Fiji Islands - 2000 FLR Volume 1 - Digest & Index

Leave to appeal against interlocutory order of High Court to pay into court or face possible committal for failure to do so - stay pending hearing of appeal - whether applicant committed

Mohammed Yasin v Basic Industries Ltd

88

Leave to appeal from an interlocutory order - Court of Appeal Act section 12(2)(1) - whether appellant will suffer injustice or prejudice if application for leave is refused

Edmund March v Bank of Hawaii, John Howard, Puran Sundarjee, Murjee Sundarjee, Pravin Sundarjee, and Hasmukh Sundarjee, (in consolidation with) Puran Sundarjee Murjee Sundarjee, Pravin Sundarjee, Hasmukh Sundarjee v Edmund March

230

Appeal- whether proposed defence raised bona fide triable issues

B.W. Holdings v Graham Eden & Associates Limited

1

Amendment of pleadings - striking out - whether statute barred - High Court Rules 0.18 r.7 - Limitation Act (Cap 35) ss4(l), 16(3), 17(3), 19(a) & (c), 20, 21, 22

William Dunn v Attorney General

 175

Interim payment- whether court is sa tisfied that plaintiff will succeed against defendant

Madhu Lata v DVH Textile Mills (Fiji) Limited

171

Setting aside - whether judgment obtained in the Magistrates' Court can be set aside for failure to serve according to the requirements of the Companies Act - Companies Act (Cap 247) ss110(1), (2), (3) & (4), 168, 391(1) and (2) -Magistrates' Court Rules O. VII r.8(3), OXXX r.5

B.W. Holdings v Graham Eden &Associates

88

Stay - unconditional stay of execution of judgment pending appeal - balance of convenience test - whether 'serious injury' would result to appellant if stay refused

Edmund March v Bank of Hawaii, John Howard, Puran Sundarjee, Murjee Sundarjee, Pravin Sundarjee, and Hasmukh Sundarjee, (in consolidation with) Puran Sundarjee Murjee Sundarjee, Pravin Sundarjee, Hasmukh Sundarjee v Edmund March

 230

Striking out - non prosecution of claim - whether delay inordinate and inexcusable --whether risk of serious prejudice defendant's prejudice, public interest prejudice - HCR 0.18 r.18(1)(c) and 0.25 r. l

Arvind Harakh v Fiji Public Service Association

78

Striking out for want of prosecution - inordinate and inexcusable 4 year delay causing serious prejudice to defendant - principles on which court will allow a plaintiff to continue prosecution of case

Abdul Kadeer Kuddus Hussein v Pacific Forum Line Limited

46

Striking out - whether statement of Claim discloses reasonable cause of action - whether plaintiff can amend claim to include negligence - High Court Rules 0.18 r 18(1)(a)

Atunaisa Kaloumaira & Makelesi Kaloumaira v NBF Asset Management Bank

30

Striking out - whether any reasonable cause of action - Damages for loss sustained by reference to plaintiffs contemptible conduct - Magistrates' Court Act ss6, 65(I); Magistrates' Court Rules Order Ill r.8

Mehboob Raza v Jinadasa Ilangasinghe

160

Striking Out -statement of claim against 2nd defendant - no cause of action - app'"cable principles of striking out - NLTBs statutory duties and the consequence of its breach.-leave to file counterclaim against plaintiff and another - whether relief is related to or connected with the subject matter of original claim - High Court Rules 0.15 rr3(1), 4, 0.18 r. 18; Native Land Trust Act s8, 9; Land Transfer Act (Cap. 131) ss5(c), 39, 40; Supreme Court Practice 1987 Edition p191

Napolioni Kurucake Ratumaiyale v Native Land Trust Board And Pacific Octopus Limited

284

Striking out - no reasonable cause of action - observations on drafting of pleading - observations on the traditional approaches plaintiffs may make ifthey believe their rights have been denied by the First defendant - Native Lands Trust Act s4; Native Land Trust Ordinance 1905 s8; Orders of Executive Council 20 January, 1930 & 5 February, 1932; Limitation Act s4

Solomoni Cavunisautu Naiduki v Native Land Trust Board & Fiji Adventist Farmers Co-Operative Society Limited

58

Striking out - no reasonable cause of action - Order 18 r 18(I)(a) of High Court Rules 1998

Wartaj Seafood Products Ltd v Ministry of Home Affairs, Attorney General

200

Striking out Statement of Claim - whether newspaper report of striking out of claim against defendants in HBC0557198S defamatory in its natural and ordinary meaning -High Court Rules 0.18 x 18(2)

