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Fiji Islands - FLR Volume 45 - Digest & Index |
THE FIJI LAW REPORTS
of the cases decided in
THE SUPREME COURT OF FIJI
in
THE COURT OF APPEAL and in
THE HIGH COURT OF FIJI
1999
VOLUME 45
This volume may be cited as "45 FLR"
EDITOR:
MICHAEL DISHINGTON SCOTT B.A. (Lond.)
of Gray’s Inn, Judge of the High Court of Fiji
_______________________________________________
Published by: The Institute of Justice and Applied Legal Studies
The University of the South Pacific, 2001
ISBN 982-352-033-X
ISSN 1562-4749
©
Michael Dishington Scott
2001
Printed by the Government Printer, Suva, Fiji Islands - 2001
DIGEST AND INDEX
PAGE
ADMINISTRATIVE LAW Administrative Law-judicial review-whether ministerial decision to increase licence fee on public law matter- whether decision subject to rules of natural justice. Television Decree 35/1992 The State v. Minster for Communications, Works and Energy ex parte Fiji Television Limited
229 ADMIRALTY Admiralty- demise charter party- implied warranty by charterer that vessel seaworthy. 41 APPEAL Appeal - Jurisdiction of the High Court to hear appeals from interlocutory orders of the Magistrates' Court - Criminal Procedure Code (Cap 21) Section 308 (as amended) 273 BANKRUPTCY . Bankruptcy - recession of receiving order after expiry period of appeal - Bankruptcy Act (Cap 48) Sections 5, 94, & 100 101 COMPANY LAW Company Law - company in liquidation - duties and powers of of Official Receiver - how far subject to control by the Court - Companies Act (Cap 247) Section 243 and 251 Mohammed Sheik Khan & Sheik's Rent-a-car Ltd v. The Official Receiver of Fiji
220 CONFLICT OF LAWS Conflict of laws - jurisdiction of the court - immunity of diplomatic agent - sovereign immunity - Diplomatic Privileges and Immunities Act (Cap 8) Section 3 (1) 161 CONSTITUTION Constitution - powers of Director of Public Prosecutions - entry of nolle prosqui - whether reviewable - Consitution (1997) Sections (10) & 114 24 CONSTITUTION Constitution - freedom of expression - whether contempt by scandalizing the Court is reasonable justifiable in a democratic society Constitution (1990) Section 13 87 COURTS Courts - contempt - freedom of expression - Constitution (1990) Section 13 87 COURTS Courts - bias by tribunal - whether established 310 CRIME : DEFENCES Crime : defences - unlawful carnal knowledge with minor - statutory defence to be raised - Penal Code (Cap 17) Section 156 (a) 310 CRIME : EVIDENCE Crime: evidence and proof - need to consider the defence of each accused seperately - rape - recent complaint - not corroborative - evidence of accused implicating co-accused - need for warning - Penal Code (Cap 17) Section 149. 180 CRIME : EVIDENCE Crime: evidence and proof - pathologists report - whether admissable as a business record - Evidence Act (Cap 41) Sections 2(1) & 4 96 CRIME : EVIDENCE Crime : Evidence and proof - similar fact. Evidence - when admissable. 253 CRIME : OFFENCES Crime: Offences - whether the swearing of a false affidavit constitutes perjury - Penal Code (Cap 17) Section 117 24 CRIME: PROCEDURE Crime: Procedure - summing up - whether confined by arguments propounded by the parties - Criminal Procedure Code (cap 21) Section 299(1) CRIME: PROCEDURE Crime: procedure - need for expedition in the preparation of records for appeal purposes. 51 CRIME:PROCEDURE Crime: Procedure - amended charge - whether to be put to accused - statement of offence - whether subsection or paragraph of section charged must be referred to - Criminal Procedure Code (Cap 21) Sections 122 (a) (ii), 122 (f) and 214 (a) 70 CRIME: PROCEDURE Crime: Procedure - application for award of costs by accused. - Criminal Procedure Code (Cap 21) Section 158(2). The State v. Graham Bruce Southwick & Visanti Petero Makrava
292 DAMAGES Damages - false imprisonment - quantam and nature of. Sivorosi Raikali v. The Attorney-General & The Commissioner of Prisons
313 ELECTIONS Elections - election petition - whether requirement that petition be signed personally by the petitioner is mandatory or directory - Electoral Act 1998 Sections 144, 145, 146 and 147 136 EMPLOYMENT Employment - misconduct by employee - whether dismissal harsh and unreasonable The State v. The Permanent Arbitrator & Others ex parte Warwick Fiji Ltd
