BETWEEN:
FIJI TELEVISION LIMITED
Applicant
AND:
MINISTER FOR INFORMATION,
BROADCASTING, TELEVISION & TELECOMMUNICATIONS
Respondent
J. Howard for the Applicant
N. Nand, Solicitor-General and E. Walker for the ndent
Date of Hearing: 8th December 1997
Date of Judgment: 16th April 1998
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
The facts of this matter are set out in my Interlocutory Judgment of 30th July 1997 and my Ruling of the 11th of November 1997 in
which I granted the Applicant leave to cross-examine the Respondent on the hearing of the application for Judicial Review on the
question of the apparent incongruity of the Respondent's position in relation to the granting of a television licence to the Applicant
and the Fair Trading Decree.
The Respondent's Motion for leave to appeal from my Ruling was issued on the 20th of November 1997 and is supported by an affidavit
by Joe Turaginavalu, the Director of Broadcasting in the Ministry for Communications and Energy.
Annexed to the affidavit was a Draft Notice of Appeal containing the proposed grounds of appeal. These are:
(1) That I erred in law and fact by entertaining the Respondent's application to cross-examine the Respondent on facts deposed to
in his affidavit sworn on the 17th of October 1997 as the affidavit evidence before the Court is sufficient to have this matter determined.
(2) That I erred in law in allowing cross-examination on the issue of the apparent incongruity of the Respondent's position in relation
to the granting of the licence to the Applicant and the Fair Trading Decree.
(3) That I erred in law and fact by not providing reasons as to why justice requires cross-examination in this matter.
(4) That I erred in law in ruling that the Principle stated by the High Court of Australia in Jones v. Dunkel [1959] HCA 8; (1959-60) 101 C.L.R. 298 could be applied in this matter.
At the hearing on the 8th of December the Respondent stated through his counsel that he proposed to add two other grounds namely:
(1) That I erred in adopting a test of "apparent incongruity" which is:
(i) Irrelevant to any issue raised in the application for Judicial Review;
(ii) Not the subject of any reasoning which links it to any ground for Judicial Review alleged in the application; and
(iii) Too vague to permit the conduct of cross-examination or to permit the Court to control its scope.
(2) That I erred in law and fact by failing to take into account or alternatively failing to give determinative weight to the fact
that the Respondent who made the decision complained of was not the same person who had made the earlier, allegedly incongruous,
decision.
The Respondent submits that there are three reasons why I should grant leave to appeal.
(1) The question is of great importance upon which further argument and a decision of the Court of Appeal would be to the public advantage
- Buckle v. Holmes (1926) 2 K.B. 125 at p.127.
It was submitted that based on legal authorities on Judicial Review, cross-examination of a deponent is the exception rather than
the rule and is only exercised in very rare circumstances. It was argued that the Court of Appeal will need to determine whether
and in what circumstances Government Ministers should be brought to Court for cross-examination. The issue not only affects the Minister
concerned but is of general public importance.
(2) The question is one of general principle, decided for the first time - Ex-parte: Gilchrist [1886] UKLawRpKQB 112; (1886) 17 Q.B.D. 521.
I was told by the Solicitor-General that previously there have been applications made for cross-examination of deponents of affidavits,
but they have all been rejected by the Court and that this is the first occasion on which the High Court has made an order for cross-examination
in Judicial Review proceedings.
(3) There is a prima facie case that an error of law has been made in that:
(i) The Court entertained the Applicant's application for cross-examination;
(ii) A proper evaluation was not made to determine whether the justice of the case really warranted cross-examination;
(iii) By the Court following the case of Jones v. Dunkel (supra) it was submitted that the cases of Judicial Review have their own body of precedents and that the Court of Appeal will need
to consider whether Jones v. Dunkel which did not concern Judicial Review can be applied to applications for cross-examination in Judicial Review cases. This is particularly
so it was argued since Judicial Review is not concerned with the decision, but with the decision-making process. By contrast a civil
case looks into evidence and a decision is made on the basis of evidence.
Furthermore, it was said the Court of Appeal should be allowed to hear and determine this case in view of its decision in Civil Appeal
No. 2 of 1992 Anuradha Charan v. Public Service Commission and Others unreported judgment of 19th November 1993.
(4) It was submitted that the Respondent has more than a reasonable prospect of success on an appeal and hence leave to appeal should
be granted.
