in the field of public law.
(3) Therefore, notwithstanding that the error had been entirely that of the applicant’s lawyers (the judge) had been right to dismiss the application.
(See also: per Sir Thomas Bingham MR in Regal Bourne Ltd v. East Lindsay District Council (1994) 6 Admin. LR 102): at 286
12.43 Insofar as the date nominated in the application – on or about 22 November 2007 - the application was filed a month after that date and no more. Yet insofar as the date of Mr Connors’ appointment – and it is the appointment to which the request for certiorari is directed – the application is outside the three month timelimit.
12.44 In Ex parte Sevuloni Nsalasala (1997), the High Court went on to say ‘some reason, excuse or explanation ought to have been deposed in the affidavit in support
of the application for leave if counsel was seriously minded to avoid the discretionary consequences provided for in Order 53 r4(1).
Counsel cannot assume that the Court will always adopt a lenient approach to late applications for judicial review or that an adjournment
will automatically be granted [here, to amend grounds and provide an affidavit in explanation of delay] on request and in the face
of opposition’: at 286
12.45 So far as I can see, no explanation or reasons appear in the material or request for time extension. On the other hand, I do
not consider it necessary to refuse leave vis-à-vis certiorari by applying the timelimit for certiorari in the present case,
as in my opinion the application for leave should not be granted for the reasons previously stated, together with those stated below.
Also, I note that the application calls for declarations and other relief.
13. An Arguable Case – Part II
Is there a decision to be subject to judicial review, or at least an arguable case that there is such a decision amenable to the other reliefs sought?
13.1 (a) ‘The Decision’: The Applicant seeks an order of certiorari to remove ‘the decision’ of Mr Connors into the High Court ‘pronounced on or about the 22nd November 2007’. No decision is identified explicitly in the application or supporting material. In written and oral submissions, it appeared that the decision complained of is that of Mr Connors to summons Mr Shah to appear and give evidence before the Inquiry on 22 November 2007. In the submissions, as noted, reference was made to subsequent summons issued to Mr Shah and, hence, the decisions made in respect of the issuance of each.
13.2 I accept the Respondents’ submission that summonses issued after 22 November 2007, the date of ‘the decision’ nominated in the application cannot be ‘related back into’ the decision sought to be challenged in this application. If those decisions are to be challenged and Mr Shah believes they are properly to be subject to judicial review, he would need to issue a fresh application nominating each decision sought to be reviewed.
13.3 If the decision to issue the summons is the decision the subject of the application, then it could be said that ‘on or about’ 14 November 2007 ought to have been nominated: 14 November 2007 is the date of the summons requiring Mr Shah to attend on 22 November 2007. Nonetheless, in all the circumstances of this application, and particularly taking into account Counsel’s submissions, I accept that ‘the decision’ or one of the decisions, at least, being the basis for Mr Shah’s application is the decision of Mr Connors to summons him to appear before the Inquiry on 22 November 2007. Albeit in my opinion the date of that decision must predate the date of the summons (just as it must predate the date of Mr Shah’s appearance), the date of the summons would have been closer to the mark than 22 November 2007 and would give a more accurate indication of the date of Mr Connors’ decision to summons.
13.4 However, that Mr Shah has elected ‘on or about’ 22 November 2007 (which in terms of timing is not the date Mr Connors decided to issue the summons) does not preclude his application from being successful if it meets the requirements of judicial review and, at this stage, the arguable case test. Mr Shah cannot be taken to know the precise date upon which Mr Connors made the decision to issue the summons (although he does know the date of the summons).
13.5 As to other possible decisions the subject of the application, it appears that the decision to appoint Mr Connors is or may be in issue, I address that possibility also.
13.6 (b) Grounds: Procedure of Inquiry & Right to Fair Hearing: The first ground upon which Mr Shah seeks relief is:
13.7 The provisions of the Commissions of Inquiry Act have been set out earlier. Mr Connors relies upon that Act and Terms of Reference (and I refer also to the instrument of appointment) for the procedure adopted by him for the conduct of the Inquiry. Amongst other matters, Counsel for Mr Shah said that because there was no explicit provision in the instrument of appointment or Terms of Reference as to a summonsing power, then Mr Connors had no authority for issuing a summons. Hence the procedure he has thus adopted is ultra vires.
13.8 Mr Connors says the Inquiry procedure was ‘determined [by him] pursuant to the powers vested in [him] by the Reference and by section 8 of the Commission of Inquiry Act’. The procedure adopted included:
13.9 The weight of authority favours the Inquiry here. Generally, courts have held that Commissions of Inquiry or Royal Commissions have the power to set their own procedures consistent with the scope of their authority under legislation such as the Commissions of Inquiry Act. In In re the Royal Commission to Inquiry into and Report upon State Services in New Zealand [1962] NSLR 97, the Court of Appeal of Aotearoa/New Zealand dealt with the ‘rights of audience’ held by State Employee Organisations (SEO) in an Inquiry into the State Service. Counsel for the SEO said the Commissions of Inquiry Amendment Act 1958 (A/NZ) entitled it, as ‘interested persons’:
13.10 The Commission had set its procedure so that:
13.11 In an interim decision the Court held that the procedure laid down did ‘not deprive the employee bodies of any rights of appearance or hearing to which they might be entitled in law’. Subsequently, Gresson P., said the procedure ‘would certainly afford to [interested persons] in a very liberal manner an opportunity of appearing and of being heard. If the Commission should adhere to this ruling, I do not think any of the Organisations would have any grounds for complaint at all ... The Commission may revise its ruling and give a more limited permission, but with that we are not concerned ...’ He added that the Court ‘as well as affirming that pronouncement should go further and hold that all questions of procedure relating to allowing the appearance of persons claiming to be interested and the extent to which they may be heard are entirely for the Commission to decide’: at 106
13.12 The CEO ‘has no rights at all in a strict sense’, Gresson, P. went on, saying they were entitled to appear and be heard by the Commission ‘to the extent only that the Commission permits; whether it may be represented before the Commission by counsel or otherwise is also a matter for the Commission to determine’:
In short, my view is that any such Organisation or any individual who qualifies under the section [as an interested person] is entitled to participate in the proceedings of the Commission to such an extent and in such a manner as the Commission decides and not otherwise. My reason for so holding is that by the terms of the section a person who is qualified by having an interest in the inquiry apart from any interest in common with the public is ‘entitled to appear and be heard’ but enjoys that right ‘as if he had been cited as a party’. His position is therefore assimilated to, and he is given the same rights as a person ‘cited as a party’ ...: at 105