211 EQUITY Equity - Constructive Trust - whether contributions in cash and in kind entitle the contributor to a share in the ownership of the family house 246 ESTATE Estate - power of Registrar to enter cavaet against sale of estate property by executor- Land Transfer Act (Cap 131) Sections 93, 94, 129 & 131 - Succession Probate and Administration Act (Cap 60) Section 11 (3) 122 FAMILY LAW Family law - divorce - ancillary relief - whether maintenance order capable of binding the estate of the deceased party - whether a prior deed of settlement remains valid after the making of a statutory maintenance order - Matrimonial Causes Act (Cap 51) Sections 87 (1) (k) and 101(2) 262 INCOME TAX Income Tax - traveling and accommodation expenses - whether deductible - late filing penalty - whether penalty - whether appealable - Income Tax Act (Cap 201) Sections 19, 62, 62 192 INCOME TAX Income tax - tax free zone - non resident dividend withholding tax - shift in revenue - whether exemption confined to payments to immediate recipient - Tax Free Zones Decree 571991 Sections 7(2), and 17; Income Tax Act (Cap 201) Section 8(11) Moontide South Pacific Ltd v. CIR
303 LAND Land - application for possession - whether procedure for obtaining possession against trespassers is available against a farmer licencee - High Court Rules 1988 Order 113. 13 LAND Land - mortgage - mortgagee sale - interlocutory relief to restrain - when available and how to be applied for 1 LAND Land - erection of electricity transmission line across native land - whether compulsory acquisition - whether in accordance with law - whether for public purpose - Constitution (1997) Section 40 - Electricity Act (Cap 180) Section 37 177 LEGAL PRACTITIONERS Legal Practitioner - disciplinary proceedings - unprofessional conduct - conduct unbecoming - Legal Practitioners Act ( Cap 254) Part VIII 59 LIMITATION Limitation - intended plaintiffs ignorant of identity of tortfeasor - effect on effluxion of time - Limitation Act (Cap 35) Sections 16, 17, 20 & 21 117 LIMITATION Limitation - action in negligence - difference between physical and legal disablility - Limitation Act (Cap. 35) Sections 11, 16 & 17 54 LIMITATION Limitation - proposed action for damages for personal injuries - principles governing grant of leave - Limitation Act (Cap 35) Sections 16, 17, 19 & 20. 204 MORTGAGE Mortgagee - rights of mortgagees and mortgagors - caveat against dealing by mortgagee - how to be dealt with by Registrar of Titles - Land Transfer Act (Cap 131) Sections 72, 109 and 113 - Property Law Act (Cap 130) Section 79 101 PRACTICE : CIVIL Practice : Civil - registration of foreign judgment - compliance with the rules mandatory - Reciprocal Enforcement of Judgments Act (Cap 39) Section 6 - Reciprocal Enforcement of Judgments Rules (Cap 39 - Subs) CKP Fishing Co. Ltd v. The Owner of the Woo Yang # 205 Marine Pacific Ltd
154 PRACTICE: CIVIL Practice: Civil - costs - whether plaintiff entitled to recover costs on an indemnity basis - High Court Rules 1988, Order 62 241 PRACTICE: CIVIL Practice: Civil - application to set aside judgment in default of defence - principles applicable - High Court Rules 1988 Order 19 r 9. Maulana Mohammed Tauab Raza v. Mohammed Takki & The Macuata Muslim League
187 PUBLIC SERVICE Public Service - General Orders - failure to convey substance of Annual Confidential Report - whether G. O 251 mandatory or directory - Public Service Decree 40/1990 Section 10 110 PUBLIC SERVICE Public service - disciplinary proceedings - bias - extent of delegation allowed to Public Service Commission - Constitution (1997) Sections 127(3) & 157(1) - Public Service Commission (Constitution) regulations 1990, Part V. The State v. PS for Juctice & Secretary, PSC ex parte Metuisela Waqanisau
126 PUBLIC SERVICE Public Service - appointments and promotions - how constitutional criteria are to be applied - Constitution (1997) Section 140. The State v. The Director of Social Welfare ex parte Ana Ramoci Delana
169 SENTENCE Sentence - suspended sentence of imprisonment - relevance of minor offence of different character committed during operational period - Penal Code (Cap 17) Section 30. 132 SMALL CLAIMS TRIBUNAL Small Claims Tribunals - language in which proceedings are to be conducted - powers of Resident Magistrates and Referees to grant leave out of time - Small Claims Tribunal Decree 1991 Section 33 - Magistrates Courts Rules (Cap 14 - Subs) Order XXXVII r 4. 217 SMALL CLAIMS TRIBUNAL Small Claims Tribunals - rights of appeal therefrom - Small Claims Tribunal Decree - 7/1991 Section 33 80 TORTS Torts - false imprisonment - quantum of damages. Sivarosi Raikali v. The Attorney General & The Commissioner of Prisons
313
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