clr/1986/1986_3_481.pdf

(1)Our case law shows that: (a) A substantive, as opposed to a formal, test is 481

(1986)Hellenic Bank v. Republic applied for the classification of determine their justiciability; administrative acts to (

1. b)Public interest in the purposes of administrative action is dependent, inter alia, on the social climate and is not for that reason a constant factor; and, 5 (
2. c)Decisions of the same body or authority in d fferent areas of administrative action may fall in the domain of public or private law depending on the intrinsic nature of the decision and the interest of the public in the mat'er.

(2)The purpose or purposes promoted by a decision i() and the corresponding interest of the public or noticeable sections of it in the fulfilment of those purposes is the foremost consideration for determining the question whether a particular act of the administration falls within the domain of public or private law. 15 The interest of the public is greater where a large element of discretion resides with the Administration and decisions in the particular area reflect administrative policy. The public no doubt has a keen interest in the availability of proper machinery for scrutinising the exercise of 20 such discretionary powers. On the other hand, decisions of the Administration, depending on the ascertainment of the disputed facts with a view to applying well-defined principles of civil law to the true circumstances of the case; involve no element of administrative policy and have, as 25 a rule, no repercussions other than solving the immediate dispute in the interest of the peaceful enjoyment of property rights.

(3)Part III of the Companies Law, Cap. 113 is no doubt a most welcome piece of legislation, intended to ensure the supply of information about the creditworthiness of legal persons. And as such it serves a public purpose. But the crucial question is not whether the legislation under which the decision is taken serves a public purpose, but whether the particular decision does so.

(4)The sub judicc decision is only of interest to the parties immediately affected thereby: The Company, the 482 30 "\5 3 C.L.R. Hellenic Bank v. Republic mortgagees (i.e. the applicants) and the creditors of the company. Its foremost purpose is the determination of the rights of competing creditors to the assets of the company and as such aims to regulate principally property rights. 5

(5)In the light of the above the Court cannot assume jurisdiction under Article 146 as such' jurisdiction is con­ fined to acts of the Administration in the domain of public law. Recourse dismissed. No order as to costs. 10 Cases referred to: Antoniouand Others v. The Republic

(1984)3 C.L.R. 623; Mahlouzarides v. The Republic

(1985)3 C.L.R. 2342; Asproftas v. The Republic

(1973)3 C.L.R. 366; 15 HjiKyriacou v. HjiApostolou and Others, 3 R.S.C.C. 89; Valana v. Republic, 3 R.S.C.C. 91; Silentsia Farms Ltd., v. Republic

(1981)3 C.L.R. 450; Frangos v. Medical Disciplinary Board

(1983)1 C.L.R. 256; Republic v. MDM Estate

(1982)3 C.L.R. 642; 20 Kalisperas v. Ministry of Interior

(1982)3 C.L.R. 509; The Greek Registrar of the Cooperative Societies etc. Nicolaides

(1965)3 C.L.R. 164; IWS Nominee Company C.L.R. 582; 25 Limited v. Republic

(1967)v. 3 Charalambides v. The Republic 4 R.S.C.C.

1. Recourse. 30 Recourse against the decision of respondent No. 2 re­ fusing registration of a mortgage pursuant to the powers vested in him under Part ΠΙ of the Companies Law, Cap.
2. 483 Hellenic Bank v. Republic {1986) G. Triantafyllides, for the applicant. 5/. loanηides (Mrs.), for the respondents. Cur. adv. vult. Pncis J. read the following judgment. Before assuming jurisdiction to inquire into the merits of the sub judice de- 5 cision, a decision of the Registrar of Companies refusing re­ gistration of a mortgage pursuant to the powers vested him under Part III of the Companies Law—Cap. 113, I invited argument on the justiciability of the decision being in doubt as to its reviewability." Being a matter of competence 10 the Court can refuse assumption of jurisdiction on its own motion if it appears that the subject matter of the recourse is outside its jurisdiction under Article 146 of the Constitu­ tion. It is trite law that the'revisional jurisdiction of. the Court, under Article 146, is confined to executory acts in 15 the sphere of public law. My reservations in this case relate to the domain in which the decision was taken,In particular, whether it operates in public or private law. A question of jurisdiction must appropriately be gone into before examina­ tion of any other aspect of the case. To air the question I - ( t invited argument on the nature of the act with a view to deciding whether the review of the decision of the Registrar lies in the competence of the Supreme Court, under Article
3. Notwithstanding the consensus of counsel that the deci- 25 sion challenged lies in the domain of public law. I remain wholly uηpersuaded this is so and for that reason I propose to decline jurisdiction. Below, I explain my reasons for reaching this conclusion. The disputed act is a decision of the Registrar of Com- 30 panies refusing registration of a mortgage at the instance of the mortgagees executed by a private company in favour of the applicants as security for monies advanced. Appli­ cants applied for the registration of the mortgage in the register envisaged by s. 93 of the Companies Law, kept 35 for the purposes of registration of the mortgages and charges registrable under s. 90 of the same law. A mortgage may be registered,.2t.the request of a mortgagee, while the mortgagor, the company, is under duty to furnish parti484 3 C.L.R. 5 10 15 ?0 25 30 35 Hellenic Bank v. Republic Pikis J. culars of the mortgage for registration in accordance with s. 91—Cap.
4. Failure on the part of the company to comply with this duty renders them liable to the penal sanctions provided for in s. 91

