Ms. P. Narayan for the Applicant
D. Singh for the Respondent
DECISION
This is an opposed application for leave to appeal against my Decision dated 3 October 1997 wherein I refused leave to the Applicant
to move for Judicial Review. Leave to appeal against my Decision is required in view of the provisions of Section 12 (2)(f) of the
Court of Appeal Act (Cap 12) (and see also Charan v Shah - FCA Reps 95/84).
When Ms. Narayan appeared before me she advised that she was seeking an adjournment “by consent”. The ground for the application was
that Mr. Nagin was handling this file and was engaged in the Fiji Court of Appeal in another matter - presumably ABU 57/96 Harifam v Fongs. I refused the application for an adjournment. This application was listed for hearing before me on 22 October, the day after the
papers were filed by the Applicant. The calendar for the Fiji Court of Appeal was issued some few days before 4 November i.e. approximately
3 weeks ago. During these 3 weeks the Applicant’s solicitors, being aware that Mr. Nagin was double booked should have taken steps
to arrange adequate alternative representation. This is a fairly straight forward application and I can see no reason why Ms. Narayan
could not take the trouble adequately to brief herself in order properly to argue it. The legal profession must understand that once
an appointment is taken it will not be vacated save in exceptional circumstances and for good reason. Here there were no exceptional
circumstances and there was no good reason.
Ms. Narayan relied on the supporting affidavit and asked for an Order in terms.
Opposing the application, Mr. Singh referred to a recent Decision in the Lautoka High Court by Lyons J. refusing a similar application
for leave to move for Judicial Review of a decision of the Magistrates Court (State v Lautoka Magistrates Court ex parte Damudamu HBJ 12/97.
In my Decision of 3 October I referred to the fact that the High Court of Fiji had only very rarely granted leave to move for Judicial
Review of decisions of the Magistrates Courts. On 31 July 1995 I examined the whole question of the availability of Judicial Review
in Fiji to question interlocutory decisions of the Magistrates Courts (re: Geoffrey Miles Granger Johnson HBJ 11/95). In both these Decisions I expressed the view that only in wholly exceptional circumstances would Judicial Review lie
from those decisions.
It is now evident to me that in view of the repeated attempts by practitioners to seek Judicial Review of criminal proceedings in
the Magistrates Courts it would be desirable for the question authoritatively and finally to be settled. I therefore consider that
I should grant the leave now sought to appeal against my Decision and I so order.
There is a small final point. In neither of my Decisions did I refer to Section 344 (1) of the Criminal Procedure Code (Cap 21). In fact, I do not think that this Section adds to the argument in view of the fact that the prerogative writs of certiorari, mandamus and prohibition were all abolished in England by the Administration of Justice Act 1938. It is also worth noting that no Rules have been made by the
Chief Justice under the provisions of Section 344 (2).
M.D. Scott
Judge
25 November 1997.
Hbj0020d.97
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