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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
Civil Appeal No: ABU 0014 of 2012
(High Court Case No: HBC 301 of 2007)
BETWEEN:
PRINCE VYAS MUNI LAKSHMAN
Appellant
AND:
ESTATE MANAGEMENT SERVICES LIMITED
Respondent
Coram : Calanchini P
Basnayake JA
Kotigalage JA
Counsel : Ms. R. Naidu for the Appellant
Mr. P.L. Knight for the Respondent
Date of Hearing : 20 November 2013
Date of Judgment : 27 February 2015
JUDGMENT
Calanchini P
[1] I have had the opportunity to read in draft the judgment of Basnayake JA and agree that this appeal should be dismissed with costs
awarded to the Respondent. I venture to add some comments on the procedural complexities that have arisen in this appeal.
[2] The Appellant (and three other Defendants) sought an order from the Master that the Respondent's statement of claim be struck out under Order 18 Rule 18 of the High Court Rules on the ground, amongst others, that it was an abuse of process. The Master granted the application in favour of the other Defendants on the basis that the claims against them raised public law issues that should have been commenced by judicial review for which provision is made in Order 53 of the High Court Rules. The Master dismissed the application by the Appellant on the basis that the Respondent's claim against the Appellant was founded in private law being a claim for breach of covenant. The Master made orders requiring the Respondent to file an amended Statement of Claim.
[3] Since the decision of this Court in Goundar –v- Minister for Health (unreported ABU 75 of 2006; 9 July 2008) there can be no doubt that the Master's decision was an interlocutory judgment. The Appellant, being unhappy with the Master's orders sought to challenge the decision by way of appeal.
[4] It is Order 59 Part II that sets out the procedure for appeals from the Master. Order 59 Rule 8 (2) required the Appellant to first obtain leave from a single judge of the High Court in order to appeal to the High Court. Under Order 59 Rule 11 the Appellant was required to file and serve the application for leave within 14 days from the date of pronouncement of the judgment. In this case the application was filed and served within 14 days from 14 October 2010 being the date of the Master's judgment. The principal issues raised by the Appellant were (1) that the claims against all Defendants were public law claims and (2) that the statement of claim should have been struck out in its entirety for that reason alone. The application for leave to appeal came before a judge of the High Court who delivered his judgment on 24 February 2012. Leave to appeal to the High Court was refused. The effect of that decision was that the Respondent was required to file and serve an amended statement of claim if not already done and that the claim against the Appellant for breach of covenant remained on foot.
[5] The Appellant, being dissatisfied with the decision of the single judge of the High Court sought to appeal that decision to the Court of Appeal. The Appellant filed its notice of appeal on 13 March 2012 and was as a result within the time required by Rule 16 (a) of the Court of Appeal Rules (the Rules) (i.e. 21 days from the date of pronouncement). The appeal activated two requirements that are specified in section 12 of the Act. The first is that because the judgment in the High Court is interlocutory, leave is required under section 12 (2) (f). The second is that since the decision of the High Court judge was given in the exercise of the appellate jurisdiction of the High Court, the right to appeal to the Court of Appeal is restricted to any ground of appeal that involves a question of law only. In Kaur –v- Singh (unreported ABU 11 of 1998; 13 August 1999) this Court observed that:
"Section 12(1) (c) of the Court of Appeal Act confers a right to appeal to this Court from a decision of the High Court in the exercise of its appellate jurisdiction on grounds which involve a question of law only but this right is subject to subsection (2). Section 12 (2) (f) provides that, subject to presently irrelevant exceptions, there shall be no appeal from an interlocutory order of the High Court except by leave."
[6] The effect of these two provisions is that there is no right to appeal against an interlocutory judgment of the High Court unless leave is obtained and one of the matters that must be determined when considering leave, in the case of any judgment given by the High Court in the exercise of its appellate jurisdiction, is whether any ground of appeal involves a question of law only.
