IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBJ 15 of 2008

IN THE MATTER of an Application by
RATU OVINI BOKINI, RATU SAKIUSA
MAKUTU, RATU EPENISA CAKOBAU AND
RATU RATAVO LALABALAVU for a Judicial
Review under Order 53 of the High Court 
Rules of Fiji 1988

AND

IN THE MATTER of a purported exercise by
the Interim Prime Minister, Minister for
National Council for Building a Better Fiji,
Provincial Development, Public Service,
Indigenous and Multi-Ethnic Affairs and
Information of powers under section 5 of the
Fijian Affairs Act Cap 120

BETWEEN:

THE STATE

AND:

COMMODORE VOREQE BAINIMARAMA
as Interim Prime Minister, Minister for National Council
for Building a Better Fiji, Provincial Development, Public Service,
Indigenous and Multi-Ethnic Affairs and Information and
The Interim Attorney-General AIYAZ SAYED-KHAIYUM
on behalf of the Interim Government
(Respondents)

EX PARTE:

RATU OVINI BOKINI of Tavualevu, Tavua, Ba, Turaga na Tui
Tavua, RATU SAKIUSA MAKUTU of Cuvu, Nadroga/Navosa,
Turaga na Ka Levu, RATU EPENISA CAKOBAU of Mataweilagi,
Bau, Businessman and RATU RATAVO LALABALAVU of
Somosomo, Taveuni, Sea Captain
(Applicants)

AND

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBC 132 of 2008

BETWEEN:

RATU SAKIUSA MAKUTU
of Cuvu, Nadroga, RATU OVINI BOKINI
of Tavualevu, Ba, RATU EPENISA CAKOBAU
of Bau, Tailevu and RATAVO LALABALAVU,
Suva, all members of the Great Council of Chiefs in April, 2007.
(Applicants)

AND:

THE ATTORNEY-GENERAL
sued for and on behalf of Ratu Epeli G. Ganilau
whilst he was interim Minister for Fijian Affairs,
Heritage and Provincial Development and Multi Ethnic Affairs
(Respondent)

Coram: Hickie, J

Date of Hearing: 26 November 2008

Appearances: Mr A. Narayan for the Applicant Respondents
Mr Vutaki for the Respondent Applicants

Date of Decision: 9 December 2008

RULING

A. THE APPLICATIONS

[1] An Application for Leave to apply for Judicial Review was filed in the High Court at Suva (Civil Action No. HBJ 15 of 2008) on 8 April 2008 in respect of a decision of the First Respondent on 13 February 2008 to make the Fijian Affairs (Great Council of Chiefs) Regulations 2008.

[2] When the Application for Leave to Apply for Judicial Review first came before me on 13 May 2008, Counsel for the Respondents indicated in their Notice of Opposition that they considered the present application to be "an abuse of process as there are two proceedings pending ... HBM 98 of 2007S and HBJ 30 [sic] of 2007S instituted by the Applicants". They also noted that they would be seeking to file an Application for a Stay of the present Application for Leave to apply for Judicial Review pending judgment in the Qarase v Bainimarama case (HBC 60 of 2007 and HBC 398 of 2007). In response, Counsel for the Applicants indicated that the present Application for Leave to Apply for Judicial Review was one of four separate proceedings before the High Court each application dealing with a different regulation. A timetable was ordered for the Respondents to file their Application for a Stay and the matter adjourned initially until 30 June and thereafter until 15 July 2008.

[3] On 15 July 2008, the matter was set down for hearing of the Stay Application for 10 September 2008. The matter, however, came back before me on 5 August 2008 whilst a separate file HBC 132 of 2008 which was before Pathik J was referred to me with the present file. Both matters were thereafter adjourned until 1 October 2008 when they were adjourned for hearing on 26 November 2008. In the meantime, both parties had filed written submissions.

[4] When the matters then came before me on 26 November 2008, Counsel for the Respondent Applicants noted that although judgment the Qarase v Bainimarama case had been handed down an appeal had been lodged and a date had been set by the Court of Appeal for the end of the March 2009 sittings. (See Qarase v Bainimarama, (Unreported, High Court of Fiji at Suva, Civil Action Nos. HBC60 of 2007 and HBC 398 of 2007, 9 October 2008, Gates ACJ, Byrne and Pathik JJ) (Paclii: [2008] FJHC 241, http://www.paclii.org/fj/cases/FJHC/2008/241.html). It was the Applicant Respondents' submission, therefore, that a Stay should be granted until the outcome of the Appeal.