Ratu Naiqama Tawake Lalabalavu & Penaia Driu Samusamuvodre v Native Land Trust Board & Fiji Times Limited

92

Practice and Procedure - transfer of proceedings to another jurisdiction - def.cts in affidavits - whether judge seized of the matter biased toward one of the litigants - absolute impartiality of judiciary discussed - High Court Rules 0.4 r 1(4); 0.41 rr.4 & 8; 0.32 r.8, Ord. 32 r. 9(k) - High Court (Amendment) Act 27/98 s.9, High Court Act ss6; (I), 25(2)(k) - Criminal Procedure Code s.345 - Practice Direction No.] of 1981 - Chief Justice's Circular Memorandum No. I of 2000 (31 August 2000] - Magistrates' Court Rules (Cap. 14) O. XIII r. l.

State v President of the Fiji Islands, Judicial Services Commission, Chief Justice, Attorney-General, Jayant Prakash, Ex-Parte Iftakhar Igbal Ahmad Khan

 241

Leave to appeal against interlocutory order of High Court to pay into court or face possible committal for failure to do so - stay pending hearing of appeal - whether applicant committed

Mohammed Yasin v Basic Industries Limited

88

Service on a company - whether judgment obtained in the Magistrates' Court can be set aside for failure to serve according to the requirements of the Companies Act - Companies Act (Cap 247) ssl10(1), (2), (3) & (4), 168, 391(1) and (2) - Magistrates' Court Rules O. VII r8(3), O.XXX r.5

B.W. Holdings v Graham Eden & Associates Limited

1

Winding Up - whether defective affidavit admissible - meaning of agent, ojficer, who should sign demand notice - Companies Act s2, 40, 220, 221, 391; Companies Winding Up) Rules 21, 24(2), 25; High Court Rules 0.41 r.9

In Re Kim Industries (No. 1)

141

Winding up - whether petitioner at hearing confined to grounds set out in petition and affidavit or can rely on further evidence - whether viva voce evidence admissible in open court - Companies (Winding Up) Rules 28(1), 29, 30, 31(1), 31(2), Companies Act ss 220,221

In Re Kim Industries (No. 2)

184

whether Consumer Credit Act applies with retrospective application to mortgages and notices of demand - Consumer Credit Acts80

Atunaisa Kalournaira & Makelesi Kaloumaira v NBF Asset Management Bank

30

Contract - whether contract was of supply only with no obligation to purchase quicklime - whether contract frustrated due to withdrawal ofjoint venture- whether contract discharged - business efficacy rules

Emperor Gold Mining Company Limited v Fiji Industries Limited

311

Whether respondent acting on the instructions of George Speight or not - whether Court can take judicial notice of weapons handed in by reference to press - Penal Code s214; Emergency Decree ss9(1) and 25

State v Isoa Raceva Karawa

212

Causing death by dangerous driving - unrepresented accused -- whether guilty plea 'unequivocal - whether solely fault of respondent or whether defence that child crossed at last moment not allowing time for respondent to apply brakes- guideline for judge to consider in accepting guilty plea - Criminal Procedure Code ss206, 325

State v Isaia Saukova

135

Murder - wounding with intent - rape - appeal against convictions -- whether blinding desire overturning the assessor's verdict on count 4 correct - Court of Appeal Act s23 - Criminal Procedure Code s299(1) & (2)

Epeli Tulaba v State

317

Murder - appeal against conviction - whether trial judge misdirected himself on identification - whether confessions were voluntary and should be admitted - whether 15 year old juvenile's will was overborne - Police Act Standing Orders of Fiji Police Force rule 29

Vijay Krishna Goundar, Shyam Murti, Sen Chand, Sujit Kumar v State

323

Rape and indecent assault - appeal against conviction - cross appeal against sentence-- rape sentencing discussed - Penal Code sl54(I); Court of Appeal Act s23(1) and Court of Appeal (Amendment) Decree 1990 s21(2)(c)

Mark Lawrence Mutch v State

275

Administration of justice - Application for review of certain decisions and orders made in court -whether magistrate had jurisdiction to make 'administrative orders' binding the Commissioner of Prisons - Prison Regulations Cap 56

State v George Speight & Ors

239

Immunity from criminal proceedings - whether accused immune from criminal proceedings under Immunity Decree - whether parties given adequate and reasonable time to prepare submissions - role of DPP in instituting and conducting criminal proceedings - Immunity Decree 181 00 para 3(3); State Services Decree 6100 clause 14(2); Penal Code s214; Emergency Decree ss9(1) and 25

