Premiums earned for the last years x 100
___less 100.”
70
In July 1996, the insurance companies used the formula to calculate the new pms which showed an increase by 84% from the previous
years.ears. The Commissioner of Insurance and the Department of Fair Trading objected to the increase and the parties finally settled
for a 35% increase.
In 1997, the insurance premiums were again increased. On this occasion the Commissioner of Insurance advised the insurers that thuld
compete freely in the sthe setting of premiums which would be determined by the market. Subsequently, there was no uniform rate of
premium.
On 10th November 1999, the Fiji Times published an ar saying that Cabinet had approved the regulation of maximum premiums setting the maximum
ofum of $60 for Group Two private vehicles. The insurance companies, which had no prior knowledge of Government’s intentions, wrote
to the Minister, voicing their concerns about the proposed changes.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> A meeting was then held between the Ministry an Insurance Companies. The Companies were told that there was no duty to consult their
reprerepresentative, the Insurance Council of Fiji, and that Cabinet had already approved the Regulations. The Permanent Secretary
did not tell the Companies what the new premiums were to be, or how they were calculated. He invited the companies to write to him
explaining how premiums had been set by them.
On 24th November the Chairman of the Insurance Council of Frote to the Ministry explaining these matters, but there was no reply. The Applicants
then then asked for a further meeting, which was held on 9th December 1999. Again the Ministry refused to tell the companies of the proposed premium structure, but told them that it would be
difficult to review an approval already given by Cabinet. At this meeting the Ministry officials apparently had difficulty understanding
the principles of insurance, and how premiums were fixed.
A further meeting on 3rd February 2000 was held with the Attorney-General. Finally on 4th
The letter, addressed to the Chairman, Insurance Council invited responses by 3pm on 7th February 2000. The Council responded at 2.58pm on 7th February. However the Regulations were gazetted with no changes on 11th February. The Insurance Companies responded then suspended third party insurance policies. The Minister responded by telling them,
on 25th February that the law required approved insurance companies to issue and renew policies until the approved companies revoked their
certificate of willingness. She said that failure to renew or issue policies might leave her no choice but to commence High Court
proceedings “to compel an approved company to comply with the certificate of willingness to conduct CTP business.”
The companies then informed the Minister that they would continue to issue and renew policies reng their right to take further action.
On 9th May 2000 the leave application was filed.
Delay:
The relief sought in this case is inter alia, certiorari to quash the Minister’s decision tue the Regulations.
Order 53 Rule 4 of the High Court Rules provide:p class=MsoNormal style="margin-top: 1; margin-bottom: 1">
“(1) Subject to the provisions of this rwhere in any case the Court considers that there has been ueen undue delay in making an application
for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant
period has expired, the Court may refuse to grant -
pan style="font:7.0pt "Times New Roman""> ;&nbssp;&nbs;&nbs; &nbp; ;&nbpp; &nnsp;& leave fave for the making of the application; or
&nbbsp;& &nsp; &nsp; &nnbp;&
elief soef sought oght on the application, if, in the opinion of the Court, the grantinghe resoughld bely toe subial hardship tosubstantially
prejudice the rige rights ohts of, anf, any pery person oson or wour would beld be detrimental to good administration.
(2) In the case of an applicatio an order of certiorari to remove any judgment, order, conv conviction or other proceeding for the
purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.”
In Harikisun Ltd. -v- Dip Singh and Others Civil Appeal No. ABU0019 of 1995S, the Fiji Court ofal said that Rule 4(1)(b) i(b) is irrelevant at leave stage. The only question
in relation to delay at leave stage is whether there has been undue delay in making the application, or in the case of certiorari,
whether the application is made within three months.
In this case the application was filed just within the three months whichfrom the 11th of February. I note that from 11th February to the 29th of February there were continuing negotiations between the Insurance Council and the Ministry as to the renewal and issuing of premiums
under the Regulations. This application was filed two months after negotiations lapsed.