[5] Counsel for both parties then indicated that they were each agreeable to rely upon their respective written submissions and a Ruling was to be given on notice subject to me relisting the matter should I need anything further clarified from those submissions.

[6] The Grounds upon which the Respondents are seeking a Stay are, in summary, as follows:

(a) That there is duplication of previous proceedings in that the Applicants have issued four other proceedings two of which are still before the Courts -

(i) An Application for Judicial Review before Jitoko J on Civil Action File No. HBJ 10 of 2007 which was discontinued on 3 August 2007;

(ii) An Application for Constitutional Redress before Pathik J on Civil Action File No. HBM 98 of 2007 which was discontinued on 25 April 2008;

(iii) An Application for Judicial Review before Singh J on Civil Action File HBJ 39 of 2007 wherein on 16 Apri1 2008 Leave was granted to apply for Judicial Review but then on 19 June 2008 leave was also granted to appeal the Ruling to the Court of Appeal (Civil Appeal No. ABU039 of 2008) questioning the locus standi of the Applicants as well as delay;

(vi) An Application for Constitutional Redress HBC 132 of 2008 which was before Pathik J but (as he was involved in the Qarase v Bainimarama case), asked for it to be transferred and the parties agreed for it to be dealt with by me in conjunction with the present matter.

(b) That there is duplication or similar issues in the proceedings in the Qarase v Bainimarama case now on appeal to the Court of Appeal (Civil Appeal No. ABU077 of 2008), in the appeal from Singh J's decision in Civil Action File HBJ 39 of 2007 to grant Leave to the Applicants to file for judicial Review (Civil Appeal No. ABU039 of 2008), and in the Application for Constitutional Redress HBC 132 of 2008 currently in the High Court which was before Pathik J but is now before me.

(c) That judicial comity requires that a Stay be granted as the application relates to a challenge to a promulgation of His Excellency, the President, which was dealt with by Scutt J in Fijian Teachers Association v President of the Republic of Fiji (Unreported, Civil Action No. 595 of 2007, 18 February 2008) (Paclii: [2008] FJHC 142, http://www.paclii.org/fj/cases/FJHC/2008/142.html).

[7] The Respondents also replied upon in support an Affidavit of the Solicitor General, CHRISTOPHER THOMAS PRYDE, sworn and filed on 4 June 2008 dealing in greater detail with the matters raised in the submissions.

[8] The Grounds upon which the Applicants are opposing a Stay are, in summary, as follows:

(a) That there is no common question of fact or law with the Qarase v Bainimarama case and the present case as -

(i) The existence of power is not questioned in the present case as it is in the Qarase v. Bainimarama case;

(ii) The Interim Minister must act within the doctrine of necessity as outlined in Chandika Parasad (See Republic of Fiji & Anor v Prasad [2001] 2 LRC 743);

(b) That the facts and issues are different between the present case and the "termination case" -

(i) The "termination case" (Civil Action No. HBC 132 of 2008) is an Application for Constitutional Redress whether the interim Minister for Indigenous Affairs had the power to terminate membership and what flowed from that decision;

(ii) The present case is seeking leave to apply for judicial review concerning

• whether the Applicants have sufficient interest

• whether they have delayed

• whether there are alternative remedies

• whether there is an arguable case

(c) That the facts and issues are different between the present case and the case concerning judicial Review of "Section 3"of the Fijian Affairs Act -

(i) The "Section 3 case" (Civil Action No. HBJ 39 of 2007) is an Application for Judicial Review concerning the President's decision to appoint members of the Great Council of Chiefs with no nominated or elected members;

(ii) The present case concerns Section 5 of the Fijian Affairs Act and the Regulations made by Interim Minister to implement the Regulations made by the President.

(d) That the rights to relief do not arise out of the same transaction or series of transactions -

(i) The alleged illegality of the Fijian Affairs (Great Council of Chiefs) Regulation 2008 does not depend upon the decree of validation made by the President which is in issue in the Qarase v Bainimarama case;

(ii) The "termination case" (Civil Action No. HBC 132 of 2008) is an Application for Constitutional Redress whether the Interim Minister for Indigenous Affairs had the power to terminate membership based on the letter of 19 April 2007 whereas the present case is seeking to quash the Fijian Affairs (Great Council of Chiefs) Regulation 2008;

(iii) The "Section 3 case" (Civil Action No. HBJ 39 of 2007) is an Application for judicial Review concerning the President's decision to appoint members of the Great Council of Chief and is based upon the Fijian Affairs (Great Council of Chiefs) Regulation 2007 whereas the present case does not depend upon that Regulation.