(4). Here, registration was apparently sought by the mortgagees, no doubt in order to safeguard their interests vis-a-vis other • creditors of the mortgagors, namely, Stelios S. Constantinides Limited, a private company. The Registrar refused registration on the ground that the mortgage was void. Counsel argued the Register of Charges on company property is intended to serve a public purpose and aims to protect the public in its dealings with corporate entities. And they submitted the Court should assume jurisdiction to rev'ew the legality of the decision here under consideration. In so doing they did not invite the Court to depart from precedent but on the contrary apply the princ:ples approved by the caselaw of the Supreme Court for the classification of an act, decision or omission, as amenable to review under Article

1. They referred me, in the first place, to the judgment in Antoniou and Others v. Republic*, as containing an accurate statement of the law on the test to be applied to distinguish acts in the domain of public law from those in the domain of private law: a statement that can be regarded as authoritative as well, after its approval and adoption by the Full Bench of the Suprems Court in Mahlouzarides v. Republic*. What is. therefore, at issue, is the nature and characteristics of the decision impugned. examined in the context of the decision-makins power vested in the Registrar under Part m of the Companies Law. The Supreme Constitutional Court, as well as its successor. the Supreme Court
2. have consistently pronounced that decisions of the Administration regulating or adjusting rights accruing under private law, fall outside the revisional jurisdiction of the Court under Article
3. Because the jurisdiction of the Court thereunder is confined' to decisions '

(1984)3 C.LR. 623—A decision of first instance. 2 (decided on 9/12/85—published in

(1985)3 C.L.R. 2342). 5 Soe Law 33/64. 485 PIMs J. Hellenic Bank v. Republic

(1986)of the Administration in the domain of public law. Qecisionjf of the Administration, definitive of property rights o f c m zens under civil law, have been held, without exception, to operate in the domain of private law and as such cannot be made the subject of review under Article 146. Thus, 5 decisions of administrative authorities entailing the resolu­ tion of(

1. a)boundary disputes* under s. 80 -Cap. 224, (
2. b)the correction of errors or omission in the register or books of the Lands and Surveys Department. under s. 61 25 and 10 (
3. c)determination of applications for the grant of a right of way, under s. 11 (A) of Cap. 224 (as amended bv Laws 10/66 and 16/803), have all been held to operate in the domain of private law: for their objects concern matters in which the wider public has little interest. Even when* the decision affects inciden­ tally rights of the wider public, its character remains un­ altered so long as the primary purpose of the decision is the adjustment of private law rights. In George Asproftas v. Republic*, resolution of an application for the registra­ tion of a strip of land was held to sound in the sphere of private law notwithstanding the fact that it affected the boundary of the public road at the particular locality ns well. 20 In the interest of comprehensive analysis of our caselaw in this field, we may add that(
4. a)A substantive, as opposed to a formal, test is ap­ plied for the classification of administrative acts to determine their justiciabilttyS. (
5. b)Public interest in the purposes of administrative • See. Achilleas Hadjikyriakou ν Theologia Hadjiapostolou and Others. 3 R.S.C.C. 89. See. Sawas Yianni Valana v. Republic (Department of Lands and Surveys). 3 R.S.C.C. 91). ' See. Silentsia Farms Ltd. v. Republic (1981Ϊ 3 C L.R. 450. *>

(1973)3 C.L.R. 366—A decision of first instance. 5 See, Frangos v. Medicat Disciplinary Board

