Charan v Suva City Council [1993] FJCA 19; Abu0003.92 (4 August 1993)

Fiji Islands - Charan v Suva City Council - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. 3 OF 1992

BETWEEN:

SURESH SUSHIL CHANDRA CHARAN
ANURADHA CHARAN
APPELLANTS

AND:

SUVA CITY COUNCIL
RESPONDENT

BEFORE: THE HON. PENT FIJI COURT OF APPEAL MRAL MR JUSTICE MICHAEL M HELSHAM
THE HON. RESIDENT JUDGE OF APPEAL SIR MOTI TIKARAM
THE HON. JUDGE OF APPEAL MR. JUSTICE DANIEL FATIAKI

WEDNESDAY THE 4^TH DAY OF AUGUST, 1993 AT 9.30 A.M.

In Person for the 1st Appellant
No Appearance for the 2nd Appellant
Ms. T. Jayatilleke for the Respondent

REASONS FOR COURT'S ACTION ON ADJOURNMENT

After a tortuous, inordinately long and appallingly involved history of litigation between the parties to this appeal, the appeal finally came on for hearing before this Court on 16th February 1993. There were two bases of appeal. One was on the question of damages awarded to the first appellant by Scott J in an action by both 1st and 2nd appellants as plaintiffs for wrongful distress. The other was the dismissal of any claims of the 2nd appellant plaintiff against the defendant.

When the matter came of for hearing of the appeal before this Court on 16th February 1993, the first appellant made his submissions. Then, because the Court refused to allow him to appear for the 2nd appellant, the matter was stood over until the following day, 17th February, on the application in person of the 2nd appellant, to allow her to obtain legal representation if she wished. On that day 17th February a solicitor appeared and announced that Mr G P Shankar would be appearing for the 2nd appellant. The matter was, of course, part heard before the 3 Judges who had sat on the appeal on 16th February 1993.

The appeal was then stood into a call-over list on 22nd February to enable a date to be fixed that suited Mr Shankar. It was indicated that the Court would like to continue to hear the appeal on 25th February 1993. However, in a letter to the Registrar dated 22nd February 1993, Mr Shankar indicated (i) that he had been asked to appear for the appellants and (ii) that he was not available until April, May or June. The matter was put into the next call-over list, and eventually received today as the hearing date. The Court ordered that the 2nd appellant file and serve skeleton arguments on or before 21st July 1993.

In the meantime, on 22nd February 1993, the 1st appellant, acting apparently on his own behalf, filed a notice of motion applying "for an order that the first named appellant be allowed to proceed with his appeal afresh on the grounds stated" in an affidavit sworn and filed by him.

It can be noted that no skeleton arguments were filed on behalf of the 2nd appellant on or before 21st July 1993 as directed. A document labelled "Appellants' Submissions" having the name G P Shankar & Co, with the name of that firm's City Agents was filed on 23rd July 1993.

On Monday, 2nd August 1993, two days before the date fixed for the continuation of hearing of this matter, a letter faxed to the Registrar, was received from the office of Mr Shankar. It stated that Mr Shankar had health problems and that he could not travel to Suva before 6th August. It also stated "I, of course, appear in Courts in the Western Division after 9 a.m." He sought to be excused from hearing on 4th August 1993. The letter also stated "I am on the record of Mr Charan". A copy of that letter is annexed to these reasons.

Now the position therefore is as follows:-

(i) By letter dated 22nd February it was indicated that Mr Shankar had been asked to appear for both appellants and had agreed to do so.

(ii) The document "Appellants' Submissions" would indicate this also.

(iii) In his letter of 2nd August he indicated that he appeared for Mr Charan.

(iv) There is no indication of his ceasing to act.

(v) He does not say that he wishes his clients to proceed in his absence nor that his clients have indicated to him that they wish to do so.

(vi) The very reason that he came into this matter is because the 2nd appellant was unrepresented and sought an adjournment. If the Court proceeds today she will still be unrepresented.

This morning the 1st appellant appeared in person. There was no appearance for the 2nd appellant. He stated that he had become aware last night of Mr Shankar's unavailability and had not been able to secure other representation. He stated that it would be preferable if both appeals were heard together, but he was himself ready to proceed if the Court decided that was the preferable course. He added that if Mr Shankar appears it would be preferable if he argued both appeals.

In these circumstances the Court would not consider it proper nor in the interest of justice to proceed in Mr Shankar's absence or without a statement from him that he had ceased to act. His letter of 2nd August would appear to indicate the contrary. In that event the Court feels that it has no alternative but not to proceed today with the hearing. The appeal will be stood over.

However, the following matters need to be noted:

1. There does not appear to be any reason why other counsel should not have been briefed, and the case got ready for hearing today. There is no indication of when it became clear that Mr Shankar would be unable to appear or why notice of this was only able to be given on Monday morning when the appeal was listed to recommence on Wednesday morning. Mr Shankar will be given an opportunity to explain this in due course.

2. This Court is not prepared to be treated by having a letter faxed to it seeking an adjournment. Mr Shankar has City Agents. The respondent is entitled to be heard on the matter. Mr Shankar will be given an opportunity to explain this in due course.

3. The 2nd appellant has not complied with a direction of this Court given on 3rd May 1993. We do not think it proper to penalize the 2nd appellant before Mr Shankar is given an opportunity to explain why the Court should not.

In these circumstances we propose to stand the appeal out of the list and direct that it not be restored unless there is a formal motion seeking such restoration supported by affidavits sufficient to warrant such a course being taken. We express the view that one of the affidavits might be by Mr Shankar lest the Court should feel disposed to regard the matters we have earlier adverted to as warranting some action connected with failure to observe any duty owed by him towards the Court or towards his clients.

The costs of the respondent thrown away by today's adjournment will be paid by the 2nd appellant.

The Court hereby gives notice that pursuant to Order 62 rule 8 of the High Court Rules if and when an application is made to restore this matter to the list it will invite the solicitor for the 2nd appellant to show cause why the Court should not give a direction that the costs of today so ordered to be paid by the 2nd appellant be repaid by the solicitor for the 2nd appellant to her.

The motion earlier mentioned will follow the course of the appeal and will be taken out of the list. If and when the matter is restored it will be heard with the appeal.

M. M. Helsham
President Fiji Court of Appeal