13.13 North, J. said that a Commission of Inquiry is ‘certainly not a Court of law’. Nor is it ‘to be likened to an administrative tribunal entrusted with the duty of deciding questions between parties’. There is nothing, he said, ‘approach a lis, a Commission has no general power of adjudication, it determines nobody’s rights, its report is binding on no one’: at 109
13.14 Cleary, J. said it was ‘plain’ that a Commission of Inquiry in relation to its own procedure ‘may prescribe or restrict the extent of participation in the proceedings by parties cited or persons interested, the one limitation being that such persons must be afforded a fair opportunity of presenting their representations, adducing their evidence, and meeting prejudicial matter’:
... it is beyond dispute that Commissioners may hear evidence or representations in private, for such a power is inseparable from the functions of a body set up to initiate an investigation and inquiry, unless the inurnment of appointment otherwise provides. They may, if they think fit, exclude parties cited or persons interested from their private sittings. Should they be of opinion that matter received at any such sitting is prejudicial to some party cited or person interested, they ought to afford some fair opportunity of correction, either in public or in private, but the procedure must of necessity be left to their sense of fitness in applying the general principle which I have already set out to the circumstances of the particular inquiry: at 117
13.15 He considered the CEO’s position flawed in basing its argument upon the assumption that a party to an inquiry by Commissioners has the same rights of appearance by counsel, being present throughout the hearing, and cross-examining witnesses as a party in a law suit:
This argument overlooks the basic difference between a lis inter partes and an inquiry by Commissioners. In a controversy between parties the function of the Court is ‘to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings’: Labour Relations Board of Saskatchewan v. John East Iron Works Ltd [1949] AC 127, at 149 The function of a Commission of Inquiry, on the other hand, is inquisitorial in nature. It does not wait for issues to be submitted, but itself originates inquiry into the matters which it is charged to investigate. There are, in deed, on issues as in a suit between parties; no ‘party’ has the conduct of proceedings, and no ‘parties’ between them can confine the subject-matter of the inquiry or place any limit on the extent of the evidence or information which the Commission may wish to obtain: at 115-16
13.16 He adopted as a ’succinct statement of general principle’ what was said in De Verteuil v. Knaggs [1918] AC 557, at 560. namely that ‘in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fear opportunity to correct or controvert any relevant statement brought forward to his prejudice: at 116
13.17 Mr Shah’s concern as to being summonsed, not being allowed a ‘right to a fair hearing’ and without having been provided ‘the allegation or evidence that the Commissioner had’ appears to be answered both in the material before the Court and the authorities. As previously noted, Mr Shah’s own Affidavits indicate that he did respond to matters raised with him by the Commissioner and appeared from his own material and responses to have a grasp and knowledge of the matters being raised. From what he further says as to additional summonses, it appears that the Commissioner provided Mr Shah with further opportunities to address the matters raised, so that had he not known before 6 November 2008 or his appearance on 22 November 2007 the allegations or complaints that he would be asked to address, he knew them from his extensive (in his own description) interview with Mr Connors on 22 November 2007. Hence, arguably at least it appears that he has now been given advance notice of matters in relation to which the Commissioner seeks to question him.
13.18 In Re Royal Commission on Thomas Case [1980] 1 NZLR 602 as to having access to material upon which witnesses may be questioned, the High Court of Aotearoa/New Zealand said:
From the outset counsel for the police took the position that, to protect their clients’ interests, they should receive notice in advance of any allegations which might be made against the police, and, indeed, that they should receive proofs of all evidence in respect of them. In view of the very great volume of material now in existence in relation to the matters at issue, and in view of the age of much of that material, the concern of counsel that allegations should be defined is understandable. However, we have no doubt that the Commission was right in two comments which it not infrequently made in this connection:
(a) that, to carry out its inquisitorial function, it should, if it seemed appropriate to it, be able to hear the evidence of witnesses given freshly from the witness box, and that it might on occasions be helpful, if not necessary, to the discovery of the truth to do so; and
(b) that it was justified in refusing to recognise the alleged rights to have a notice of allegations in advance, its obligations in that regard being ... to give a fair opportunity to answer any allegations of unfairness by advising parties against whom such allegations have been made of the substance of them, and giving adequate opportunity to answer them, by evidence or argument, prior to the Commission’s reaching any final decision, and prior to its completing and publishing its report: at 627
13.19 All this simply serves again to highlight a difficulty with the current application. The decision sought to be reviewed is that (as I understand it) of the issuance of the summons to require Mr Shah’s attendance on 22 November 2007 before the Inquiry. It is to the decision-making process there that the Court needs to address its mind in determining whether there is an arguable case for granting leave – to review that decision-making process. All the matters raised in this ground go to, or may go to, other decisions which have not yet been made, may or may not be made, and may be of one kind or another. We do not know. Mr Connors has not concluded his Inquiry. He has not written his report. He has written no interim reports, so far as we know. If he had written any interim report then according to his Affidavit he would, were such report to have contained any possibly adverse comment as to Mr Shah, have notified him so that Mr Shah could put relevant matters to the Inquiry before any such report was finalised.[33]
13.20 As to the decision sought to be reviewed: the decision to summons Mr Shah - from the Applicant we do not have any material explicitly challenging Mr Connors’ decision-making process in that regard, except it may be that taking:
the Court is required to infer that these factors wrongly informed Mr Connors’ decision to summons Mr Shah; and the conduct of the 22 November 2007 hearing (which is complained of by Mr Shah) is to be imputed back into Mr Connors’ decision-making process in the decision to summons Mr Shah.
13.21 Insofar as we have material from Mr Connors, Mr Connors says that his procedure included ‘summon[sing] witnesses to appear and give evidence: Affidavit in Reply, para 8 He does not say that his procedure is to summons Mr Shah alone, or one particular Magistrate, or particular witnesses only.
13.22 In my view, and taking into account the authorities cited as to the Commission’s power to set its own procedures and the other matters set out above, this is insufficient upon which to base leave for review and does not provide an arguable case in respect of this aspect of Mr Shah’s application.