(1983)1 C.L.R. 256. 2 486 30 3 C.L.R. Hellenic Sank v. Republic Pikis J. action is dependent, inter alia, on the social climate and is not for that reason a constant factort; and 5 10 15 -0 25 30 35 (c) decisions of the same body or authority in different areas of administrative action may fall in the domain of public or private law depending on the intrinsic nature of the decision and the interest of the public in the matters. Charting the line dividing acts in the domain of public and private law <s not, as indicated in Antoniou, supra, free from conceptual difficulties. Our Courts have on the whole adopted an empirical approach to the classification of particular acts in their endeavour to apply the principles earlier indicated to the identification of the nature of par­ ticular acts, decisions or emissions of the Administration. The purpose or purposes promoted by the decision, and the corresponding interest of the public, or noticeable sec­ tions of it in the fulfilment of those purposes, is the fore­ most consideration. The interest of the public in admini­ strative action is understandably greater where a large element of discretion resides with the Administration and de­ cisions in the particular area reflect administrative policy. The possibility of abuse of power varies in proportion to the magnitude of the discretion vested in the Administration. The natural forum for the review of such decisions is a Court of revisional iurisdiction trusted by the Constitution as the watchdog of administrative legality. The public no doubt lias a keen interest in the availability of prone machinery for scrutinising the exercise of such discretionarv powers with a view to seeing they are exercised for the promotion of the purposes for which they are given. To take one example, building permits, though of particular intercut to those affected thereby, they are, in a sense, of interest to everyone for they affect the shape and rharacter of the environment and reflect planning policy in that area. On the other hand, decisions of the Admin'stration, as pointed out in Antoniou. supra, depending on the ascertainI See. Republic ν MDM Estate (19821 3 C L R 642 and Kahsperas ν Ministry of Interior

(1982)3 C L R 509—a decision of first instance - See, The Greek Reflistrar of the Cooperative Societies etc ν Nico". A Nicolaides

(1985)3 C L R

2. 173 and IWS Nom.npc Company Limited ν Republic

(1967)3 C L R 582 487 Pikia J. Hellenic Bank v. Republic

(1986)ment of the disputed facts with a view to applying welldefined principles of civil law to the true circumstances of the case, involve no element of administrative policy and have, as a rule, no repercussions other than solving the immediate dispute in the interest of the peaceful enjoyment of property rights. The foremost purpose of the decision of the Registrar in this case, is the determination of the rights of competing creditors to the assets of a private com­ pany and as such aims to regulate principally property rights. s I asked counsel, in the course of argument, whether a decision of the Lands Authorities refusing registration of a mortgage would be justiciable in order to elicit the basic nature of the charge they sought to register. He replied it would be justiciable. I cannot agree. On principle (for the 15 reasons explained above), but no less on authority, refusal to register a mortgage for lack of a formality, or any other reason, would not be justiciable. In Charalambides v. Re­ public*,it was decided that a decision of the Lands Au­ thorities, refusing a request for the postponement of the 20 sale of mortgage property made under s. 4 of the Rules of sale was nonjusticiable. The reason being that the decision was primarily designed to regulate the interests of the parties immediately affected by the decision. Part ΙΠ of the Companies Law—Cap. 113, is no doubt 25 a most welcome piece of legislation, intended to ensure the supply of information about the creditworthiness of legal persons. And as such it serves a public purpose. But the crucial question is not whether the legislation under which the decision is taken serves a public purpose, but 30 whether the particular decision does so. It is in relation to the implications of the decision that I part company with counsel for both sides. The particular decision of the Registrar to accept or refuse registration of a charge or mortgage is of no particular interest to either the public or 35 any section of it. It is only of interest to the parties imme­ diately affected thereby: The company, the mortgagee and its creditors. The decision to refuse registration is not taken by any reference to administrative policy or discretion, but J 4, R.S.C.C. 24. 488 10 3 C.L.R. Hellenic Bank v. Republic Pikis J. in accordance with set principles of private law. As counsel for the applicants acknowledged, there is no lack of machinery to ventilate the dispute before the civil courts, the constitutional forum for the resolution of disputes affecting 5 property rights'. Moreover, the law has stipulated penal sanctions2 in the interest of its effective enforcement. For the reasons indicated above, I cannot assume jurisdiction to review the decision of the Registrar, as I have none; for jurisdiction under Article 146.1 is confined to 10 acts of the Administration in the domain of public law. The recourse is dismissed. Let there be no order as to costs. Recourse dismissed. No order as to costs. 1 Article 152.1 of the Constitution, and Law 14/60 2 Section 9114). 489