State v. Isoa Raceva Karawa

212

Rape - appeal against conviction and sentence -- whether Magistrate erred in not granting appellants request to have his case tried in the Nigh Court - circumstances in which an appeal against sentence can be entertained by the Court - Court of Appeal Act (Cap 12) s22(1) and OA) - Electable Offences Decree 1988 s3 - Criminal Procedure Code (Cap 21) ss7(a), 308, 319(2); Penal Code ss149, 150

 Paula Malo Radrodro v State

 289

Rape - appeal against conviction and sentence -stepbrother had carnal knowledge of 13 year old - grounds on which appeal can be entertained when appellant had previously pleaded guilty - whether miscarriage of justice that prosecutor failed to reveal to court the appellant had denied the allegation - Penal Code (Cap.] 7) ss 149 and 150

Kamal Kishore v State

150

Other negligent acts causing harm - appeal against discharge - no appearance by prosecutor - delayed - whether Magistrate exercised discretion fairly, reasonably and judiciously to discharge the accused - Magistrate did not enquire whether complainant present - Criminal Procedure Code ssl98, 201(2)(6),102, 203(1), 204, 219, Penal Code s239

State v Atishwar Dayal

195

Murder - wounding with intent - rape - appeal against convictions - whether trial judge erred in not recording assessor's opinions separately- whetherjudge's failure to follow procedure a substantial miscarriage of justice - Court of Appeal Act s23 - Criminal Procedure Code s299(1) & (2)

Epeli Tulaba v State

317

Sentencing - appeal against sentence - bulkstore breaking entering and larceny - unrepresented accused - two co-accused convicted and sentenced for 18 months - Penal Code s300(a)

Ashok Kumar v State

273

Unnatural offence%arnal knowledge of 6 year old -appeal against severity ofsentence - Penal Code s1 75(a) - United Nations Convention on the Rights of the Child arts 16 and 19

Maleli Qiladrau v State

130

Sentence -principles of sentencing- larceny, shop breaking, entering, house breaking, damaging property -Magistrate substantially influenced by appellants previous conviction record - court not to sentence accused on previous record - Proper way of sentencing emphasized - Penal Code ss29, 314

Saula Lalagavesi & Kitione Matakah v State

266

Larceny by servant-appeal Against leniency of sentence -Penal Code s274

State v Joseph Tokona

155

Damages - no written defence or counterclaim - appeal against decision of referee awarding judgment - whether a Tribunal has the jurisdiction to make an award in favour of a party who has not filed a Claim or a counterclaim -whether evidence itself alone can constitute a claim or counterclaim -Small Claims Tribunal Decree (7191) ss 8, 10, 10(1), (2), 26, 26(2), (3), 33(1)(6) and 34(1), (2).

Muni Deo v National Insurance

207

Debt recovery-nuisance-Local Government Act (Cap 125) s107; Electricity Act (Cap 180) ss3, 13(1), 37(1), (2), 43; relevance of Town Planning Act (Cap 39) ss16, 27(I), 28

Fiji Electricity Authority v Suva City Council

114

Defamation -striking out Statement ofClaim - whether newspaper report of striking out of claim against defendants in HBC05571988 defamatory in its natural and ordinary meaning - High Court Rules 0.18 x 18(2)

Ratu Naigama Tawake Laiabalavu & Penaia Driu Samusamuvodre v Native Land Trust Board & Fiji Times Ltd

 92

Powers of FEA under section 37ofElectricity Act - whether location of power poles a nuisance - powers of local authority under sections 107 & 109 of Local Government Act - principles of statutory interpretation discussed -powers of local authority under Town Planning Act - Local Government Act (Cap 125) s107, 109; Electricity Act (Cap 180) ss3, 13(1), 37(1), (2), 43; Town Planning Act (Cap 39) ss.16, 27(1), 28

Fiji Electricity Authority v Suva City Council

114

Unfair dismissal - whether dismissal was breach of contract of employment - whether Plaintiff had started a new 3 year contract - whether Plaintiff was entitled to compensation

Yashni Kant v Central Manufacturing Company Limited

326

Leave to testify at hearing ofappeal - appeal against Small Claims Tribunal award - whether unfair because witnesses not called to testify - Small Claims Tribunal Decree s33(1); Magistrates' Court Rules Order XXXVII rr 8 &16; Order XXXVII