In the circumstances I do not consider the delay to justify a refusal of leave, especially when the Applicants are still within the
months stipulated by OrderOrder 53 Rule 4. As the Court of Appeal said in Harikisun Ltd (supra) “the questions of delay are best dealt with in depth at the substantive hearing and .... leave should only be refused in
clear cases of unjustifiable delay.” This ground of opposition fails.
An Arguable Case
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The test at leave stage is whether the material available discloses what might, on er consideration, turn out to be an arguable case
- F>Fiji Airline Pilots Association v. The Permanent Secretary for Labour Civil Appeal No. ABU0059U of 1997S.
It is not disputed that the Minister, by virtue of section 29(1) of the Motor Vehicles (Third Party Insurance) Act, had the power to make the Regulations complained of. However the grounds upon which the Applicant is seeking relief are that:
p class=Level1 stylestyle="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (a) &nnbsp;;&nbssp;&bsp;&nbs;&nbs; & p;&nssp; span>the Minister abused her powers;
(b)  &nbs; p;ths Minister failed iled to consult the Insurance Council of Fiji, the successor to the South Sea Islands
Fire and Tariff Association;
(c) &nnsp;&thsp;ppl Aant cad a ad a legitimate expectation as to consultation;
(e) &nnbsp;;&nspp;thsp;the Mini Minister acted unreasonably, unfairly, arbitrarily and improperly;
(f) & &nsp; the Minister faipan lang=ENng=EN-GB> to conduct a proper enquiry into the third party insurance business;
(-GB>(g) ; &nnsp;&&nsp;;&nbp; &nbp; &n/sp;the Ministerister failed to consider relevant factors and took into account irrelevant factors;
nbsp; &bsp; nbsp;  &nbbs;&nhere nsu insufficieficient opportunity to make proper representations;
(i) ; &nrsp;pte-denatiination;
(j) &n&nnbsp;;&nbssp;erf lawhe awhe face oace of thef the reco record;
(k) &nbbsp;& &bsp;&bsp;&nbp; breach of sectisection 40 of the Constitution.
The Respondent says that this is a hopeless case and that leave should be refused. However, the matein the affidavits filed show a
pattern of consultation betw between the companies and with the Commissioner of Insurance in the setting of premiums since 1992.
The evidence also shows that premiums have been set according to a rational formula based on the cost of insurance cover to the insurance
company. The Regulations were presented to Cabinet without consultation with the very bodies who were most closely affected by them.
Any consultation thereafter was done at Applicant’s initiative. Furthermore the Regulations were only disclosed by the Respondent
to the Applicants two working days before the deadline for gazetting. Whether or not there was a statutory duty to consult the Insurance
Council, the Applicants as insurance providers had such a direct interest in the Regulations, that in any event it is arguable that
consultation was expected in the interests of fairness.
Furthermore, the criteria used in the Regulations for the setting of premiums differed grefrom the approved formula used until February
2000. The Appe Applicants have shown an arguable case of inadequate disclosure, unreasonableness and irrelevant considerations.
In all the circumstances, this is not a frivolous or hopeless case. The Applicants have disclosed an arguable case for the granting
of leave to apply for certiorari, prohibition and a declaration. Leave is granted accordingly.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Stay
The Applicants apply for stay of the Regulations on the ground that they wil be compensated in damages if they succeed. The Respondent
dent objects to stay on the ground that the application was delayed, and that failure to enforce the Regulations will result in an
unregulated system of third party insurance until this action is heard.
The Regulations have now been in force for almost five months. The Insuranmpanies have submitted (under protest) to those Regulationstions,
and did not attempt to review them for two months after publication. Many members of the public have paid the new premiums either
as renewal of existing policies or in issuance of new policies. To stay the operation of those Regulations now, would in my view
be inconvenient for the public. This outweighs the possible prejudice to the Applicants.
Stay is refused.
Nazhat Shameem
JUDGE
At Suva
20th June 2000 HBJ0024J.00S
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