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Prasad v Republic of Fiji [2000] FJLawRp 63; [2000] 2 FLR 81 (15 November 2000)

[2000] 2 FLR 81

IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CHANDRIKA PRASAD

v

REPUBLIC OF FIJI & ATTORNEY-GENERAL (No. 3)

High Court Civil Jurisdiction
Gates, J.
15 November, 2000
HBC0217/00L

Stay of execution (1) - Leave to Appeal Interlocutory Order - whether order appealed from wrong or substantial injustice caused - role of counsel from Attorney-General’s office discussed - whether summons to strikeout was delaying tactic when respondents chose not to file affidavit material despite being given opportunity - Court of Appeal Act (Cap 12) s12(2)(f); High Court Rules O.18 r.18(2) and O.67 r.3

The applicant sought declaratory orders that 19th May 2000 coup was unsuccessful, that state of emergency was unconstitutional, that revocation of 1997 Constitution was unconstitutional and that 1997 Constitution was still in force, and that elected government was still the legitimate government. The 2nd respondent chose not to put in evidence but filed a summons to strikeout. The 2nd respondent objected to the appearance of Dr Williams from Canberra and Mr Patel, as no Notice of Appointment of Solicitors was served on him but the Judge ruled that they could appear as advocates. The 2nd respondent sought to appeal against those interlocutory orders and a stay.

Held- (1) The rule prohibiting affidavit material in O.18 r.18(2) would apply to O.18(1)(a) and (b) and to an application that an applicant had no locus standi to institute the proceedings, but not to O.18 r.18(1)(c) and (d).

(2) Application for leave and stay to Court of Appeal is premature, a delaying ploy, and a flagrant breach of the Rules and gives the appearance of unethical conduct on the part of those directing the litigation for the respondents as its purpose lay in preventing delivery of judgment on originating summons, the substantive matter.

Leave to appeal and stay refused.

Cases referred to in Decision

cons Kelton Investments & Anor. v Civil Aviation Authority of Fiji & Anor [1995] ABU0034/95
Dorasammy Rao & Ors [1996] HBC0308/96 Judgment of 15 November, 1996
appr Akbar Buses Ltd v Transport Control Board and Fiji Transport Co [1984] ABU9/84
foll Bavadra v Attorney-General [1987] SPLR 95
foll Republic of Peru v Peruvian Guano Co. [1887] UKLawRpCh 186; (1887) 36 Ch. D. 489
foll A-G of the Duchy of Lancaster v London and NW Railway Co. [1892] UKLawRpCh 134; [1892] 3 Ch. 274
foll Wenlock v Moloney [1965 ] 2 All ER 871
foll Day v William Hill (Park Lane) Limited [1949] 1 KB 632
foll Rogerson v Law Society of the Northern Territory [1993] NTCA 124; [1993] 88 NTR 1.
foll Niemann v Electronic Industries Ltd. [1978] VR 451
Foll Nationwide News Pty. Ltd. (t/a Centralian Advocate) v Bradshaw (1986) 41 NTR 1
Foll Perry v Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66
Foll Ex parte Bucknell [1936] HCA 67; [1976] 56 CLR 221
Foll Dunstan v Simmie & Co. Pty. Ltd. [1978] VicRp 62; 1978 VR 669
Foll Darrel Lea (Vic.) Pty. Limited. v Union Assurance Society of Australia Ltd. [1969] VicRp 50; [1969] VR 401

Anu Patel with Neil Shivam for the applicant/respondent
Janmai Udit with E Akamigbo for the 1^st and 2^nd respondents/appellants

15 November 2000.

DECISION

Gates, J.

The Applicant had filed an originating summons in this matter on 4 July 2000. At that time he was an applicant in person before the court and a refugee at the Girmit Centre, Lautoka. He appears to have had some legal assistance along the way. He filed an affidavit in support of his summons. The originating summons, as amended, sought declaratory orders following the constitutional crisis of 19th May 2000 and succeeding days. The declaratory orders sought were that the 19th May coup was unsuccessful, that the declaration of a state of emergency was unconstitutional, that the revocation of the 1997 Constitution by the Interim Military Government was unconstitutional and that the 1997 Constitution was still in force. Finally an order was sought declaring the elected government to be still the legitimate government.

Papers were duly served on the Respondents at the Attorney-General's Chambers in Suva on 10th July 2000. On 12th July 2000 the Respondents filed their acknowledgment of service. The summons return date was 14th July 2000.