[7] The Appellant had neither applied for nor obtained leave to appeal. Under section 12 (2) (f) leave may be obtained from the Judge in the Court below or from the Court of Appeal. Pursuant to Rule 26 (3) of the Court of Appeal Rules leave should ordinarily be sought in the first instance from the judge in the court below. If leave is refused, then the application may be renewed in the Court of Appeal. However in appropriate cases this court has allowed an appeal to proceed by leave even when leave to appeal has neither been sought nor granted before the appeal hearing [Kaur v. Singh (supra)]. The question then is whether this Court should grant leave to allow the appeal to proceed.
[8] The immediate issue is whether the appeal involves a question of law only. The appeal is concerned with the exercise of a discretion by the Judge in the court below to grant leave to appeal to the High Court. To a certain extent the test to be applied by the High Court Judge is similar to the test to be applied by this Court. The issue at the moment in this appeal is whether leave to appeal should be granted. That was the same issue before the High Court judge. The principal ground of appeal is whether the inclusion of a public law issue will require a statement of claim to be struck out in its entirety or whether a claim in private law against another defendant can be permitted to remain on foot.
[9] Even if it is accepted that the appeal to this Court involves a question of law only, it does not necessarily follow that leave should be granted. There are two reasons why, in this case, leave should not be granted. The first is the long established view expressed in this and other jurisdictions that an appellate court will not readily grant leave to appeal from an interlocutory order or judgment arising from the exercise of a judicial discretion [Fong Sun Development –v- Minson Fiji Ltd (unreported CBV 7 of 1997; 1 March 1998)]. Secondly, it has been said that even if it shown that the interlocutory decision was wrong, it will not be overturned unless substantial injustice would result should it be allowed to stand (Nieman –v- Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431). In this case there has been no error by the learned Judge in the exercise of his discretion. Furthermore, in any event there is no injustice in allowing the Respondent to pursue his private law claim against the Appellant by way of a trial on the pleadings and evidence in the High Court. It is for that reason that I agree with Basnayake JA that leave should be refused and the appeal dismissed.
Basnayake JA
[10] The respondent (plaintiff) filed this case against the appellant (1st defendant and hereinafter referred to as the defendant)
and three others (who were government officials) by way of writ of summons. The Master struck off the names of the government officials
(the 2nd, 3rd and 4th defendants) on the basis that the plaintiff should have sought judicial review against the said defendants
(Pgs 224-230 under Tab 26 of the Record of the High Court (RHC). The Master had, however, allowed the plaintiff to amend the pleadings
and continue with the action against the defendant for breach of contract. The plaintiff accordingly filed an amended statement of
claim on 1 February 2011 (Tab 29).
[11] Order 59 Rule 8 (2) of the High Court Rules provides that no appeal shall lie from an interlocutory order of the Master to a single Judge of the High Court without first obtaining leave from a Judge of the High Court. The defendant sought leave to appeal from the High Court against the said Ruling of the Master delivered on 14 October 2010 (Tab 26), pursuant to Order 59 rule 8 (2), rule 9 (b) and rule 11 of the High Court Rules of 1988. The High Court on 24 February 2012 refused to grant leave (Pgs. 5-14 under Tab 2 of the RHC). This is an appeal filed by the defendant against the judgment of the High Court refusing leave.
The facts of the case
[12] The plaintiff is a property developer at Pacific Harbour. The plaintiff owned lot 5 of plan DP 3954 (Development Plan). The plaintiff sold part of this land to the defendant. That portion is described in CT 35021 (Certificate of Title). The plaintiff states that the defendant negotiated the transfer with the plaintiff on the following conditions, namely:-
[13] The plaintiff states that CT 35021 was zoned as a private open space and future reserve in the initial scheme in DP 3954, which zoning was changed to civic education to accommodate the defendant. The plaintiff states that CT 35021 was transferred to the defendant on the basis that the defendant would retain the zoning of CT 35021 (Civic Education) and use and maintain CT 35021 as per the terms and conditions mentioned above. The plaintiff states that he is under obligation to all the property owners who own properties in the scheme of development to have CT 35021 available for the benefit of all property owners.
