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State v Arbitration Tribunal, Ex parte Colonial National Bank [2004] FJHC 332; HBJ0023R.2003S (19 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0023 OF 2003

Between:

STATE

v

ARBITRATION TRIBUNAL
FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
RAJESHWAR SINGH
s/o Chattar Singh
Respondents

Ex-parte: COLONIAL NATIONAL BANK
Applicant

Mr. H. Nagin for the Applicant
Mr. J. Udit for the 1st Respondent
Mr. G. P. Shankar for the 3rd Respondent

DECISION

By motion filed on 1 December 2003 Colonial National Bank (the ‘applicant’) seeks the following orders:

1. that the applicant be granted leave to appeal to Fiji Court of Appeal against the decision delivered by Mr. Justice D. Pathik on 31 October 2003.
   
2. That all proceedings including Judicial Review No. HBJ0001 of 2003 be stayed until the hearing and determination of the appeal.
   

The application is made pursuant to section 12(2)(f) of the Court of Appeal Act. An affidavit sworn by Ritesh Singh (“Singh”) litigation Clerk to Sherani & Co has been filed in support.

The applicant had on 21 November 2003 filed five Grounds of Appeal. In his affidavit Singh in support states that: ‘the Applicant has good prospect of success in the Fiji Court of Appeal and Applicant’s Grounds of Appeal will raise considerable matters of legal interest and there are interesting points of law involved and the appeal will be in the general public interest’.

The application is opposed by the Respondents.

Consideration of the application

The application for leave has been considered by me bearing in mind the submissions made by counsels and the authorities referred to by them.

This application arises out of my decision herein delivered on 31 October 2003 when I refused leave to apply for judicial review out of time. There I concluded by saying:

“To conclude, for the above reasons and on the authorities leave to file for judicial review is refused. The delay has been far too long and has a prejudicial effect on the persons or parties affected. To allow such an application is detrimental to good administration. In view of this refusal it is not necessary to consider the ‘leave’ aspect of the application”.

No doubt leave is required under s12(2)(f) of the Court of Appeal Act. Leave to appeal from an interlocutory decision is a discretionary matter.

In considering this application I bear in mind the principles governing an application of this nature. The factors that govern are: (a) that the appeal has a realistic prospect of success and (b) balance of convenience – prejudice to respondents and prejudice to applicant.

Because it has fallen on me to consider leave, I am constrained to point out at this stage that, in my almost five decades in the law, this is the worst application of this nature that I have come across. It is without merit and is frivolous and vexatious. In his affidavit in support of the application, the law clerk to the law firm Sherani & Co has the temerity to depose to the law on the grounds for leave on legal grounds and ‘public interest’. What does he know about the law to which he is deposing?

I have given my reasons for my said decision which are as clear as crystal to anyone reading it when I said:

“Nowhere in the papers before me is there any explanation, why there has been such a considerable delay in making the application.

Before one can consider the granting of leave for judicial review the applicant has to overcome the first hurdle and that is to convince the court that the reason for delay was justifiable. This the applicant has failed to do.

My decision relates to refusing leave to apply for judicial review out of time for the reasons I gave and not refusal of leave to apply for judicial review. The Rules as to leave must be obeyed. Leave must be obtained as provided under Or 53 of the High Court Rules but that did not arise because I had refused leave to apply out of time.

I do not see any prospect of success on appeal and as I have said granting of leave for judicial review will be detrimental to good administration in the circumstances of this case.

The application is refused with costs in the sum of $150.00 (one hundred fifty dollars) each to 1st and 3rd respondents’ solicitors within 21 days.

D. Pathik
Judge

At Suva
19 July 2004