On that date Dr. S. Shameem appeared for the Applicant, and Mr. Udit for the Respondents. Dr. Shameem appeared in a private capacity as counsel to assist and not, as at first thought, on behalf of the Human Rights Commission. Having read the affidavit filed in support and the summons I drew to both counsels' attention that there was a need for the affidavit material to deal with the acceptance or non-acceptance of the state of affairs and government of Fiji at the current time. Dr. Shameem pressed for an early hearing date. The Applicant was therefore allowed to file a supplementary affidavit within 7 days to deal with the issue I had raised. The Respondents were given 10 days thereafter to file their affidavit in opposition, and the Applicant a further 3 days to reply to that. The hearing date was put off till 23 August 2000 to allow the compiling of necessary evidence.

There were of course various matters that the Applicant needed to establish before the court could consider granting the orders sought. For the Respondents, the chief fact to be proved was that though the 1997 Constitution had been unlawfully abrogated in the sense that the path for amendment of the Constitution as supreme law as set out in Chapter 15 sections 190-192 had not been followed, nonetheless there was broad agreement with, support for, and acceptance of, by the people of Fiji, such an otherwise illegitimate change. The onus of proof of the acceptance of the unlawfulness was on the Respondents. I had suggested that appropriate evidence either way might be enhanced by poll surveys. In any event there was a need to gather opinion evidence of the acceptance or non-acceptance issue.

Since this might take a little time, those assisting the applicant or the solicitors acting for the Attorney-General's office, each would have to move with necessary despatch in order to be ready in time for the hearing on 23 August 2000. After all, this was an urgent constitutional case of some importance. Additionally if the matter were allowed to drag, this situation would tend to favour unfairly the litigant seeking to suggest that there had been acceptance of the unlawful state of affairs by providing further time and therefore further opportunity for acceptance of that state of affairs.

The solicitors acting for the Respondents appear to have elected not to gather such evidence and indeed not to file affidavit evidence for the hearing. Instead they filed a summons to strike out on 7th August 2000 returnable for the same day as the hearing date, namely the 23rd August 2000. Besides the usual format of complaints under Order 18 rule 18 of the High Court Rules, the Respondents alleged that the Applicant had no locus standi to institute the proceedings. Meanwhile the Applicant filed his supplementary affidavit in support of the originating summons, and an affidavit of one Peter Sipeli.

On 23 August 2000 Mr. Udit asked that his summons to strike out be heard first. He also objected to the appearance of Dr. Williams from Canberra, who was temporarily admitted for the case and of Mr. Anu Patel of the Lautoka Bar both of whom appeared as counsel for the Applicant. Mr. Udit said no Notice of Appointment of Solicitors had been served on him pursuant to Order 67 r. 3. I ruled that Dr. Williams and Mr. Patel could appear as advocates for the Applicant.

After stating that his summons to strike out should be heard first, Mr. Udit said he "may have to file affidavit evidence if your Lordship rules against me." He said he was not aware of the representation for the Applicant for the hearing, though he had spoken to Dr. Shameem. He knew that Dr. Shameem had been assisting the Applicant and had been counsel on the previous occasion. Dr. Williams objected to any adjournment and said the Respondents should have been ready to argue the summons to strike out and the originating summons together. The previous order for filing of affidavits had not been complied with by the Respondents. The matter was urgent, it concerned human rights, and the Applicant, a farmer who had lost everything was now a refugee. The action raised issues of law and they should be argued and heard without delay.

I ruled that the two summons would indeed be heard that same day. I heard oral argument from both sides. Dr. Williams produced a written skeleton submission also. At the conclusion I permitted Mr. Udit for the Respondents a further 14 days for him to file a written submission in reply. Subsequently by exchange of correspondence, the applicant's solicitors allowed the Respondents further time till 20th September 2000, which was not complied with. Subsequently I allowed further time to the Respondents for the submission, which extension did produce the desired result. However I shall revert to this matter later.

On 19th September 2000 the Respondents issued a summons for leave to appeal the two interlocutory orders, those were the decision to allow Dr. Williams and Mr. Anu Patel to appear as advocates for the Applicant and the decision to hear the two summonses together on 23 August 2000, the striking out and the substantive originating summons seeking the declaratory orders. The Respondents seek a stay on all further proceedings in the matter. They also sought "alternatively an extension be granted to the Respondents/Appellants to file written submissions beyond the fourteen days granted by this Honourable Court and/or until such further time this application is dealt with." In support, an affidavit was filed sworn by Anare Tuilevuka on the same date.