(e) There are no other desirable reasons to grant a stay pending the outcome of other cases -

(i) Public interest in avoiding duplicity - the arguments and evidence between the cases will not be similar;

(ii) Public interest requires a determination in the present case, that is, whether the Fijian Affairs (Great Council of Chiefs) Regulation 2008 is valid;

(iii) The Fijian Teachers Association v President of the Republic of Fiji (supra) is distinguishable as that case involves the President's powers which is the same issue as the Qarase v Bainimarama case whereas the present case is whether the Interim Minister properly exercised his powers under section 5 of the Fijian Affairs Act;

(iv) The Fijian Affairs Act is human rights legislation which is more important than the rules of the High Court allowing a stay for one or more pending cases;

(v) The Great Council of Chiefs is a constitutional body under section 116 of the Constitution and a delay will not uphold such a constitutional body;

(vi) It is important to emphasise to the Chiefs that recourse to the law is still open whereas a stay will close that openness.

[9] The Applicants also replied upon in support an Affidavit of RATU SAKIUSA MAKUTU, sworn on 3 July 2008 and filed on 9 July 2008 dealing briefly with the matters raised in the submissions.

D. THE LAW

1. Order 4 rule 2

[10] The "Consolidation of Proceedings" is dealt with under Order 4 rule 2 of the High Court Rules as follows:

"Where two or more causes or matters are pending, then, if it appears to the Court -

(a) that some common question of law or fact arises in both or all of them, or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or -

(c) that for some other reason it is desirable to make an order under this rule,

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any of them."

[11] In relation to the length of a Stay, in Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1940] 4 All ER 216, which involved an appeal from an Order of the Master adjourning a hearing for three months, Counsel for the Appellant argued that "the Court has no power to refuse an immediate order for possession when it is asked for by a legal mortgagee on proper grounds" to which FarwelI J noted:

"In my judgment there is nothing whatever which is in any way ultra vires or improper in the direction which the Master has given in this case ... the Master may adjourn it for three months if, in all the circumstances, he thinks that is the proper way of doing justice between the parties. If the Master is wrong ... in thinking that that is the way to proceed, the litigant has his remedy by taking the matter to the judge, and if the judge takes the view which the Master took and the litigant is still dissatisfied, he can go higher and obtain, if he can, a reversal of the judge's direction, but it is quite beyond anything that I have ever before heard suggested to say that the Court has no jurisdiction under its own procedure in a proper case to direct that a matter shall stand over for such period as the Court, in all the circumstances, thinks justice require."

[12] This was further considered in Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883, where Russell J held at 902-903 in relation to Hinckley:

"I do not consider that there is in that judgment anything which definitely asserts the existence of a jurisdiction to decline indefinitely ... the judge was really concerned to refute the proposition that the mortgagee had an absolute and immediate right to an order without any exercise of a procedural power to adjourn the hearing… I do not find that the decision of Farwell J departs from the situation which always obtained of a limited power in the court to adjourn an application for possession for a short time to give the mortgagor an opportunity of satisfying the mortgagee."

[13] The question as to "the exercise of judicial discretion in refusing an adjournment" was considered recently by the Fiji Court of Appeal in Goldenwest Enterprises Ltd v Pautogo (Unreported, Civil Appeal No. ABU0038.2005, 3 March 2008, Byrne and Scutt JJA ; Paclii: [2008] FJCA 3; where the Court referred to Hinckley's case as well Re Yates' Settlement Trusts. Yates and Anor v Paterson and Ors [1954] 1 All ER 619, noting at paragraphs 34-36.

"34. In Re Yates' Settlement Trusts the question was whether the Court should have granted an adjournment where there were two cases ahead of that with  which the Court was dealing, which dealt with the same or similar issues. In the one, Re Downshire's Settled Estates [1953] 1 All ER 103, the determination was that the court had jurisdiction to approve a scheme similar to that in Re Yates' Settlement Trusts. In the other, Re Chapman's Settlement Trusts [1953] 1 All ER 103, in similar circumstances the decision had gone on appeal, with no outcome as yet. The Court in Re Yates' Settlement Trusts granted the adjournment on the basis that it should await the House of Lords decision on appeal in Re Chapman.

