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Kumar v Tavua Town Council [2016] FJHC 212; Judicial Review HBJ 01.2016 (31 March 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. HBJ 01 OF 2016
IN THE MATTER of an application by AJAY KUMAR of Tavua Town, Tavua, Market Vendor for a Judicial Review

AND

IN THE MATTER of an application for leave to file an application for Judicial Review of a decision of the Chief Executive Officer of Tavua Town Council made on the 26th of February, 2015

BETWEEN:

AJAY KUMAR of Tavua Town, Market Vendor.
[Applicant]

AND:

TAVUA TOWN COUNCIL, a Statutory body under the Local Government Act.
[1st Respondent]

PERMANENT SECRETARY, MINISTRY OF LOCAL GOVT., HOUSING & ENVIRONMENT
[2nd Respondent]

THE ATTORNEY GENERAL OF FIJI
[3rd Respondent]

Before: Hon Mr. Justice R.S.S. Sapuvida
Counsel: Mr Sahu Khan for the Applicant

DECISION

This is an ex parte notice of motion filed by the applicant dated 1st March 2016 seeking orders in terms of the said motion for;

(a) Extension of time,
(b) Leave for judicial review,
(c) Stay and,
(d) Injunction against the respondents.

According to the said notice of motion it is funneledin pursuant to Order 53 Rule 3(2) of the High Court Rules 1988 [HCR] and supported by the statement verified by the affidavit of the applicant filed therewith.

The applicant by aforesaid notice of motion implores the following orders:

For an order that the applicant be granted an extension of time to file an application for leave to file an application for judicial review.

For leave to apply for judicial review pursuant to Order 53, Rule 3(2) of the HCR of the decision of the first defendant dated 26th February 2015 to remove the extension of stalls installed beside the applicant's stall.

And for the following further interim reliefs:

That the grant of leave operate as a stay of the decision of the respondent dated 26th February 2015 as aforesaid pending the final determination of the within Judicial Review;

That the grant of leave operate as an Order for the First Respondent whether by itself and/or its servants and/or agents and/or employees to reinstate the extended stall at the Tavua Market to the Applicant at the same place it was removed from forthwith until the final determination of the Judicial Review and after reinstatement be restrained by either by itself and/or its servants and/or agents and/or employees from removing the said extended stall at the Tavua Market and/or interfering with the smooth operation of the applicant's business.

If an extension of time to file an application for leave to file an application for Judicial Review, and leave to apply for Judicial Review is granted in the instance, then the reliefs which the applicant will be seeking from this Court are as follows:

An order of Certiorari to remove into this Court and quash the decision of the First Respondent made on the 26th of February, 2015.

A declaration that the said decision is unfair, invalid, arbitrary, unjust, void and of no effect.

A declaration (in any event) that the First Respondent exceeded its jurisdiction and/or made an error of law in requesting the applicant to remove the wooden extension of the existing stall.

A declaration that the applicant rightfully had a legitimate expectation to have the stall granted to him.

An order that the First Respondent whether by itself and/or its servants and/or employees reinstate the extended stall at the Tavua Market to the applicant at the same place it was removed from forthwith.

An order that the First Respondent whether by itself and/or its servants and/or agents after reinstatement be restrained from removing the plaintiffs extended stall at the Tavua Market and/or interfering with the smooth operation of the applicant's business.

Further declaration or other relief as this Honourable Court may deem fit; and

Costs.

The grounds upon which the applicant is seeking relief against the respondents are as follows:-

The First Respondent erred in law and fact in making a decision that the wooden extension to the existing stalls be removed after the Honourable Minister for Local Government, Housing & Environment (Honourable Minister) had made a decision on the 23rd of February, 2015 after discussion with the applicant.
The First Respondent erred in law in making the decision on the 26th of February, 2015 without taking into consideration the extension of the stall was being used and utilized by the applicant for more than twenty (20) years now.
The First Respondent erred in law in judging that the extension of the stall was a public hazard and risk to public safety after the twenty (20) years of operation of the stall.
The First Respondent made the decision without any proper consultation with the applicant and/or the applicant was not given any opportunity to be heard.
The First Respondent failed to allow the applicant to make proper representations and submission about the extension of the stall to the First Respondent.