Maan Chand v Waliman Khan

50

Immigration - refusal to grant extension of applicant's 3 year work permit - unfettered discretionary powers exercised by the Minister - whether bias and in bad faith - unavailability of satisfactory local replacement for the position - Immigration Act (Cap 88) ss3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 20; Immigration Regulations 3(2)(d), 3(2)(e); Immigration Directions paragraphs 3(2),4(l)

State v Minister For Home Affairs ex-parte Fiji Times Limited & Russell Hunter

63

INJUNCTION

Injunction - dissolution - whether restraint of trade clause in informal contract valid - whether exercise of discretion by trial judge vitiated by error of principle - purpose of restraint clause discussed - Court ofappeal Act sl2(2)(0(d)

Tara Singh v Grants Waterhouse Agency, William Waterhouse & Robert Waterhouse

292

Injunction - whether applicants can remain in F fi pending f nal determination ofjudicial review proceedings and proceedings for defamation - Immigration Act s18

State v Fiji Medical Council, Minister of Health, Attorney-General ex-pane Mario Nagales Padua & Consuelo Arceo Padua

 98

Insurance - whether insurance policy extant at time of fire -- whether notice a cancellation or mere threat to cancel policy at common law- whether notice ofthreatened cancellation effective communication

Vinod Kumar Trading as Topic Furniture v Dominion Insurance Limited

223

Judicial Review - consideration of factors whether application delayed - meaning of undue: excessive, extreme, unjustifiable or going beyond what is appropriate- whether legitimate expectation of proper public hearing when issue pre-empted by earlier hearing - Road Transport Act ss64, 65, 66(2), 70 - High Court Rules 0.53 r4(1)

State v Transport Control Board ex parte Noco Development Company Ltd

105

Judicial Review - whether tribunal biased against applicants - whether tribunal failed to have proper regard for facts -purpose of a administrative tribunal giving reasons discussed - High Court Rules 0.53; Traffic Act (Cap 176) s66(2)

State v Transport Control Board ex parte Dee Cees Bus Service Limited, Central Transport Co. Limited, Island Buses Limited & George Transport Ltd

6

Judicial Review -whether leave be given to review decision of Ministry of Health communicated to the Ombudsman not to reemploy applicants - whether leave be given to review decision of FYi Medical Council as to registrability provided applicants could secure employment with Ministry of Health - whether rules of natural justice apply to applications for employment - High Court Rules O. 53 r.4

State v Fiji Medical Council, Minister of Health, Attorney-General ex-parte Mario Nagales Padua & Consuelo Arceo Padua

 98

Land - encroachment by neighbour - damages - whether action brought in trespass or nuisance - how justice to be served

Krishna Deo v Prem Chand Mahabir & Nur Aiyaz Ali

190

Landlord and tenant - whether Agricultural Tribunal empowered to stay its awards pending appeal -stay pending determination ofappeal - observation of vacant position in the Central Agricultural Tribunal - Agricultural Landlord and Tenant Act (Cap 270) ss18(1)(b), 28, 29, 33,35, 48(4), (5), 65(4), Regulations 2(2), 13, 44, Magistrates' Court Rules O.XXXYII rr.6 & 9

Native Land Trust Board v Thanigohala Oddyar, Hemant Kumar & Hamida Bibi

305

Section 169 application - meaning of "a description " in section 170 of Land Transfer Act - whether it means a full description - whether defendant has a right to possession of the land - section 172 of Land Transfer Act

Bimla Wati & Anor, v Ram Vinod

263

Section 169 application - Show cause why the defendant should not hand over possession of native lease to the plaintiff - whether foreclosure a dealing in land requiring Native Land Trust Board consent -can NLTB consent be implied by subsequent consent to assign the lease to new proprietors - Land Transfer Act (Cap 131) ss73, 169, 172, No live Land TrusIActss10(2), 12(1), Property Law Act s75

Housing Authority v Josefa Qio

24

Section 169 application - whether Notice to Quit needs to be personally served upon the tenant- whether service to agent is sufficient - whether equitable right of estoppel available to defendant - whether tenancy for life or monthly

Kamlesh Kaur v Jagendra Karam Singh

219

Extension of time in which to bring proceedings - whether the plaintiff had knowledge that death of infant daughter resulted from defendant's negligence or was attributable to defendant's negligence - whether plaintiff had facts available to plaintiff to issue proceedings before 3 year limitation period expired - Limitation Act (Cap 35) ss4(1), 16(3) and 17(2); High Court Rules 0.1 r.10 and 018 r.21

