Gopal v Attorney-General [1992] FJLawRp 14; [1992] 38 FLR 211 (6 November 1992)

[1992] 38 FLR 211

HIGH COURT OF FIJI

Civil Jurisdiction

RAMA GOPAL

v

ATTORNEY-GENERAL

Fatiaki J

6 November 1992

Practice (Civil) - application for declaratory relief- challenging the exercise by a public official of a power derived from statute - whether Originating Summons a permissible procedure.

The Plaintiff sought a declaration that the confiscation of his passport by Immigration officers had been illegal. The Respondent submitted that the proceedings should be struck out as Judicial Review, was the only appropriate procedure. The High Court HELD: dismissing the Respondent's application, that although Judicial Review might be the more appropriate procedure a private law claim commenced by originating summons was not, in the circumstances, excluded.

Cases cited:

CCSU v Minister for Civil Service [1985] 1 AC 374
Davy v Spelthorne B. C. [1984] 2 AC 262
Pyx Granite Co. Ltd v Minister of Housing & L. G. (1960] AC 200

Interlocutory application in the High Court

H. Lateef for the Plaintiff
P. Cowey for the Defendant

Fatiaki J.:

On the 28th of September 1991 the plaintiff was prevented by an Immigration Officer from boarding a flight out of Nadi Airport bound for Sydney on which he had earlier checked-in as a passenger. In particular the plaintiff's passport was seized by the immigration official and he was advised to collect it at the main Immigration Office in Suva.

The following Monday the 30th of September, 1991 the plaintiff inquired about his passport at the Immigration Office in Suva and was told to call back in 2 weeks as its whereabouts was unknown. To this day no reason has been given for the seizure and detention of the plaintiff's passport nor has it been returned to him.

The plaintiff then instituted CA No.552/91 by way of a Writ of Summons and a Statement of Claim seeking an interim declaration, the return of his passport and damages for false imprisonment. That action has since been discontinued.

The present action filed on the 24th of June, 1992 (almost 9 months after the plaintiff's passport was seized) is in the form of an Originating Summons in which the plaintiff seeks a declaration:

"That the seizure and detention of the plaintiff's passport by servants or agents of the Defendant is contrary to law and an abuse of the powers conferred on the Defendant by the Passport Act."

In opposing the application learned counsel for the defendant has raised a preliminary objection to the form of the action which learned counsel submits, having regard to the circumstances of the case, the plaintiff ought to have brought by way of an application for judicial review.

Order 5 rule 4(2) of the High Court Rules clearly recognises that:

"Proceedings –

(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act ... or some other question of law, or

(b) in which there is unlikely to be any substantial dispute of fact,

are appropriate to be begun by originating summons ..."

Order 15 rule 16 of the High Court Rules also provides that:

"No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed."

Furthermore Order 53 which specifically deals with applications for judicial review provides inter alia in rule 2 that

"(2) An application for a declaration ... may be made by way of an application for judicial review ..."

(my underlining)

thereby recognising that judicial review is but one form of action for seeking declaratory relief.

Clearly any question about the appropriateness of the procedure adopted by the plaintiff in this action needs to be carefully examined in the context of the above Rules and bearing in mind the observations of Viscount Simonds in Pyx Granite Co. Ltd. v. Minister of Housing and Local Government [1960] AC 260 when he said at p.268:

"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's Courts for the determination of his rights is not to be excluded except by clear words."

and of Lord Goddard when he said at p.290 (ibid):

"I know of no authority for saying that if an order or decision can be attacked by certiorari the Court is debarred from granting a declaration in an appropriate case. The remedies are not mutually exclusive, though no doubt there are some orders, notably conviction before justices, where the only appropriate remedy is certiorari."

It is common enough ground that the plaintiffs present action and complaint relates to the exercise of powers conferred on an Immigration Officer in terms of Section 7 of the Passport Act (Cap. 89) which reads:

"7-(1) It shall be lawful for..... any immigration officer ... to take and retain possession of any passport in any case where he has good reason to believe that the passport is in the wrongful possession of any person, or that the passport or a renewal or endorsement in respect thereof has been obtained by means of any false or misleading representation or of any statement that is false or calculated to mislead in a material particular."

In C.C.C.S.U. v. Minister for Civil Service [1985] 1 AC 374 Lord Diplock said of the remedy of judicial review at p.408:

"Judicial review ... provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I shall call the "decision-maker" or else a refusal by him to make a decision.

To qualify as a subject for judicial review the decisions must have consequences which affect some person (or body of persons) other than the decision-maker ... It must affect such other person either:

(b) by depriving him of some benefit or advantage which either (1) he had in the past been permitted by the decision- maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment ..."

and later in identifying the public law element of the remedy he said at p.409:

"For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration, by agreement between private parties) to make decisions, that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned ... The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute ..."

Having regard to the nature and basis of the plaintiffs complaint in this case as earlier outlined when viewed in the light of the above dicta of Diplock L.J. there can be no doubting the force of the submissions of learned counsel for the defence that an application for judicial review is the appropriate procedure for challenging the exercise by a public official of a power derived from a statutory provision.

But with all due respect to learned counsel's submissions the existence of a more appropriate procedure per se does not ipso facto preclude or exclude the availability of other albeit less appropriate forms of action. Indeed if that were necessarily so then even the defendant's present application under Order 33 r.3 might be considered to fall within the latter category.

As was trenchantly observed by Lord Wilberforce in Davy v. Spelthorn Borough Council [1984] 2 AC 262 at pp.271-277:

"... Before the expression 'public law' can be used to deny a subject a right of action in the Court of his choice it must be related to a positive prescription of law, by statute of by statutory rules. We have not yet reached the point at which mere characterisation of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary Courts: to permit this would be to create a dual system of law with the rigidity and procedural hardship for plaintiffs which it was the purpose of the recent reforms to remove."

In the light of the above I am unwilling to accept having regard to the nature of the defendant's application that it ought to be granted and accordingly it is dismissed with costs to the plaintiff to be taxed if not agreed.

By way of further directions the defendant is hereby ordered to file and serve on the plaintiffs solicitor an answering affidavit (if considered necessary) within 14 days of the date hereof.

(Application dismissed.)