That the applicant rightfully had a legitimate expectation to have the stall remain to be utilized and/or granted to him.

The applicant reserves the right to file and submit further grounds at the hearing of the application for Judicial Review.

Order 53, Rule 3(2) reads:

3(2)- An application for leave must be made upon filing in the Registry:

• a notice in Form 32 in the Appendix hereunder containing a statement of-
  • the particulars of the judgment, order, decision or other proceeding in respect of which judicial review is being sought.
  • (ii) the relief sought and the grounds upon which it is sought.
  • the name and description of the applicant;
  • the name and address of the applicant's solicitors (if any); and
  • the applicant's address for service;
  • an affidavit which verifies the facts relied on.
  • The notice in Form 32 referred to in Order 53, Rule 3(2) (a) has not been filed in the precise format by the applicant in the instance, yet the essential details are given in the ex parte notice of motion so filed which I see, forms part of "the notice", albeit the format is mandatory in view of the said provisions and description of the Form 32 in the appendix thereunder.

Be that as it may, now I recite the entire provisions of the Order 53, r. 3 of the HCR in order to see whether or not the applicant has complied with the basic rules before seeking the early reliefs from court against the defendants.

My reason to do so is because of the earlier position had been with regard to an application for leave to apply for judicial review pursuant to Order 53, Rule 3(2) of the HCR until 3rd March 1988 as follows:

"Grant of leave to apply for judicial review (O.53, r.3)
3.-(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
(2) An application for leave must be made ex parte and must be supported-

• by a statement, setting out the name and description of the applicant, the name and address of his barrister and solicitor (if any), the relief sought and the grounds on which it is sought, and
• (b)by affidavit, to be filed before the application is made, verifying the facts relied on".

[Emphasis introduced]

But now, the procedure for an Application for leave to apply for judicial review under Order 53, r. 3 of the High Court (amendment) Rules, 1994 [from 3rd March 1994] is no more ex-parte, but it shall be as mentioned in paragraph 7 above.

The issue here in the present case of the applicant is more complicated I would say as it is related to the obtaining of leave of the court regarding the extension of time to file the application for leave for judicial review after a lapse of one year from the date of the impugned decision of the first defendant which is the alleged cause of action.

Then the question arises whether there has been an undue delay on the part of the applicant in making the application for judicial review. Here in this case it is surfaced on the face of it that there has been a notable expanse of delay in bringing up the ex parte notice of motion before this court.

However, having considered the urgency of the matter, the nature of the application in the ex-parte notice of motion and the request made by the applicant's solicitor to take the matter ex-parte, it was allowed to be supported ex parte on the same day it had been filed.

The court at this point has to be very cautious of the procedure stipulates by Order 53, r. 4 of HCR under which the court shall have to consider cogent reasons before making its decision on the application for leave in view of the said provisions as it reads as follows:

O.53, r. 4,- (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant-

• (a) leave for the making of the application, or
• (b) any relief sought on the application,

If, in the opinion of the Court, the granting of the relief sought would be if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.
(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

It is worthwhile to have a closer look at the chronology of events took place in connection with the applicant's grievance when it comes to the application for extension of time to file the application for leave for judicial review in this instance and until it is filed in this court in this style.

According to the averments referred to in the applicant's affidavit at paragraphs 1 to 48 and in the statement filed therewith, the epitome of the issue stems from the first respondent's decision made on 26th February 2015 to remove the wooden extension to the existing stalls of the applicant at the Tavua Market.

The sequence of events according to the applicant's affidavit is as follows.

(a) The applicant has been a market vendor for approximately twenty seven (27) years at the Tavua market.

The applicant started his business as a market vendor when the current municipal market was not constructed by the Tavua Town Council and at the time when Tavua was not even declared a town.

At the time when the applicant started his business at the Tavua Market as a market vendor, he was only 18 years of age and at the time when he started his business there had been only polythene covering and chain link fence around the stalls.

