John Beater Enterprises Pty Ltd v Fong [2006] FJCA 87; Civil Appeal Miscellaneous 1.2006 (24 March 2006)

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

Civil Appeal No. Misc 1/06
(High Court Civil Action No. HBC 0482 of 2003S)

BETWEEN:

JOHN BEATER ENTERPRISES PTY LTD

Applicant

AND

SAMUEL FONG
Respondent

Coram: Scott, RJA
Date of Hearing: Wednesday 1 March 2006

Counsel: Ms. L. Vaurasi for the Applicant
Mr. N. Lagendra for the Respondent

Date of Decision: Friday 24 March 2006

DECISION

[1]. This is an opposed application (filed on 20 February 2006) for leave to appeal out of time against a judgment of the High Court at Suva dated 2 September 2005.

[2]. The papers were not served on the Respondent until 24 February, that is only 2 clear days before the hearing. Mr. Lagendra told me that he had been unable, in the short time available, to take his client’s instructions and therefore the only evidence before me was an affidavit sworn on 1 February 2006 by Mr. John Beater, a director of the applicant company (the company).

[3]. Ms. Vaurasi filed careful and comprehensive written submissions on behalf of the company which was the Defendant in the High Court.

[4]. The pleadings were not included in the papers filed in support of this application however from the judgment it is clear that the Plaintiff’s case was that while employed by the company as a mechanic he suffered personal injuries in an accident which was caused by the company’s failure to provide him with suitable equipment and a safe and proper system of work.

[5]. The company rejected the Plaintiff’s claim. It denied that the Plaintiff was its employee and denied any wrong doing. Its case was that the plaintiff was self employed and either caused or contributed to the accident by his own negligence.

[6]. The hearing in the High Court took place on 18 August 2005. The company (as it had to be, see RHC O 12 r (2)) was represented by counsel, Mr. Apaitia Seru. Two medical reports were tendered by consent and the Plaintiff and his wife both gave evidence. Mr. Seru called one witness for the company, Mr. Norman Low.

[7]. Mr. Low told the Court that he was present when the accident occurred. His description of how the accident occurred was materially different from the Plaintiff’s, however he was not able to assist in the matter of the Plaintiff’s employment status with the company.

[8]. The judge found the Plaintiff to be one third responsible for the accident. He accepted the medical evidence. According to paragraph 11 of the judgment:

"Counsel for the Plaintiff has suggested a total general damages figure of $55,000 upon a basis of 100% liability. Counsel for the Defendant, very reasonably and properly accepted that the figure would be approximately right."

[9]. Although in his view it was "a little on the high side" the judge adopted the agreed figure and, allowing for contribution, awarded general damages amounting to $36,660. Special damages amounted to $4,222 and therefore the total sum awarded was $40,888.08 plus interest at the rate of 8%.

[10]. Where application is made for leave to appeal out of time it is important to remember that whereas the Court of Appeal Act (Cap. 13) confers a right of appeal, that right can only be exercised within the limits laid down by the Act. As explained by this Court in Attorney-General v. Hubert Elliott (ABU 41/93 – FCA B/V 95/100) once the appeal period has passed:

"the onus rests on the Applicant to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal."

[11]. When considering the circumstances of the case five principal factors are normally taken into account. These are:

(i). the reason for the failure to lodge the appeal within the appeal period;

(ii). the length of the delay;

(iii). whether there is a question justifying serious consideration;

(iv). where there has been substantial delay, have any of the grounds such merit that they will probably succeed? And

(v). the degree of prejudice to the Respondent in enlarging time.

[12]. In the present case one explanation is offered for the first two factors. Mr. John Beater says that he was not responsible for the conduct of the company’s litigation at the time of the trial, that the person responsible left the company just before the commencement of the trial and that Mr. John Beater only became aware of the outcome of the trial when (on a date which he does not disclose) he received a demand letter for the judgment sum, and "later on" (25 October 2005, accordingly to Ms. Vaurasi) when he received a winding up petition. The petition was presented in the High Court on 28 November 2005. After he received the petition, Mr. Beater was able to locate various documents which he states are relevant to the Plaintiff’s claim and which then enabled him to instruct fresh counsel to lodge this appeal.

[13]. In my view, the explanation offered by Mr. John Beater is wholly unsustainable for the simple reason that it overlooks the fact that it was not Mr. John Beater who was the Defendant in the High Court but the Applicant company which bears his name but which is an entirely different legal person. The question here is not whether Mr. John Beater knew of the judgment entered against the company but whether the company knew of it. Apart from the fact that nothing is offered to suggest that the company was unaware of the judgment, it will be remembered that the company appeared at the trial when it was represented by Counsel, Mr. Apaitia Seru. Perhaps it is the basic principle of contractual agency that an agent (here Mr. Seru) acting within the scope of his authority, expressed or implied, binds and entitles his principal. Since Mr. Seru (who did not file any evidence in support of this application) must be presumed to have been aware of the judgment entered against the company, in my view it is plain that the company must also be taken to have had the same knowledge. The fact that a particular director, albeit one bearing a name similar to that of the company, might have being unaware of the judgment (difficult though that is to accept) is, in my opinion, quite beside the point.

[14]. If no good reason is offered for the failure to appeal within time, and if the delay which has occurred is substantial (here, over four months) then there is no reason to turn to the other three factors. In deference, however, to Ms. Vaurasi’s comprehensive submissions I briefly consider the application to adduce additional evidence, since it is this evidence which the company suggests offers it the best prospects of successfully prosecuting an appeal.

[15]. The applicant wishes to have an opportunity to adduce the various documents which were located by Mr. John Beater after he received the winding up petition. Copies of the documents are exhibited to his affidavit. Mr. Beater suggests that they only came to light after the hearing. This explanation does not, however, address the first question which is to be asked in an application of this kind, namely "could the evidence have been obtained prior to trial with reasonable diligence?" (see Coir Industries v. Louvre Windows Civ. App 18/84 – FCA B/V 84/149). In my opinion, the fact that these materials may have come into Mr. John Beater’s hands after the trial does not answer the correct question which is whether the materials could, with reasonable diligence, have come into the hands of the company prior to the trial. There is nothing to suggest that the documents in question were not there for the finding prior to the trial. Accordingly, the application to adduce fresh evidence (which, of course, is dependent on leave being granted to appeal out of time) must also fail.

[16]. In my view the applicant company was given every opportunity to place the whole of its case before the High Court at the trial. That it may not as a matter of fact have done so as a result of poor planning and want of reasonable diligence is not a ground for allowing the trial to be held all over again, which is what Mr. John Beater is apparently seeking. I find no merit in any of the applications which must therefore be dismissed.

RESULT

1. Application for leave to appeal out of time, for a stay of execution and for leave to adduce fresh evidence dismissed.

2. Respondent’s costs assessed at $500.

M.D. Scott
Resident Justice of Appeal