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Fiji Islands - FLR Volume 34 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE SUPREME COURT,
THE FIJI COURT OF APPEAL
and
THE HIGH COURT OF FIJI1988
VOLUME 34This Volume may be cited as “34 F.L.R.”
EDITOR:
THE HON. D. G. McGREGOR, ESQ., Q.C.
Former Judge of the Supreme Court of Australian Capital Territory
and the Federal Court of Australia
DIGEST AND INDEX
PAGE
BILL OF EXCHANGE
Summary judgment – purported payment by debtor defendant by conditionally endorsed cheque – limitation thereby on liability – effect thereof – no evidence from plaintiff of circumstances of negotiation – Court unable to say no triable issues.
43
COMPANIES
Scheme of arrangement – approval by majority of unsecured creditors – opposed but no alternative to liquidation offered – charges against directors etc, if pursued would not advantage creditors – creditors heard criticisms at their earlier meeting, so made choice – scheme approved.
Dominion Hardware Company Limited v. Master Foods (Fiji) Limited
47
CONTEMPT
Failure by husband to make payments – contempt procedure – omission of penal notice as to consequence of failure to pay – liberty of subject at stake – also there were other remedies – dismissal of application – but refusal of hear application for variation until contempt purged.
82
CONTRACT
Supply of material and installation – judgment very brief – no finding of specific facts – extent of trial Judge’s duty to make detailed findings of fact – result here decided on credibility – trial Judge on the evidence entitled to reach stated conclusion – failure to find specific facts did not vitiate judgment or hamper the appeal court.
Ragwan Construction Co. Ltd v. Wormald Security Services Ltd.
124
CRIMINAL LAW
Application for bail – factors (listed) which will guide judicial officers dealing therewith in the exercise of their discretion.
1
Breaking entering and larceny – appellant running on road near scene of crime – appellant possession of stolen earring, (stolen T.V. Screen nearby) – said too drunk to know how he came into possession of earring – did not cross-examine or give evidence at trial – doctrine of recent possession does not impose duty to explain possession of stolen property – absence of explanation made inference of guilt less unsafe.
130
Offence of corruptly taking – form of charge – essential elements to be stated – need not negative an exception etc. in respect of which onus on accused, as here.
107
CRIMINAL LAW
Rape – Principles and guide – lines to sentencing – co-accused should be sentenced together – disparity thus may be avoided.
100
Rape – Plea of Guilty – appeal against sentence consideration of appropriate punishment – guide – lines adopted by Chief Justice – observations by appellate – Judge on circumstances of crime of rape setting it apart from other crimes mitigating factors having already generously been taken into account, no further reduction justified.
114
Practice and procedure – order for retrial – whether court should have ordered without hearing Counsel’s submissions.
Shinodra v. The State
135
FIJI NATIONAL PROVIDENT FUND
Member with cash balance – dies testate (leaving, widow, 5 children) in Australia – no nomination – Probation granted there – no reseal here – question as to whom money should be paid – wife sole beneficiary – construction of Fiji National Provident Act – order that money be distributed and paid as a intestacy.
56
INCOME TAX
Realization of Fiji land by non-resident – land acquired as inheritance – no taxable profit unless land adventured in a business venture or undertaking.
The Commissioner of Inland Revenue v. Edward Charles Woodward
19
INDUSTRIAL LAW
Dispute between employer and employees association as to dismissal of employee – submitted to Trade Disputes Tribunal – question for it: was employee’s dismissal unfair having regard to the nominated grounds or dismissal – observations on role and function of this and domestic tribunals - function of reviewing Judge.
6
INJUNCTION
Application ex parte must show urgency – not appropriate to make findings of fact on affidavit evidence – Judge should make any such injunction only initially for a short not indefinite period – Practice on ex parte and interim injunction outlined.
86
LANDLORD AND TENANT
Application by last registered proprietor for summary judgment – respondent in possession claimed tenancy – other issues also which could not be decided on affidavit evidence – proper exercise of discretion to dismiss summons.
91
LOCAL GOVERNMENT
Rating appeal – onus on he who seeks to assert valuation incorrect – party on whom onus lies must open the case – valuer if required to provide basis of the valuation.
96
NATIVE LAND
Landlord and Tenant declarations sought and given at the application of one who had been in breach of Land Trust Act s.12 – Court will not aid party to an illegal transaction – declaration given deleted.
30
PRACTICE AND PROCEDURE
Judgment in default of appearance – setting side – “tests” to be applied – defendant estopped from setting up, he was not an “employer – meaning of “issue estoppel”.
Word and Phrases – “Issue estoppel”.
67
Judgment signed by default – application to set aside – reason for failure to file defence in time accepted – various triable issues raised by defendant’s affidavit – plaintiff did not reply – order of trial Judge refusing to set aside judgment – a wrongful exercise of discretion.
75
REAL PROPERTY
Caveat – extension thereof – onus on caveat or – must show interest described in Land Transfer Act s.106 – no “equitable express trust” shown.
118
VALUERS
Application for registration – initial failure to give reasons for refusal – eventually in – adequate reasons provided – vast experience of applicant – decision to refuse set aside – quire as to Court’s power under Valuer’s Registration Act 1986 – matter remitted to the Board to reconsider.
38
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