When he started his business he was selling watermelon, pineapple, apple and juice from the stall which he was allocated in the market at the time by the market master and the relevant authorities who were looking after the affairs of the Tavua Market at the time way back approximately 27 years ago.

At the time, when he started his business as a market vendor, he was allocated a stallnear the entrance of the existing market to start his business. The stall at the time was constructed as a timber table which was placed by the Council Staff at its current location and he has been operating his business from the aforesaid timber table.

Since he was selling watermelon and pineapple in slices, he used to keep a glass cupboard on the stall and water used to drip down. He then complained to the First Respondent's office about water dripping down. The Officers of the First Respondent then constructed an extension to the existing stall made of timber and told him to keep his glass cupboard on the extension and sell the watermelon and pineapple from there.

The applicant did not do any of the extensions to the existing stall. Everything was done by the officers of the First Respondent and they had carried out all extensions in accordance with the provisions of the relevant authorities. The aforesaid timber extension to applicant's stall had been operational for more than twenty (20) years without any hindrance to anyone.

The timber structures have remained intact for more than 20 years and did not even fall and/or injure anyone. The applicant has maintained the aforesaid stall properly and always carried out maintenance to the extension. The First Respondent is concerned that there is not much space for the general public to move around freely and the timber table stall is a risk of safety.

That ever since the applicant has been operating the aforesaid timber table stall, it had never been removed till recently and the timber structure as an extension was approved, built and placed by the Officers of the First Respondent upon his request.

Currently, the applicant leases twenty two (22) stalls in the Tavua Market and pay $24.00 per day in rental to the First Respondent.

The First Respondent issued a notice dated 26th February, 2015 to the applicant requesting him to remove the timber extension to his stall. The extension was to the applicant's initial stall.

That the applicant has been operating the aforesaid stall with the timber extension for more than 20 years now. However, the current executives of the First Respondent required him to remove the extension and have in fact removed it on the grounds that it poses danger to the general public and there is safety risk and have now actually removed them.

Sometimes in 2005 the applicant had made a formal application with the First Respondent seeking their approval of the said extension. [He does not have a copy of the said application.]

After the applicant had made an application with the First Respondent seeking formal approval, the First Respondent approved his application for extension of the stall on the 28th of June, 2005.

The First Respondent wrote to all the market vendors a letter dated 9th February, 2015 advising them to remove all extended timber stalls by the 11th of February, 2015.

On the 23rd of February, 2015, the applicant had a meeting with the Minister for Local Government, Housing and Environment and the Minister had assured the applicant and advised him to use the aforesaid stall together with the timber extensions. [however, there is no evidence for this ]

The First Respondent had been charging the applicant a fee on the aforesaid extension at the rate of $0.80 daily. However, after the notice dated 9th February, 2015 was issued to the applicant, the First Respondent refused to accept payment of fees for the wooden extension which the applicant agreed to continue to pay.

First Respondent issued the applicant another letter dated 26th February, 2015 advising him to remove the timber extension within 14 days. He was advised by the First Respondent that it has unilaterally "rescinded" the arrangement the applicant had with the Minister. Annexed letter AK-6 is a copy of the letter dated 26th February, 2015.

The First Respondent has alleged that the timber extension is an illegal extension and is an unsafe timber structure on which the applicant has placed a glass cabinet on it. The staff of the First Respondent sees this as unsafe for the general public and if it falls it could injure anyone in the public.

The First Respondent had also alleged that the illegal wooden stall was a public hazard as it blocked the alley way, caused congestion and that it was a public liability issue in terms of causing serious injury to anyone in the public.

The First Respondent had warned the applicant to take action against the application if he did not remove the timber extension of the stall within 14 days.

The applicant then sought legal advice from his former solicitors fearing the First Respondent and instituted injunction proceedings against the First Respondent by way of Originating Summons in the High Court of Fiji at Lautoka being Lautoka High Court Civil Action No. HBC 49 of 2015.

An injunction order was granted by the His Lordship Justice Mohammed Ajmeer on the 11th day of March, 2015 in the following manner;

That the defendant and/or its servants or agents be restrained from removing the Plaintiffs extended stall at the Tavua Market and/or interfering with the smooth operation of the plaintiff's business.