13.23 (b) Ground: Authority or Right to Seize Nadi Court Files: The application sets out a further ground:
13.24 This ground has already been addressed above. It remains only to say that again a problem with what is set out here is the decision sought to be reviewed – whether that of Mr Connors’ appointment, or that going to the issuing of a summons vis-à-vis Mr Shah. From the authorities already cited, and the matters adverted to earlier as to Mr Connors’ responsibilities and duties in the context of his appointment and Terms of Reference, Mr Connors’ power, including authority and right, responsibility and duty, to ‘seize’ files relevant to the Inquiry so as to inform himself is incontrovertible. As earlier noted, this also, it would seem, protects Mr Shah’s rights and interests for it ensures that Mr Connors does not, as it is understood Mr Shah fears, act by reference to rumour, nor simply by statements from other persons – whether litigants (disaffected or not) – without going to the actual records from which relevant information can be obtained. But in any event, does all this go to Mr Connors’ decision to summons? Does it go to the President’s decision to appoint Mr Connors?
13.25 In my opinion, again this is a matter for a later date, if the necessity arises. That later date is the time of Mr Connors’ final report, or any interim report which may include decisions affecting Mr Shah. As noted, Mr Connors says he will advise Mr Shah to extend him a right to be heard in relation to any possible adverse comment before it appears in a report. In my opinion, there is no arguable case indicated in respect of this ground.
13.26 (c) Ground: Proper and Constitutional Appointment: The application sets out the following ground:
13.27 This ground has been dealt with earlier. As earlier stated, there is no arguable case indicated in respect of this ground.
13.28 (d) Ground: Within Scope of Appointment? This ground challenges the Inquiry insofar as the scope of Mr Connors’ appointment:
13.29 Adverting in this respect to the decision sought to be reviewed, namely that of issuing the summons, there is no arguable case for leave in this regard. On the authorities as cited and taking into account Mr Connors’ statement of his procedure as set out earlier, there seems to be no basis upon which it can be argued that Mr Connors, in deciding to issue a summons vis-à-vis Mr Shah, exceeded his powers or the scope of his appointment (including Terms of Reference, instrument of appointment and the provisions of the Commissions of Inquiry Act), or that his decision-making was otherwise flawed so as to support a review application.
13.30 (e) Ground: Collecting or Personally Calling Witnesses: The application sets out the further following ground:
13.31 This is a matter going beyond the decision to issue a summons or Mr Connors’ appointment in my opinion and does not provide an arguable ground for review of either of those decisions. In any event, the authorities as earlier adverted to constrain me to find that there is no arguable case in respect of this matter going to the decision sought to be reviewed. If there is any question at the conclusion of the Inquiry when a final report is made to the President or any interim report affecting Mr Shah, then that cannot be dealt with in the context of the current application.
13.32 The Terms of Reference, notice of appointment and Commissions of Inquiry Act and the authorities in combination make the point that what is wanted in the case of an Inquiry is just that: an inquiry by the Commissioner or Commissioners appointed, who must of their own initiative establish, within the parameters of the Terms of Reference, the way that the Inquiry will run, how evidence will be obtained, how witnesses will be invited or required to present their evidence, how and what material (oral, written, etc) will be obtained, and so on. As the authorities indicate, this is not a case where parties bring a case before a court or tribunal, with the parties having carriage of the matter and bringing their own witnesses and material, or seeking material from the other side (as in subpoenaing witnesses and documents from the opposing party). There are no parties here, there is no ‘lis’ and Mr Connors as Commissioner is bound to obtain evidence on his own initiative. He must seek out evidence and he has done this, for example, by advertising widely in the media to ensure that the public and interested parties are aware of the Inquiry and are able to provide their evidence.
13.33 Here, I note also that Mr Connors stated in his ‘Opening Statement’ (Annexure ‘D’, Affidavit in Reply) in relation to evidence before the Inquiry:
The only material I will take into account is that given on oath before me or that which results from my own inquiries or investigations. I can not be satisfied that any other material is of sufficient credibility to enable any meaningful findings or recommendations to be made. Naturally evidence can only be received that is within the terms of reference. Te inquiry is looking at the present and to the future ad is not looking into the past: at p. 2
13.34 It is ultimately up to Mr Connors what weight he will place on the evidence and indeed what evidence he will entertain. That Mr Connors has taken the initiative and that he has received material from persons who have come forward does not provide an arguable case for review of Mr Connors’ decision to issue a summons vis-à-vis Mr Shah or in respect of the decision of the President to appoint Mr Connors.
13.35 Certainly, were Mr Connors to act upon or take into account in his report ‘irrelevant material’ or scurrilous rumour, falsehoods and so forth (which Mr Shah appears to raise as a concern), then this would or could be a basis for an arguable case in the future.
13.36 (f) Ground: Principles of Natural Justice and Constitution: The application requires the Court to consider whether there is an arguable case on the ground:
13.37 The aspect going to the Constitution has been dealt with above and I will not re-canvass that aspect here, save as to say that a perusal of Chapter 4 – ‘Bill of Rights’ and Chapter 5 – ‘Social Justice’ upon the Court’s initiative (in the absence of an indication of the basis of the ground) provided no basis upon which it may be said that Constitutional rights may have been infringed by the procedure adopted by the Inquiry or the issuance of a summons. There is no issue of life, personal liberty, freedom for servitude and forced labour, cruel or degrading treatment, unreasonable searches and seizure, arrested or detained persons, charged persons, access to courts or tribunals – which covers persons charge with an offence and parties to civil deputes, and the hearings of courts and tribunals open to the public, freedom of expression,, freedom of assembly and association, labour relations, freedom of movement, religion and belief, secret ballot, privacy, equality, education, compulsory acquisition of property. Mr Shah has said he and his family suffered humiliation and distress in relation to the service of summonses (including not only the summons for 22 November 2007). However, it seems to me that what he has said does not provide a basis for an arguable case per section 25(1) of the Constitution which says:
Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.
13.38 As to privacy, section 37(1) says that every person ‘has the right to personal privacy, including the right to privacy of personal communications’, with that right able to be made subject to ‘such limitations prescribed by law as are reasonable and justifiable in a free and democratic society’: s. 37(2) If it is suggested that the service of a summons – or rather the decision to serve the summons in this case – constituted a breach of Mr Shah’s privacy or was for the purpose of doing so, it seems to me that there is no foundation upon which the Court could properly find there is an arguable case in that respect.
13.39 Here, I observe that Mr Shah has raised as a concern the delivery of summonses by police and by officers of FIRCA, and that at least in some or one instance delivery was extremely early in the morning. I can see no reason, at least in the present matter, for delivery of a summons out of business or waking hours. It is also apparent that such delivery would be unnerving and unsettling to anyone and particularly to someone with young children and/or neighbours who could also have their sleep disturbed. Mr Shah holds an office of some importance in the Fiji justice system and has, as it appears, been available to receive summonses delivered to him. This would appear to make the delivery of them at hours outside business and waking time unnecessary.