35. The English Court of Appeal said the adjournment should not have been granted:

The law has been settled by this court in Re Downshire [Settled Estates [1953] 1 All ER 103], and the judge should have applied the law as there laid dowry without any misgivings as to what the House of Lords may hereafter say. I do not think that the plaintiffs should be sent away for an indefinite period, especially when it is not known whether the settlor [whose life is of considerable importance in the proposed scheme] will live so long: at 622, per Lord Denning, MR"

36. That is, serious disadvantage or injustice world or could have resulted to the party seeking to uphold the proposed scheme, for the risk was that the settlor would die before the House of Lords' decision, Once dead, the scheme could not be revived or upheld, whatever the House of Lords' decided." (My emphasise)

[14] Thus the reason why the English Court of Appeal said in Re Yates' Settlement Trusts that the adjournment should not have been granted whilst awaiting the House of Lords decision on appeal was:

(a) That the law had been settled by a recent earlier case which was not under appeal; and

(b) That if the plaintiffs were "sent away for an indefinite period" a "serious disadvantage or injustice would or could have resulted ... for the risk was that the settlor would die before the House of Lords' decision".

[15] Indeed, as Sir Raymond Evershed MR said in Re Yates' Settlement Trusts at 621:

"It may well be that, if a case, and an important case, is known to be subject to appeal to the House of Lords, or from a judge of first instance to the Court of Appeal, a judge may reasonably and properly think that it is in the general public interest not to decide another case on the same lines until the result of the case under appeal has become known. I say that it may be so. It depends very much on the circumstances of the particular case ..." (My emphasis)

[16] Romer LJ also in Re Yates' Settlement Trusts at page 622 noted that the Court was still upholding the principle from Hinckley's case and that;

"…I should like to make it clear that, so far as I am concerned, and, I think, so far as the court as a whole is concerned, we are not casting any doubt on the general principles laid down by Farwell J in the Hinckley case."

[17] Thus the law on granting a long adjournment or stay for a period of months is as follows:

(a) That Order 4 rule 2 of the High Court Rules recognizes that "where two or more causes or matters are pending, then, if it appears to the Court ... desirable to make an order ... the Court ... may order any of them to be stayed until after the determination of any of the";

(b) That a Court may adjourn a matter for a period of months "if, in all the circumstances" it ... thinks that is the proper way of doing justice between the parties": Hinckley's case;

(c) That the recent judgment by the Fiji Court of Appeal in Golden west Enterprises Ltd v Pautogo endorsing Re Yates' Settlement Trusts where the English Court of Appeal held that an adjournment should not be granted whilst awaiting the outcome of a case on appeal where the law had already been settled by a recent earlier case which was not under appeal and, if any indefinite period of an adjournment was granted, a "serious disadvantage or injustice would or could have resulted" before the outcome of the decision on appeal;

(d) That Re Yates' Settlement Trusts also recognised that "if ... an important case, is known to be subject to appeal ... a judge may reasonably and properly think that it is in the general public interest not to decide another case on the same lines until the result of the case under appeal has become known".

2. The present cases

[18] There are currently two separate appeals pending to be heard by the Fiji Court of Appeal relevant to the two present matters before me:

(a) The Ruling by Singh J in Civil Action File HBJ 39 of 2007 wherein on 16 April 2008 Leave was granted to apply for Judicial Review but then on 19 June 2008 leave was also granted to appeal the Ruling to the Court of Appeal (Civil Appeal No. ABU039 of 2008) questioning the locus standi of the Applicants as well as delay; and

(b) The judgment in the Qarase v Bainimarama case where an appeal has been lodged (Civil Appeal No. ABU077 of 2008) and a hearing date has been set by the Court of Appeal for three days in the March 2009 sittings.

[19] It is noted that the appeal in Civil Appeal No.ABU039 of 2008 from the ruling of Singh J in Civil Action File HBJ 39 of 2007 involves questions as to the locus standi of the Applicants as well as delay.

[20] In their Notice of Opposition filed in the present matter on 18 April 2008, the Respondents had similarly claimed that the Applicants have no locus standi or sufficient interest. This would seem sufficient reason to order a stay of the present proceedings in the High Court pending judgment by the Court of Appeal on the locus standi issue.

