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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Judicial Review No. HBJ 4 of 2007
IN THE MATTER
of an application by
DHARMENDRA SINGH
of Basoga, Labasa, Self-employed for leave to apply for a Judicial Review under Order 53 of the High Court Rules for Declaration and Certiorari against the decision of
the Minister of Finance, National Planning and Sugar Industry.
AND
IN THE MATTER
of an application by
DHARMENDRA SINGH
of Basoga, Labasa, Self-employed for an order for Certiorari to quash the decision of the Minister of Finance, National Planning and Sugar Industry whereby the Minister dismissed the Appeal of the Applicant
and upheld the decision of the Tax Agents Registration Board that had refused the Applicants appeal against de-registration as a
Tax Agent.
AND
IN THE MATTER
of an application by
DHARMENDRA SINGH
of Basoga, Labasa, Self-employed for relief under Republic of Fiji Constitution and/or under the Human Rights Act.
AND
IN THE MATTER
of alleged breaches of the principles of natural justice.
STATE
-v-
MINISTER OF FINANCE, NATIONAL PLANNING AND SUGAR INDUSTRY,
Ro Lalabalavu House, Victoria Parade, Suva, Fiji.
TAX AGENTS REGISTRATION BOARD,
Level 3, Ro Lalabalavu House, Suva
ATTORNEY GENERAL OF FIJI
EX-PARTE :
DHARMENDRA SINGH
of Basoga, Labasa, Self-employed.
APPEARANCE: MR AMRITH SEN for the Applicant
MR VAINAVALU J for the Respondents
JUDGMENT
2. The applicant in his affidavit stated;
2.1 The Applicant had crave leave to refer to the Judgements delivered the Court:
a) Judgement of Justice Coventry dated 10th December 2007;
b) Judgement of Justice Hettiarachchi dated 9th December 2011.
2.2 Pursuant paragraphs 25 and 35 of the Judgement of Justice Hettiarachchi the Tax Agents Registration Board had to comply with the order of Justice Coventry dated 30th November 2007.
2.3 The Respondents have failed to comply with the order of the Court and its contempt.
2.4 Indemnity costs ordered by Hon. Justice Hettiarachchi remain unpaid.
2.5 The Applicant in compliance with the orders had paid the necessary fees to the Respondent.(Annexure A).
2.6 The Respondent had accepted the Applicant's registration but has not provided the Agent Certificate.
2.7 Although the Applicant's name was Published by the Inland Revenue Department on 3 occassions as registered tax agent but reasons best known to the Respondents, the original copy of the certificate of registration was not issued to the Applicant .Annexure B- copy of the News paper article.
2.8 The Applicant's solicitors had written to the Respondents seeking indemnity costs and the Respondents had not replied.
3. In reply to the Affidavit of the Applicant Mr. Ajendra Sharma, Para Legal Officer of the office of Attorney General office sworn an Affidavit dated 6th day of December 2012 and filed on 6th December 2012 on behalf of the Respondents, which stated:
3.1 Paragraph 1 of the Applicants affidavit was admitted.
3.2 In reply to the paragraph 2 of the Applicants affidavit it was stated the Hon. Justice Hettiarachchi upheld the judgement of the Hon. Justice Coventry that the decision made by the Minister of Finance to disallow the appeal by the Respondent before the Tax Registration was wrong.
3.3 Both learned Judges while declaring that the Minister had erred in decision did not order in their Judgements that the Applicant must be registered as a Tax Agent.
3.4 Justice Coventry adjudged that the Respondents need to test the Applicant to determine whether he is a fit and proper person to be appointed as a Tax Agent.
3.5 In line with Hon. Coventry's Judgement and in line with Hon. Justice Hettiarachchi's reasoning the Respondent attempted to comply with the orders set out by Justice Coventry in his Judgement dated 30th November 2007 by setting up a special examination for the Applicant.
3.6 Mr. Sharma averred that following the ruling of Hon. Justice Hettiarachchi the Parties attempted a settlement. The Respondent by its letter dated 1st March 2012 informed the Applicant's Solicitors, the Respondent's intention to go ahead with the examination indicating the date of the examination (Annexure marked A to the affidavit of Sharma).
3.7 On 13th March 2012 the Applicant through his solicitor wrote to the Respondents refusing to sit for the examination (Annexure B to the affidavit of Sharma).