Before turning to the submissions made on behalf of the Applicant and then considering what I take to be the relevant law regarding
applications such as this I can answer immediately the claim that the question of whether the Respondent should be cross-examined
was decided for the first time in my judgment of 30th July 1997. I presume this means decided in Fiji and is confined only to the
cross-examination of Ministers of State. I agree with that statement but then the Respondent alleges that this is the first occasion
on which the High Court has made an order for cross-examination in Judicial Review proceedings. This ignores what I said on p.6 of
my ruling of the 11th of November when I referred to the fact that in Judicial Review No. 4 of 1991 State v. Public Service Commission Ex-parte: Suruj Ram I allowed cross-examination of both the Applicant and another witness without objection from the Respondent who was represented by
Mr. Andrew Cope a Senior Legal Officer employed in the Attorney-General's Department.
As to Anuradha Charan's case I note that on pp.13 to 14 of its judgment the Court quoted the remarks of Lord Diplock in O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237 at pp.282-283 which I repeated on p.5 of my ruling of the 11th of November. Lord Diplock said that cross-examination should be allowed
whenever the justice of a particular case so requires. I based my decision to allow cross-examination of the Minister to a large
extent on the principle stated there by Lord Diplock.
For the Applicant Mr. Howard relied first on Practice Note No. 1 of 1993 by the Chief Justice and then on the cases of Ashmore and Others v. Corporation of Lloyd's (1992) 1 W.L.R. 446, Civil Appeal No. ABU0034 of 1995 Kelton Investments Limited and Another v. Civil Aviation Authority of Fiji and Another unreported decision of Sir Moti Tikaram P. dated 18th July 1995 and the unreported decision of Scott J. of 6th February 1997 in HBC273
of 1996S Basic Industries Limited v. Metromix Concrete Company Limited and Another.
He submitted that my decision to allow cross-examination was on a point of practice and procedure only and that compliance with my
order would not cause any injustice or irreparable harm to the State if I refuse leave. Furthermore he said that if I decline the
application the Respondent would be forced to go to the Court of Appeal.
In his decision in Kelton Investments Limited v. Civil Aviation Authority Sir Moti Tikaram P. placed considerable reliance on the Victorian Full Court decision of Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431 and particularly the judgment of Murphy J with whom McInerney J. agreed. The other member of the Court, Gillard J. dissented on the
facts but not on the law governing applications for leave to appeal stated by Murphy J. at pp.441 to 442.
In my respectful opinion the judgment of Murphy J. contains one of the clearest expositions of the law which I have found on this
question and for that reason I shall quote what His Honour said on those pages because in my view his remarks apply directly to the
matter now before me. His Honour said:
"Likewise in Perry v. Smith [1901] ArgusLawRp 51; (1901), 27 V.L.R. 66 and the Darrel Lea Case [1969] VicRp 50; (1969) V.R. 401, the Full Court held that leave should only be granted to appeal from an interlocutory judgment or order, in cases where substantial
injustice is done by the judgment or order itself. If the order was correct then it follows that substantial injustice could not
follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial
injustice by its operation.
It appears to me that greater emphasis therefore must lie on the issue of substantial injustice directly consequent on the order.
Accordingly, if the effect of the order is to change substantive rights, or finally to put an end to the action, so as to effect
a substantial injustice if the order was wrong, it may more easily be seen that leave to appeal should be given. Indeed, this approach
seems to have been adopted in the Darrel Lea Case.
It also seems to me important to note that the judge who makes the interlocutory order or judgment may be in a different position,
when considering whether to grant leave to appeal from his order or judgment from that in which the Full Court finds itself when
considering a similar application.
He has tried the case, whatever it may be. He has made the interlocutory order or given the interlocutory judgment. He could not be
expected, when considering whether or not to grant an application for leave to appeal, to say that his order or judgment was clearly
wrong and that substantial injustice would follow if it went undisturbed. If those criteria had in all cases to be established, leave
would never be granted by the primary judge.
In practice, he may consider (1) whether the issue raised is one of general importance or whether it simply depends upon the facts
of the particular case; (2) whether there are involved in the case difficult questions of law, upon which different views have been
expressed from time to time or as to which he has been "sorely troubled"; (3) whether the order made has the effect of
altering the substantive rights of the parties or either of them; and (4) that as a general rule there is a strong presumption against
granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally
determine any substantive rights of either party.
