Prasad v Republic of Fiji (No. 2) [2000] FijiLawRp 11; [2000] 2 FLR 44 (23 August 2000)

[2000] 2 FLR 44

IN THE HIGH COURT OF FIJI

CHANDRIKA PRASAD

v

REPUBLIC OF FIJI &
ATTORNEY-GENERAL (No. 2)

High Court Civil Jurisdiction
Gates, J
23 August, 2000
HBC 0217/00L

Striking out - locus standi and whether reasonable cause of action - no application for filing of affidavits out of time - fluidity of crisis requiring urgency in hearing summons

At the first appearance of this matter, the Court requested appropriate evidence relating to the acceptance or non-acceptance of the state of affairs and government at the relevant time, and made orders for supplementary affidavits and setting a further hearing date. The respondents did not file an affidavit but filed a summons to strike out the applicant's Originating Summons. The summons did not seek a suspension of the orders for filing affidavits while the hearing of summons to strike out was pending. Counsel for the respondent urged the Court to hear the application to strike out before considering the Originating Summons.

Held - Given that the factual situation in Fiji in respect of the present crisis changes weekly and required the Originating Summons to be heard with despatch, both application to strike out and the Originating Summons would be heard together.

Ruling that application to strike out and the Originating Summons would be heard together.

No Cases referred to in Ruling

Dr Williams and Anu Patel for the applicant.
Janmai Udit and Anare Tuilevuka for the respondents

23 August, 2000.

RULING

Gates, J

Mr. Udit for the 1st and 2nd Respondents urges the Court to hear his summons to strike out which was filed on 7 August 2000 before going on to deal with the Originating Summons of 30 June 2000.

The matter came before the court first on 14th July 2000. At that time I raised my concern with both counsel that there be available before me appropriate evidence relating to the acceptance or non-acceptance of the state of affairs and government of Fiji at the relevant time.

Accordingly orders for a supplementary affidavit from the applicant in person were made, including allowing 10 days for the Respondents to oppose with another 3 days for the applicant to reply. The hearing was set for 23 August 2000. Dr. Shameem, to whose appearance no objection was taken then by Mr. Udit, was present for the applicant and I remember setting the time for the application at 10am and asking Dr. Shameem if this allowed sufficient time for her to arrive from Suva.

At that time it will have been obvious to counsel for the respondents that locus was likely to be an issue as well as the reasonableness of the cause of action.

The court was not forewarned of a striking out summons, though such a summons was eventually filed on 7 August 2000 by the respondents. That summons did not seek a suspension of the orders for filing of the affidavits in the meanwhile pending the hearing of the summons to strike out.

The factual situation in Fiji in its present crisis changes from week to week. Therefore there is need for such an application to be handled with some despatch.

No affidavits have been filed by the respondents as ordered by the court. The action seeking declaratory orders is a matter of some importance and should have been handled with both focus and care by the respondents. Dr. Shameem could have been approached in order to observe who, if it were not to be herself, would be speaking on behalf of the applicant. Can it be seriously thought that the Human Rights Commission having acted for the applicant, would abandon her to speak for herself today?

Any arrangement to hear the interlocutory application alone, and to proceed later with the filing of affidavits out of time for the substantive hearing, should have been a matter of agreement between counsel.

I shall hear both summonses today.

Hearing to proceed as scheduled.

Marie Chan