Fiji Islands - 2001 Fiji Law Reports Vol 1 - Digest & Index

DIGEST & INDEX

PAGE

APPEAL

Against judgment-error of magistrate in failing to set aside judgment when circumstances explained attempt to file a defence on merits – formal proof date changed to earlier date without notice to Appellant – failure of magistrate to afford natural justice – what constitutes a liquidated demand

Sajila Devi v Patrick Anthony

28

Against liability and quantum of judgment - salvage towage – whether arbitrator's awards on 2 additional items: salvage, and further loss consequent upon the Appellant's actions, within jurisdiction – whether the parties widened the scope of submission to the arbitrator, either by agreement, or by their conduct – whether salvage towage amended existing claim or added a new head of claim

Ports Authority of Fiji v C & T Marketing Ltd (No. 2)

340

BANKRUPTCY

Advertisement of a receiving order – whether an Official Receiver required to advertise in a local newspaper – no specific statutory requirement

Narayan Sami v Shantilal Brothers (Fiji) Limited

59

Receiving order – whether consent of Official Receiver required – whether section 9 debt – whether Respondent seeking to recover twice from Official Receiver and from Court

Padma Wati & Rakesh Chand v Kiran Devi

424

BUSINESS LICENCE

Carrying out a Business without licence – appeal against acquittal – operator apartments – meaning of 'business' – whether operating for profit or gain where income goes into a trust – whether residential property can fall under definition of 'operator apartments'.

Suva City Council v Om Prakash

157

CIVIL PRACTICE AND PROCEDURE

Whether Court of Appeal Rules r.17(1) allow an Appellant to abandon and refile appeal an unlimited number of times

Ports Authority of Fiji v C & T Marketing Ltd (No.1)

76

Late amendment of defence to include the Limitation Stature – whether permitted – institution of action for personal injuries after granting of leave to institute out of time – whether defence can still challenge at the trial – role of Judge – Whether omission of pleading was through inadvertence and not improper conduct – security for costs

Renee Wurzel v Minika Tappen Management Ltd.

275

Amendment of Defence during trial after closing of Plaintiff's case – unpleaded issues brought out in cross-examination – ambiguity – mistake – whether any prejudice caused to other parties by late amendment

Ambaram Narsey Properties Limited v Mohammed Yakub Khan & Ors.

283

Proceedings begun by originating summons and containing issues of fact – continues as if begun by writ – declaration sought

Fiji Times Limited v Fiji National Provident Fund & Anor.

488

COMPANY

Appointment and removal of receiver/manager – rights, duties and abilities of a receiver/manager – whether clog on equity of redemption – whether a Receiver can be discharged on payment of arrears

Ilaitia Boila & Ors. v Bahadur Ali & Ors.

368

Petition to wind up – whether petitioning creditor's winding up petition on undisputed debt an abuse of process

In re Kennedy Hotels Limited

56

Deliver of judgment on the merits of declarations when parties sought application for adjournment to put in submissions on consolidation of cases – whether the Court had any reason to grant adjournment when Respondent did not proceed with contention that company's article 77 was valid – validity of article 77 of company's Article in not proceeding with annual general meeting

Rewa Co-operative Dairy Company Limited & Ors. v Sharon Julie Anne Mackenzie & Ors.

439

Whether Plaintiff directors authorised any borrowing – whether company benefited from purported borrowing – lack of capacity to borrow – internal management rule – existence of guarantee – validity of directors' acts – pre-emptive strike by injunction against D2 a gross abuse of power – full and frank disclosure required for ex parte injunction.

Eastern Express Limited v Merchant Bank of Fiji Limited & Anor.

247

Whether Debtor can injunct creditor from exercising statutory right to issue winding up proceedings where cross claim – whether an abuse of process – debtor seeks to restrain creditor presenting petition or advertising petition – Debtor's admission of balance debt subject to counter-claim – no dispute as to existence of debt

Treasure Island Ltd. v Rups Industries Ltd.

