Western Wreckers Ltd v Baleinagusui [2011] FJCA 14; Misc.34.2010 (21 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

Miscellaneous Action No.34 of 2010
(High Court Civil Action No.401 of 2005)

BETWEEN:

WESTERN WRECKERS LIMITED
Appellant

AND:

PENI TOA BALEINAGUSUI
Respondent

Date of Hearing: Thursday, 10th February 2011

Counsel: Mr I Samad for the Appellant
Mr A Vulaono for the Respondent

Date of Ruling: Monday, 21st February 2011

RULING

1. On 15th September 2008 a trial in respect of alleged breach of contract in the supply of a motor car was due to commence before Mr Justice Jiten Singh in the High Court at Suva. No doubt there was a pre trial conference and some attempt to agree the issues. Since the events had taken place four years previously, I have no doubt the case for the Plaintiff and the case for the Defendants had been fully prepared by the respective legal advisers.
   
2. Mr O'Driscoll was due to appear for Western Wreckers Limited the Defendants. I am sure the witness or witnesses for the Defendants had been prepared. Suddenly and I quote from the affidavit dated 26th March 2010 of Western Wreckers Limited, who apply to me for leave to appeal.
   

"On the 18th day of September 2008 our solicitor Mr O'Driscoll appeared on our behalf to defend the above matter and Mr O'Driscoll withdrew from the case without informing us."

3. In Justice Jiten Singh's judgment handed down on 19th September 2008, the matter is referred to this way:
   

"On the trial date the first defendant terminated instructions of its counsel. The action proceeded by way of formal proof."

4. There is complete lack of transparency in the explanation of the Defendant / Applicant. There is no mention of a complaint to the Law Society about Mr O'Driscoll withdrawing or being dismissed. That suggests that Mr O'Driscoll was entitled because of his agreement with Western Wreckers Limited to withdraw from the case. If one is a Defendant care should be taken in ensuring that the date provided by the Court is met; even if it means that you must adhere strictly to the agreement with your Counsel who is due to represent you. The Court is there to do justice to the parties, and if one defaults it is only fair to the other party to proceed.
   
5. It seems that Defendants either were not present or did not give their account of the facts in evidence when the time came for the Defence case.
   
6. It also seems that they made no application for an adjournment. But if they cannot tell this Court the full facts, it is likely that any application for an adjournment would be refused.
   
7. In my opinion there are no arguable grounds that Mr Justice Jitoko failed to conduct a fair trial. Western Wreckers Limited are clearly the authors of their own misfortune.
   
8. If the trial was fair the judges conclusions on the evidence and the documents of Mr Peni Toa Baleinagusui are unassailable. Mr Justice Jitoko ordered damages and costs coming to $21,500.
   
9. If there had been arguable grounds the civil law of Fiji provides an appeal as of right so long as you do so within 42 days. Although it is not encouraged by the Courts, because appeal is as of right the chances of success of grounds can be low to non-existent. But if the intention is to delay finality and hopefully avoid paying out the damages in the interim, many will choose to pursue appeal where the chances of success are low to non-existent.
   
10. There was a stay of execution application before Mr Justice Pradeep Hettiarachchi on 17th September 2010. As the learned judge recorded, the judgment is dated 19th September 2008 and the application for leave to appeal out of time is over one year and six months out of time. There is no acceptable reasons for delay given and the likely conclusion in the absence of explanation is that Western Wreckers Limited hoped that they could delay execution indefinitely and when that began to happen, they considered appeal and a stay as a means of further delay.
    
11. This application must be dismissed with costs because there is no explanation for delay and no chance of success on appeal.
    

ORDERS

12. My orders are:
    
    • (1) That the application of Western Wreckers Limited for leave to appeal out of time be dismissed.
      
    • (2) The applicants pay to the Plaintiff Respondent costs of this application assessed at $1000.
      

William R. Marshall
Resident Justice of Appeal