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Dawai v Native Lands and Fisheries Commission [2005] FJHC 657; HBJ0004.2005L (12 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0004 OF 2005L

BETWEEN:

RATU KALIOVA DAWAI
Applicant

AND:

NATIVE LANDS AND FISHERIES COMMISSION
1^st Respondent

RATU NAPOLIONI NAULIA DAWAI
2^nd Respondent

THE ATTORNEY GENERAL OF FIJI
3^rd Respondent

Counsel for the Applicant: Mr. I. Fa
Counsel for the 1st & 3rd Respondent: Ms. S. Tabaiwalu
No Appearance for the 2nd Respondent

Date of Hearing/Date of Ruling: 12 May 2005

EXTEMPORE RULING ON LEAVE

The applicant applies by way of ex-parte Notice of Motion filed on the 11^th May 2005 for leave to apply for Judicial Review and upon the granting of that leave for a stay of proceedings. In accordance with the rules, the Motion was served upon all respondents on the 11^th May 2005 and called today due to the 1^st respondent commencing action to determine the Tui Nadi at 10.00am today.

Counsel appeared for the 1^st and 3^rd respondent and there was no appearance on behalf of the 2^nd respondent.

In support of the application for leave, the applicant relied upon an affidavit of Ratu Kaliova Dawai Nawaqa sworn on the 11^th May 2005 and referred the court to the decision of Townsley J. in Matter No. HBJ0021 of 1997L, a decision which related to the 1997 appointment of the Tui Nadi.

The grounds upon which Judicial Review is sought are that the 1^st respondent has a financial interest in the outcome of the dispute and is therefore guilty of bias and that this court has already made such a ruling in Matter No. HBJ0021 of 1997 and further that the applicant has a legitimate expectation that an inquiry under section 17 of the Native Titles Act be carried out fairly and justly.

I have been referred as stated earlier to the judgment in Matter No. HBJ 0021 of 1997, a most extensive judgment by Townsley J. which canvassed the issues in a most comprehensive way and indicated clearly how breaches of the rules of natural justice might be avoided.

The affidavit filed in support of the application has annexed to it, Annexure KD08, which is a letter written in Fijian, I am told from the Native Lands & Fisheries Commission to the Native Land Trust Board. Annexure KD09 to that same affidavit is an English translation of that same letter which Counsel for the 1^st and 3^rd Respondents acknowledges, is relevantly a correct translation. That letter is dated 2^nd June 2004 and in it, the Chairman of the Native Lands Commission clearly states that the Commission will not alter its position, notwithstanding the determination of the court. I find this an extraordinary statement to be made by a senior officer of the department headed by the Prime Minister.

The issues for consideration by the court in determining an application for leave to apply for Judicial Review are:

(a) Does the applicant have sufficient interest in the application?

(b) Is the decision sought to be reviewed, the decision of a private or public nature?

(c) Are there alternative remedies available to the applicant?

The applicant in this instance being a contender for the title Tui Nadi has a sufficient interest in the application. The decision sought to be reviewed is a decision of a public nature and therefore a decision that is subject to Judicial Review.

The determination of the 1^st respondent to appoint the Commissioners and to conduct the Commission can only be challenged by way of Judicial Review and there are therefore no alternative remedies available to the applicant in the circumstances.

The submission put before the court on behalf of the 1^st and 3^rd respondents with respect to the leave application have been indeed very limited. At this point of these proceedings, the court is only required to consider whether leave should be granted or not. It is not necessary nor should the court entertain a detailed analysis of the evidence that might ultimately be placed before the court should leave be granted.

It is only the determination by the 1^st respondent as to the manner in which it has established the Commission that is under challenge at this time. Should it be that leave be sought to challenge the decision of the Commission after it had made a determination of the substantive matter then there may well be alternative remedies available.

In all of the circumstances, I find that the tests required for the granting of leave are satisfied and accordingly, leave to apply for Judicial Review shall be granted. Having granted leave, it would be pointless not to grant the stay sought as the Commission proposes sitting at 10.00am today.

The Orders of the Court therefore are:

1. Leave is granted to apply for Judicial Review.

2. The 1^st respondent be restrained from commencing any Commission of Inquiry or continuing any Commission of Inquiry already commenced for the purposes of determining the holder of the title Tui Nadi until further Order of the Court.
   

JOHN CONNORS

JUDGE

At Lautoka

12 May 2005