64

CONTRACT

Part performance – whether valid shareholder agreement for formation of company – whether Plaintiff's equity intended to be included in shareholder agreement – counterclaim of misrepresentation – DI's subscription to memorandum of association invalid without ministerial consent – whether Plaintiff discharged burden of proof

Steven Pradeep Singh v Martin Mining & Tunnelling Incorporated & Anor

87

CRIMINAL LAW: EVIDENCE

Damaging property – whether Appellant acted recklessly in knocking off a video camera

Epeli Ligairi v State

172

Murder – corroboration – statements inconsistent with the evidence – credibility of a witness

Daniel Azad Wali v State

192

Murder or infanticide – burying alive child – whether direction on purpose of infanticide sufficient – standard and burden of proof – whether Appellant's circumstances hampering recovery after childbirth or cause of symptoms – whether Appellant knowingly killed her child – whether mind was disturbed as a result of the effects of childbirth

Ilibera Verebasaga v State

456

Rape – 8 Appellants pleaded guilty – police statements and medical report tendered showed voluntariness, Complainant said to be raped by 6 men she knew – which 6

Ananaia Nawaqa & Ors. v State

123

Rape – Corroboration – Mental capacity for actus reus – identification of Appellant – previous inconsistent statement – whether sentence excessive for second conviction

Inoke Buli v State

202

Robbery with violence – appeal against conviction –driver of get-away car – accomplice implicates Appellant – whether Magistrate safe to convict on uncorroborated evidence of accomplice

Vinod Kumar v State

207

Robbery with violence – whether Appellant counseled and procured the assailant to commit a robbery – whether Appellant committed an offence – sharing of intention – probable consequence

Bharat Dwaj Duve v State

416

Robbery with violence – direction to assessors and tribunal on standard and burden of proof – reasonable verdict – not supported by evidence – whether confession involuntary – corroboration of identification – failure to caution A2 on his rights in an identification parade – fairness of holding identification parade – direction to assessors for provocation – weight of alibi witness

Siga Lesumailau & Anor v State

446

CRIMINAL LAW: PROCEDURE

Act with intent to cause grievous harm – assault occasioning actual bodily harm – relationship of Appellant and complainant – insufficient evidence to support convictions – mens rea – hearsay evidence – committal to the High Court for sentencing without obtaining information of his character and antecedents

Akuila Maraiwalu Lutu v Sate

40

Being found by night in possession of house breaking implements – admissibility of caution interview on the ground of oppression, fear and voluntariness – voluntariness of confession – is knowledge necessary for "possession – cross-examination of accuser's bad character

David Safiq & Ors v State

112

Murder – robbery with violence – State's appeals against Chetty's acquittal – Hussein's appeal against conviction – whether assessor's opinion in regards to Chetty perverse – whether misdirection on joint enterprise, elements of robbery, corroboration of accomplice evidence – whether failure to consider Chetty's guilty plea on robbery material – whether Judge failed to direct on relevant and significant circumstantial evidence – non-direction on previous conviction a miscarriage of justice

Sheik M. Hussein v State & State v Prakash Chetty

347

Whether magistrate's acceptance of facts as put by the prosecutor without reading witness statements to ascertain extent of each accused's guilty plea a miscarriage of justice – trial de novo

Ananaia Nawaqa & Ors. v State

123

Admissibility of statement of admission – direction from the Chief Justice that no further trial within a trail to be held in the Magistrate's Court – procedure not followed

Vinod Kumar v State

207

Stay proceedings to signal that circumvention of criminal proceedings will not e countenanced – D1 prosecuted criminal charges against Plaintiff to exert pressure on the Plaintiff to enforce agreement between them to seek a declaration on the status of inserters

Fiji Times Limited v Fiji National Provident Fund & Anor.