That an Ex-parte interim injunction as prayed in prayer one of the Originating Summons is granted till 7th April, 2015.

That this order be served by facsimile to the defendant before the end of business hours today.

That the matter is adjourned to 7th April, for mention at 10.00 am.

After the grant of the injunctive orders by the court, the applicant continued to operate his business as usual without any interference from the First Respondent.

Later, the First Respondent through its solicitors filed an application in the High Court to strike out the Originating Summons filed by the applicant which was heard on the 3rd of December, 2015. After hearing the First Respondent's application, the Originating Summons was struck out with costs of $500.00 to be paid within 28 days.

That immediately after the delivery of the order to strike out the Originating Summons filed by the applicant, the First Respondent on the 5th of December, 2015 removed the timber extension from the stall.

Henceforth, the applicant by way of a new case i.e. the present notice of motion is seeking orders from this court firstly to extension of time to file an application for leave to file an application for judicial review.

The counsel for applicant Mr. Sahu Khan submitted that the applicant has a genuine reason for delay and that it is an excusable delay in bringing up the present action now, and emphasized the applicant's former solicitors' ill-advise and misguidance by blaming the former solicitor for not advising the applicant to file the correct action [judicial review] at the first place, instead the applicant had been advised to file the case referred in paragraph 17 (v) above in the High Court of Fiji Lautoka Civil Action No. HBC 49 of 2015.

However, the applicant in his affidavit at paragraph 41 says that the delay was caused due to the proceedings in Lautoka High Court Civil Action No. 49 of 2015 and that the delay was also caused due to the legal vacation.

This is what he exactly says at paragraph 41 in the affidavit:

"41. I am now out of time for filing a judicial review application. The delay was caused due to the proceedings in Lautoka High Court Civil Action No. 49 of 2015. My solicitor had not advised me to take appropriate action and when the originating summons was struck out, I then sought legal advice from another solicitor who had then advised me that the application was wrongly made and I need to file an application for judicial review which I am filing now but could not do earlier not only due to ill-advise by my previous lawyer but also because of the legal vacation as well."

This is where the applicant has mistaken himself of the words "legal vacation". Because it reflects from paragraph 41 of his affidavit that he is trying to hide behind the wall of legal vacation to get rid of his delay and to get the benefit out of it and/ or he might be trying to convince the court that the legal vacation as he observes, operates as a curfew time which prevents everyone from taking a prompt legal action even if there is a breach or likelihood of a breach of a legal right of any person and thereby to have sympathy towards him to obtain leave of court in this application.

Nevertheless, the applicant does not mention an exact period of a legal vacation albeit he refers to a legal vacation in his affidavit.

Let it be so, the matter at which my concern is now focused on is the applicant's way of thinking and/or fantasizing to show that general public is of the view that the High Court of Fiji during the legal vacations does not function so that any litigant who wishes to file an action in the High Court or anyone who wishes to obtain an urgent order from, cannot do so because of the legal vacation. And that is absolutely wrong.

The High court of Fiji is at its usual function except the open court hearings and trials during any legal vacation and Judges of the High Court of Fiji are on duty during the whole week and that anyone who seeks an urgent remedy could do so by filing the relevant and required papers at any of its respective Registries either in Lautoka, or Suva, or Labasa as it requires depending on the area and the mater at issue.

Therefore, the applicant has no excuse whatsoever to say as he emphasizes that the legal vacation played a part in delaying the applicant's present application for leave to file the application for judicial review.

I now move on to deal with the other factor which the applicant has submitted as he believes a genuine reason for his delay in filing the instance application in this court, i.e. the ill-advise of the previous solicitor.

The issue begins, as the applicant has revealed in his affidavit and in the statement he has filed, when the first respondent on 26th of February 2015 sent the letter to the applicant [AK-6] and made orders to remove the extension of the applicant's stall.

Then the applicant files the case HBC 49 of 2015 by way of originating summons dated 10 March 2015 to which the applicant now refers as a wrong action.

The counsel for applicant relies upon the following case law authorities on which he believes that it will substantiate the applicant's reasons for plea of delay in seeking the extension of time to file an application for leave to file an application for judicial review.

