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State v Attorney-General & Minister for Justice, ex parte One Hundred Sands Ltd [2015] FJHC 286; HBJ09.2015 (24 April 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Judicial Review No. HBJ 9 of 2015

IN THE MATTERof an Application by ONE HUNDRED SANDS LIMITED for a Judicial Review under Order 53 of the High Court Rules 1998.

AND

IN THE MATTER of a Decision made on or about the 9th day of February, 2015 by the ATTORNEY-GENERAL & MINISTER FOR JUSTICE whereby he purported to exercise his powers under section 39(1) of the Gaming Decree 2009 to revoke a Casino Licence that had been granted to the Applicant on 15th March 2012.

STATE: v ATTORNEY-GENERAL & MINISTER FOR JUSTICE
Respondent

EX-PARTE: ONE HUNDRED SANDS LIMITED
Applicant

BEFORE : The Hon. Mr. Justice David. Alfred

Counsels : The Solicitor General, Mr S Sharma (Ms. R Mani and
Ms. T Baravilala with him) for the Respondent
Mr. D. Sharma for the Applicant

Date of Judgment : This 24th day of April, 2015.

JUDGMENT

1. This is an Application by One Hundred Sands Limited (the Applicant) for judicial review of the decision, of the Attorney General and Minister of Justice (the Respondent), made on the 9th February 2015 (the decision) to revoke a Casino Gaming Licence(the licence) that had been granted to the Applicant on the 15th March 2012.
   
2. The Application is made under the rubric of judicial review as provided for under the Rules of the High Court. The reliefs sought by the Applicant are the following:
   
   • (a) Certiorari to remove the decision into this Court for it to be quashed and/or set aside.
     
   • (b) A Declaration that the Respondent has acted unfairly and/or against the Rules of Natural Justice and/or arbitrarily and/or unreasonably and/or acted in breach of the Applicant's Legitimate Expectations and/or made errors of law or exceeded his jurisdiction in revoking the licence without complying with the relevant requirements of the Gaming Decree 2009 (the Decree) and the relevant provisions of the licence.
     
3. The above contains in a compass the factual situation in this Application which I consider essential for me when deciding on the Application.
   
4. The other prayers sought for in the Application do not need to trouble us at this juncture.
   
5. At the hearing on the 8th April 2015 the learned Solicitor General (the Solicitor) in essence contended I had no jurisdiction to hear the Application while Mr Sharma for the Respondent asserted I had. The learned Solicitor had also questioned the necessity for the Government of the Republic of Fiji to be cited as the First Respondent. Counsel for the Applicant took note of this and accordingly at the conclusion of the hearing, made an oral application to me that the matter be discontinued as against the First Respondent. This, I allowed and the upshot is there is now only one Respondent the erstwhile Second Respondent, who in this judgment will be referred to as the Respondent.
   
6. This judgment will be delivered in three sections which are as follows:
   
   1. History of Judicial Review.
   2. The issue of the jurisdiction of the Court to hear the Application.
   100. Whether the Court can grant leave to the Applicant to move for Judicial Review or not.
        
7. I WILL FIRST DISCUSS A

Judicial Review is not some new-fangled juristic concept. As long ago as 1803, Chief Justice Marshall of the Supreme Court of the United States established the right of judicial review over acts of Congress in the leading case of "Marbury v Madison". This judicial authority had its roots in the supremacy of a written constitution. The United States is not the only nation with a supreme written constitution. Other nations like Malaysia and Fiji also expressly state the supremacy of the constitution (see section 2(1) of the Constitution of the Republic of Fiji (the Constitution).

Therefore with common roots firmly grounded in written supreme constitutions, judicial review can flourish as well under palm as it does under pine and a government which makes decisions which are legal, logical and reasonable should evince confidence in an independent and competent judiciary to uphold their decisions.

8. One hundred and seventy years later, when U.S President Nixon acted as he did after the Watergate scandal, the Supreme Court acted as it did in the petition for certiorari in the case of United States v Nixon [1974] USSC 159; 418 U.S. 683 (1974). There the Court held that neither the separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute unqualified Presidential privilege of immunity from judicial process under all circumstances, applying Marbury v Madison.
   
9. In the United Kingdom, judicial review was first clearly annunciated in the locus classicus of The King v Electricity Commissioners Ex-parte London Electricity Joint Committee Company (1920),Limited and Others (1924) 1K.B at page 205. Here Altkin L.J. (as he then was) defined judicial review as follows: "Wherever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
   
10. It is to be noted that the requirement of having the duty to act judicially is no longer a necessary requirement for judicial review to kick in. Today judicial review is available to all who are entitled, whether they come from within or without the country, for the dispensation of justice.
    