3.8 The Respondents admitted paragraph 4 of the affidavit of the Respondent stated that any indemnity costs should be taxed.
3.9 Paragraph 4 is admitted.
3.10 It was averred that no comments can be made on Paragraph 6 of the affidavit.
3.11 Paragraph 7 was admitted save and except the Respondent has no knowledge as to why the original copy of registration has not been issued the Applicant assuming there is one such certificate.
3.12 In replying to paragraph 8 no proof of annexure has been put forward by the applicant that he has written to the Respondents claiming for indemnity costs. On the contrary Mr. Sharma being advised by his solicitors for the Respondents that any claims for indemnity costs will be defended accordingly by the Respondents.
3.13 The Respondents prayed that:
(a) that they be given leave to amend the affidavit when new and better particulars of this case are to be surfaced;
(b) to struck out the Applicant's summons with costs.
4. Further supplementary affidavit was sworn by Mr. Vijay Singh Secretary to the Tax Agents Registration Board on 24th of January 2013 filed on 1st February 2013 in which he averred.
4.1 In replying Paragraph 5 of the Applicants affidavit the fees paid by the Applicant to Fiji Revenue and Customs Authority (FRCA) was made to the cashier section and not to the Secretary to the Board. The cashiers do not have the authority to differentiate or disallow the payments made on production of correct Tax identification number.
4.2 Had the Respondent being informed in advance by the Applicant it would have advised that payment of the said fees will not guarantee him the renewal of his registration.
4.3 The affirmant being the Secretary to the Tax Registration Board was not notified by The Applicant about his Payments and as such he had no knowledge of any fees being paid. If it was informed the affirmant would have being advised to hold on to the payment until the issue of Applicant's qualification was settled.
4.4 In reply to Paragraph 7 of the Affidavit it was admitted the Applicants name was published inadvertently but a week in or about July 2011 and amended advertisement was filed excluding the Applicant's name
5. Counsels for both parties made their oral submissions when the matter was taken up for hearing on 3rd December 2012
5.1 Counsel for the Applicant submitted that the Applicant was allowed to practice for 6 months after Hon. Justice Hettiarachchi's order and previously Hon. Justice Coventry's order. In replying tothe applicant's Counsel for the Respondents stated that following Hon.Justice Hettiarachchi's Judgement special examination was called for and the applicant refused to sit for the examination. It was also submitted none of the Judgements stated not to follow the procedures.
5.2 At this stage the Respondent sought leave from the Court to file the response to the affidavit of the applicant. Accordingly the Court ordered
(i) The respondents to file the Response before 10th December 2012;
(ii) The applicant to file if any reply before 22nd of December 2012;
(iii) Both parties to file their submissions before 6th February 2013.
5.3 The, respondents filed an affidavit on 6th December 2012 and Supplementary affidavit on 01st February 2013. The Applicant filed its submissions on 5th February 2013 and the Respondents filed their submissions on 7th February 2013.
Analysis and Findings
6. At the outset of this Judgement I state that this Court cannot deal with the Judgements delivered by Hon. Justice Coventry and Hon. Justice Hettiarachchi. The issue I should decide is whether the Parties have taken steps to abide by the deliberations and orders made by Hon. Justice Hettiarachchi who dealt with the Judgement of Hon. Justice Coventry.
7. As correctly pointed out by Justice Hettiarachchi, Applicant cannot reargue the same issues which has already being determined by Justice Coventry. The Applicant in his submissions stated that the matter being relitigated before Justice Hettiarachchi which is incorrect. The application by the Plaintiff was taken before the Hon. Judge in terms of Order 45 rule 5 (1) of the High Court Rules which states
"Notwithstanding that a Judgement to do an act specifies a time within which the act to be done, the court shall, without prejudice
to Order 3, Rule 4 have power to make an order requiring the act to be done within another time, being such time after service of
that order, or such time, as may be specified therein"
8.
8.1. As stated by the Applicant there was no issue of relitigation before Justice Hettiarachchi he only made findings under Order
45 rule 5(1) and this Court too shall determine only on the issue As to whether orders should be made considering both Judgments.
