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Fiji Islands - FLR Volume 32 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1986
VOLUME 32This Volume may be cited as “32 F.L.R.”
EDITOR:
HON. D.G. McGREGOR, ESQ., Q.C.
Former Judge of the Supreme of the Australian Capital Territory
and the Federal Court of Australia
DIGEST AND INDEX
PAGE
AGRICULTURAL LANDLORD & TENANT ACT
s.4(1) even if there is occupancy was without consent – 2.4(2) – payment alleged to have been made not to be presumed as rent – but only in the absence of proof of the contrary.
145
BANKRUPTCY
Allegation of settlement of respondent’s (petitioning creditor’s) debt – receiving order, made in absence of appellant debtor due to misunderstanding, set aside.
151
CRIMINAL LAW
Exchange Control Act – Plea of guilty to attempted export of currency – appeal against severity to Court of Appeal. Whether taken in account that there have been an undeclared importation – no legal obligation to declare an importation. No error of law involved – therefore no appeal lay. Guidance for practitioners in dealing with such cases.
55
Minor offences – betting shop – can be described as public place within the meaning of the Minor Offences Act (Cap.18) s.2(b)(ii).
154
Power of Supreme Court and Court of Appeal to vary sentences imposed in Magistrate’s Court – Supreme Court may not impose a greater sentence than maximum the Magistrate could have imposed – Court of Appeal may only interfere if sentence is wrong in law – then may not impose a sentence but may remit to Supreme Court of Magistrate’s Court for rehearing.
162
Evidence against accused of witness who had given a prior inconsistent statement – treatment thereof by trial Judge in summing up – no inflexible rule that Assessors to be directed the evidence is unreliable – discussion as to ways Assessors could be directed.
139
Murder – Multiple wounds – deep unconsciousness – death attributed to pneumonia – causation.
156
Malicious prosecution – No action therefore until there has been a judicial proceeding – baseless complaint leading to arrest and detention – person making complaint responsible to detention.
1
FIJI NATIONAL PROVIDENT FUND
No nomination of person to be recipient – member dying testate – sum to be dealt with in accordance with the law of testacy.
98
INCOME TAX
Deduction sought for interest on loan – loan used to buy shares in company – s.17(37) and s.19(f)(b) precluded deducted – share dividends not assessable income – management agreement entered into by company (whose shares were purchased) and taxpayer – management fee thereby derived – loan was an investment in property being shares, not in management agreement – so interest barred by s.19(f) (i).
Marine Management Limited v. Deputy Commissioner of Inland Revenue
67
Insurance Company carrying on third party motor insurance – no claims in year of income for accidents occurred but not reported – value of such claims can be estimated – valid estimation allowing for anticipated unsuccessful claims a deduction from income – being part of “current cost of working”. Finding of fact not to be disturbed.
Southern Pacific Insurance Company (Fiji) Limited v. The Commissioner of Inland Revenue
50
INQUEST
Application for order directing Resident Magistrate therefore.
24
INSURANCE
Cover Note – expressed to be subject to Policy conditions – those contain exemption from particular risk within 7 days of commencement of policy – postponement of 7 days of that risk need not to be drawn to insured’s attention – no ambiguity.
Iftakhar Iqbal Ahmed Khan v. The National Insurance Co. Ltd.
109
INJUNCTION
Interlocutory injunction – against closure of road – appeal against refusal – principles derived from American Cyanamid case – relevant to note existence of alternative road – matter of discretion – inconvenience can be reduced by expedited hearing.
135
JUDICIAL REVIEW
Applications for and objections to granting a road service license – Transport Control Board refusing to hear objections from an applicant for license unless he withdrew his application for license – Board seeking Report from Transport of officers which it undertook to make available to parties before reaching a decision – failure to do so – review able error – natural justice.
127
Administrative law – Permanent arbitrator – disputes referred to arbitration by permanent secretary pursuant to Trade Disputes Act s.6 Arbitrations not contractual and are subject to Judicial Review even if regarded as contractual.
16
Discretionary remedy – decision of Public Service Commission Disciplinary Committee may have found facts but did not made decision – therefore Disciplinary Committee not proper defendant – existence of alternate method of appeal a fact or relevant to discretion.
114
JUDICIAL REVIEW
Public Service Appeal Board – applicability of rules of natural justice – failure to consider relevant material.
172
Native Land – decisions of Central Agriculture Tribunal and Agricultural Tribunal amenable thereto – awards need not be made subject to consent to Native Land Trust Board.
30
Promotion appeals to Civil Aviation Authority Appeals Tribunal – person files with adverse comments – taken into account – party unaware thereof – entitlement to know and opportunity to explain – natural justice.
102
LANDLORD AND TENANT/COUNTER
INFLATION ORDER
Terms of Settlement the subject of court order fixing rent – subsequent Counter Inflation (Rent) (Control) Order freezing grants – latter order prevailed over earlier Court Order – Court may not make Order contravening provisions of an Act or valid piece of subsidiary legislation or which had the effect of overriding future legislation.
42
LAND SALES TAX
Improvement – subdivision – dealing – profit on sale of part of such land exempted – “cases”.
166
NATIVE LAND
Applications for lease by one representing himself as married to plaintiff – erection of house thereon by him she leaving her flat to live with him on the understanding she could always stay there – indirect contributions to instalments on house – purely personal entitlement to stay thereby created – no proprietory interest – plaintiff refused order for possession – estoppel available against him.
119
Mataqali is owner of land – locus standing of members.
179
SOLICITORS
No retainer in writing – denial by defendant of any authorisation – circumstantial evidence – court entitled to infer contract of retainer.
92
SUGAR INDUSTRY TRIBUNAL
Has power in the process of hearing an industrial dispute to order reinstatement of dismissed employee.
Sugar Milling Staff Officers Association v. Fiji Sugar Corporation
82
TRUSTEES
Land Yanuca Island – freehold – not native land. Originating Summons – plaintiff beneficiary under a Trust Deed – defendant sole trustee – orders sought on allegation of mismanaged of Trust – Trust Deed in respect of the land – Trustee formerly Secretary for Native Affairs – further Trust Deed executed to give effect to the wishes of Chiefly Tokatoka Nakuruvakarua of which plaintiff a member – defendant then became trustee – striking out of certain inappropriate prayers – refusal to strike out summons. Discussion as to land tenure.
Ratu Epi Volavola v. Adi Lady Lalabalavu Litia Kaloafutoga Mara
9
UNINCORPORATED ASSOCIATION
Fiji Medical Association – procedure at meeting to replace existing rules – compliance with those necessary for validity of voting – no motion put and no voting – purported adoption of new rules invalid.
63
Fiji Medical Association – charges heard against member without notice – suspension followed – rules of natural justice thereby disregarded – immaterial that same decision may have been arrived at in the absence of the departure from natural justice.
73
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