IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBJ 0033 OF 1997S

THE STATE

V

THE MINISTER FOR LANDS AND MINERAL RESOURCES

EX PARTE:

NIVIS MOTORS & MACHINERY CO. LTD.

Counsel: Mr H. Nagin for Applicant
Mr K. Keteca for Respondent

Hearing: 8th March 2001
Decision: March 2001

DECISION

This is an application by the Applicant to adduce oral evidence at the hearing of its judicial review application in respect of a decision of the Minister for Lands and Mineral Resources to compulsorily acquire part of the Applicant’s leasehold on the Ratu Mara Road. The Respondent opposes the application.

This case has a long and protracted history. Leave was refused by Fatiaki J on 4th February 1998. The Applicant appealed that decision to the Court of Appeal. The Court of Appeal allowed the appeal on 6th November 1998. The Respondent then made an application in the High Court to vary/clarify the orders made by the Court of Appeal. The matter was listed before Pathik J who ordered that the affidavits filed by the Respondent be disregarded, and that affidavits were to be filed for the substantive hearing.

Affidavits were then filed by both parties and the matter delayed for some time for discovery. On 6th March 2001, the Applicant made an application to adduce the oral evidence of an expert from New Zealand who would give evidence in respect of the expected size of the roundabout built by the Public Works Department which led to the compulsory acquisition of the Applicant’s land.

The grounds for the application are contained in the affidavit of Nirmal Singh, the Managing Director of Nivis Motor and Machinery Company Ltd., sworn on the 9th of May 2000. Those grounds are that the documents disclosed by the Respondent in respect of the roadworks at Nabua, failed to explain how the Applicant’s property was to be affected by the roadworks. Mr Singh deposes that the documents show that the Public Works Department failed to properly consider “the alternative designs proposed by Traffic Design Group in their letter dated 25th July 1997”. Mr Singh says that the Applicant should be allowed to call a witness from the Traffic Design Group and that leave should be granted to cross-examine the Respondent’s witnesses, whose affidavits have been filed.

At the hearing of this application, counsel for the Applicant said that the Applicant wished to prove that the correct size of the roundabout ought to have been half the size that it eventually became, and that the Respondent had erred in building the roundabout with a radius of 25 metres. He said that the Respondent had failed to consider the alternative designs proposed by the Applicant, and that its error as to the size of the roundabout was so fundamental that it affected the entire building works.

Counsel for the Respondent objected to the application saying that the Respondent had complied with disclosure, and that the calling of oral evidence on a judicial review application was exceptional. He said that the court should avoid delving into the merits of the Minister’s decision, and that cross-examination would delay an already protracted hearing.

The Application

The relief sought in this application, is for certiorari to remove the decision of the Minister to compulsorily acquire the Applicant’s leasehold, into the court, and to quash it, and for a declaration that the Minister acted unfairly and/or arbitrarily and./or unreasonable and/or in breach of the Applicant’s legitimate expectations and/or in excess of his jurisdiction.

The grounds for the application can be summarised as follows:

1.	Failure to give the Applicant an opportunity to be heard;

2.	Failure to take into account relevant matters in particular the report by Traffic Design Group showing that the construction of the Nabua Roundabout did not require the acquisition of the Applicant’s land;

3.	Failure to adopt the above report;

4.	Failure to adopt an alternative to the roundabout;

5.	Unreasonableness;

6.	Excess of Jurisdiction;

7.	Acting contrary to the Applicant’s legitimate expectations.

This application relates to Ground 2 - that the Minister failed to consider the report of the Traffic Designs Group particularly in relation to the size of the roundabout.

In his affidavit of 12th May 1999, the Minister for Lands and Mineral Resources deposed at paragraph 38, that he did consider the alternative report by the Traffic Designs Group, that it was referred to his engineers, the Director of Roads, and to the PWD engineers and that he “was advised to maintain the original design for safety reasons.”

The Applicant’s reason for adducing oral evidence is twofold, first that there was a failure to consider the report, and second that the Minister was mistaken as to the size of the roundabout.

These are clearly matters which can be led in evidence in affidavit form; and can be the subject of submissions by counsel.

In O’Reilly -v- Mackman (1983) 2 AC 237, 257, Lord Diplock said at pp 282 and 283:

“It will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review. This is because of the nature of the issues that normally arise upon judicial review. The facts, except where the claim that a decision was invalid on the ground that the statutory tribunal or public authority that made the decision failed to comply with the procedure prescribed by the legislation under which it was acting or failed to observe the fundamental rules of natural justice or fairness, can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority’s findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards -v- Bairstow (1956) AC 14, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament. Nevertheless having regard to a possible misunderstanding of what was said by Geoffrey Lane L.J. in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) (1979) 1 W.L.R. 1401, 1410 your Lordships may think this an appropriate occasion on which to emphasise that whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires.”

This passage was approved by the Fiji Court of Appeal in Anuradha Charan -v- Public Service Commission and 2 others Civil Appeal No. 2 of 1992. Byrne J in State -v- Minister for Information Broadcasting Television and Telecommunications ex parte Fiji Television Judicial Review Action No. HBJ 0012/97, allowed cross-examination of the Minister for Information because he had taken a particular position on a licence granted by the Minister to Fiji T.V. Leave was granted to cross-examine the Minister “limited only to the question 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.” In State v. Transport Control Board ex parte Tui Davuilevu Buses Limited Judicial Review No. 39 of 1991, Byrne J allowed oral evidence to be adduced in the interests of justice, because there was a serious dispute on the facts relating to the procedures followed by the Board, which could not be resolved by the filing of affidavits.

The principles established by these authorities, both abroad and locally, are that leave to adduce oral evidence should be exercised with care, lest the court venture into the merits of the decision, rather than the process of the decision making, that the discretion should be exercised where it is just to do so, and where affidavit evidence will not resolve an issue, and where the evidence will relate to the decision-making process.

The question of whether the Minister in this case considered the Traffic Designs Report is clearly a matter to be considered on affidavits. The Minister said he did consider the report, but was advised to proceed as planned. The questions of the reasonableness of that decision, and the relevance of the report, are not matters for oral evidence. They are matter for legal argument and submissions.

Similarly if the Minister mistook the size of the roundabout, then the Applicant must show this in affidavit form. An expert may show this in an affidavit. If the affidavit is disputed the Respondent may file another affidavit on that point in reply. I see no reason why a witness must give oral evidence on the construction of a report which the court can look at in the course of legal submissions after all affidavits have been filed.

Furthermore, an oral hearing will inevitably prolong already protracted proceedings.

I do not consider it necessary or just, in the hearing of this application to hear oral evidence from experts about the size that the roundabout ought to have been. For these reasons, this application is dismissed. This matter must now proceed to hearing.

The Applicant must pay the Respondent costs of $200 within 14 days.

Nazhat Shameem
JUDGE

At Suva
14th March 2001