Bulu v Housing Authority [2005] FJSC 1; CBV0011.2004S (8 April 2005)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0011 of 2004S
(Fiji Court of Appeal No. ABU0057 of 2003S)

BETWEEN:

PENIONI BULU
Petitioner

AND:

HOUSING AUTHORITY
Respondent

Coram: The Hon Justice Kenneth Handley, Judge of Supreme Court
The Hon Justice Keith Mason, Judge of Supreme Court
The Hon Justice Mark Weinberg, Judge of Supreme Court

Hearing: Tuesday, 6 April 2005, Suva

Counsel: No Appearance by the Petitioner
Mr V. Maharaj for the Respondent

Date of Judgment: Friday 8 April 2005, Suva

JUDGMENT OF THE COURT

[1] THE COURT: The Petitioner seeks special leave to appeal from the decision of the Court of Appeal of 16 July 2004 which unanimously dismissed his appeal from a judgment of the High Court (Jiten Singh J.) Suva on 19 May 2003. He failed to appear when the case was called on although he had been present when the Chief Justice fixed the hearing date. The Court thereupon dismissed the petition with costs and reserved its reasons. Although the Court does not have to give reasons where the Petitioner fails to appear to support the petition the Court will do so because the petition was without merit, and a brief statement of the grounds on which special leave is granted or refused may be prove useful.

[2] Five of the grounds in the petition relate to the merits of the decision of the Court of Appeal, the sixth is a complaint about his legal representation in the High Court.

[3] The Petitioner’s complaints against his former lawyers in paragraph 4 of the petition are that he had arranged and paid for representation by a senior lawyer but was represented by a junior lawyer in the firm, that a material witness he wanted called had not been subpoenaed and was not available at the trial, and that his lawyer did not spend enough time with him in conference before the trial.

[4] These matters were not raised in the Court of Appeal and any attempt to do so would have faced considerable difficulties. An alleged deficiency in the performance of a legal adviser has not hitherto been accepted as an independent ground for setting aside a final judgment on the merits in civil proceedings. The Petitioner’s allegations have never been tested in Court and this could only be done properly at a trial in the exercise of original jurisdiction. It is no part of the duty and function of this Court under the Constitution to exercise original jurisdiction. Its relevant duty and function under s.122(1) and (2) of the Constitution is limited to the exercise of appellate jurisdiction. This is further restricted by the requirement for the grant of special leave by this Court under s.122(2)(b), or by the grant of leave by the Court of Appeal under s.122(2)(a) on a question of “significant public importance.” This Court has no power to grant special leave in respect of the Petitioner’s allegations in paragraph 4.

[5] The five grounds in paragraph 3 of the petition alleged that the Court of Appeal erred “in fact and in law” in the matters alleged. These grounds, so far as they relate to questions of fact, have been the subject of concurrent findings in the Court of Appeal and the High Court.

[6] The appellate jurisdiction of the Privy Council in cases from Fiji and other jurisdictions was exercised in appeals as of right and by special leave. Even in appeals as of right the Privy Council would rarely disturb concurrent findings of fact. See Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy [1946] AC 508. There is no appeal as of right to this Court and a Petitioner seeking special leave to review concurrent findings of fact faces considerable difficulties.

[7] The grounds in sub-paragraphs (a),(b),(c) and (d) raise questions of pure fact relating to the Authority’s policies and procedures for Non-Performing Accounts, the method it usually employed when undertaking a mortgage repayment adjustment, the normal way such an adjustment was entered into its computer, the adequacy of the opportunity given to the Petitioner to explain his conduct, and the accuracy of the High Court record.

[8] The only ground which involves the application of a legal standard is ground 3(d) which alleges error in finding that the Petitioner’s conduct amounted to grave and serious misconduct justifying summary dismissal. A finding on this issue in a particular case will generally involve a mixed question of fact and law. In the present case there can be no doubt that the Petitioner was guilty of misconduct and the question whether it was sufficiently grave and serious raised a question of fact and degree.

[9] The decision in such a case will be fact specific and will establish no precedent for other cases. Section 122(2)(b) of the Constitution provides, in cases such as this, where the Court of Appeal has not granted leave to appeal, that this Court can only hear an appeal from the Court of Appeal if it grants special leave. The Constitution allows the Supreme Court to determine for itself whether a case is sufficiently “special” to warrant the grant of leave.

[10] The requirements for a grant of special leave were worked out by the Privy Council over many years. The case had to be one “of gravity involving matter of public interest, or some important question of law, or affecting property of considerable amount and where the case is otherwise of some public importance or of a very substantial character”: Daily Telegraph Newspaper Company v. Mc Laughlin [1904] UKLawRpAC 45; [1904] AC 776,779. Even so special leave would be refused if the judgment sought to be appealed from was plainly right, or not attended with sufficient doubt to justify the grant of special leave Ibid 778-9. A decision on the facts of a particular case: Ibid 779, or on the construction of a particular agreement did not warrant the grant of special leave: Albright v. Hydro-Electiric Power Commission [1926] AC 167,169.

[11] This Court has regularly applied these principles. See Disciplined Services Commission and Anor v. Naiveli (S/C CBU0001 of 2000, 24 October 2003) and Elsworth v. Yanuca Island Limited (S/C No. 8 of 2002, 24 October 2003).

[12] Section 7(3) of the Supreme Court Act 1998 provides in relation to a civil matter that:

“.. the Supreme Court must not grant special leave to appeal unless the case raises –

(a) a far-reaching question of law;

(b) a matter of great general or public importance;

(c) a matter that is otherwise of substantial general interest to the administration of civil justice.”

[13] It can be seen that s.7(3) substantially codifies the principles developed by the Privy Council for the grant of special leave. This Court may have to consider at some stage whether a miscarriage in a particular case falling outside s.7(3) could attract a grant of special leave. This would turn on whether the Parliament could validly fetter the discretion of this Court to grant special leave, and on the scope of s.122(1) which provides that this Court’s jurisdiction is “subject to such requirements as the Parliament prescribes.” No such question could possibly arise in this case.

[14] There is no ground for the grant of special leave in this case and there is no reason for doubting the correctness of the decision of the Court of Appeal. The petition should be dismissed with costs.

Justice Kenneth Handley
Judge of Supreme Court

Justice Keith Mason
Judge of Supreme Court

Justice Mark Weinberg
Judge of Supreme Court

Solicitors:

No Appearance by the Petitioner
Messrs Maharaj Chandra and Associates, Suva for the Respondent