[14] The plaintiff complained that the defendant, in breach of the terms and conditions of transfer, had the zoning changed from Civic (Education) to Comprehensive Development Area, thus breaching the contract of sale between him and the plaintiff. The Director of Town and Country Planning (2nd defendant) was sued for approving the zoning from Civic Education to Comprehensive Development. The Registrar of Titles (3rd defendant) was sued for not making proper endorsements in the Register of Titles. The plaintiff inter-alia sought:
[15] In the statements of defences filed, the defendants moved that the plaintiff's action be dismissed. The defendants thereafter moved court (Tabs 14 & 15) under Order 18 Rule 18 (1) of the High Court Rules 1988 to strike out the writ of summons on the grounds that:
(a) The plaint did not disclose a reasonable cause of action.
(b) It is scandalous, frivolous or vexatious and
(c) It is an abuse of the process of court.
Striking out order (Tab 26)
[16] The Master of the High Court on 14 October 2010 made order to strike out the claim against the 2nd, 3rd and 4th defendants. The claim against the 1st defendant was allowed to stand. It was restricted to the allegation of breach of covenant. The Master held that "the decision of the Director of Town & Country Planning (2nd defendant) to change the zoning would have been made in the exercise of a public and statutory function under the Town and Country Planning Act (Cap 139). Any application seeking to challenge or undermine that decision must be made under Order 53 of the High Court Rules and come by way of judicial review. Such application raising public law issues cannot be sustained in a writ action which essentially is a private law originating process".
[17] The Master held that although the covenant cannot now be enforced, the plaintiff may still recover damages if it succeeds in its claim. He thereby allowed the issues arising out of the allegations of breach of covenant against the defendant to trial. For this purpose the plaintiff was allowed to amend the pleadings.
The amended statement of claim (Tab 29)
[18] The plaintiff filed an amended statement of claim on 1 February 2011 wherein the plaintiff sued only the defendant. The plaintiff stated that, as per the terms and conditions referred to in the letters dated 19 and 24 February 2003 by the defendant to the plaintiff and a letter dated 14 August 2003 to the Director of Town and Country Planning, no substantial building was to be erected and the property was to be used for civic education purposes and this usage and zoning was to always be retained for the benefit of all property owners in the scheme of development. It was also covenanted that the zoning and usage of property would not merge with the transfer of title but would continue in full force and effect and remain binding on the defendant and his successors in title.
[19] Based on the above conditions, the plaintiff stated that consideration for the transfer was fixed at $20000.00. The defendant had the zoning/usage of CT 35021 changed from Civic (Education) to Comprehensive Development Area, thus breaching the contract of sale. The plaintiff inter-alia claimed damages for breach of contract.
Judgment which is the subject of this appeal (Tab 2)
[20] The defendant sought leave to appeal from the High Court against the Ruling of the Master. The learned Judge on 24 February 2012 refused leave. The learned Judge held that a cause of action may exist against the defendant for the reason that re-zoning would have been done by the Director of Town and Country Planning at the instance of the defendant. The defendant when making this application breached the terms and conditions of the covenant, thus giving the plaintiff a cause of action for damages. The issues were whether there was a contract between the plaintiff and the defendant and if so whether the defendant had breached the said contract.
[21] The learned Judge also stated that in an application of this nature it is incumbent on the applicant to show that grave injustice would be caused to him if leave is not granted. However in the instant application the applicant has failed to show that any injustice would be caused to him.
[22] The learned Judge held that the defendant has an opportunity of defending the action and also to get adequately compensated if sued by the plaintiff unjustly. It would be unjust to strike out the plaintiff's claim and deprive the plaintiff of an opportunity to pursue its claim and be heard on its merits. The learned Judge also held that the proposed appeal would either have little or no prospect of success. Thus leave was refused.
The grounds of appeal
[23]
1. The learned Judge has erred in law in not granting the appellant's application for leave to appeal against the Master's decision
refusing to strike out the action against the appellant, when it was a proper case to grant such leave and to strike out the action
against the appellant also.