The Applicant filed an affidavit in reply sworn on 4th August 2000. This dealt with the agreement between counsel to allow Mr. Udit an extension till 20th September within which to file his written submission.

Before moving on to deal with the issue of leave to appeal the interlocutory orders, it is necessary to make some observations on the Respondents' affidavit. At paragraph 11 of Mr. Tuilevuka's affidavit he states: "The said rules do not permit the filing of any affidavit material on behalf of the Respondent." This was a somewhat simplistic statement. It would apply to the Respondents’ arguments relating to (a) and (b) of the summons to strike out, that is there being disclosed in the originating summons no reasonable cause of action and that the Applicant had no locus standi to institute the proceedings [Order 18 r. 18(2)] see Republic of Peru v. Peruvian Guano Co. [1887] UKLawRpCh 186; (1887) 36 Ch.D. 489 at 498; A-G of the Duchy of Lancaster v. London and NW Railway Co. [1892] UKLawRpCh 134; [1892] 3 Ch. 274: Wenlock v Maloney [1965] 2 All ER 871. But for the Respondents’ argument on paragraphs (c) and (d) of the summons, that the application was scandalous, frivolous or vexatious or otherwise an abuse of process, the prohibition on the filing of, and reliance on, affidavit material in support would not apply Republic of Peru (supra) at 498; Wenlock v. Maloney at (supra) 873H. The Respondents’ summons also seeks the exercise of inherent jurisdiction. In such cases also affidavits are admissible for consideration Wenlock v. Maloney at 874C; Day v. William Hill (Park Lane) Ltd. [1949] 1 KB 632 at 639. There was therefore an inaccuracy in the statement made in Mr. Tuilevuka's affidavit.

Secondly, at paragraph 5 of his affidavit Mr. Tuilevuka deposed:

"...however Respondents were not allowed to file any affidavit."

and at paragraph 12:

"...the Respondent has not been allowed to adduce evidence to contradict the evidence of the Applicant."

Within the same affidavit [at paragraph 9(c)], Mr. Tuilevuka had referred to the original orders of the court on 14th July 2000 permitting the Respondents to file an answering affidavit within 10 days. The phrase in paragraph 5 therefore "(the) Respondents were not allowed to file any affidavit" is inaccurate and should not have appeared in Mr. Tuilevuka's affidavit. Counsel are reminded of the importance of factual accuracy in the drafting of affidavits, not only in cases where they assist a deponent in the drafting of his or her affidavit, but also and specially when these affidavits are to be counsel's own. Affidavits are not pleadings but evidence taken under oath. They should avoid ambiguities and factual misstatements. The court expects this much of counsel as officers of the court. However, I believe there was no intention to mislead the court here.

The Respondents seek leave of this court to appeal the two interlocutory orders pursuant to section 12(2) (f) of the Court of Appeal Act (Cap. 12).

In an application for leave to appeal the order to be appealed from must be seen to be clearly wrong or at least attended with sufficient doubt and causing some substantial injustice before leave will be granted see Rogerson v. Law Society of the Northern Territory [1993] NTCA 124; [1993] 88 NTR 1 at 5-33; Niemann v. Electronic Industries Ltd. [1978] VR 451; Nationwide News Pty. Ltd. (t/a Centralian Advocate) v. Bradshaw (1986) 41 NTR 1.

Fiji's legislative policy against appeals from interlocutory orders appears to be similar inter alia to that of the State of Victoria, Perry v. Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66 at 68; and also with appeals to the High Court of Australia, see Ex parte Bucknell [1936] HCA 67; [1976] 56 CLR 221 at 223. If it is necessary for instance to expose a patent mistake of law in the judgment or to show that the result of the decision is so unreasonable or unjust as to demonstrate error, then leave will be given Niemann (supra) at 432. It is not sufficient for an appeal court to gauge, that when faced with the same material or situation, it would have decided the matter differently. The court must be satisfied that the decision is clearly wrong (Niemann at 436).

