Kata v Social Democratic Liberal Party [2022] FJHC 6; HBC140.2021 (11 January 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC 140 OF 2021

BETWEEN:

TAITUSI RASOKI KATA of Namoli Village, Lautoka,

ILAITIA BAVADRA of Viseisei Village,Lautoka.
PLAINTIFFS

A N D:

SOCIAL DEMOCRATIC LIBERAL PARTY a body corporate duly registered pursuant to the

Political Parties (Registration, Conduct, Funding & Disclosures) Act 2013 having its registered office at

66 MacGregor Road, Suva

FIRST DEFENDANT

A N D:

RATU APENISA CAKOBAU c/ Party Headquarters, 66 MacGregor Road, Suva President.

SECOND DEFENDANT

A N D:

RATU NAIQAMA LALABALAVU, RO TEIMUMU KEPA and GEORGE SHIU RAJ all of Party

Headquarters, 66 Macgregor Road, Suva.

THIRD DEFENDANTS

A N D:

EMELE DUITUTURAGA of 66 MacGregor Road, Suva, General Secretary.

FOURTH DEFENDANT

A N D:

LENAITASI BIAUKULA of 66 MacGregor Road, Suva, Assistant General Secretary.

FIFTH DEFENDANT

Appearances: Mr. Maisamoa for the Plaintiffs/Respondents
Mr. Vananalagi for the Defendants/Applicants
Mr.S.Krishna for the Registrar of Political Parties (Interested Parties)
Date of Hearing: 26 November 2021
Date of Ruling: 11 January 2022

R U L I N G

1. The background to this case is set out in my earlier ruling (see Kata v Social Democratic Liberal Party [2021] FJHC 258; HBC140.2021 (8 October 2021).
   
2. It is the above interlocutory decision against which the 1^st to 5^th defendants seek leave to appeal.
   
3. The Interested Party joins the plaintiff’s in opposing the application.
   
4. After having considered the application, and having heard counsel, I refuse leave to appeal this interlocutory decision.
   
5. My reasons are encapsulated in the following extract from the Fiji Court of Appeal’s decision in Kelton Investments Limited and Tappoo Limited v 1. Civil Aviation Authority of Fiji, 2. Motibhai & Company Limited ([1995] FJCA 15, ABU 0034d.95s) as cited in Heffernan v Byrne [ FJHC 138; HBM105.2007 (24 (24 October 2007)
   

Principles on which leave is normally granted or refused

[11] Since this is an application for leave from an interlocutory order for which leave is necessary, I refer to the principles governing consideration of such an application. At the risk of being lengthy I reproduce the following extracts taken from Applicant Counsel’s submission in the case before Sir Moti Tikaram, the then President of Fiji Court of Appeal and which he thought was pertinent in Kelton Investments Limited and Tappoo Limited v 1. Civil Aviation Authority of Fiji, 2. Motibhai & Company Limited ([1995] FJCA 15, ABU 0034d.95s). ‘.....

5.2 The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible (per Murphy J in Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431 at 441-2). The legislature has evinced a policy against bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave (Décor Corp v. Dart Industries [1991] FCA 655; 104 ALR 621 at 623 lines 29-31).

5.3 Leave should not be granted as of course without consideration of the nature and circumstances of the particular case (per High Court in Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 224).

5.4 There is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. The appellant contends the Order of 10 May 1995 determines substantive rights.

5.5 Even "if the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation" (per Murphy J in the Niemann case at page 441). The appellant contends the order of 10 May 1995 determines substantive rights.

5.6 In Darrel Lea v. Union Assurance (169) VR 401 at 409 the Full Court of the Supreme Court of Victoria said:

"We think it is plain from the terms of the judgment to which we have already referred that the Full Court was stating that error of law in the order does not in itself constitute substantial injustice, but that it is the result flowing from the erroneous order that is the important matter in determining whether substantial injustice will result."’

[12] It is important that when applications are made from interlocutory orders the pronouncements in decided cases are considered. In this regard I further state below what I said sitting as a single Judge of Appeal in Edmund March & Ors. v Puran Sundarjee & Ors. [Civ. App. ABU 0025 of 2000 at p.9):

"As stated by Sir Moti Tikaram, President Fiji Court of Appeal in Totis Incorporated, Spor (Fiji) Limited & Richard Evanson v John Leonard Clark & John Lockwood Sellers (Civ. App. No. 35 of 1996 p.15: ‘it has long been settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal. Courts have repeatedly emphasised that appeals against interlocutory orders and decisions will only rarely succeed. The Fiji Court of Appeal has consistently observed the above principle by granting leave only in the most exceptional circumstances’."

Further in K R Latchan Brothers Limited v Transport Control Board, and Tui Davuilevu Buses Limited – Civil Appeal 12 of 1994 a full Court of Appeal (Tikaram J, Quillam J and Savage J) endorsed the decision of Thompson J, where sitting as a single judge of appeal, Thompson J said:

"In granting of leave to appeal against interlocutory orders is not appropriate except in very clear cases of incorrect application of the law. It is certainly not appropriate when the issue is whether discretion was exercised correctly unless it was exercised either for improper motives or as a result of a particular misconception of the law."

Also in Latchan at p5 it is stated in the judgment:

"We do not agree that the intended question of the Court of Appeal involves a point of law of any great significance. The control of proceedings is always a matter for the trial Judge. We adopt what was said by the House of Lords in Ashmore v Corp of Lloyd’s [1992] 2 All ER 486 –

‘Furthermore, the decision or ruling of the trial judge on an interlocutory matter or any other decision made by him in the course of the trial should be upheld by an appellate court unless his decision was plainly wrong since he was in a far better position to determine the most appropriate method of conducting the proceedings’."

6. Apart from the above, I do not think that the defendant would have absolutely zero chances of success if they were to be allowed to proceed to appeal.
   
7. Costs follow the event. I award costs to the plaintiff and the interested parties which I summarily assess at $1,000-00 (one thousand dollars only) each.
   

..................................

Anare Tuilevuka

JUDGE

Lautoka

11 January 2022