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Fiji Islands - FLR Volume 31 - Digest of Cases |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1985
VOLUME 31This Volume may be cited as “31 F.L.R.”
EDITOR:
THE HON. D.G. McGREGOR, ESQ., Q.C.
Former Judge of the Supreme Court of the Australian Capital Territory
And the Federal Court of AustraliaPRICE: $25.00
DIGEST AND INDEX
PAGE
ADMINISTRATIVE LAW
Appointment to position in Public Service – qualifications as pre-requisites – prerogative writ – power to oversee and control inferior tribunals – observations on ‘privative’ clauses – excess of jurisdiction.
89
Judicial Review of Arbitrator’s award – Arbitrator and Trial Judge addressing them to the wrong issue – quashing of Award by Arbitrator confirmed – but on grounds different to those accepted by Judge.
9
Disciplinary Committee of University of South Pacific – enquiry into ‘misconduct’ – procedures followed not fair – names of witnesses not disclosed – prejudiced statement during proceeding – observations on procedure which might be followed in future inquiries.
R. v. University of the South Pacific Ex.p. Malaki Tuiuluponaq
81
Interpretation by Permanent Arbitrator under Trade Disputes Act of an award made by him – Trade – disputes which arose settled on terms providing reference to Arbitration – Whether – particular issue was outside terms of reference of the review leading to Arbitration – whether – award of Permanent Arbitrator can be the subject of certiorari – provided domestic tribunals outside scope of certiorari – provide – domestic tribunals outside scope of certiorari since authority derived in contract – tribunal appointed under Trade Disputes Act not amendable to Judicial Review.
18
Practice and procedure – applications for certiorari and declaration – not just and convenient.
166
AGRICULTURAL LAND
Application for caveat on title to land in respect of which tenancy had been sought in Agricultural Tribunal – hearing of application therefore continuing – claim of plaintiff founded on share farming agreement – impossible to consider merits of claim or what decision Tribunal would reach – extension of caveat.
39
Charge thereon pursuant to Income Tax Act s.76(3) – both duly registered – winding up order – priority as between mortgagee and charge – priority over so called ‘Statutory trust moneys’ – whether there was truly a trust fund.
143
Winding up petition – petitioner withdraws – entitlement of other creditor to be substituted – issues involved – procedure – form of order.
55
COMPANY LAW
Winding up –
Application for stay of proceedings – interests not only of creditors but commercial morality to be considered – such application pursuant to s.252 can only be made by liquidator, official receiver or any creditor or contributory.
71
CONTRACT
Claim for agent’s commission – factors necessary to a finding of implied promise – finding that no common understanding can be implied is a finding of fact – past consideration – when it can become such consideration as will support a promise.
136
CRIMINAL LAW
Provocation – Accuser’s reaction not one to be expected of an ordinary person of his age, background – Judge rarely if ever to reject opinion of assessors familiar with the accuser’s background – accuser’s retaliation not reasonable to provocation offered.
76
Preliminary Enquiry – right of Election – Entitlement of accused – discretion by Magistrate.
171
INSURANCE
Time Policy – indemnification against perils of the sea plus an ‘Inchmaree’ Clause – allegation of unseaworthiness – respondent claimed lack of knowledge thereof – alternatively the proximate cause was the negligence of master covered by the ‘Inchmaree’ Clause – evidence unchallenged that any unseaworthy condition was not the proximate cause of the loss.
124
LANDLORD AND TENANT
Notice to Quit – Summary Judgment for possession of shop premises – correspondence regarding possible extension of tenancy after Notice to Quit – written material on which appellants could seriously contend that further tenancy granted – not an appropriate case for Land Transfer Act s.169.
62
MATRIMONIAL CAUSES
Right of wife who contributed to purchase property – constructive trust – Matrimonial Causes Act s.86 – calculation of husband’s income for maintenance purposes.
109
NATIVE LAND
Decision of Central Agricultural Tribunal – application for Judicial Review thereof – Supreme Court had jurisdiction to make such Review – Award of Tribunal opposed by Native Land Trust Board – absent such consent by Board award null and void.
1
PRACTICES AND PROCEDURE
Judgment entered in Magistrate’s Court in default of defence – O.XXXIV Rule 3 validity where claim was not liquidated – setting aside judgment a matter of discretion.
49
Land – Summons for possession – summary proceedings – whether not genuine question of fact – analysis of allegations thereon – “specious”.
130
Winding Up petition – petitioner withdraws – entitlement of other creditor to be substituted – issues involved – procedure – form of order.
55
REAL PROPERTY – TRANSFER OF LANDS
Transferee (for value?) of whole of land – indefeasibility of title – not liable to be defeated by earlier incorrect entry, omitting reference to half share.
23
REVENUE LAW
Income Tax – loan to subsidiary company – loss of capital – whether be deductible.
159
Charge thereon pursuant to Income Tax Act s.76(3) – both duly registered – winding up order – priority as between mortgagee and chargee – priority over so called ‘Statutory trust moneys’ – whether there was truly a trust fund.
143
STATUTES
Interpretation Act – clear language necessary to take away existing rights – presumption against retrospectivity – subject provision for appeal a substantive right, more than merely procedural.
96
TOWN AND COUNTRY PLANNING
Approval of application for subdivision – plan registered in Titles Office – one lot therein to be dedicated to the Crown as open space – requirement by director of Lands but subject to imposed condition that Landlord made satisfactory arrangements for future maintenance of the subject are with the local Authority – no statutory mandate available to Director of Lands to impose condition – duty of Director of Lands to accept the dedication but not empowered to impose further conditions – such condition unreasonable and ultra vires.
34
Rules – irregularity – powers of majority and minority to complain.
176
TRADE UNIONS
Competency – entitlement of legislature to enact retrospective laws – enactment may affect existing rights.
67
WINDING UP
Application for stay of proceedings – interests not only of creditors but commercial morality to be considered – such application pursuant to s.252 can only be made by liquidator, official receiver or any creditor or contributory.
71
WORKMEN’S COMPENSATION
Eye injury – award for permanent partial incapacity – diminution of earning capacity – to be an award of single lump sum – award not just for loss at date of accident but for whole of working life – incorrect to apply percentages in schedule based on one eye – should relate to total loss of sight, not to loss of sight of one eye – no scope for “wait and see policy”.
102
Established atherosclerosis – coronary occlusion – evidence of stress mental or physical in work – no evidence of injury which arose out of and in course of employment – no evidence to justify shifting of onus
118
Payment representing such compensation – sum paid in settlement of Common Law claim arising out of same incident – claim for reimbursement of amount received for Workmen’s compensation – necessary to prove Common Law payment included amount included in compensation payment – s.24(2).
41
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