13.40 In regard to the summonses and the decision-making process re their issuance, however, I observe that it is only the decision vis-à-vis the summons of 14 November 2007 which is before this Court and further as to the authorities on summonses in Inquiries and Commissions.
13.41 In Bethel v. Douglas and Ors [1995] 3 All ER 801 amongst other matters it was argued that the issue of a subpoena infringed Constitutional rights against search and seizure and deprived a witness of ‘protection of the law’ contrary to the Bahamas Constitution. It was held that proceedings of a Commission of Inquiry could not be equated with those of courts of law and in particular criminal proceedings. As in the present case (under the instrument of appointment and Terms of Reference, and by reference to the Commissions of Inquiry Act) no witness in the Inquiry, whether appearing by summons or otherwise, can have their evidence used against them in criminal proceedings.
13.42 As noted here and earlier, the authorities and the powers vested in the Inquiry through the instrument of appointment and Terms of Reference, and the Commissions of Inquiry Act, give the power to issue summonses. If the power were used for an improper purpose that would be another thing, however again by reference to the authorities and the issue of the summons for 22 November 2007, there appears to be no arguable case in that regard.
13.43 As to natural justice, Mr Shah details concerns about the manner in which Mr Connors addressed him and his evidence on 22 November 2007, and in the short period prior to his giving evidence – namely as to the lateness of his Counsel and the comments Mr Connors is said to have made at that time.
13.44 The conduct of Inquiries and Commissions has been the subject of natural justice or procedural fairness challenges in a not insubstantial number of cases. In Re Royal Commission on Thomas Case [1980] the Aotearoa/New Zealand High Court dealt with this question. The High Court said:
The observer would certainly have noticed the rigorous manner in which police witnesses were cross-examined by the Chairman, and would also have noticed the number of rhetorical questions used by him as a method of criticism of those witnesses; but, no doubt, the observe would also have had regard to the nature of the inquiry, and to the fact that those witnesses were generally much more experienced in giving evidence than the average citizen. Then, again, he may well have wished that the Chairman had not yielded to the pressure of television in order to explain to the public, while the Commission was still sitting, its views upon the interpretation of the pardon. But, at the same time, he would, we think, have felt sympathy for the Commission as a whole because of the many difficult exchanges which developed as the result of the repeated requests by counsel for the police for the supply of particulars and briefs of evidence to which they, no doubt, would have been entitled if the Commission had been a Court of criminal jurisdiction, but to which they clearly were not entitled as persons appearing before a Commission of Inquiry: at 427
13.45 I am not persuaded that in all cases, at least, the ‘generally greater experience’ in giving evidence possessed by police officers should mean that they are not disadvantaged if subjected to rhetorical questioning and ‘a rigorous manner’ (the latter can cover a multiplicity of styles, circumstances, degrees, etc with a wide range of bounds which could be overstepped even for experienced police witnesses). Nor is the situation of police officers having ‘generally greater experience’ in giving evidence necessarily to be equated with that of lawyers or Magistrates – who generally are not experienced in responding to cross-examination but rather in cross-examining others which is not the same, albeit undoubtedly it does give them an ‘edge’ over laypersons. At the same time, it would generally be accepted that the latter (lawyers and Magistrates) are more experienced in the way of vigorous styles of questioning than are citizens limited to experience outside the legal arena.
13.46 However, even if what was said in Re Royal Commission on Thomas Case were not applicable to the conduct of the instant Inquiry (and generally the Court is constrained to consider it is), is it applicable to the decision to issue a summons and the decision-making process that led to that? In my opinion, this may be relevant to decisions in the nature of a final or interim report/s by Mr Connors, but it does not seem to me that it can be related to the decision/s in the present application. No arguable case in this application is thereby disclosed.
13.47 I am assisted in this conclusion by reference to Rabuka and Commission of Inquiry into Deed of Settlement; In re Stephens v. Attorney-General (1993). There, the Court does appear to go beyond what has been said in other cases, in suggesting the requirements of an Inquiry to be more akin to, or precisely akin to, a civil or criminal proceeding between parties, with the possibility of the Inquiry or Commission’s being obliged to adhere to disclosure akin to ‘charges’.
13.48 However, ultimately the Court in Rabuka does not go so far and, in any event, there are distinguishing features between that case and the instant case, and in the approach of the Commission of Inquiry in Rabuka and in Mr Connors’ stated approach and intentions.
13.49 In Rabuka and Commission of Inquiry into Deed of Settlement; In re Stephens v. Attorney-General, it was said that ‘it was only right as a matter of justice’ that if the integrity or reputation of any witness in an Inquiry was to be impeached for whatever reason:
... such a person should be told the allegations and be accorded an opportunity to contradict or palliate them as best as he or she could. The fact that such a person may not succeed in deterring the decision-maker from making adverse findings is not a ground to forgo fair procedure. This is the essence of fair treatment which every witness in an investigative inquiry is entitled to expect. In judicial proceedings when a civil or criminal complaint is laid against a person, that person would be given notice of the complaint and be furnished with necessary particulars. It seems to me no less imperative that a witness in an investigative inquiry should be able to expect similar treatment especially where adverse findings were in contemplation: at 33
13.50 However, the Court then says that as regards the adverse findings made, ‘it appears on the authorities ... that the Applicant should have been warned of the risk he faced in regard to those findings and accorded an opportunity to defend himself’:
The Applicant who appeared ostensibly as a witness was subjected to rigorous and searching cross-examination as though he was facing formal charges. Yet until the end of the Inquiry no disclosure of any adverse findings was made. The law in this connection is succinctly set out in Halsbury’s Laws of Australia, Volume 1, paragraph 10-1900:
A person who may be adversely affected by a finding of an investigative decision-maker should not be ‘left in the dark’ as to the risk of the finding being made, and should therefore be afforded an opportunity to adduce additional material in response to adverse evidence at an appropriate stage of the inquiry. Thus just as the content of procedural fairness is reduced in relation to notice provided by investigative tribunals (particulars of the charge not being required), so also, in relation to disclosure, in the context of procedural fairness adapted to the nature of the decision-maker. Procedural fairness does not require an investigative body to proceed as if it does conduct a trial in a court of law. However, if such a body proposes to publish findings adverse to or critical of any person it should after forming its views and before publishing its report, disclose to the person at that stage of the information adverse to the person, affording him or her an opportunity to be heard ...: at 34
13.51 No adverse findings have been made in relation to Mr Shah. Mr Shah contends, as I understand it, that the issue of the summons and the decision to issue it indicates ‘adverse findings’. He says that also, as it is understood, in relation to Mr Connors’ statement (or ‘finding’) that there have been more complaints about Mr Shah’s cases or conduct than any other Magistrate, and Mr Connors’ decision to investigate or inquire into ‘all of them’.