488

Robbery with violence – whether charge defective for failure of particulars

Bharat Dwaj Duve v State

416

Separate trial – three accused jointly charged under Dangerous Drugs Act whether a joint trial would be prejudicial, embarrassing and cause delay – whether real danger that assessors will not be able to consider the evidence against Applicant separately from the other accused.

State v Wong Kam Hong, Tak Sang Hao and Shi Jie

239

CRIME: SENTENCE

Act with intent to Cause Grievous Harm – indecent assault – attempted raping of daughter – appeal against sentence – disparity of sentences in sexual offences case

Veretariki Kadavu, Rt v State

180

Attempted rape – appeal against sentence – Appellant lured victim – factors to consider where offences is not the most serious of its kind

Jioji Aunima v State

213

Attempted rape – appeal against sentence – sentence within tariff – within tariff – wider purpose of sentencing for criminal attempts: retribution, denunciation, general deterrence, individual deterrence, rehabilitation and incapacitation – Appellant's wish to continue with education

Eliki Mototabua v State

98

Defilement – whether concurrent or consecutive – suggested words to be read by magistrates explaining the effect and meaning of a suspended sentence – whether sentence of imprisonment appropriate – recommendation of probation supervision not exercised by magistrate – probation supervision order made effective\

State v Ritesh Amrit Singh

52

Murder reduced to manslaughter – phenomenon of Battered Woman's Syndrome raised as defence for the first time in Fiji – extreme provocation – minimal time for premeditation – accused suffering acute stress reaction at time of offence – sentencing options for manslaughter

State v Prabha Wati

336

Robbery with violence – sentence – range of sentences in England and New Zealand compared with Fiji – Guidelines for sentencing discussed – aggravating and mitigating factors – masked and armed me wielding weapons – prevalence of offence – duty of courts to pass a sentence which reflects the gravity of such offending

State v Ilaisa Sousou Cava

150

Robbery with violence – activation of a suspended sentence for earlier offence of office breaking and larceny – whether harsh and excessive – whether offending and conviction must take place within operational period

Eloni Goneyali v State

255

DAMAGES, ASSESSMENT OF

Negligence – no defence or counterclaim – inter-locutory judgment by default on liability – fair and just award for minor miscellaneous injury – decided cases reconsidered in light of inflation and Court of Appeal recommendation

Anisa Tuberi v Simon Gopal & Anor

47

Personal injuries – D1 drove army truck negligently, resulting in accident with the Plaintiff – loss of future earnings – other expenses consequent upon an accident – loss of future medical and like expenses – appropriate multiplier – use of actuarial tables – whether Plaintiff contributorily negligent in driving or interfering with medical treatment – reduction in interest period due to inordinate delay

Edward Michael Broadbridge v Jone Maka & Attorney-General

389

Personal injuries – amputation of arm caused by the Respondent's arms caught in a conveyor during installation after a manual test run – whether judge's finding of no contributory negligence an error – appropriate multiplier for grievous injuries – whether interest can be awarded on a sum unknown before trail

Flour Mills of Fiji Ltd. v Jai Raj

196

Building contract – breach – assessment of damages where no defence filed – house incomplete by contract date – whether daily penalty clause for non-completion or liquidated damages for genuine pre-estimate damages – award for rent provides adequate cover for pecuniary loss under penalty clause

Derrick Wadman v Charles Kamea & Viti Aesthetic Partnership Ltd.

