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Lal v Land Transport Authority [2011] FJCA 35; MA21.09 (27 May 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

MISCELLANEOUS ACTION NO.21 OF 2009
[High Court Civil Action No.213 of 1994]

BETWEEN:

RAVIND MILAN LAL
ADRIAN AMAN LAL
AKESH RAVINDRA LAL
ARCHANA LAL
Appellants

AND:

LAND TRANSPORT AUTHORITY
ANZ BANKING GROUP LIMITED (GARNISHEE)
Respondents

Counsel: Ms P Kenilorea for the Appellants
Mr K Qoro and Ms T Rigsby for the Respondents

Date of Hearing: Wednesday, 16th February 2011
Date of Ruling: Friday, 27th May 2011

RULING

1. I heard this application for leave to appeal out of time on 16th February 2010.
   
2. I have every sympathy with the applicants. Mr Ravind Milan Lal obtained judgment in a personal injury suit against inter alia the Land Transport Authority on 22nd June 2007 for nearly $900,000. Mr Lal lost his wife, two sons and a daughter in a car accident in 1991. That explains the amount of damages. It seems that the Land Transport Authority or its predecessor failed to effect third party insurance when it was obliged to do so. Damages were awarded for breach of statutory duty. Land Transport Authority in its affidavit in this application admit the judgment debt.
   
3. If this had happened when Fiji was a Crown Colony and the Fiji Government did not pay out timeously, a simple petition under Colonial Regulations would have ensured that the payout would take place. It certainly has been the policy and the commitment of the United Kingdom since the passing of the Crown Proceedings Act in 1947 that immediate payment would be made. The same applied in all Colonies. The same position applies in common law jurisdictions that share the legal history. In return for not being subject to execution in respect of judgments, the Government was committed to paying out.
   
4. Unfortunately the law on the Crown Proceedings Act is very clear. The object in Fiji as in other countries with Land Transport Authority and Fiji Islands Revenue and Customs Authority is not to privatise government departments but to reduce the numbers of central government civil servants. So they indirectly rather than directly act as civil servants. The Crown Proceedings Act still applies. In my opinion there is no chance of execution being legally found to be available. For this reason I believe the only conclusion within the rules is that leave to appeal should be refused.
   
5. I believe the Fiji Government has never withdrawn its public position that damages awarded against it in the courts will be promptly paid out. The only circumstance in which it would be expected that it might not pay out would be if there was a sovereign default in respect of government debt.
   
6. While it is a tentative suggestion and as a strategy it might not work, there has been considerable development in public law in the developed common law world in the last fifty years. The statement and policy of paying judgments when the courts have with finality awarded damages to a citizen against the Government may now be regarded as creating a substantive legitimate expectation in public law. If so there is a possibility of a judicial review of the present government stance in this case. However this is not legal advice merely the pointing out of a trend in administrative law in the major common law countries.
   
7. Perhaps the best option is to petition the Prime Minister and the President requesting payment in instalments given the appalling hardship caused to Ravind Milan Lal through no fault of his own.
   

ORDERS

8. I make the following orders:
   
   • (1) that leave to appeal be refused.
     
   • (2) that there be no order for costs in respect of this application.
     

William R. Marshall
Resident Justice of Appeal