13.52 However, I do not consider that there is an arguable case here. Focusing on the decision-making process, what Mr Connors has said is that if the time should arrive where there is a possibility of any adverse findings being made, then Mr Shah will be so advised. This is consistent with Halsbury and Rabuka. It appears that thereby Mr Connors is providing or intending to provide Mr Shah with an opportunity to present his ‘side’ if the matter can or should be seen in that light, or perhaps an opportunity to make available his information and response to questions arising out of complaints and files with which, on what Mr Shah has said in the application, Mr Shah appears to have at least some familiarity.
13.53 (g) Rights to a Fair Hearing or Fair Decision: The application puts forward the following ground as a basis for review:
13.54 It is difficult to accept that a decision to issue a summons requiring Mr Shah to appear before the Inquiry on 22 November 2007 deprives or deprived him of the rights of a fair hearing or a fair decision. As noted, no ‘decision’ has been made in consequence of the hearing in that no report has been made to the President and no report is scheduled until 1 June 2008. In any event, it is the process upon which the Court must focus here.
13.55 From what Mr Shah describes in his Affidavits, it seems that as noted he had some awareness and familiarity with the cases or files to which Mr Connors referred, and it might be thought by some reading Mr Shah’s Affidavits that at least in some respects that he ‘gave as good as he got’. On the other hand, the Court accepts that it is very different to be in the position of the person running an Inquiry – the Commissioner – and in that of a witness: whether the witness is a lawyer, or police officer, or Magistrate, etc or a layperson. Witnesses come with different experience, expertise, capacities, knowledge and ability to handle themselves. As earlier accepted, lawyers and Magistrates et al are advantaged over laypeople in such circumstances because of their familiarity with the legal system, legal procedures and legal processes. This advantage does not mean, however, that they are equally advantaged as the person in the Commissioner role.
13.56 However, not to enable Mr Shah to give evidence would be to deprive Mr Shah of the right of a fair hearing and a fair decision. The Commissioner decided to issue a summons to bring Mr Shah’s evidence before the Inquiry. Mr Shah volunteered, as he notes, and was ready to attend on 6 November 2007, albeit in the event a funeral prevented him from so doing.
13.57 On the authorities and in accordance with his powers, Mr Connors was entitled to decide to issue a summons, and to do so. The test of whether Mr Shah has had a fair hearing and any decisions made in respect of his evidence are ‘fair’ cannot come at the present stage, through a process directed at the decision/s challenged in the present application. In my opinion, no arguable case for review is presented in respect of this ground.
13.58 What transpires at the final report stage is a matter to be assessed when that arrives.
14. An Arguable Case – Part III
In addition to costs, damages and relief sought dealt with earlier, the application seeks a stay; various declarations; prohibition; mandamus and an order for a list of documents.
14.1 (a) Declarations: Four paragraphs of the application outline the declarations sought:
14.2 Paragraphs 3 and 5 have already been dealt with and the Court has found that no arguable case is provided in the material in respect of these matters.
14.3 As to paragraph 6, Mr Connors has said that his procedural guidelines as outlined in his public statement (Affidavit para 8 outlined earlier) that the Commission ‘would summon witnesses to appear and give evidence’. As the authorities provide, it is for a Commission or Commissioner of Inquiry to set its own procedures and this is what Mr Connors states he has done. Mr Shah was, along wit/h other Magistrates as it appears from the material, invited to make submissions and attend the Inquiry. It was only when he did not attend as originally planned that a summons was issued. It is not clear that Mr Shah is the only Magistrate (or only person) summonsed or in relation to whom a decision to summons has been made by Mr Connors. However, for the purpose of determining the leave application before the Court, accepting that he is, I am unable to say that this would provide a basis for ‘bias’ or an arguable case. As noted, in this application it is the decision to summons and the process engaged in by Mr Connors in that regard that is before the Court for leave to review. I am unable to find that there is an arguable case for review of Mr Connors decision to summons Mr Shah and Mr Shah alone.
14.4 As to paragraph 7, I have covered this aspect previously by reference to the authorities, the notice of appointment and Terms of Reference, and the Commissions of Inquiry Act and found there is no arguable case for review.
14.5 (b) Mandamus: Mr Shah seeks an order for mandamus:
4. FOR AN ORDER OF MANDAMUS directed to the Respondent MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate Court Inquiry to immediately release or hand over all files of Nadi Magistrate’s Court pending for decision by the Resident Magistrate and or pending for Appeal in the High Court.
14.6 All the relevant matters going to an arguable case as to an order of mandamus vis-à-vis the Nadi Magistrates Court files have been dealt with previously and in my opinion there is no arguable case in relation to a decision made or not made by Mr Connors in relation to these files.
14.7 (c) Prohibition: In the alternative, Mr Shah seeks:
14.8 Insofar as paragraph a) is in issue, the matters raised have been dealt with previously. On the basis of all the material in the application and before the Court, including the authorities, there is no arguable case for review in relation to a decision in the present application.
14.9 As to paragraph b) in my opinion this Court is not able to issue an order prohibiting the Commissioner from including in his report or any interim report matters which are within his instrument of appointment and the Terms of Reference. As the material before the Court discloses, no report or interim report has been written, no decisions have been made as to the contents of the final report or any interim report. The final report is not due until 1 June 2008.
14.10 Further on the material before the Court it appears that Mr Connors has sought to enable Mr Shah to provide him with further responses as to matters which are before the Inquiry going to those issues involving Mr Shah. It appears that Mr Connors is relying upon the process of Inquiry to write his report insofar as matters relating to Mr Shah or his cases and files on which he has worked are concerned. If ultimately there is anything in the report or proposed to be in the report going to those matters, cases or files, then there will be an opportunity at that stage for Mr Shah to respond (as Mr Connors states) and/or to take whatever action he (Mr Shah) believes appropriate and necessary, should he so determine.
14.11 On the foregoing, including the authorities, in my view there is no arguable case in the application as to a decision in respect of which the relief sought.
14.12 In respect of paragraph c), this aspect of the application has been dealt with previously and no arguable case lies in respect of any decision in respect of which the relief is sought.
14.13 On paragraph d), this has been dealt with previously and no arguable case lies in respect of any decision as to which this relief is sought.