144

Compensation to Relatives – degree of dependence a father has on a 14½ year old daughter – appropriate multiplier – lost years – loss of expectation of life – funeral expenses

Gyan Chand v Pradeep & Salesh Krishna Gounder

83

Personal injuries – negligence – evidence – whether surgeons negligent in performing a thyroidectomy – whether staff negligence in post-operative treatment and care – onus on Plaintiff to establish positive acts of negligence – no case submission of no affirmative evidence of negligence

Lila Wati v Attorney-General

309

Personal injuries – appeal against low quantum – cross-appeal by Respondent for a lower award – setting aside – appropriate multiplier – whether court can award interest where not pleaded

Renuka Shankar v Chandar Gopalan Naidu

358

Wrongful dismissal – categories of payment in lieu of notice – whether payment in lieu amounts to breach of contract – whether former employer legally entitled to pay and benefits until he found alternative employment

Abdul Hakik v Voko Industries Limited

482

DEBT RECOVERY

Supply of treated and untreated timber-defence of below standard and unwanted supply of goods – Plaintiff invited to take timber away but $13K worth of timber disappeared from the First Defendant's yard – evidence – credibility of witness

Vunimoli Sawmills Ltd v Jainil Timber & Hardware Ltd & Ors.

102

Appeal from judgment of MC rejecting defences – swindling – dishonest conduct – credibility of witnesses – whether appellate court can interfere with findings of face reached by MC

Padma Wati & Rakesh Chand v Kiran Devi

424

EMPLOYMENT

Lawfulness of discharge by PSC – subordinate officer on a five yearly renewable contract – contract yet to expire at the time of discharge – malingering – meaning of

Rusiate Tagicakibau v PSC & Attorney-General

132

Unlawful dismissal – whether the action should have commenced by judicial review instead of Originating Summons – Plaintiff was in employ of Defendants who perform public duties

Joelie Naitei v Public Service Commission & Anor.

242

FAMILY

Appeal against property adjustment order – whether magistrate considered the onus placed on the petitioner to prove the existence of a ground for divorce – whether the Magistrate took the children's age into consideration when giving the order that decree nisi be made absolute – whether the Magistrate heard all the evidence relating to property adjustment

Ivan Harld Gibson v Salaseini Nakacia

427

INCOME TAX

Withholding tax – error of law, an abuse of power, breach of substantive legitimate expectation, estoppel – whether Applicant failed to exhaust an express alternative remedy – whether s62 objection/appeal process applies to other taxes such as withholding taxes – Applicant's locus standi – stay of status qui

State v CIR ex parte Dilmun Navigation Co. Ltd

296

INJUNCTION

To restrain Defendants from publishing of media release – whether breach of confidence – failure to particularise breach – whether injunction justifiable on moral grounds or substantial risk of injustice – failure to establish elements of breach of confidence – law required information to be put in the public domain – information sourced from Companies registry and from Plaintiff's annual report – whether need for Plaintiff's authorisation to use information in the public domain

Fijian Holdings Limited v Tupeni Lebaivalu Baba & Ors.

59

Whether debtor can injuct creditor from exercising statutory right to issue winding up proceedings where cross claim – whether an abuse of process – debtor seeks to restrain creditor presenting petition or advertising petition – debtor's admission of balance debt subject to counter-claim – no dispute as to existence of debt – locus standi

Treasure Island Ltd. v Rups Industries Ltd.

64

Dissolution of injunction – petition to wind up – whether material non disclosure of correspondence in injunctive application fatal – whether petitioning creditor's winding up petition on undisputed debt on abuse of process

In re Kennedy Hotels Limited

56

Triable issues – Plaintiffs commenced subdivision of the land – both parties seeking to injuct the other: Plaintiffs seeking to injunct Defendants from completing subdivision of land and Defendants seeking to injuct Plaintiffs from representing themselves as trustees of the land for the villagers – proper Trustees – whether Deed of Trust valid – whether fraudulent representation to obtain lease – balance of convenience – suspension of Crown Lease

Vasemaca Avoi & Ors. v Alipate Kriss & Ors.

332

Dissolution – restraining Defendant from advertising winding up action against Plaintiff – return of buses belonging to another company – pre-emptive strike against D2 a gross abuse of power – full and frank disclosure required for ex parte injunction

Eastern Express Limited v Merchant Bank of Fiji Limited & Anor.