Cama v Attorney General [2008] FJHC 149; HBC0512.2005 (25 July 2008)

Prasad v Divisional Engeneer Northern (No.1) [2008] FJHC 161; HBJ03.2007 (17 July 2008)

Dewa v University of the South Pacific [1996] FJHC 125; Hbj007j. 1994s (4 July 1996)

Vimal Construction and Joinery Works Ltd v Vinod Patel and Company Ltd [2008] FJCA 98; ABU0093.2006S (15 April 2008)

Safari Lodge Fiji Ltd v Rosedale Ltd [2008] FJHC 139; Civil Action 319.1999 (5 February 2008)

Khan v Ali [2015] FJHC 433; HBC21.2013 (11 June 2015)

Waqaitanoa v Commissioner of Prisons [1997] FJHC 235; Hbj0024d. 1995s (26 September 1997)

Having given all due regard to the above mentioned case law authorities, it is paramount to look at the Order 53, r. 4 (2) of the HCR which speaks of the delay in applying for relief.

O.53, r.4 (2) reads as follows:

4.-(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding

In the present application the applicant among other reliefs, is seeking an order of Certiorari to remove and quash the decision of the first respondent made on the 26th of February 2015.

It is therefore, the relevant period for the purpose of paragraph (1) of the Order 53, r.4 of the HCR in the instance should be three months from the date of the impugned order of the first respondent which was made on 26th February 2015.

The delay should not be excessive or should not be an undue delay. It should not cause substantial hardship to anyone and, above all these, the delay should not be detrimental to good administration.

35. The applicant admits that there is a delay in applying for relief. For that he blames the ill-advice of the former solicitor and the legal vacation.

I have already dealt with the legal vacation and that is not an excuse for the delay at all.

37. The blame on former solicitors was well discussed in the case of Karan Chand [2013] FJHC 552; HBC43.2010 (22 October 2013) when His Lordship Justice Ajmeer held as follows:

"(17) Now, the Plaintiff put the blame on his former solicitors for the delay and inaction in the matter. Is it possible for the Plaintiff to pass the responsibility on his former solicitors? Mr Prakash, counsel for the defendant submitted that Mr Haroon Ali Shah was acting for the plaintiff and he was disbarred from practice in June 2012. Still, the plaintiff had ample opportunity to engage another counsel in the matter. But he did not do so.
(18) In Bank of Scotland v Pereira & Others [2011] EWHC 28; [2011] 3 All ER 392, Lord Neuberger MR had this to say:

• "I reject the contention that former solicitors were to blame to delay the matter rather than saying that 'this is a case where the normal rule shall apply that a party has to bear responsibility for delay whether it be caused by him or his solicitors'(Emphasis added).

(20) 'Blame your former solicitor for delay' perception invented by the Plaintiff cannot be allowed to succeed. If it is allowed, parties may conveniently blame their former solicitors after charging their solicitors purposely. In the current application the plaintiff is blaming his former solicitors for delay rather than himself. Following the Bank of Scotland case (supra) I reject the Plaintiff's contention that his former solicitors were to blame to delay the matter. I consider the delay was too long for the current application after the matter was taken off the cause list on 10 August 2011. The delay has been inexcusable and inordinate. The delay has not been sufficiently explained. The plaintiff had also failed to comply with peremptory orders or direction made by the Court on 19 May 2011 including automatic directions under HCR 025 r.8 as his claim is based on personal injury."

38. The applicant in the present case in reasoning the delay blames on the former solicitors for ill-advice given to him by filing the previous case HBC 49 of 2015.

39. Therefore, the delay of one year from the date of the impugned order in the instance cannot be considered as a genuine and reasonable delay on the reasons given by the applicant in this motion.

40. Hence, I refuse to grant an extension of time to file an application for leave to file an application for judicial review.

41. The ex-parte notice of motion filed by the applicant dated 01 March 2016 is hereby struck out and dismissed without costs.

R.S.S.Sapuvida
[Judge]
High Court of Fiji

On this 31stday of March 2016 at Lautoka