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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No: HBM 8 of 2011L
BETWEEN:
ATTORNEY GENERAL
Plaintiff
AND:
SALOTE GUZMAN
First Defendant
AND:
ABIS RENT A CAR
Second Defendant
INTERLOCUTORY JUDGMENT
Judgment of: Inoke J.
Counsel Appearing: Mr R Green (Plaintiff)
Solicitors: Attorney General’ Chambers (Plaintiff)
Dates of Hearing: 5 August 2011
Date of Judgment: 5 August 2011
INTRODUCTION
[1] This is an application for a “stop departure order”, commonly known as a DPO, by the Attorney General’s office to restrain the first defendant from leaving Fiji. The application was filed ex-parte this morning and counsel urged the Court to issue a temporary DPO until Monday 8 August 2011.
[2] I entertained the application but counsel was not able to convince me that the plaintiff is entitled to the DPO so I dismissed the application.
[3] These are my reasons.
THE BACKGROUND
[4] The ex-parte application was supported by the affidavit of Taniela Whippy, who is the forester and timber inspector of the department of fisheries and forestry in Lautoka, which department I presume to be the user of the government vehicle. He swore that the first defendant hired a car from the second defendant. She drove the hired car into a government vehicle on 1 August 2011 and caused substantial damage. She was later charged by the police with careless driving and fined $200. I note that the “charge” was a Traffic Infringement Notice (TIN) under ss 86 and 92(1) of the Land Transport Act 1998 (which was annexed to his affidavit) for careless driving contrary to ss 91(1) and 114 of the Act which carried a fixed penalty of $200.
[5] The TIN was issued on the same day of the accident and paid on the same day, 1 August 2011. The plaintiff, as the legal representative of the government, filed a Writ of Summons in the Magistrates Court at Lautoka on 5 August 2011, claiming $12,595 as the estimated cost of repairs and damages against the first defendant as the driver and against the second defendant as being vicariously liable for the first defendant. That action is still pending.
[6] He further says that information from the police is that the first defendant will leave Fiji on 6 August 2011 and that it would be difficult to obtain payment of damages once she left the country. The department has not been able to contact her on her mobile and counsel was concerned that her whereabouts in Fiji are unknown.
[7] This application was brought within 4 days of the accident. The promptness with which these steps were taken to secure payment of the damage to the government vehicle is quite commendable. But speed cannot take precedence over the proper application of the law.
[8] I expressed my doubts to Mr Green that I did not think his application was supported by the case law. He submitted that the decision in Chetty v Director of Immigration [2009] FJHC 356; HBC0185.2009 (12 August 2009) did. He submitted that the civil debt in that case was sufficient to ground a DPO. I adjourned the hearing to consider the decision but after considering it I was not convinced and dismissed the application.
THE LAW
[9] It is true that in Chetty v Director of Immigration [2009] FJHC 356; HBC0185.2009 (12 August 2009) a DPO was granted to be effective until the applicant paid the debt arising out of a personal loan. But that case can be distinguished from the present because the debt in that case was admitted by the applicant.
[10] Secondly, I have some doubts that the debt in Chetty (supra) was one capable of supporting a DPO. See for example, Prasad v Carpenters (Fiji) Ltd [2004] FJCA 45; ABU0004.2004S (11 November 2004), where the Court of Appeal[1] said:
We turn next to order 4. In that order the Judge has made an order that a writ ne exeat regno do issue in the event of the Appellant attempting to leave or enter the jurisdiction of the High Court of Fiji. Mr Sahu Khan based his objection to this order on section 34 of the Constitution (as he had done in respect of order 3). Section 34 deals with the freedom of movement. We do not consider that section 34 prevents a court from ordering a writ ne exeat regno in a proper case. Mr Sahu Khan did not take his argument beyond his broad submission which rested on s.34.
A careful perusal, following the hearing, of some of the helpful text book references and authorities tendered by the Respondent's counsel has lead us to have some concern about order 4 which was not articulated by either counsel. We note that the Respondent's claim against the Appellant is based on a breach of contract and a breach of fiduciary duty (for present purposes we ignore the Respondent's reliance on unjust enrichment). These are claims both at law and in equity.
In Glover v. Walters (2950) [1950] HCA 1; 80 CLR 172 (HCA) Dixon J. said that a writ ne exeat colonia (The Commonwealth equivalent of ne exeat regno) was not available to a plaintiff suing in equity if he also had a claim at law arising out of the same facts. See also Felton v. Callis [1969] 1 QB 200 per Megarry J. and "Mareva Injunctions" by David Capper at p. 102 para 7.34.
[11] Thirdly, a balance needs to be struck even if the debt is one capable of supporting a DPO and I respectfully adopt the approach referred to by Calanchini J in Chetty (supra):
In Williams v R [1986] HCA 88; (1986) 161 CLR 278 Mason and Brennan JJ (as they then were) concluded that at common law the balance was to be decided in favour of the liberty of the subject. During the course of their joint judgment, at page 296 they stated:
"The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. .... Nevertheless, the balance between personal liberty and the exigencies of criminal investigation has been thought by some to be wrongly stuck.... But the striking of a different balance is a function for the legislature, not the courts. The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the accuracy of law enforcement."
Although the facts in the Williams case (supra) are different from the present application, the principles that the High Court applied in that case are equally applicable to the present case. The fact is that the Plaintiff's freedom of movement has been restricted by the stop departure order placed against him by the first Defendant. The subsequent restriction on his ability to travel to New Zealand has prevented him taking up employment pursuant to a work permit granted by the New Zealand Government.
The Plaintiff should be allowed to leave Fiji to take up employment in New Zealand.
CONCLUSIONS
[12] I think the facts of this case do not justify the grant of a DPO.
ORDERS
[13] I therefore dismiss the application.
Sosefo Inoke
Judge
[1] Penlington, Scott and Wood JJA
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URL: http://www.paclii.org/fj/cases/FJHC/2011/423.html