2. The learned Judge has erred in law in applying cases relating to leave to appeal from the High Court to the Court of Appeal in interlocutory matters but not applying cases and principles relating to leave to appeal from a Master's decision.
3. The learned Judge has erred in law in not correctly applying the principles of striking out when the action filed by the respondent related to the decision of the Director of Town and Country Planning for re-zoning of the property in question and the Director and the Registrar of Titles and the Attorney-General who were struck out as parties.
4. The learned Judge has erred in law in not considering that the cause of action arose from the decision of the Director and the re-zoning. Any such decision made by the Director falls within the realm of Public Law. Thus the respondent's action should have been filed by way of judicial review.
5. The learned Judge has erred in law in not taking the case of Digicel vs Pacific Connex Investments Limited into consideration before arriving at his decision when the said case is authority that the whole action should be dismissed when it includes public law matters.
6. The learned judge has erred in law in applying incorrect principles of striking out when in this case the striking out was mainly based on principles relating to the abuse of process of court.
7. The learned judge has erred in law in agreeing with the Master of the Court that there is a covenant between the appellant and the respondent when the subject property, being Certificate of Title No. 35021, had been transferred to the appellant free of encumbrances. The re-zoning of the said property was done by the Director and the Judge has failed to take into consideration that the respondent had no objection to the said re-zoning as per its letter dated 20th September, 2005.
Submissions of the learned counsel for the appellant
[24] The learned counsel submitted that the order of the learned Judge refusing leave to appeal was wrong and has caused injustice to the appellant. The learned counsel also submitted that the learned Judge was wrong in making reference to a covenant when there is no such evidence.
[25] The learned counsel also submitted that there are exceptional circumstances in granting leave in this case as the Master has agreed that he had "misgivings about the chances of success of the plaintiff's (respondent's) claim in its current form against the defendant. The learned counsel submitted that the learned judge had also agreed with the Master that the prospect of success of the plaintiff's action was doubtful. However the learned judge has held that there was a cause of action or at least an arguable issue which warranted a full trial.
[26] The learned counsel further submitted that the learned Judge has erred in law in failing to consider the principle that in public law matters the court should dismiss the whole action. In this case the Master had dismissed the action against some defendants on the ground that the judicial process was abused whilst allowing to proceed (after an amendment) against the defendant to recover damages. (The defendant based this ground on the case of Digicel Fiji Ltd. v Pacific Connex Investments Ltd decided by the Court of Appeal of Fiji on 8 April 2009 in Civil Appeal No. ABU 0049 of 2008).
Digicel Fiji Ltd. v Pacific Connex Investments Ltd
[27] In this case the Pacific Connex (plaintiff) had applied for a licence to operate a mobile cellular telecommunication system in Fiji. The Minister had granted approval for the company to operate such a mobile telephone network. Digicel Fiji Limited (one of the defendants) too had received a similar approval in principle. The plaintiff complained that the position in relation to its application for a licence was kept in the dark by the government. The plaintiff prayed for an order against the Minister (another defendant) to grant the plaintiff a licence. Digicel Fiji Ltd. sought orders that the action should be struck out on the ground that the claim discloses no reasonable cause of action, is scandalous, frivolous and or vexatious and is an abuse of the process of court. It was contended for the Minister that the application of the plaintiff was in effect an application for a mandatory injunction. The court having considered the authorities dismissed the plaintiff's originating summons against all the defendants. The court held that "whether the claim for damages is based on tort or equity the issues involved are based on public law. The root of the claim is public law and the proceedings should have been brought by judicial review. To bring via originating summons was an abuse of the process of court" (O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237, Ram Prasad v AG [1997] FJCA 52, Cocks v Thanet District Council [1983] AC 286) (emphasis added).
[28] In the instant case, the plaintiff's complaint is that the defendant breached the covenant. The prayer of the plaintiff is to not allow the defendant to use the land for anything other than for Civic (Education) purposes. The Master had correctly rejected this claim. The land had already been changed from Civic (Education) to Comprehensive Development. This was done by the Director of Town & Country Planning. The Master had correctly stated that the plaintiff should have come by way of judicial review and not by way of writ of summons. Thus the Master struck off the names of the 2nd, 3rd and 4th defendants. This action was filed by writ of summons. The Master found that the plaintiff had abused the legal process and dismissed the plaintiff's action against 2nd to 4th defendants.
