| Fiji Islands - Caine v United General Party - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 148 of 1999
BE:
:
FREDERICK CAINE
Plaintiff
AND:
UNITED GENERAL PAr> Defendant
M B. Patel for the Pthe Plaintiff
Mr. H. Nagin for for the Defendant
DECISION
By Originating Summons dated 18 March 1999 Frederick Caine, the plaintiff, seeks the following orders:
1. A declaration that in the circumstances of the events that have occurred the appointment of the three candidates by the UGP Candidate
Selection Committee was null and void and of no effect.
2. An order that pending the determination of the proceedings the Defendant it's servants and agents be refrained from further implementing
and/or acting upon the recommendations and decisions of the UGP Candidate Selection Committee.
Consideration of the issues
As ordered by Court both counsel filed written submissions. Apart from these submissions I have before me for my consideration the
following affidavits from:
(a) the plaintiff Frederick Caine sworn 17 March 1999
(b) Emelita Wendt Wilson sworn 29 March 1999
(c) Frederick Caine (in Reply) filed 1 April 1999
(d) E.W. Wilson (in Reply) sworn 6 April 1999, and
(e) F. Caine (in Reply) sworn 7 April 1999
It is to be noted that there was no order to file an affidavit as in (e) above.
(i) Locus standi
I have given due consideration to the counsels' submissions.
I agree with the defendant's counsel's submission that the plaintiff's locus standi in bringing the action is in grave doubts.
The affidavit evidence before me does not disclose clearly that the plaintiff is a financial member of the defendant 'Party' to entitle
him to institute these proceedings. In other words as matters stand he does not appear to have locus standi to commence an action
against the defendant. The defendant also disputes a lot of the facts.
It is not at all possible for the Court to determine the issue without an open Court trial with oral evidence.
(ii) Injunction
The plaintiff has to get past the hurdle of his locus standi first before proceeding any further under the application for interlocutory
injunction. Secondly, be that as it may, failure to give an undertaking as to damages on an application for injunction is also fatal
to the application. (NATIONAL AUSTRALIA BANK LIMITED AND OTHERS v BOND BREWING HOLDINGS LIMITED AND OTHERS [(1990) 169 CLR 271].
As Mr. Nagin submits, since the plaintiff is not a candidate in the General Elections he will not suffer any damage. If injunction
is granted, then damages will not be an adequate remedy for the defendant as its candidates will not be able to contest the elections
because of the time factor.
This indeed is a very weak case for the grant of an injunction.
For these reasons under Or. 28 r9 of The High Court Rules it is ordered that there be an Open Court trial with oral evidence. The
proceedings to continue as if the matter had been begun by writ. The affidavits filed shall stand as pleadings with liberty to the
parties to add thereto with liberty to apply for directions generally. The application for interlocutory injunction is refused. Costs
are to be costs in the cause.
D. Pathik
JUDGE
At Suva
14 May 1999
Hbc0148d.99s
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