AH-KONG FOO KUNE P. (Applicant) V THE MAURITIUS TURF CLUB (Respondent), in the presence of The Registrar of Associations and The Gambling Regulatory Authority (Co-Respondents)
2020 SCJ 194
This is an application, by way of motion, for an order granting a new trial in case SCR No. 115582 (5A/305/17) and directing a stay of execution of the judgment in that case.
According to the applicant’s affidavit in support of this application-
- He had, as an owner of race-horses and a member of the respondent, sought, “by letter dated 17 March 2017”, to participate “in the coming horse racing seasons/s”. His “participation was denied” by the respondent on 20 April 2017 and no reasons, nor any copy of the relevant minutes of proceedings, were ever given to him by the respondent;
- He applied for leave to apply for judicial review of the respondent’s decision and decision-making process (application bearing reference number SCR No. 115582 (5A/305/17); and
- He retained the services of Mrs Sookun-Teeluckdharry as Counsel for the said application. The latter arrived late at the hearing on 26 September 2018 and the application was set aside by the Supreme Court on the same day.
The applicant is now moving for an order granting a new trial, pursuant to rule 45(1)(a) and (c) of the Supreme Court Rules 2000, on the grounds inter alia of error by both the Registry of the Court and the Supreme Court as to the identity of his Counsel and “good arguability” of his application for judicial review which was based on illegality, breach of natural justice, unfairness, abuse of power, unreasonableness, breach of legitimate expectation and irrationality.
The application is being resisted by the respondent and co-respondents mainly on the ground that it does not fall within the ambit of rule 45(1) and that the respondent’s decision is not amenable to judicial review. Learned Counsel for the first co-respondent has in addition highlighted in his written submissions that there is no longer any live issue in the application for leave to apply for judicial review as ex facie the applicant’s own averments, the respondent’s decision was limited to the 2017 racing season.
It is well settled that this Court will only pronounce itself on “live issues” of practical value and is not concerned with “hypothetical, premature or academic questions” (see Planche v The PSC & Anor [1993 SCJ 128]. In Dahari (supra), the Supreme Court referred to the above principle as quoted in Planche but went on to highlight the distinction that is now drawn between hypothetical and academic questions (see De Smith’s Judicial Review (7th ed) at paragraph 18-042); a declaration may be given in judicial review proceedings where a hypothetical question requires to be answered for a real practical purpose “although there may not be an immediate situation on which the decision would have practical effect”, but the Court will not grant relief in the form of a declaration where the question is merely an academic one which “need not be answered for any visible practical purpose”. Reference was also made in Dahari, quoting from De Smith, para 18-054, to cases where an order would serve no practical purpose, for example, where a licence of which the validity is being challenged has expired, or the challenged activity has ceased, before the application is determined.
The issue now for our consideration is therefore whether the application in case SCR No. 115582 (5A/305/17) discloses a hypothetical question, in respect of which a declaration may be issued in the course of judicial review proceedings, or an academic one.
There is therefore no live issues, and it would serve no practical purpose for the court to entertain the application, in case SCR No. 115582 (5A/305/17) at this stage.
For the above reasons, we consider that granting the present application will not serve the ends of justice and we set it aside. With costs.
Attorney for the Mauritius Truf Club (Respondent) : Mrs Anju. K. Ghose