When leave could be granted
[29] Section 12(2) (f) of the Court of Appeal Act requires leave of a Judge of the High Court or of the Court of Appeal from any interlocutory order. The section as far as it is applicable is as follows:
"No appeal shall lie (to the Court of Appeal) without leave of the Judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a Judge of the High Court, except. (sub sections (i) to (v) are not reproduced)
What is an interlocutory order
[30] An interlocutory order has been interpreted in Goundar v Minister of Health [2008] FJCA 40; ABU 0075.2006S (9 July 2008) in paragraphs 37 and 38 as follows;
"37. Where proceedings are commenced in the High Court in the Court's original jurisdiction and the matter proceeds to hearing and judgment and the judge proceeds to make final orders or declarations, the judgment and orders are not interlocutory.
38. Every other application to the High Court should be considered interlocutory and a litigant dissatisfied with the ruling or order or declaration of the Court needs leave to appeal to that ruling order or declaration".
[31] In the light of the above principles, the grant or refusal of leave would not conclude this action. It would not finally dispose of the rights of the parties. The learned Judge by refusing to grant leave made the appellant and the respondent go through a trial. Thus the decision of the learned Judge has to be considered as an Interlocutory order, compelling the appellant to seek leave as per section12 (2) (f) of the Court of Appeal Act.
[32] The appellant has filed an appeal and not a leave to appeal application as required by section 12 (2) (f) of the Court of Appeal Act. The Rules of the Court of Appeal require the applicants to give notice to the affected parties of any applications made to court. It also requires such applications to be made first in the lower court. Section 26 (2) and (3) of the Court of Appeal Rules are as follows:-
Section 26 (2); Any application to the Court of Appeal for leave to appeal (whether made before or after the expiration of the time for appealing) shall be made on notice to the party or parties affected. (3); Wherever under these Rules an application may be made either to the court below or to the Court of appeal it shall be made in the first instance to the court below.
[33] In this case however, no such application was made seeking leave. No objection was taken for the respondent either, against the filing of an appeal and not a leave to appeal application. In spite of that fact, the Court of Appeal has granted leave in the past, considering the questions of substance involved. In Kaur v Singh [1999] FJCA 46; ABU 0011 of 1998 (13 August 1999), the husband, by a notice of motion, applied for a maintenance application to be struck out on the ground that the court had no jurisdiction as the parties had been validly divorced. This application was dismissed by the learned Magistrate. An appeal made to the High Court was allowed and the order of dismissal by the Magistrate was vacated.
[34] The wife appealed against the judgment of the High Court. Leave to appeal as required by section 12 (2) (f) was not sought although not objected to by the husband. Counsel however made an oral application for leave. The Court of Appeal decided to grant leave as there was an ambiguity with regard to the High Court order. The ambiguity is that it was not clear whether the order of the High court was to strike out the proceedings or to return the application to the Magistrate Court to be heard and determined according to law.
[35] In the instant case, as a question was raised with regard to substantial injustice and a resultant miscarriage of justice, leave to appeal in terms of section 12 (1) (f) should be considered by this Court. In doing so it is necessary to consider whether there is a question of law in terms of section 12 (1) (c) of the Court of Appeal Act, as an appeal shall lie to the Court of Appeal from a decision of the High Court in the exercise of its appellate jurisdiction on any ground involving a question of law only. Section 12 (1) (c) of the Court of Appeal Act (as far as it is applicable) states as follows:-
12 (1) Subject to the provisions of sub section (2) an appeal shall lie under this part in any cause or matter.... to the Court of Appeal (sub sections (a) & (b) not reproduced) (c) on any ground of appeal which involves a question of law only, from any decision of the High Court in the exercise of its appellate jurisdiction under any enactment which does not prohibit a further appeal to the Court of Appeal. Sub section (2) is relating to the requirement of leave to appeal, which has already discussed.
