In re Losalini Daulali [2009] FJHC 220; HBJ4.2008L (8 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW No. HBJ 4 of 2008L

IN THE MATTER of an application by LOSALINI DAULALI,
Customs Officer of Nadi for leave to apply for Judicial Review under Order 53 of the
High Court Rules for CERTIORARI and DECLARATIONS against the decision of the
Fiji Islands Revenue & Customs Authority Appeals Board made on 29 February, 2008

AND

IN THE MATTER of an application by LOSALINI DAULALI,
Customs Officer of Nadi for an Order for CERTIORARI to quash the decision of the Fiji
Islands Revenue & Customs Authority Appeals Board made on 29 February, 2008

AND

IN THE MATTER of an application by LOSALINI DAULALI,
Customs Officer of Nadi for an Order that the decision of the Fiji Islands Revenue &
Customs Authority Appeals Board made on 29 February, 2008 be stayed pending the
hearing and determination of the Applicant’s application in the High Court of Fiji

AND

IN THE MATTER of alleged breaches of the principles of natural justice

ADDENDUM TO
INTERLOCUTORY JUDGMENT DELIVERED ON 28 SEPTEMBER 2009

Of: Inoke J.

Counsel Appearing: Mr. K Tunidau for the Applicant
Mr. V Mishra for the Respondent

Solicitors: Tunidau Lawyers for the Applicant
Mishra Prakash & Associates for the Respondent

Date of Hearing: 2 October 2009
Date of Judgment: 8 October 2009

INTRODUCTION

[1] On 28 September 2009 I delivered an interlocutory Judgment in this matter and ordered that the application for leave for judicial review be dismissed.

[2] On 2 October 2009 Mr Mishra, Counsel for the Respondent Board, asked that this matter to be called before me for clarification.

[3] Counsel advised me that previous Counsels for the parties had agreed that leave for judicial review be granted and Phillips J made orders accordingly. He was not the Counsel then acting for the Board.

[4] The only outstanding matter was the hearing of the judicial review itself and Mr Mishra had asked me to rule on the preliminary point, the subject of my interlocutory Judgment, before that hearing proceeded. He asked that I make an addendum to my interlocutory Judgment for clarification.

[5] I told Counsel that I did not think that Counsels or the parties could make legal what is illegal and the effect of my Judgment is that the decision of the Board stood. However, to make the Court’s judgment clear I think I should put in writing what I said in Court and my reasons for so saying. This is the addendum that Mr Mishra requested.

THE EFFECT OF MY INTERLOCUTORY JUDGMENT OF 28/09/09

[6] Order 53 r 3(1) of the High Court Rules 1988 says that "no application for judicial review shall be made unless the leave of the Court has been obtained according to this rule."

[7] It is a mandatory requirement which cannot be bypassed by consent. The reason for that has been stated by Lord Diplock in Inland Revenue Commission v National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1982] A.C. 617, on the need to obtain leave for judicial review:

"Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left when they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

[8] The effect of my interlocutory Judgment is therefore the application for leave proper cannot proceed despite the granting of leave by consent. The decision of the FIRCA Appeals Board delivered on 29 February 2008 stands.

Sosefo Inoke
Judge