When the matter comes before the Full Court on a motion for leave to appeal from the interlocutory judgment, it seems to me that different
considerations should apply.
Those considerations are expressed in Perry v. Smith [1901] ArgusLawRp 51; (1901), 27 V.L.R. 66, and the Darrel Lea Case[1969] VicRp 50; , (1969) V.R. 401, in clear terms, although the use of the word "wrong" in the first test may allow of some debate.
On an application for "leave" the Full Court ought not, in my opinion, to be required, before granting leave, to determine
the issue in question, or to decide whether the primary judge's discretion miscarried. That would be to duplicate the work of the
Court. The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible. If leave can only be
granted, following an examination of the merits of the matter and a decision that the order made by the primary judge was "wrong",
and the matter goes then to be decided on the merits by another Full Court, the object of the legislature is negated, and absurdity
is the result. Cf. Lane v. Esdaile, [1891] UKLawRpAC 11; (1891) A.C. 210, per Lord Halsbury L.C. at p.212.
It therefore appears to me that in using the word "wrong" in Perry v. Smith and in the Darrel Lea Case, the Full Court must have used it in a sense which included decisions "attended with sufficient doubt", to use the
Privy Council phrase, from which decisions substantial injustice flowed."
It appears to me reading some of the cases that some times lawyers have tended to overlook those remarks but especially His Honour's
last two sentences in the first paragraph I have quoted. It is not sufficient ground for leave to appeal that a judge's order is
clearly wrong. It must also be shown to effect a substantial injustice by its operation.
In Ashmore v. Corporation of Lloyd's (supra) the House of Lords held that where the judge had ordered the determination of preliminary points or the adoption of some
particular course of conduct for the trial in the interests of justice, his decision was not to be interfered with by an appellate
court unless it was plainly wrong.
Sir Moti Tikaram in Kelton accepted that there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise
of discretion which determines substantive rights. He also said at p.8 of his judgment that every Judge must be allowed to protect
and maintain the dignity and authority of his Court. Otherwise the judicial system will fall into disrepute and the authority of
the Courts will be compromised and their influence diminished.
In Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 S.R. (NSW) 318 at p.323 Sir Frederick Jordan C.J. said:
"I am of opinion that, as was pointed out by this Court In re Ryan(2), there is a material difference between an exercise of
discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class
of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous
to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if
a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory
applications from a Judge in Chambers to a Court of Appeal."
In his Practice Note No. 3 of 1993 the Chief Justice said:
"The legal profession is therefore requested to note that only in the most exceptional cases will the High Court grant leave
judicially to review interlocutory decisions."
There is no doubt that the Chief Justice meant not leave to review interlocutory judicial review decisions but leave to appeal from
such decisions. Consequently the Respondent must show very strong reasons before he could obtain leave to appeal my ruling.
In considering whether to grant leave I am entitled to comment on the proposed grounds of appeal to see whether there is any substance
in them, this not being intended in any way as an attempt to pre-empt either the Court of Appeal or, perhaps more immediately, the
Resident Justice of Appeal in the person of the President of the Court.
Thus in the third additional ground of appeal I do not agree that the apparent incongruity which I have suggested is found in the
Respondent's stance on this matter so far is:
(i) Irrelevant to any issue raised in the application for Judicial Review;
(ii) Not the subject of any reasoning which links it to any ground for Judicial Review alleged in the application; and
(iii) Too vague to permit the conduct of cross-examination or to permit the Court to control its scope.
Ground 6 of the 7 grounds on which relief is sought states that the Respondent's decisions were unreasonable and arbitrary in that
in reaching it he
(i) took into account and considered irrelevant matters;
(ii) failed to take into account and consider relevant matters.
I believe I have covered these grounds sufficiently in my remarks at pp.8 and 9 of my ruling but to those remarks I would also add
that it is arguable that in deciding to cancel the Applicant's exclusive rights because they were in breach of the Fair Trading Decree
the Respondent failed to take into account or give due weight to the fact that if the Applicant were guilty of a breach of the Fair
Trading Decree so too was the Respondent or his predecessor in granting the licence when he knew or ought to have known that such
licence was contrary to the Fair Trading Decree.
Arguably in my judgment this shows inconsistency on the part of the Respondent or his predecessor which calls for some explanation.