A question of law only
[36] What is a question law? This has been explained by the Supreme Court of Fiji in Simeli Bili Naisua v The State [CAV 0010 of 2013 (20 November 2013). Goundar JA with Gates P and Ekanayake JA agreeing stated that "the phrase 'a question of law alone' is one of pure law unaccompanied by any other ground of appeal". The learned Judge so stated after adopting Hallett J's interpretation in Robinson (1953) Cr App R 95 at pg. 99 that "an appellant has a right of appeal without leave only if he confines himself to a point of law". Goundar JA explained the meaning of a question of law with reference to some English authorities as follows:
Goundar JA stated that (at paragraph 14) "A summary of these cases show that questions that have been accepted as a point of law alone include causational issues in homicide cases, jurisdiction to try an offence, existence of a particular defence, mens rea for a particular offence, construction of a particular statute and defective charge. The list, however, is not exhaustive"
[37] The following questions as constituting questions of law have been determined by the Supreme Court of Sri Lanka by way of several examples in Collettes v Bank of Ceylon (1982) (2) Sri Lanka Law reports 514 as follows:-
(i) The proper legal effect of a proved fact is necessarily a question of law. A question of law is to be distinguished from a question of "fact". Questions of law and questions of facts are sometimes difficult to disentangle.
(ii) Inferences from the primary facts found are matters of law.
(iii) The question whether the tribunal has misdirected itself on the law or the facts or misunderstood them or has taken into account irrelevant considerations or has reached a conclusion which no reasonable tribunal directing itself properly on law could have reached or that it has gone fundamentally wrong in certain other respects is a question of law.
(iv) Whether the evidence is in the legal sense sufficient to support a determination of fact is a question of law.
(v) If in order to arrive at a conclusion on facts it is necessary to construe a document of title or correspondence then the question of construction of the document or correspondence becomes a question of law.
(vi) Every question of legal interpretation which arises after the primary facts have been established is a question of law.
(vii) Whether there is or is not evidence to support a finding, is a question of law.
(viii) Whether the provisions of a statute apply to the facts; what is the proper interpretation of a statutory provision; what is the scope and effect of such provision are all questions of law.
(ix) Whether the evidence had been properly admitted or excluded or there is misdirection as to the burden of proof are all questions of law.
Is there a question of law as required by section 12 (1) (C)
[38] The answer is yes.
The test for allowing leave in an interlocutory appeal: The question for determination in this case is, as enunciated in a series of judgments, whether the learned Judge had applied the law correctly in relation to leave to appeal applications and/or made a substantially wrong decision in refusing leave which has caused grave prejudice to the appellant, thus causing a miscarriage of justice. This is what the appellant has to show this court.
[39] In Niemann v Electronic Industries Ltd. [1978] VIC Rp. 44' [1978] VR 431 (28 Feb 1978) the defendants sought (by summonses) an order that the action be dismissed for want of prosecution. The primary judge dismissed the two summonses. Mclnerney J said in appeal that they are interlocutory orders which involve the exercise of the primary judge of a judicial discretion to grant or refuse the relief sought. In the same case Murphy J said; "The principles applicable in a Court of Appeal, when sitting on appeal from a discretionary order or judgment, have been the subject of much judicial learning. Those principles appear in civil cases to be conveniently summarised in Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621, where at p. 627, Kitto, J. States: "I shall not repeat the references I made in Lovel v Lovel [1950] HCA 52; ((1950) [1950] HCA 52; 81 CLR 513, at pp. 532-4) to cases of highest authority which appear to me to establish that the true principle limiting the manner in which the appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting on a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts. Again the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. House v R [1936] HCA 40; (1936) 55 CLR 499 at pp. 504-5" (emphasis added).