14.14 (d) List of Documents: Mr Shah seeks an order for a list of documents:
14.15 As the Court has found there is no arguable case for review, it does not appear to me to be within the Court’s power to make the order here sought. Further, on the authorities it seems unlikely that such an order would be made even were there grounds, by reference to procedural fairness challenges in a not insubstantial number of cases. In Re Royal Commission on Thomas Case [1980] where prior notice of questions and issues was considered not to be an obligation on an Inquiry or Commission, because a Commissioner was entitled to decide that fresh responses to questions not on notice was the appropriate way to inquire into the matter before the Inquiry.
14.16 For the purposes of good administration, it would appear likely that a list of those files obtained by Mr Connors is held within the Court Registry or court administration: it seems unlikely that the Court would allow files to be uplifted without retaining a record. Further as to Mr Shah’s concern about speedy justice and the need for timely dealing with the part-heard matters and matters pending appeal, the sooner Mr Connors is able to complete his Inquiry the sooner the part-heard matters can be completed and the appeals be progressed. Hence in this respect it would be to the advantage of the litigants and to Mr Shah’s concerns in respect of the files in which he is part-heard if the Inquiry is able to complete in a timely manner the aspects of the inquiry relating to those files.
15. Request for Stay
In the Statement of the Applicant, Mr Shah seeks an ‘Order that the decision of MR JUSTICE JOHN ROBERT CONNORS Commissioner for Magistrate’s Court Inquiry be stayed pending the hearing and determination’ of his application. This rested upon a number of bases, including:
15.1 As leave has not been granted, on the basis that the Court is unable to find an arguable case in respect of the decision or decision/s challenged, and the orders sought or the grounds upon which the orders are sought, there is no basis for a stay. However, had the Court found there were an arguable case, or were the Court to be determined to be wrong in this regard, in my opinion this is not a case wherein a stay should be granted.
15.2 The Terms of Reference require the Inquiry to report to the President by 1 June 2008. It is apparent that this is an Inquiry of considerable importance to Fiji, the people of Fiji generally, litigants and prospective litigants, to the judicial system as a whole and to the Magistracy and Magistrates Courts in particular, and in terms of good governance and the advancement of the interests of Fiji as a nation state.
15.3 As an adjunct to this, I note the comment in the Opening Statement made on 17 October 2007 at Suva by the Commissioner in respect of the following:
In March of this year [2007] LAWASIA, The Law Association for Asia and the Pacific, sent an observer mission to Fiji. One of the recommendations of that mission was that there should be ‘an independent anti-corruption inquiry’ into the magistracy. The mission noted that here were allegations of corruption that extended ‘from cronyism in appointments to the acceptance o bribes’. The mission also recommended that ‘overt steps be adopted to address instances of such behaviour in order to restore public confidence in the magistracy’: Affidavit in Reply, Annexure ‘D’
15.4 Mr Connors said that it was ‘against this background that the President ... appointed [him] to conduct this Commission of Inquiry into the Magistrates’ Courts’: Affidavit in Reply, Annexure ‘D’
15.5 In light of the above and all the matters adumbrated in the foregoing judgment, as I have said this would not be a proceeding wherein, in my opinion, a stay should be granted. The Inquiry’s continuing provides Mr Shah with an opportunity to respond to the matters which are of concern to him in relation to complaints, files and cases and as observed should he be dissatisfied with the process at the report and final decision/recommendation stage, then it is a matter for him to determine upon what action he will or will not take.
16. Application Premature
It remains only to say that in my opinion this application is premature. As previously noted, De Smith’s Judicial Review, 6th Edn, refers to this occurrence in applications for judicial review, saying:
Seeking [leave] prematurely is almost as common a ground for refusing [leave] as delay. Judicial review may be premature for several reasons: the decision-taker may not yet have determined the facts; or completed assessment of relevant factors (although in cases involving deprivation of liberty the court will be cautious in rejecting a claim as precipitate); or the impugned decision is merely preliminary to a final decision. The court’s general approach is to reject challenges made before the conclusion of a hearing in formal proceedings. Importance must also be attached to the fact that judicial review is intended to be an expeditious process and that some decisions taken by public authorities need to be taken quickly: at 843-44
16.1 Here, each of the aspects adverted to by De Smith in my opinion apply:
16.2 If, for example, contrary to his confirmation, Mr Connors does not advise Mr Shah of the possibility of adverse findings and give him an opportunity to respond vis-à-vis the final report (or any interim report), then an application may not suffer from prematurity.
17, Natural Justice and Bias
Where final decisions are made, and a party contends for bias or a lack of impartiality of the decision-maker, courts have held that if the decision-maker has not previously been challenged for apprehension of bias or lack of impartiality, at the final decision stage it is too late. Hence, in taking the application as he has, Mr Shah has overcome any contention that might arise in the future, should there be any need for the matter to be raised, that he ‘sat on his hands’ in this regard. On the other hand, appearing before the Commission and registering his concerns about apprehension of bias and lack of impartiality would no doubt have served.
18. Costs
Both parties have sought costs in this application. I am aware that the Respondents were represented by overseas Counsel. In these circumstances, I do not believe that I should make any order for costs at this stage. It seems to me that short written submissions as to costs should be provided by the parties and a decision made as to costs on that basis, without a need for oral submissions if the parties so agree. I am of course prepared to hear oral submissions if the parties so wish, however, will do so only if a list of actual costs or at least an estimate of costs sought, referable to the work done, is provided to the Court, say within 21 days of the date of this judgment, with seven days thereafter for responses by the parties to those respective submissions.
Should the parties then wish to make oral submissions (in addition to the written submissions) provision for liberty to apply will enable that step to be initiated by them or any one of them. In the absence of any such request then the Court will determine on costs on the basis of the written submissions.
Orders
1. Leave is refused.
2. Costs reserved pending written submissions by the parties to be filed and served within 21 days of the date of this judgment (that is, on or before 28 April 2008), with submissions in reply seven (7) days thereafter (that is, on or before 5 May 2008).
3. Any application by the parties or any one of them to make oral submissions in relation to costs to be made by way of liberty to apply on or before 5 May 2008, but in addition to written submissions only.
Jocelynne A. Scutt
Judge
Suva
7 April 2008
[1] These are set out precisely in the words of the Notice filed by the Applicant on 21 December 2008.
[2] Here again set out precisely in the words of the Statement of the Applicant.
[3] Also see Commissions of Inquiry Act (Cap 47), referred to in the instrument of appointment and see later.
