Koroi v Ravuvu (No.1) [2001] FJLawRp 119; [2001] 2 FLR 32 (10 January 2001)

HIGH COURT OF FIJI

Civil Jurisdiction

HBC 007/01L

JOKAPECI KOROI, MAHENDRA PAL CHAUDHARY & FIJI LABOUR PARTY

v

ASESELA RAVUVU, JOE SINGH & DR. APENISA KURISIQILA (No. 1)

9, 10 January 2001

Interim Injunction – pickwick basis - injunctions sought against Constitution Review Commission appointment - use of public funds - contempt – locus standi of Commission – whether to grant interim stay until further order – impending decision of Court of Appeal in Republic of Fiji & Attorney-General v Chandrika Prasad (No. 1)

The Plaintiffs sought declaratory orders concerning the validity of the appointments of members of the Constitution Review Commission, that the Commission had no authority to draw allowances for its members from public funds, that the Commission's hearings to date have no standing at law and that the Defendants are in contempt. They also sought injunctions restraining the members of the Commission from further sittings, refund of their transport and sittings allowances paid out to date and damages against the Commission and its members. The Court ordered that an ex parte application be served inter partes on the Defendants, allowing Defendants' counsel to appear. Defendants' counsel raised preliminary objections, although he had not had time to be briefed on likely arguments and evidence in response. In the face of a stay application before the Court of Appeal in Republic of Fiji & Attorney-General v Chandrika Prasad (No. 1) Defendants' counsel urged a cautious approach. Plaintiffs' counsel sought an interim stay till further order and the matter to be reconsidered if the Court of Appeal allowed a stay of the High Court Judgment. Plaintiffs' counsel pointed out that meanwhile the Commission was wrongfully using public funds and flouting the rule of law.

Held – The application was of considerable and general concern. The Court was concerned to uphold the rule of law, else only chaos and the rule of bullies will prevail. However, in light of an impending decision of the Court of Appeal on stay in Republic of Fiji & Attorney-General v Chandrika Prasad (No. 1), the Court was reluctant to disrupt the workings of the Commission by making an interim order without fuller arguments.

Interim injunction refused so as not to disrupt workings of Commission and application adjourned for full hearing. Timetable orders made for parties to file affidavits in Court.

[note: the Plaintiff filed a Notice of Discontinuance on 17 May 2001]

Cases referred to in Ruling

ref Chandrika Prasad v Republic of Fiji & Attorney-General (No. 4) (2000) 2 FLR 89; [2001] NZAR 21; 1 LRC 665
Pickwick Inc. Ltd. v Multiple Sound Distributors Ltd. [1972] 1 WLR 1213.

Vipul Mishra and Laurel Vaurasi for the Plaintiffs
Kitione Vuataki for the defendant

10 January, 2001 RULING

Gates, J
On 5th January 2001 the Plaintiffs filed a writ seeking certain declaratory orders. These concern the validity of the Constitution Review Commission the appointment of which had been gazetted on 17th October 2000. They also seek declarations that the Commission has no authority to draw allowances for its members from public funds and that the Commission's hearings to date have no standing at law.

Additionally the Plaintiffs seek in their writ injunctions restraining the members of the Commission from further sittings, and the refund of their transport and sittings allowances paid out to date. They also seek a declaration that the defendants are in contempt, and damages against the Commission and its members. They came to court today with an ex parte notice of motion dated 8 January 2001 supported by the affidavit of Jokapeci Koroi the first named Plaintiff, also sworn and filed on 8 January 2001. The motion seeks parallel remedies to the writ.

In the time available since yesterday Mr. Mishra has properly served the Commission with these papers so that it could arrange counsel to attend on its behalf. Although I heard the application for an interim injunction as an ex parte application, I was able to learn from Mr. Vuataki preliminary views on the defendants' objections. This procedure is derived from a practice which had developed over the years but which Megarry J. eventually provided name and citation for in Pickwick Inc. Ltd. v Multiple Sound Distributors Ltd. [1972] 1 WLR 1213. At 1214G his lordship summarised the utility of the procedure:

"In most cases the court will obviously be assisted in deciding whether or not to grant the ex parte injunction by knowing what contentions may be advanced against the grant, and what is the general line of the evidence in opposition that is likely to be filed when the applicant later moves on notice. An advantage to the applicant is that the court, having heard what there is to be said in opposition to the grant of the injunction may sometimes be encouraged to grant an injunction that otherwise would be refused."

In this case however it was too early for Mr. Vuataki to have been briefed on the likely arguments and evidence in response. He agreed with the court that a cautious approach was necessary, until the ruling of the single Judge of Appeal on stay in Chandrika Prasad v The Republic of Fiji (unreported) No. HBC0217/2000L 15th November 2000. This case dealt with the related issue of the validity of the Constitution.

Mr. Mishra urged the court to grant an interim stay till further order. He said the High Court had upheld the Constitution in Chandrika and had refused to stay the Constitution. The matter might have to be reconsidered if the Court of Appeal were to allow a stay. Meanwhile the Commission was wrongfully using public funds and flouting the rule of law.

This was a matter of considerable and general concern.

Undoubtedly the upholding of the rule of law is the single most important aspect of the law in any land. Without it, only chaos and the rule of bullies will prevail. However I am minded to await the decision of the single Judge of Appeal on stay in Chandrika, if it is to be within a day or so of 15th January 2001, before proceeding to a hearing on this interlocutory application. I am not minded to disrupt the workings of the Commission by making an interim order without fuller arguments. No line of argument however has yet been advanced by the defendants on the necessity for the continuance of sittings of the Commission pending the main Chandrika appeal on 19th February 2001 before the full Court of Appeal.

Instead, in readiness for the interlocutory argument in the instant case I make the following orders:

1. Defendants to file and serve affidavits in opposition by 4pm 12th January 2001.
   

2. Any affidavits in reply by Plaintiffs by 4pm 16th January 2001.

3. Injunction application for hearing at 2.30pm 17th January 2001.
   

4. Because of the public interest in these constitutional cases I shall hear this matter in Court No. l in open court.

Application for interim injunction declined. Matter listed for hearing.

Marie Chan