11. The writs referred to above, today come comprehensively under the rubric of judicial review (Order 53) and are certiorari, prohibition, mandamus, injunction and declaration. The purpose of the remedy of judicial review, (it should be clear to all quarters) is to ensure that the individual is given fair treatment by the authority to which he has been subjected and it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question per Lord Hailsham, L.C in Chief Constable of North Wales Police v Evans (1982) 3 All E.R. at page 143.
    
12. Thus a court when considering such an application never seeks to supersede the decision maker. The court is there only to see there is no abuse of lawful authority by unfair treatment. The court will not interfere unless the decision maker acted without jurisdiction or exceeded its jurisdiction (ultra vires) or failed to observe the rules of natural justice in a case where these rules applied or the decision was unreasonable in the Wednesbury sense (illogical)(The White Book).
    
13. B.I TURN NOW TO THE ISSUE WHETHER THIS COURT HAS

JURISDICTION TO HEAR THIS APPLICATION

The learned Solicitor's objection on this score is grounded in section 173 (4) (d) of the Constitution. This is reproduced below:

"(4) Notwithstanding anything contained in this Constitution, no court or tribunal (including any court or tribunal established or continued in existence by the Constitution) shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceeding of any nature whatsoever which seeks or purports to challenge orquestion-----

(a) the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;

(b) the constitutionality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;

(c) any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, for being inconsistent with any provision of this Constitution, including any provision of Chapter 2 of this Constitution; or

(d) any decision made or authorised, or any action taken or any decision which may be made or authorized, or any action which may be taken, under any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution,

except as may be provided in or authorized by any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution."

14. It, therefore, falls to me now to consider the import of this subsection (4). The operative words for me to first judicially and judiciously construe are those that provide no court shall hear or determine or grant any order, relief or remedy in any proceedings which seek to challenge or question. Then I shall have to construe any Decree (which I am using as a generic term to encompass any Promulgation, Decree, Declaration and subordinate laws made thereunder). Finally I have to construe any decision which again I am using to cover both decisions made or authorized and actions taken.
    
15. To assist me in my task I shall turn now to the decision of the Judicial Committee of the Privy Council in Appeal No. 37 of 1981, which is an appeal from the Fiji Court of Appeal entitled "The Attorney General ... Appellant v Director of Public Prosecutions.... Respondent. Lord Fraser of Tullybelton delivering the advice of the Board to Her Majesty (the Queen of Fiji), inter alia, referred to the judgment delivered by Lord Diplock in "Ong Ah Chuan v Public Prosecutor (1981) AC 648, 669 which repeats the well-known passage in the Minister of Home Affairs v Fisher (1980)AC 319 to the effect that "the way to interpret a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but as sui generis calling for principles of interpretation of its own, suitable to its character............. without necessary acceptance of all the presumptions that are relevant to legislation of private law".
    
16. Lord Fraser went on to state that "Their Lordship fully accept that a constitution should be dealt with in that way and should receive a generous interpretation. But that does not require the courts, when construing a constitution, to reject the plain ordinary meaning of words."
    

I will be referring to further portions of Lord Fraser's advice as I go along.

17. In the course of the hearing, I was referred, to the following decisions:
    
    1. Lavinia Padarath, President of the Fiji Labour Party andFiji Labour Party v His Excellency The President of Fiji, The Attorney General of Fiji and Registrar of Political Parties [Civil Case HBC No. 33 of 2013].
       
    2. Makereta Waqavonovono v Chairperson of Fijian Electoral Commission, Supervisor of Elections and Attorney General of Fiji and Minister for Elections [Civil Action No. HBM 92 of 2014].
       
    3. Steven Pradeep Singh and Fiji Labour Party v Electoral Commission, The Supervisor of Elections and Attorney General of Fiji and Minister of Elections [Civil Action No. HBC 245 of 2014]
       
    4. Proline Boating Company Ltd v Director of Lands (2014) FJCA 159.
       
    5. The learned Solicitor also referred to Judicial Review Handbook, by Michael Fordham QC (5th Edition) Pages 109, 110.
       

These I have carefully considered. However, I will have to construe the wordings I set out earlier, in consonance with Lord Fraser's advice not to reject the plain ordinary meaning of words.

18. To my mind the period of time which is ever present in every paragraph of section 173(4) is that period between 5 December 2006 and the first sitting of the first Parliament under this Constitution, which according to the Government of Fiji Gazette dated 3rd October 2014, was on the 6th day of October 2014, (the period).
    
19. I feel that it would be proper to phrase the issue before me as follows:
    

Does the prohibition to hear any proceedings or to grant any relief refer to Decrees made during the period or to decisions made during the period.

20. The solution is at hand when one reads section 173(4)(d) with reasonable intelligence and reasonable care as Lord Fraser enjoins. If I look at paragraphs (a), (b) and (c) of subsection (4) I observe a common thread running through them. This is the reference to any Decree made during the period. There is only one mention of the Decree and only one mention of the period, in each paragraph.
    