Leave could be given for an exceptional circumstance such as if the order has the effect of determining the rights of the parties Bucknell (supra) at 225; Dunstan v. Simmie & Co. Pty. Ltd.[1978] VicRp 62; [1978] VR 669 at 670. This is not the case here. Leave could also be given if "substantial injustice would result from allowing the order, which it is sought to impugn to stand," Dunstan (supra) at 670; Darrel Lea (Vic.) Pty. Ltd v. Union Assurance Society of Australia Ltd. [1969] VicRp 50; [1969] VR 401 at 408.

I have looked at a number of other authorities also including Kelton Investments & Anr. v. Civil Aviation Authority of Fiji & Anor. (unreported) Court of Appeal Civil Appeal No. ABU0034 of 1995 18 July 1995; Ashmore v. Lloyds [1992] 1 WLR 446; Dorasammy Rao and Others v. Mariappan Gounder and Others (unreported) High Court Civil Action No. HBU0308.1996. The Practice Note arising out of Smith v. Cosworth Casting Processes Ltd. [1997] EWCA Civ 1099; [1997] 4 All ER 840 to which Mr. Udit had referred me seems to be directed largely at discouraging appeals from orders granting leave to appeal to set aside orders, that is where leave has already been granted. In summary, the matter would appear to rest with the strength of the justice of the matter. Does the Court of Appeal feel compelled to intervene to prevent injustice?

I find there is no prospect of success in the appeal against the interlocutory order to allow Dr. Williams and Mr. Patel to appear for the Applicant.

The original proceedings though not seeking injunctive relief or heave to appeal were nonetheless of more than ordinary urgency. The Respondents have either taken the matter very lightly or have sought to delay the proceedings. No proper explanation has been provided to the court for the failure to file affidavit material for the hearing.

In effect this appeal amounts to saying: (a) that the hearing should not have proceeded on that day, 23 August 2000, because the Respondents had elected not to file affidavits; (b) As a result of that election, the Respondents had no evidence before the court, which it is now said was unfair to the Respondents. (c) The Respondents were entitled not to file affidavits, though the court had ordered their filing. (d) The Respondents were entitled also to come to court on 23 August 2000 and seek an adjournment so that a date could be fixed for hearing of the striking out matter and, after all that was concluded, then the Respondents could file their affidavits.

This approach to the litigation in hand overlooks several relevant factors namely the need for fast tracking of a constitutional case of this character and importance, the opportunity already afforded to the Respondents for placing their evidence before the court, and that at the hearing overseas counsel was present, assisting an indigent applicant, ready to argue his case.

On 5th October 2000 when the application for leave and stay was first called the following exchange took place (extract in note form):

Mr. Udit: Now filed application for leave. We are not filing a written submission until we have had this summons dealt with.

Court: Why apply for extra time (in summons) to file written submission when you never intended to file a written submission?

Mr. Udit: We have changed our position. We are not going to file a written submission. We seek to proceed on the summons for leave.

Mr. Anu Patel: Order of court that submissions would be filed within 14 days. No appeal against that order. A-G flouting court’s order. Application not to be heard until contempt purged. Need for expeditious hearing.

Abuse of process, mere delaying tactics. Authority of court to be protected. My friend has said he acts on order of his superiors in Suva. He is an officer of the court.

Subsequently I caused a letter to be written by the Deputy Registrar of the High Court at Lautoka, giving the Respondents a final 7 days within which to file their written submission. This order was complied with. On 13 October 2000 at the leave hearing, Mr. Udit said I should not write my judgment. Chitty J. in Republic of Peru (supra) at 499, commented aptly albeit on another topic, the need of a principal to act consistently:

"They must act consistently throughout; they cannot, as has often been observed in cases of this kind, blow hot and cold;"

Prior to his statement that the Respondents were not going to file submissions Mr. Udit had written and asked the Applicant's solicitor for an extension (which was not adhered to) and then asked for more time (as an alternative claim) in this summons for leave. From all of this, I harbour doubts as to whether the Respondents were seeking to have their case aired properly before me, or were simply dragging the matter out.