247

Dissolution – lease in favour of a third party – locus standi in representative actions

Josefa Nasalo v NLTB & Taniela & Kelera

235

Motion to dissolve injunction restraining D1 from proceeding with mortgage sale or advertising sale – injunction will frustrate civil action claiming order for specific performance of sale of properties to D1-D2 wearing 2 hats of mortgagor and purchaser – whether affidavits raised triabale issues – damages an adequate remedy

Vivrass Development Ltd and Anor. v FNPF & Ors.

260

INSURANCE

Renewal note for fire policy – whether Arcade destroyed as a result of riot or civil commotion – no specific reference to cover – whether actions of a rampaging mob a riot or civil commotion

Yatulau Co. Ltd. v Sun Insurance Co. Ltd

221

Whether fire and extraneous perils insurance police covered Plaintiff's premises burnt down on 19 May, 2000 – insurance policy exemption discussed – whether property damaged by fire was 'occasioned by' or 'happened through' not merely riot or civil commotion but rebellion, revolution, insurrection or usurped power – whether looting was part of Speight's attempted coup – burden of proof on Defendant to establish that damage resulted not merely from riot or civil commotion

Suresh Kumar Singh v Sun Insurance Co. Ltd

231

JUDICIAL REVIEW

Whether Commissioner's discharge of Applicant for ceasing to be an efficient Police officer or desirable in the public interest arbitrary and unreasonable – whether R1 breached natural justice – whether R1 sought approval of the Disciplined Services Commission

State v Commissioner of Police & Anor. ex parte Mahen Chand

69

What decision is being impugned whether the Applicant has locus standi to bring action – whether Applicant has sufficient interest or is a mere 'busy body' – whether in the circumstances, leave for judicial review ought to be issued

State v Emi Rabukawaqa and Anor. ex-parte Fiji National Democratic Party

270

Test for bias – whether justice seen to be done – when objection to constitution of tribunal should be made – waiver of right to object

State v Land Transport Authority ex parte Inia Tamani

321

Public law – decision not to appoint public servant Plaintiff to public service post – whether matter properly brought by way of originating summons – striking out application – abuse of process – no reasonable cause of action

Lepani Matea v Permanent Secretary for Education and Technology & Ors.

469

LANDLORD AND TENNANT

Summary eviction – Defendant to show cause why he should not give up possession – whether tenant can obtain an extension of tenancy upon a declaration of tenancy by the Agricultural Tribunal

Chandrika Prasad Pandey v Subhag Chandra

120

Eviction proceedings – revocation of invitation to occupy – whether Director of Lands' consent necessary to ejectment proceedings

Indar Prasad & Bidya Wati v Pusup Chand

164

Order for possession of land occupied by the Appellant – competency of appeal – whether Court can grant orders for possession when disputed issues regarding whether or not Appellant had an equitable interest, and whether or not there was fraud by Respondents

Ambika Prasad v Santa Wati & Bisun Deo

430

PROBATE

Whether action should be commenced by Writ or petition – whether HC has jurisdiction to make declaration of legitimacy in probate action

Nasikele Malaya Sadal v Vigyat Nand Marra Elizabeth & Anor.

218

PROPERTY

Possession of State Lease – improvements on land – Defendants ignored Notice to Quit – whether Plaintiff obtained lease by actual fraud – whether the Plaintiff had knowledge of Defendants' occupational interest – Defendants did not exercise two options to purchase – Defendants did not show cause

Jaideep Kishore v Krishna Kumari & Diven Balram

299

SETTING ASIDE

Setting aside and stay of default judgment – reasons for Decision – whether D3 insurance company should be joined – Principles on setting aside default judgment

Sharat Chandra & Anor. v Akuila Rokoqica

94

Judgment by default – administrator of estate – whether Defendant had fully administered the estate and effects of the deceased, leaving no further assets, or whether the Defendant had wasted assets – whether Statement of Defence an arguable defence – defect in sealing judgment against administrator discussed – ignorance of the law no defence – presumption of devastavit not rebutted here