[21] Further, however, in their Notice of Opposition filed in relation to the present matter, the Respondents have claimed that:

"The subject matter of the Regulations sought to be challenged forms part of the executive decision taken by His Excellency the President whereby His Excellency made Fijian Affairs (Great Council of Chiefs) Composition Regulations 2007 made under Section 3 of the Fijian Affairs Act Cap 120 and the present challenge is as to Regulations made by the interim Minister by way of implementation of the Regulations made by His Excellency and such is not justiciable and/or the present application cannot be made in separate proceedings to the challenge to His Excellency's Regulations."

It is noted that the Qarase v Bainimarama case in the High Court concerned the President's powers and presumably will form part of the Appeal.

[22] The issues raised to Civil Action HBC 132 of 2008 which is now also before me (having been referred from Pathik J due to his involvement in the Qarase v Bainimarama case when it was before the High Court) concern questions in relation to the President's powers and the implementation of His Excellency's decisions by Interim Ministers. Again, these are matters to be covered in the appeal from the judgment in the Qarase v Bainimarama case now pending before the Court of Appeal in Civil Appeal No. ABU077 of 2008. I understand from the Court of Appeal Registry that such appeal has been listed for hearing over three days from 25-28 March 2009.

E. CONCLUSION

[23] In view of the above the Court finds as follows:

(a) That Civil Appeal No. ABU039 of 2008 which is pending before the Court of Appeal (appealing the Ruling of Singh J in granting leave to apply for juridical Review) and the present action before me in the High Court (HBJ 15 of 2008), both involve as one of their respective issues that of the focus standi of the Applicants. Such a fundamental issue, particularly if decided in favour of the Appellants before the Court of Appeal, necessitates that the current proceedings in the High Court be stayed until the determination of that issue by the Court of Appeal;

(b) That Civil Appeal No.ABU077 of 2008 which is also pending before the Court of Appeal (appealing the judgment of Gates ACJ, Byrne and Pathik JJ) in the High Court in the Qarase v Bainimarama case) and the present actions before me in the High Court (in HBJ 15 of 2008 and the Constitutional Redress case of Civil Action HBC 132 of 2008 having been referred to me from Pathik J) each concern the President's powers. Logically, it follows, that such an important decision as the Qarase v Bainimarama appeal should be decided before proceeding further with any other similar actions in the High Court involving any questioning of the decisions of the President and/or the implementation of His Excellency's decisions by Interim Ministers;

(c) That Civil Appeal No. ABU039 of 2008 appealing the Ruling of Singh J is to be called over next month to be allocated a hearing date in the March 2009 sittings;

(d) That Civil Appeal No. ABU077 of 2008 appealing the Judgment of Gates ACJ, Byrne and Pathik JJ in the High Court in the Qarase v Bainimarama case is to be heard from 26-28 March 2009;

(e) That for both matters to be heard by the Court of Appeal in its March 2009 sittings is not an unreasonably long delay.

[24] Accordingly, the Orders of this Court are as follows:

1. That the present actions in the High Court of Fiji at Suva being Civil Actions HBJ 15 of 2008 and HBC 132 of 2008 be stayed pending the judgments of the Fiji Court of Appeal in:

(a) consolidated High Court Civil Actions HBC60 of 2007 and HBC 398 of 2007 (Civil Appeal No. ABU007 of 2008) (the Qarase v Bainimarama case); and

(b) High Court Civil Action File HBJ 39 of 2007 (Civil Appeal No.ABU039 of 2008) (the appeal from the decision of Singh J to grant leave for judicial Review);

whichever is the later.

2. That Civil Actions HBJ 15 of 2008 and HBC 132 of 2008 be listed for mention at 8.30 am on 1 June 2009 to see if judgments have by then been handed down by the Fiji Court of Appeal in Civil Appeal No.ABU077 of 2008 (the Qarase v Bainimarama case) and Civil Appeal No.ABU039 of 2008 (the appeal from the decision of Singh J to grant leave for Judicial Review).

I will now hear the parties as to costs.

Thomas V. Hickie
JUDGE
Solicitors:
Komai Law, Barristers & Solicitors, Nasinu, for the Applicants
AG Chambers, Barristers & Solicitors, Suva, for the Respondents