Native Land Trust Board v Subramani [2004] FJCA 20; ABU0001.2004S (18 March 2004)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0001 OF 2004S
(High Court Civil Action No. 335 of 1997L)

BETWEEN:

NATIVE LAND TRUST BOARD
First Appellant

PONIPATE LESAVUA
Second Appellant

AND:

SUBRAMANI
Respondent

In Chambers: Justice Tompkins, JA

Hearing: Thursday, 18th March 2004, Suva

Counsel: Mr J. Madraiwiwi for the First Appellant
Mr K. Vuataki for the Second Appellant
Mr V Mishra for the Respondent

Date of Decision: Thursday, 18th March 2004

JUDGMENT OF TOMPKINS JA

[1] The appellants have applied for an order extending the time to file a notice of appeal against the judgment delivered in the High Court at Lautoka on 13, October 2003. The application is opposed by the respondent.

[2] The motion seeking the extension of time was filed in this court on 5, January 2004. The judgment was sealed on 13 October 2003. Pursuant to rule 16 of the Court of Appeal Rules the notice of appeal was required to be filed 42 days after the sealing of the judgment. That expired on 3, December 2003. Taking into account the legal vacation which commenced on 15, December 2003, the motion was filed 12 days after the time to appeal had expired.

The reason for the delay.

[3] The affidavit in support of the motion was sworn by the personal assistant of Mr. Vuataki, counsel for the appellants who had been instructed to lodge the appeal. The affidavit is largely, although not entirely, hearsay. It is in my view unsatisfactory for evidence in support of such an application to be provided by a person who cannot give direct first hand evidence of the events relied on. In this case the affidavit should have been sworn by Mr. Vuataki. However, I am prepared to accept his assurance that the facts contained in the affidavit are correct and therefore to rely on it.

[4] The affidavit refers to Mr. Vuataki being heavily involved in other matters and, although he had set aside some time to prepare the notice of appeal, he was required to travel to other locations in connection with the review of the Fijian Development Fund Act, and for that reason, did not prepare the notice.

[5] None of these and other explanations are convincing. The preparation of the notice of appeal should not have required any substantial time and I can see no reason, despite the other activities in which he was engaged, why he did not have the notice of appeal filed and served within time.

Prejudice to the respondent

[6] Counsel for the respondent submits that the respondent has been prejudiced by the overall delay in that he has been kept out of a substantial award of damages of $383,728 plus costs of $7,000. However counsel is unable to submit that the respondent has been prejudiced by the delay between 3 and 15 December 2003.

The approach to be adopted

[7] Counsel for the respondent referred me to the decision of this court in Native Land Trust Board v Kaur and anor, CA No HBC0233 of 1993L in which the then President referred to the observation of the Supreme Court in Kenneth John Hart v Air Pacific Ltd CA No. 23 of 1983.

“We stress, however, that the rules are there to be obeyed. In future practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal. In cases not having the special combination of features present here, it is unlikely to be excused.”

[8] In the light of that observation by the Supreme Court, solicitors or counsel who carelessly and without adequate justification, allow the time for filing a notice of appeal to pass, may well be held responsible. The refusal of an application to extend the time may results, to be followed by an action for negligence against the solicitor or counsel which may be impossible to resist.

Conclusion

[9] Although the delay cannot be excused, I must also have regard to the relatively short period and to the absence of prejudice to the respondent. The amount involved is substantial and there are other issues of general importance that warrant the appeal proceeding. I have considered whether there should be an order requiring the appellants to pay the amount of the judgment plus costs into Court, but having regard to the nature of the first appellant, there can be no doubt that the respondent will receive the fruits of his judgment if the appeal is unsuccessful so this course is not necessary.

[10] The application to extend the time for filing the notice of appeal is granted. The notice is to be filed within seven days of today.

[11] The respondent is entitled to costs which I fix at $500.

Tompkins JA