8.2 It was finding of Justice Hettiarachchi that in terms of Justice Coventry's Order, requiring the Respondents to hold a special examination for the Applicant. The Applicant submitted Hon. Justice Hettiarachchi had ordered the Respondent Tax Registration Board to comply with Justice Coventry's Judgement dated 30th November 2007. The Applicant submitted that the Respondents had made it clear that there are no examinations available for the Applicant to sit and therefore any issue of examination should not be considered. I do not agree with the submission for the reason that Judge Hettiarachchi addressed this issue and made his finding in Paragraph 31 of his Judgement:
"(31) The Respondents in their submissions laid great stress on the fact that the Applicant does not possess the required qualifications, which is in my view is an attempt to deviate from the main issue. What the Respondents must do is to hold a special exam for the Applicant as ordered by court without finding ways and means to escape from their obligation. This Court cannot allow a party to circumvent a Court order which is still valid"
8.3 It is clear the requirement of a special examination was not waived by Justice Hettiarachchi and he in fact ordered to have a Special Examination for the Applicant which was denied by the Tax Registration Board stating that examination requirement was scrapped in 1998.The Applicant's submission that issue of examination should not even be considered and the only matter to be considered was to get the Applicant's Tax affairs right fails. Similarly, Hon Justice Hettiarachchi had rejected the Respondent's position that there is no requirement to have an examination.
9. Hon. Justice Coventry in his Judgement held that Paragraph (15):
"If the Applicant is successful in his examinations, then it is a matter for the Board, in accordance with its statutory Powers, to decide what if any course to take its allegation that Mr. Singh is not a fit and proper person"
Hon. Justice Coventry had granted Orders under Paragraph (a) (c) and (g) of the Originating summons:
"(a) Order of Certiorari removing the decision of the Minister of Finance, National Planning and Sugar Industry dated 13th April 2007................"
"(c) Order of Certiorari to quash the decision of the Minister of Finance National Planning and Sugar Industry dated 13th April 2007 and 17th May 2007 upholding and ................... upon the grounds contained in the statement and affidavit of the Applicant and duly filed ......... if leave is granted it should operate as a stay........."
"(g) concerning costs"
i.e. Ordered to Pay assessed costs of $3000.00....."
In light of the Judgement of Hon. Justice Coventry, The Tax Agents Registration Board was not prevented from following the normal procedures under statutory powers for registration of the Applicant except the special examination was to be held for the Applicant.
10. I am not considering Annexures A and B to the Affidavit of the Applicant since I am dealing only with the two Judgements already delivered and the said annexures are not material to arrive at conclusions in this matter. The Respondent by its letter dated 1st March 2012 informed the Applicant, that an examination will be facilitated in late March for the Applicant and the Applicant will be duly advised of the date and Venue (Annexure A to the Affidavit of Ajendra Sharma sworn on behalf of the Respondents) Annexure B of the said Affidavit is the reply by the Solicitors of the Applicant demanding the registration of the Applicant quoting the Judgements of Hon. Justice Coventry and Justice Hettiarachchi. As I stated in the preceding paragraphs the Respondents were ordered to have an examination for the Applicant. The Applicant refused to sit for the examination and I hold the Applicant had prevented the Respondent complying with the Court order and the Applicant should take responsibility for his action.
11. I do not agree with the submissions made by the Respondent with regard to indemnity costs ordered by Hon. Justice Hettiarachchi. The Respondents position was that:
(i) when the earlier ruling of Justice Conventry came out, the Respondents could not hold an examination since that requirement was scrapped from the MQR (Minimum Qualification Requirement). It was something beyond the Respondent's control;
(ii) the Respondents had attempted to comply with the order by granting a special examination to the Applicant which he refused and continues to refuse to sit. The delay in effecting the order is through the Applicant's fault and if anything, he has partly been the cause of his own misery thus far.
However, Hon. Justice Hettiarachchi's finding clearly stated in paragraph (17) and (18) of the Judgment:
"(17) However, a careful analysis of the MQR shows that those qualifications are required for the new applicants who wish to apply for registration as tax agents.
(18) It does not apply for renewal of registrations. In any event it further states that the tax agents who had been deregistered in past and wish to be reinstituted should reapply for registrations provided they meet the new criteria, and applications from those who do not meet new criteria will not be accepted".
There is no room for the Plaintiff to relitigate on indemnity costs. The Respondents would have lodged an appeal against the indemnity costs if they were not satisfied and I conclude that the Respondent should pay the indemnity costs to the Applicant.
Delivered at Labasa this 5th Day of March, 2013.
........................................
C Kotigalage
JUDGE
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