21. But, in paragraph (d) there are TWO mentions of the Decree, TWO mentions of the period and NOW also a mention of any decision. Therefore to my mind the two mentions of the period cannot refer only to the Decree because it was not necessary to make two mentions of the Decree in paragraphs (a), (b) and (c ). Thus the only reasonable inference has to be that the two mentions of the period must necessarily refer to TWO DIFFERENT THINGS. Put another way, it must mean one mention of the period refers to the decision and the other mention of the period refers to the Decree. Proceeding along this line, I think it is reasonable, proper and correct to conclude that the first mention of the period refers to the decision and the second mention of the period refers to the Decree. So if I paraphrase and summarise paragraph (d) and read it with subsection (4), the wording would be (using my own wordings)no court shall hear or grant any relief or remedy in any proceedings which challenge or question any decision made during the period except as provided for under any Decree made during the period. The comma after ".... laws)" in paragraph (d)is, I consider, disjunctive and therefore the first mention of the period cannot refer to the Decree but is intended to refer to the decision.
    
22. Since the learned draftsmen of the Constitution, were not engaged in any tautology, it can only mean they were clear in the intention they desired to convey which is that any decision made (under any Decree) during the period could not be questioned "except as may be provided in or authorized by" such Decree made during the period.
    
23. I therefore find and I so hold that the clear unambiguous wording of section 173(4)(d) of the Constitution, ONLY precludes the Court from hearing and granting relief with regard to decisions made DURING the period. Since the decision was made on the 9th February 2015, it is clearly OUTSIDE the ambit of section 173(4)(d) having been made after the end of the period on the 6th October 2014. I therefore disallow the preliminary objection and hold I have jurisdiction to hear the Applicant's Application for judicial review, which is made within time by a party who is interested.
    
24. THIS BRINGS ME NOW TO THE FINAL PART C OF MY JUDGMENT

Order 53 of the English Rules of the Supreme Court on which our Order 53 is based, provides the following scenario for judicial review:

1. The Applicant makes an application for leave to move for judicial review.
   
2. The application is made ex parte to a single judge who may determine the application without a hearing and either refuses leave or grants it.
   
3. If leave is granted the Applicant institutes a substantive application for judicial review.
   
25. In Fiji, the Annotated Rules of the High Court state that normally an application for leave should be dealt with on the papers. The judge has to be satisfied that the material available discloses an arguable case in favour of granting the relief. This is the principle applied in National Farmers Union v Sugar Industry Tribunal, Fiji Sugar Corporation & Sugar Cane Growers Council (1990) ABU 8/90 (HBJ 11/89).
    
26. Assistance to bring this matter to a close is provided by the speech of Lord Diplock in the case of C.C.S.U v Minister for Civil Service (1984) 3W.L.R at page 1194, a decision of the House of Lords (England) which is now the Supreme Court of the United Kingdom. Therein the learned Law Lord laid down under three heads, the grounds upon which judicial review can be exercised. They are:
    
    • (i) Illegality
    • (ii) Irrationality
    • (iii) Procedural impropriety.
      
27. I have made a careful study of the material disclosed in and provided by the Affidavit of Timothy Manning, the Chief Executive Officer of the Applicant. From the horse's mouth comes forth a stream of information that shows a dilatory and careless attitude to compliance with the terms and conditions of the licence which the Applicant was fully cognizant of and for which it patently did not manifest a desire to fulfill, either through a lack of capability or due to its later realization of the implications of the project it had chosen to embark upon.
    
28. Applying Lord Diplock's grounds to the instant case I find as follows:
    
    • (i) The decision was not illegal because the Respondent correctly understood the law and applied it. He was entitled under section 39(1) of the Decree to revoke the licence for breach of condition and he did so. The breaches of conditions and clauses were cited in the decision.
      
    • (ii) The decision was a rational one and justified in the circumstances because the Respondent had cited chapter and verse of all the failures of the Applicant to comply with the terms of the licence.
      
    • (iii) There was no procedural impropriety because no clause in the licence can override a provision of an applicable law.
      
29. In amplification of (iii) above, I apply the salutary maxim of public policy expressed in Latin as "jus publicum privatorum pactis mutari non potest", which Osborn's Concise Law Dictionary (seventh addition) defines as "Public law is not to be superseded by private agreements."
    
30. In the event, the sands of time ran out for the Applicant and the licence was revoked by the Respondent.
    
31. On all the available evidence before me, I am constrained to hold that the Applicant has failed to satisfy me that it has an arguable case to entitle it to be granted leave to proceed to the next stage which will be a inter-partes hearing where all the issues will be ventilated.
    
32. I therefore, hereby, refuse leave to the Applicant to move for judicial review of the decision.
    
33. It now only remains for me to consider the question of costs. In the light of the decisions reached and in the particular circumstances of this case, I feel the ends of justice will be met if I order each party to bear its own costs.
    

Dated and Delivered at Suva this 24th day of April, 2015

David Alfred.

JUDGE
High Court of Fiji