[4] Here, I note that the Commissioner is under the notice of appointment ‘shall not at any time publish or otherwise disclose’
except to the President ‘the contents of any report ... made, or to be made by’ the Commissioner, ‘or any evidence
or information obtained by’ the Commissioner ‘in exercise of the powers ... conferred ..., except such evidence or information as is received in the course of a sitting open to the public ...’ (Emphasis added)
[5] This Affidavit was objected to by the Respondents as being filed not in accordance with Consent Orders made between the parties.
Because of the nature of the application and the importance of the matter to the parties it appears to me proper to take into account
the matters raised in it.
[6] As earlier noted: Any person who being summoned to attend as a witness or produce a document or other thing fails without reasonable
cause so to do or refuses without reasonable cause to answer, or to answer fully and satisfactorily, to the best of his knowledge
and belief any question put to him by or with the concurrence of the Commissioners, and any person so summoned who attends but leaves
the Commission without the permission of the Commissioners, is guilty of an offence and upon conviction shall be liable to a fine
of one hundred dollars or to imprisonment for a term of three months:
Provided that no person shall be bound to incriminate himself and every witness shall, in respect of any evidence written by him for
or given by him before the Commissioners, be entitled to the same privileges to which he would have been entitled if giving evidence
before a court of justice.
[7] As earlier noted: Any person who uses threatening or insulting language to the Commission or to a Commissioner or to the secretary
at any sitting of the Commission, or to a Commissioner or to the secretary at any other time or place in relation to or on account
of his proceedings in the capacity of Commissioner or secretary is guilty of an offence and upon conviction shall be liable to a
fine not exceeding tow hundred dollars or to imprisonment for a term not exceeding six months.
[8] Here I note in passing from paras 7 and 8 of Mr Shah’s Affidavit in Reply, Mr Shah ‘adequately canvassed’ allegations
and complaints’ including specific cases’. This appears to concede that Mr Shah had prior warning or at least knowledge
of the allegations or questions (or questions that might arise) so that he was able to ‘give a fair reply’. See further
later
[9] Order 53 Rule 4 provides:
(1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for eave under rule 3 is made after the relevant period has expired, the Court may refuse to grant –
(a) leave for the making of the application; or
(b) any relief sought on the application,
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detriment to good administration.
(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.
(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
(3)
[10] Indeed, he appears to do so in that it seems Mr Shah says Mr Connors ‘has made up his mind’ on various files or cases
as to Mr Shah’s conduct. However, as Counsel for Mr Connors says, there is no final report so that there are as yet no facts
found by Mr Connors in this regard. Mr Shah says that Mr Connors’ statement that there have been ‘more complaints’,
etc about Mr Shah than ‘any other Magistrate’ is a conclusion or finding which as I understand it Mr Shah says he is
entitled to challenge through judicial review. On this see later.
[11] Pickwick International Inc (GB) Ltd v. Multiple Sound Distributors Ltd and Anor [1972] 3 All ER 384, per Justice Megarry; Kaliova Masau of Ekubu Village and Ors v. Attorney General of Fiji and Ors Civil Action No. HBC 120 of 2007L, No. 48/2007, 19 April 2007.
[12] On standing, see Fiji Public Service Association v. Civil Aviation Authority of Fiji and Attorney General of Fiji and Airports Fiji Limited (JR No. 015 of 1998L, 30 November 1998); R. v. Inland Revenue Commissioners; Ex parte National Federation of Self Employed Small Business Limited [1981] UKHL 2; [1982] AC 617, at 653. The courts are moving away from a previously more restricted application of locus standi rules: National Federation of Self Employed Small Business Limited case [1981] UKHL 2; [1982] AC 617, at 644 per Lord Diplock: ‘It would, in my view, be a grave lacuna in our system of public law if a pressure group like the
federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from brining the
matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.’
[13] See for example The State v. Ministry of Labour and Industrial Relations and Attorney-General of Fiji; Ex parte Fiji Mineworkers Union (JR No. 1 of 1998, 14 May 1999); Sitiveni Ligamamada Rabuka v. Commission of Inquiry into the Deed of Settlement Dated 17 September 1992; In re Anthony Stephens v.
Attorney General of Fiji (JR No. 26 of 1993, 4 May 1995).
[14] See Johannes Chan, ‘Application for Leave for Judicial Review: A Practical Note’, Law Lectures for Practitioners, University of Hong Kong, Hong Kong, 1999, http://sunzi1.lib.hku.hk/hkjo/view/14/1400256.pdf, pp. 164-93 (accessed 4 April 2008).
[15] See for example Lo Siu Lan and Ma Ki Chiu v. Hong Kong Housing Authority (CACV 378/2004, Civil Appeal No. 378 of 2004, 1 March 2005)(on costs but nonetheless referring to the standard without demur albeit
nonetheless noting that in the application for leave the judge had in any event found there was ‘presented a strongly arguable
case’ and the Applicants’ arguments were ‘strongly arguable’: at 2, 3
[16] Justiciability vis-à-vis the President is currently before the High Court in Laisenia Quarase, Ratu Naiqama Lalabalavu, Ro Teimumu Kepa, Ratu Suliana Matanitobua, Aid Sivia Qoro and Josefa Vosanibola; and Ratu Apenisa Kalokalo Loki and Peceli Kinivuwai v. Josaia Voreqe Bainimarama, The Republic of Fiji Military Forces, The State of the Republic of the Fiji Islands and the Attorney General of the Interim Regime (HC Action No. 60 of 2007S) (Quarase case); Republic of the Fiji Islands and Attorney-General v. Laisenia Qarase, presently of Mavana Village, Vanuabalavu, Lau, former Prime
Minister and Josefa Vosanibola, former Minister for Home Affairs (HCCA No. 398 of 2007S)(Republic and A-G v. Qarase and Vosanibola). Generally as to judicial review, neither the chief executive in council or chief executive independently escapes coverage.
[17] Explicitly as to the bias issue, see later.
[18] If the Inquiry were not to have reference to such files, then an argument might be made in relation to any final report that findings
had been made or conclusions drawn without regard to relevant information.
[19] As earlier noted, per Mr Connors’ material the date of his appointment was 14 September 2007. One would expect that it was
on that date, or very soon thereafter, that he decided that to conduct the Inquiry in accordance with the Terms of Reference he would
necessarily seek Magistrates Court files. When he decided to seek Magistrates Court files of those cases involving Mr Shah is less
certain, however, as noted it must have been before 22 November 2007 and it would appear before 6 November 2007 (the date originally
scheduled for Mr Shah’s appearance) and hence a time before that which gave him an opportunity to peruse them sufficiently
to draw particular aspects to Mr Shah’s attention.