Therefore I cannot accept, again without in any way trespassing into the realm of the Resident Justice of Appeal or the Court of
Appeal, that this apparent incongruity is too vague to permit the conduct of cross-examination or permit the Court to control its
scope.
It is clear I believe from my ruling that I intend to keep a tight rein on the cross-examination of the Minister confining it to the
matters I have just mentioned.
As to the last proposed added ground of appeal I do not agree that I failed to give weight to the fact that the present Respondent
was not the same person who made the decision complained of. The principle of Cabinet responsibility applies in Fiji and I consider
it no answer for the Respondent now to say that the problem was caused by the act of his predecessor. I would not have thought it
beyond the capability of the Respondent to enquire from his predecessor whether he was aware that in granting the licence he himself
was infringing the Fair Trading Decree and then inform the Court of the result of his enquiry. To date the Respondent has made no
attempt to provide this information when it seems to me he could have easily done so without obliging the Court to direct him to
attend for cross-examination on the question.
In his unreported decision of 24th October 1997 in Judicial Review No. HBJ0009 of 1996 Padua v. Public Service Commission Pain J. remarked on refusing leave to appeal that of course, no judge would lay claim to infallibility. I respectfully agree, this
being an attribute possessed only by the papacy and then only in a very limited jurisdiction namely relating to matters of faith
and morals. The instant case is not about faith and morals but in my judgment it is arguably about good faith and whether by cancelling
the licence the Respondent has shown good faith towards the Applicant.
If it transpires that I later hold that he has not done so, as to which of course I have not formed any final opinion yet, then it
seems to me that would constitute a misconception by the Minister of the rights of himself and the Applicant.
It was suggested by Mr. Nand at one stage that my granting leave to appeal would save costs in so far that instead of presumably appealing
to the President of the Court if I refuse leave the Respondent would be able to go direct to the Court of Appeal thus saving the
costs of the intermediate step. I cannot accept this somewhat tentative submission by Mr. Nand. Whilst all Judges are in my experience
at pains to point out to litigants the fact that some actions seem to demand settlement with a view to saving legal costs, when it
comes to making a decision no Judge can allow himself to consider the possibility of legal costs being increased if he should decide
against one of the parties. That consideration must always be excluded from a Judge's mind because his duty to the parties and the
public is to decide each case only according to the law as he understands it. If he is thought to be wrong then the unsuccessful
party has the right to appeal.
I remain firmly of the view that my order directing the cross-examination of the Respondent on one question only will not have the
effect of altering the substantive rights of the parties or either of them. Likewise I fail to believe that any substantial injustice
will be caused to the Minister as a result of my order.
Finally I am not persuaded that my order raises a question of general importance but simply affects this particular case.
For these reasons I refuse leave to appeal and as the Applicant has asked for costs I award these in the sum of $500.00.
JOHN E. BYRNE
JUDGE
Cases and authorities referred to in judgment:
Practice Note No. 3 of 1993.
Ashmore and Others v. Corporation of Lloyd's (1992) 1 W.L.R. 446.
Basic Industries Limited v. Metromix Concrete Company Limited and Another HBC273 of 1996S unreported decision of Scott J. of 6th February 1997.
Buckle v. Holmes (1926) 2 K.B. 125.
Civil Appeal No. 2 of 1992 Anuradha Charan v. Public Service Commission and Others unreported judgment of Court of Appeal of 19th November 1993.
Ex-parte: Gilchrist [1886] UKLawRpKQB 112; (1886) 17 Q.B.D. 521.
Civil Appeal No. ABU0034 of 1995 Kelton Investments Limited and Another v. Civil Aviation Authority of Fiji and Another unreported decision of Sir Moti Tikaram P. of 18th July 1995.
In Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 S.R. (NSW) 318.
Jones v. Dunkel [1959] HCA 8; (1959-60) 101 CLR 298.
Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431.
O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237.
HBJ0009 of 1996 Padua v. Public Service Commission unreported decision of Pain J. of 24th October 1997.
Judicial Review No. 4 of 1991 State v. Public Service Commission Ex-parte: Suruj Ram.
The following additional cases were mentioned in argument:
Civil Appeal No. 11 of 1989 Public Service Commission v. Korovulavula unreported decision of Tikaram RJA dated 23rd June 1989.
Evans v. Bartlam (1937) A.C. 473.
Hbj0012j.97s
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