Hearing: 7th February & 15th February 2000
Decisiecision: 10th March 2000
DECISION
This is an application for leave to judicially review a decision made by the Director-General of the Fiji Islands Customs Service
on 15th December 1999, not to award a tender for the supply of surveillance equipment to the Applicant. Leave is opposed on the ground that
the application is bound to fail.
The Applicant in his affidavit sworn on 13th Jan2000, says that he is the proprietor of Cheq Management. In June 1999, the Respondent adveradvertised in the Fiji Times inviting
tenders for various contraband detection equipment. In particular, tenders for track or trace instruments, itemiser detectors, and
night vision video photographing camera with VCR, were invited. The Applicant responded to the advertisement and met with customs
officials on the technical aspects of the tender. The tender was re-advertised and Cheq Management again responded with a more detailed
tender. More meetings were held. The total amount tendered by the Applicant in October 1999 was F$4.6 million. The Applicant says
that he was told that his was the best tender and that an order would be made by customs officials. On the basis of these conversations,
the Applicant’s solicitor wrote to the Customs Authorities asking them to deposit $180,000 for the purchase of an X-ray scanner to
a specified bank account.
More letters were written. The tender was however re-advertised in November 1999. Again, the Applicant submitted a tender, this time
for F$1.2 million. More meetings were held. The Respondent reduced its price to $140,000.
On 15th December 1999, the Respondent wrote to the Applicant saying that the tender was not going to be pursued any further on the ground
that “our overseas enquiries now indicated that a more favourable price can be obtained from other suppliers.”
The relief sought is an order for certiorari to quash the decision of the First Respondand to award the tender to the Applicant and
an order restrrestraining the Respondent from seeking the equipment elsewhere.
The grounds for review are unfairness, unreasonableness, and the taking into accountrrelevant considerations.
The leave application was heard in Chambers on 7 February 2000, and 15th February 2000. The Respondents filed the affidavfidavit of Jalal Ud Dean sworn on 11th February 2000 in opposition to leave being granted.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Respondents say that leave should be refused because the granting of tenders was subject to the availability of funds and approval
of the Revenue and Customs Authority Board. They say that the equipment tendered for could not be bought in 1999 because the Ministry
of Finance did not approve the funds on time. They say that in December 1999, the Board decided against the order on the ground that
it was too expensive, and a different type of machine was finally bought in January 2000 from Australia.
Mr P. Howard for the Applicant submitted these matters should be considered at the substantive hearind not at leave stage. He submitted
that the First Respondepondent had acted unfairly and unreasonably in the award of tenders, and that leave should be granted.
The Court of Appeal in National Farmers v. Sugar Industry Tribunal Civil Appeal No. 8 of 1999 said of the question to be a be asked at leave stage:
“A ready test for deciding this question ither any particular ground could properly and reasonably bely be characterised as frivolous,
vexatious or hopeless in the sense of being patently devoid of merit.”
The Applicant’s case is that the First Respondent acted unreasonably in that the Applicant was given to understand that its tender
was successful and that orders would be made. The affidavit filed by the Respondent appears to substantiate the Applicant’s position.
It refers to an order that was submitted for approval to the Ministry of Finance in relation to the tender. It may well be that the
First Respondent acted reasonably in not proceeding with the order. However at leave stage I cannot conclude that this is a case
which is frivolous, hopeless and bound to fail. There is no suggestion that the Applicant has insufficient standing.
In the circumstances I am satisfied that leave should be granted to review the decision of the Firspondent of 15th December 1999.
I order accordingly. Costs are in the cause.
Nazhat Shameem
b>JUDGE
At Suva
10th Mar> March 2000
HBJ0007D.00S
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