Fiji Development Bank v Isireli Cama

106

Judgments obtained in default of defence – whether judgments irregular – Income tax assessment – amount owing – onus on Defendants to verify of P32-1 forms – conditions on which judgment can be set aside – Income Tax Act

CIR v David Thomas Robinson & CIR v Latu Engineering Works Ltd

304

STAMP DUTY

Conditional exemption from – mortgage – refinancing – amount of duty chargeable on an instrument – whether assessable by 1% on amount of indebtedness less stamp duty paid earlier or earlier exempted or assessable to the extend of the indebtedness being refinanced – wide ramifications – purpose of Stamp Duties Act 1998 amendment – rules in aid of interpreting revenue legislation

Hari Rajesh Kumar v Attorney-General

31

Conditional exemption from second mortgage – land secured by first mortgage – further mortgage necessary to construct first home – whether mortgagor entitled to exemption for second mortgage drawn up to satisfy Consumer Credit Act requirements – purpose of exempting provisions of Stamp Duties Act to provide an incentive to first owner/occupiers and mortgagors – purpose of Consumer Credit Act to further protect consumers – whether Consumer Credit Act a barrier to exemption under Stamp Duties

Tuni Beddoes , Jacinta Beddoes v Attorney General

176

STATUTORY INTERPRETATION

Meanings of riot and civil commotion, citizen – Insurance Law Reform Act 1996 s29

Yatulau Co. Ltd. v Sun Insurance Co. Ltd.

221

Meaning of civil war, rebellion, revolution or insurrection in insurance policy

Suresh Kumar Singh v Sun Insurance Co. Ltd.

231

Effect of publication of Act – whether appointment can be made under Act not yet in force

State v Land Transport Authority ex parte Inia Tamani

321

STAY

Dissolution of stay order – dispute over rental for lease of vessel – non-disclosure – court's duty to examine the entire matter afresh an application to extend, dissolve or discharge injunction – counterclaim equitable set off – serious triable issues – damages an adequate remedy – sufficiency of Plaintiff's undertaking – Plaintiff unable to deposit Defendant's counter-claim into Court – preservation of status quo

South Pacific Aquatic Inc v Information Technology Services (Fiji) Limited and Anor.

474

STRIKING OUT

Whether any cause of action – locus standi in representative actions – title D2 is impeachable

Josefa Nasalo v NLTB & Taniela & Kelera

235

Defamation – whether Statement of Claim discloses a reasonable cause of action in libel

Naipote Vere v Chairman of Disciplined Services Commission & Ors.

328

Whether claim discloses a reasonable cause of action – whether there are special circumstances for imposing a duty of care on a statutory authority – factors considered – foreseeability of its own insufficient to give rise to duty to act positively – no proximity of relationship

Eastern Express Limited v Ledua Tuitoga & Ors.

461

SUMMARY JUDGMENT

Group Medicare Insurance policy – whether spinal tumour treatment available locally – Defendant gave undertaking to pay up to NZ$30,000 on a patient's making own arrangement for overseas evacuation – whether good defence or triable issue – proper indorsement on affidavits

Sunila Devi Chandra v Fiji Care Insurance Ltd.

73

Guarantee – no credible defence – factors the Defendant requires to exhibit in his affidavit in reply to summary judgment application

ANZ Banking Group Limited v Aeneas Edward O'Sullivan

315

Opposed application – cross-claim – principles relevant to summary judgment – material facts not in dispute – Defendant has not discharged onus of proving a triable issue

Gurdev Singh & Ors. v Deoji & Sons Ltd.

188

TORT

Fiduciary duty – whether there was any joint involvement of P1 and the Defendant in the affairs of the Stinson Pearce Group of Companies which may give rise to a fiduciary expectation which the Court in equity should uphold

Decima Joyce Lawlor & Anor. v NBF Asset Management Bank

289