[20] See Chan, ‘Application for Leave for Judicial Review’, Law Lectures, http://sunzi1.lib.hku.hk/hkjo/view/14/1400256.pdf, p. 170 (accessed 4 April 2008).
[21] See Chan, ‘Application for Leave for Judicial Review’, Law Lectures, http://sunzi1.lib.hku.hk/hkjo/view/14/1400256.pdf, pp. 170-75 (accessed 4 April 2008).
[22] See further later.
[23] Further on Constitutional provisions, see later.
[24] See later as to various provisions of the Human Rights part of the Constitution, which I have addressed for the sake of completeness.
Matters such as those currently awaiting decision in the Qarase case (HC Action No. 60 of 2007S) and Republic and A-G v. Qarase and Vosanibola (HCCA No. 398 of 2007S) may be what is alluded to in the application, however, as Mr Shah is seeking an alternative appointment to
the position – to be made by the President – then this seems doubtful or at least in question. This again points to the
need for exactitude in the application.
[25] Albeit I note that this is in respect of an application seeking to remove ‘any judgment, order, conviction or other proceeding’
– is Mr Connors’ appointment a ‘proceeding’?
[26] It may be considered curious that the two date-stamps do not appear on all named documents, however, nothing appears to turn upon
it.
[27] A note on the Court file indicates that the Suva Judge to whom the file was originally referred upon filing in the Suva Registry
took the view that the application should have been issued in Lautoka or at least should be sent to the Lautoka High Court Registry
for hearing.
[28] I see that Mr Connors’ Notice of Opposition was date-stamped 18 January 2008 in Lautoka High Court Registry, and a handwritten
note appears on the file stating ‘File rec’d in Lautoka Registry 17/1/08. Listed 25/1/08 first call.’ Further file
notes indicate that upon the date the application was filed in Suva (21 December 2008) the solicitor or solicitor’s agent for
the Applicant was orally advised that the Judge to whom the application had been referred had advised it should be transferred to
Lautoka. On 16 January 2008, Mr Shah’s solicitors’ telephoned the Suva Registry requesting advice as to the application’s
status, being advised of its being sent to Lautoka. Mr Shah’s solicitors wrote by letter dated 16 January 2008, received by
the Suva Registry on that date, stating ‘surprise’ at learning that the application had been transferred to Lautoka and
that as Mr Connors had been a High Court Judge in Lautoka, the matter was filed in Suva. The file indicates return to Suva occurred
when the Judge before whom the application was listed in Lautoka considered recusal was necessary because Mr Shah’s Affidavit
contained information concerning a case part-heard before the Judge and ‘it is not proper that I be privy to any other evidence
except that which comes properly before me in the court f trial. The file is forwarded to you for allocation to a Judge in Suva’:
File Note 22 January 2008
[29] De Smith’s Judicial Review, 6th edn, Sweet & Maxwell, London, UK, 2007, pp. 843-44 points out: ‘Seeking [leave] prematurely is almost as common a ground
for refusing [leave] as delay ...’ On this aspect of the application, see further later vis-à-vis the alternative relief
sought. Note: even if the decision here sought to be impugned is the ‘finding’ by Mr Connors of there having been ‘far
more allegations and complaints’ against Mr Shah than other magistrates’ and Mr Connors ‘decision ... to investigate the many allegations and complaints against’ Mr Shah, has Mr Shah been denied a right to be heard? Mr Shah’s application
complains of Mr Connors’ questioning of him and the way this was done on 22 November 2007, indicating that Mr Shah did have
put to him, with an opportunity to respond, matters in relation to those files and complaints. Robust questioning could deny a person
of a right to be heard – that is, their being unable fairly to respond because the manner of questioning precludes them from
a real opportunity to answer, however, on this aspect see authorities referred to later.
[30] On this, see Sitiveni Ligamamada Rabuka v. Commission of Inquiry into the Deed of Settlement Dated 17 September 1992, in Re Anthony Stephens v.
Attorney-General of Fiji (JR No. 26 of 1993, 4 May 1995), referred to later.
[31] Alternatively, the date upon which he received the summons for his attendance on 22 November 2008 appears to be the better date in
that the ‘decision’ now central to the application is understood to be that of Mr Connors’ to summons Mr Shah.
[32] The reason stated in his lawyers’ letter of 16 January 2008 for the application’s having been filed in Suva High Court
Registry rather than Lautoka Registry (see Court file).
[33] This is an essential aspect of natural justice, procedural fairness or ‘fairness’: Sitiveni Ligamamada Rabuka v. Commission of Inquiry into the Deed of Settlement Dated 176 September 1992, in Re Anthony Stephens v.
Attorney-General of Fiji (JR No. 26 of 1993, 4 May 1995). There, Counsel submitted that the main question to be decided was ‘whether the findings that
the Applicant was guilty of improper and/or illegal conduct were made in breach of the rules of natural justice or as is often said
the rules of procedural fairness. The Applicant was cross-examined at length as to his alleged involvement in the events surrounding
the signing of the Deed. Counsel submitted that the Applicant should have been warned by the Commissioner or the counsel assisting,
Mr Sharma, that the Applicant was at risk of adverse findings being made against him regarding his conduct in the singing of the
Deed. Because of this failure to warn the Applicant, he was denied the chance to defend himself in regard to them. In his Report
the Commissioner appeared to have accepted that the Applicant was guilty of improper and/or illegal conduct without first affording
him an opportunity to defend himself, the Commissioner was in breach of the rules of natural justice. Counsel contended that before
the Inquiry was concluded it was clear that the Commissioner had formed uncompromising views about the conduct of the Applicant in
regard to the matters under investigation. In those circumstances the Commissioner was under a duty to disclose those matters to
[the] Applicant who should then be given an opportunity to controvert or palliate them by way of defence or excuse. It was not sufficient
for [the] Applicant to have to go before the Commissioner, give evidence, be cross-examined at length and then be ambushed at the
end of the Inquiry with adverse findings without prior notice to [the] Applicant. For those reasons too counsel submitted the findings
of the Commissioner were ultra vires as being made in excess of jurisdiction: at 22 In the upshot, the Court held that in the circumstances, ‘if the integrity or
reputation of any witness was going to be impeached for whatever reason it was only right as a matter of justice that such a person
should be told the allegations and be accorded an opportunity to contradict or palliate them as best as he or she could ...’:
at 33
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2008/64.html
