Stephens v Attorney-General (Minority Judgment) [1998] FJSC 13; CBV0002E.1996S (6 April 1998)

IN THE SUPREME COURT OF FIJI
AT SUVA
ON APPEAL FROM THE FIJI COURT OF APPEAL

CIVIL APPEAL NO. CBV0002/1996S
(Fiji Court of Appeal Civil Appeal No. ABU0064/92S)

BETWEEN:

ANTHONY FREDERICK STEPHENS
Appellant

AND:

THE ATTORNEY-GENERAL
Respondent

Coram: The Hon. Sir Timoci Tuivaga, President
The Rt. Hon. Lord Cooke of Thorndon
The Hon. Sir Anthony Mason

Hearing: 12 March, 1998

Counsel: Mr. R. Douglas Q.C., Mr. G.P. Lala and
Mr. K. Vuataki for the Appellant
Mr. D. Singh, for the Respondent

Judgment: 6 April, 1998

JUDGMENT OF SIR ANTHONY MASON

As the joint judgment of the Chief Justice and Lord Cooke of Thorndon has related the astonishing saga surrounding the appellant’s claim to enforce the deed of settlement dated 17 September 1992, I am able very briefly to express my reasons for allowing the appeal.

In the light of the issues sought to be raised by the parties, which included issues of fact, the Court of Appeal was right in concluding that the case was not appropriate to be commenced by originating summons and that it would have been preferable if the High Court Judge (Scott J.) had ordered under Order 28 r. 9 (1) that the proceedings should continue as if begun by writ. At first instance, Scott J. had acknowledged that ascertainment of the legal status of the deed could well involve the resolution of contested issues of fact but nevertheless concluded that he was able to determine the sole issue before him on the basis of facts that were not in issue.

The Court of Appeal took a similar view, though by no means completely agreeing with the reasons advanced by Scott J. for concluding that the Attorney-General had neither actual nor ostensible authority for entering into the deed of settlement. The Court of Appeal considered, rightly in my view, that there was strength in the submission that the power of the Attorney-General to enter into the deed was not to be determined by the provisions of the Constitution dealing with finance or the matter of Parliamentary appropriation, but by the answer to the question whether he had authority to enter into the need. The Court of Appeal went on to hold that he had neither actual nor ostensible authority.

The two actions brought by the appellant which were the subject of the settlement purportedly effected by the deed were actions brought against the Attorney-General as nominal defendant of the State. The State Proceedings Act (Cap. 24) provides that the Attorney-General shall be the nominal defendant in all proceedings against the state. The Court of Appeal considered, however, that the effect of the statute is not to make the Attorney-General the agent of the State for the purpose of making contracts in respect of matters arising out of activities of other departments of government. In this case, the claims made by the appellant in the actions arose out of wrongful detention by the Police and it appears that the Prime Minister was Minister for Home Affairs and as Minister for Home Affairs had departmental responsibility for the Police.

This approach to the issue of authority attributes little significance to the fact that the Attorney-General is, pursuant to statute, the actual defendant in the proceedings, even if he is properly described as nominal defendant. Historically the Attorney-General acted as the representative of the Crown in the courts. In the case of Fiji, the Constitution provides that the Attorney-General is the principal legal adviser to the government (s.86) and the effect of the State Proceedings Act seems to make the Attorney-General the State’s representative in the Courts. In this situation, it is certainly arguable that, as the defendant in the two actions, he had authority to conduct the proceedings and, if need be, to bring them to a conclusion by settling them, though there is also a question, assuming the existence of an authority to settle, whether it extends to matters outside the actions themselves, that is, to all the matters for which the deed makes provision and, if not, what the legal effect of that excess of authority would be.

What I have just said is enough to cast some doubt on the basis on which the Court of Appeal had disposed of the case and to reinforce the impressions voiced by the courts below that the trial should have proceeded as if it had commenced by writ. Then all issues relating to actual and implied authority would have been clearly identified and dealt with as a matter of oral and documentary evidence in the ordinary course without any need to make findings of fact on the basis of the fragmentary materials in the affidavits.

Although the appellant is partly at least the author of his own misfortune in choosing to proceed by way of originating summons, the frailties of that mode of proceeding

were recognised by the courts below. Despite that recognition, it was thought that the case could be resolved by focusing on some issues to the exclusion of others, a course which, to my mind has proved unsatisfactory.

The question then is whether the Court should dismiss the appeal for a reason not considered by the courts below, namely that the appellant did not in his answering affidavit contradict the statements in Mr. Seru’s affidavit of 19 November 1992 that the appellant told him that he would not seek to enforce any settlement on the government, that the deed was merely to enable him to obtain finance and that once the financial deal was arranged he would withdraw his claim against the government. In response to questions from this Court, counsel for the respondent asserted that the respondent had relied on the failure of the appellant to deny these statements as an answer to the claim that the deed was enforceable. I do not doubt that this was so in the sense that the representations were seen as a collateral warranty, that being the character given to them by the respondent in the High Court. But the appellant’s failure to answer a case based on the representations seems not to have been pressed as an answer to the appellant’s case before the primary judge and the Court of Appeal. There is no reference in the judgments of the courts below to the argument as one that had been presented for their determination.

That being so, I do not consider that the argument is one to which this Court should now give effect. It is, of course, well settled that a respondent to an appeal may support the judgment in his favour in the court below by taking a point of law not previously argued so long as there is no possibility that had the point been taken evidence could have been given which would have prevented the point from succeeding (Louinder v Leis [1982] HCA 28; (1982) 149 CLR 509, Coulton v Holcombe [1983] HCA 32; (1986) 152 CLR 1). The present case, however, is one in which that possibility has not been controverted. We do not know why it is that the appellant did not file an appropriate answering affidavit; nor do we know why the point was not argued by the respondent before the primary judge and the Court of Appeal.

On the facts as we know them, the appellant faces a difficult task in establishing that the deed is enforceable. Apart from the issue of authority and the representation, which it is claimed, induced the Attorney-General to sign the deed, there are other questions including the question whether the appellant believed that Mr. Seru had authority, as well as the question whether the deed is inconsistent with public policy. But these circumstances do not justify dismissal of the appeal on a ground not dealt with by the courts when the point was not agreed by the respondent and may be affected by evidence which could possibly be given by the appellant.

I would allow the appeal and make orders enabling the matter to proceed before the High Court as if commenced by writ.

Sir Anthony Mason

Solicitors:

G.P. Lala & Associates, Suva and Vuataki, Prasad & Associates,
Lautoka, for the Appellant
Attorney-General’s Chambers, Suva for the Respondent