Maikeli Masivou v Sukh Deo Singh & Jagat Narayan t/a Diamond Express

124

Powers of FEA under sections 107 & 109 of Local Government Act - principles of statutory interpretation discussed - powers of local authority under Town Planning Act - Local Government Act (Cap 125) s107, 109; Electricity Act (Cap 180) ss3, 13(l), 37(1), (2), 43; Town Planning Act (Cap 39) ss16, 27(l),28

Fiji Electricity Authority v Suva City Council

114

Mortgage - equity of redemption - statutory notification of charge to be treated like mortgage upon default - whether Bank committed fraud in accepting lowest price on tender - duty of mortgagor - whether Bank tookreasonable precautions to obtain the true market value of mortgaged property - interpretation of 'actually sold'- Property Law Act (Cap 130) s72, Fiji Development Bank Act (Cap 214) ss25, 27(2), 27(3), 79(3)

Mohammed Isaq Khan v Fiji Development

11

Mortgage - security for advances to partner to start up business - appeal against High Court judgment

National Bank of Fiji Asset Management Bank v Sailosi Kailoma Tuirobe

85

Whether police can be held liable for negligence to individual members of the public - criteria for the imposition of a duty of care - whether an undertaking to do a duty establishes a relationship of proximity

 Wartaj Seafood Products Ltd v Ministry of Home Affairs, Attorney General

200

Negligence and breach of implied term of contract - damages for injuries being exposed to considerable noise and ultraviolet rays - sustained during course of employment - Factories Act (Cap 99) - Workman's Compensation Act (Cap 94)

William Dunn v Attorney General

Negligence -principles ofvicarious liability discussed - whether deficiencies in pleadings - whether appellant correctly described as nominal defendant

Appeal against decision of referee awarding judgment- whether referee's jurisdiction was exceeded - whether a Tribunal has the jurisdiction to make an award in favour of a party who has not filed a Claim or a counterclaim - whether the proceedings were sufficiently noted by the referee - discussion of how a counterclaim is to be placed before a Small Claim Tribunal - Small Claims Tribunal Decree (7/91) ss 8, 10, 10(I), (2), 26, 26(2), (3), 33 (1) (b) and 34(1), (2).

Muni Deo v National Insurance

207

Leave to testify at hearing of appeal - appeal against Small Claims Tribunal award - whether unfair because witnesses not called to testify - Small Claims Tribunal Decree s33(l); Magistrates' Court Rules Order XXXVII rr 8 &16; Order XXXVII

Maan Chand v Waliman Khan

50

Powers ofFEA under section 37 of Electricity Act powers of local authority under sections 107 & 109 of Local Government Act - principles of statutory interpretation discussed - powers of local authority under Town Planning Act - Local Government Act (Cap, 125) s107, 109; Electricity Act (Cap 180) ss3, 13(1), 37(I), (2),43: Town Planning Act (Cap 39) ss16, 27(1), 28

Fiji Electricity Authority v Suva City Council

114

Statutory interpretation - whether Agricultural Tribunal empowered to stay its awards pending appeal - Agricultural Landlord and Tenant Act (Cap 270) ss18(1)(b), 28, 29, 33,35, 48(4), (5), 65(4), Regulations 2(2), 13, 44, Magistrates' Court Rules axxxVII rr.6 & 9

Native Land Trust Board v Thanigohala Oddyar, Hemant Kumar & Hamida Bibi

305

Trade dispute -whether Permanent Secretary for Labour and Industrial Relations exceeded jurisdiction to refer trade dispute to Permanent Arbitrator --distinction between 'dispute of iinterest' and 'dispute of right' - costs to the applicant - Trade Disputes Act (Amendment) Decree 1992 s5A(2)(b), Trade Disputes Act ss 4(1)(d), 6(1), 6(2)(a), (b) & (c) and 34, Compulsory Recognition Order 3198

State v Permanent Secretary for Labour and Industrial Relations & Fiji Bank Employees Union ex-parte National MBF Finance (Fiji) Limited

 39

Resulting trust - circumstances in which a constructive trust can be declared - Land Transfer Act (Cap 131) sl68

34

Rajendra Prasad v Lily Premila Devi, Registrar of Titles & Attorney-General

Whether consent order can be set aside or varied where validly obtained

Vijay Prasad v Satish Prasad

54

WORKER'S COMPENSATION

Interim payment - whether court is satisfied that plaintiff will succeed against defendant - High Court Rules 0.29 r.19 &11; Workmen's Compensation Act ss5(I)(a), (b), (2) and (3)

Madhu Lata v DVH Textile Mills (Fiji), Limited

171