Rule 26(3) of the Court of Appeal Rules Cap. 12 provides:

"Wherever under these Rules an application may be made either to the court below or to the Court of Appeal it shall be made in the first instance to the court below (emphasis added)

Now I learn that before I have delivered my ruling in the present summons for leave and stay, the Respondents have filed an ex parte Notice of Motion for stay and leave to appeal dated 20th October 2000 in the Court of Appeal. Though dated the 20th October 2000, the motion is stamped on the backsheet by the Court of Appeal Registry 18^th October 2000 with fee exemption stamp dated 19^th October 2000. The purpose of such premature application appears to be to seek a stay from the Court of Appeal to prevent the delivery of my judgment on the originating summons, the substantive matter before me [Paragraphs 24 and 25 of the Tuilevuka affidavit sworn on 18 October 2000]. Since the application to the Court of Appeal is clearly premature and in flagrant breach of the Rules, it gives the appearance of unethical conduct on the part of those directing the litigation for the Respondents.

The Applicant sues the Republic of Fiji as 1^st Respondent and the Attorney-General as 2^nd Respondent. He raises constitutional issues at a time of constitutional crisis. There may be confusion in some people's minds as to the correct status of the Constitution today. The Applicant sues the Republic and the Attorney-General, and the Attorney-General traditionally defends the Government of Fiji not necessarily on behalf of the political government of the day but as representative for its Departments of State. The occupant of the office of Attorney-General is today a non-elected member of Cabinet in the interim administration or caretaker government. He may have views favouring the legality of that administration. However that is not his role here, The Attorney-General and Counsel in his chambers should have adopted a neutral stance with regard to these proceedings. Their duty was not to urge the legitimacy of the present regime, but to place before the court a variety of cases and arguments, and generally to assist the court in deciding where legality and legitimacy lay. A similar role for the Attorney-General's office was approved by Speight VP in Akbar Buses Ltd. v. Transport Control Board and Fiji Transport Co. (unreported) Fiji Court of Appeal Civil App. 9 of 1984, at 15. That case dealt with the role to be played by counsel from the Attorney-General's Chambers representing a tribunal under review. Counsel, who are also public servants, should adopt, and be free to adopt without pressure from superiors, in cases of this kind a neutral stance irrespective of whether they are called on as amicus curiae. They have duties of independence to the wider public, duties of conscience and ethics to themselves and to their profession, and duties of conduct as officers of the court. That neutral role was not adopted here, and instead a defence of the position of the lawfulness of the military takeover and of the legitimacy of the interim administration was urged without regard to other significant arguments. The Bavadra case had never been referred to in the Respondents arguments put forward in the 15 page written submission in the striking out summons, yet it is undoubtedly the leading Fiji authority on striking out issues in constitutional cases.

At the hearing of the summons to strike out and the originating summons, I handed to counsel a copy of the last mentioned case, Bavadra v. Attorney-General [1987] SPLR 95, and asked them for their comments on it in relation to the striking out summons. It was a decision of Rooney J, and had not been appealed. In it the applicant, following the 1987 military coup, had sought 10 orders of which 3 were struck out. They were the claims that:

1. The House of Representatives stood adjourned. The court heard this was a matter within the exclusive cognizance of the House and therefore the court was not empowered to pronounce thereon. [Claim 3].

2. That the dismissals of Deputy Speaker and Leader of the Opposition were invalid. Since the applicant was formerly the Prime Minister he was held to have no interest in these offices. [Claim 4].

3. That the Crown had no power to amend the Constitution by Order-in-Council. This was struck out since the Queen could do no wrong as a matter of law. It was therefore unsustainable to seek a declaration to the contrary. [Claim 5].

The 3 claims that were struck out do not fall for consideration in the instant case. The remaining 7 are of significant relevance. In addition, the objection of locus or standing was barely arguable. The modern approach in public law cases as well as in constitutional cases in widening access to the courts more generously has largely removed the basis for such an objection. Upon proper consideration, the objection was not an appropriate one to take in this case. Since there was clear authority within Fiji's Jurisdiction of the justiciability of the claims now sought by the present applicant, the Respondents' attempt to proceed with a summons to strike out can only be viewed therefore as a delaying ploy on their part.

In the course of my consideration of the facts, cases, and legal argument on the originating summons, I also viewed and took into account the affidavit material proposed by the Respondents, exhibited to Mr. Tuilevuka's affidavit sworn on 19th September 2000.

Taking into account all of the matters which I have traversed above, I am not convinced that the appeal launched against the interlocutory orders by the Respondents as manifests a proper challenge to the applicant's litigation such that I should exercise my discretion in their favour.

Accordingly I refuse leave to appeal and stay. I order the Respondents to pay the Applicant's costs of counsel and disbursements for this application which I assess summarily at $400.

Application for leave to appeal and stay refused.

Marie Chan