[40] Murphy J said that in order to grant leave, the appellant must established first, "that the discretion of the learned trial judge has been miscarried in one way or another." Murphy J mentioned the cases of Perry v Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66; Dowson v Drosophore Co (1895) 12 R138, Hawkins v Great Western Railway (1895) 14 R360 at 361, 362, and said, "The English authorities emphasised the need to show clearly on an application for leave, that if leave is not given, an injustice will otherwise be done. In Hawkins' case Lord Esher, MR said: "In my opinion it was intended by the legislature that there should be no appeal unless, upon motion to this Court, the Court should be as nearly clear as it possible can be without actually hearing the appeal that injustice will be done unless leave to appeal is given." Reference was also made to Rigby LJ in the same case that, "It is only where a patent mistake is pointed out, or where it is made clear that there is some injustice which ought to be remedied, that leave should be granted." Murphy J also cited the following passage in Perry v Smith (supra) at pg 68, "The onus lies on the party who applies for that leave to satisfy the Court of Appeal that the decision of the primary judge was wrong, and in addition to that he has to satisfy the court that substantial injustice will be done by leaving that erroneous decision un-reversed. Now that is what the counsel for the appellant has to do in this case."
[41] Murphy J also mentioned the case of Darrel Lea (Vic.) Pty. Ltd. V Union Assurance Society of Australia Ltd., [1969] Vic Rp 50; [1969] VR 401 where the court relied on William J in Perry v Smith (supra) and held that "It is plain, as William J., said, from the terms of the section that the legislature was expressing an intention in the words used that appeals from interlocutory orders should not be permitted except in special circumstances. If on the facts of any particular case a plain injustice has been done by the making of a wrong order, then undoubtedly the Full Court would intervene and grant leave". The court required in that case for the plaintiff to satisfy two conditions to succeed, that is; "First, that the decision of the learned Judge was wrong and second, that a substantial injustice would be done by allowing the erroneous decision to stand."
[42] Lord Atkin stated in Evans v Bartlam [1937] AC 473 at 480, "while the appellate court in the exercise of its appellate power is in no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and duty to remedy it".
[43] In In re the Will of FB Gilbert (deceased) 46 NSW 318, a distinction was drawn between procedural and substantive law while exercising discretion. Jordan CJ (at pg. 323) held that, "As pointed out by this court in In re Ryan (1923) 23 S.R. 354 at 357; 20 Austn Digest 81) there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion while determining substantive rights. In the former class of cases, if tight rein were not kept upon interference with the orders of the judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a somewhat less stringent than those adopted in matters of practice or procedure. Leave should only be granted to appeal from an interlocutory judgment or order, in cases where substantial injustice is done by the judgment or order itself. If the order was correct then it follows that substantial injustice could not follow" (emphasis added).
[44] Herring, CJ held in Tidswell v Tidswell (No. 2) [1958] Vic Rp 95; [1958] VR 601 (6 August 1958) that, "In cases where there is an appeal from the exercise of discretion by a primary judge, the manner in which it should be determined by a Court of Appeal is governed by established principles, which were clearly stated by Dixon, Evatt and McTiernan, JJ, in House v R [1936] HCA 40; (1936) 55 CLR 499, at pp. 504-5 in a passage that Latham, CJ, set forth in his judgment in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at pp 518-9. The passage reads: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising discretion. If a judge acts upon a wrong principle, if he allows extraneous or irrelevant maters to guide or affect him, if he mistakes the fact, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred".
[45] The question for determination in this case is whether a substantial wrong has occurred in the judgment of the learned judge while refusing leave. The issue before the learned High Court Judge was whether the Master was clearly wrong in not striking off the name of the defendant. The Master had allowed the action against the defendant to remain whilst holding that there was an abuse of legal process. The abuse of legal process was only as against the 2nd to 4th defendants. The 2nd to 4th defendants were public officials and in order to challenge actions of public officials, the proper remedy is to seek judicial review. To file action by way of writ of summons was an abuse of the legal process. However there is no such abuse as far as the defendant is concerned, due to which reason the action against the defendant was allowed to remain.
[46] Could the Master have allowed part of the case to remain whilst holding that it is founded-on abuse of the legal process? The simple answer to the said question is yes as there were public and private law actions in the writ of summons. The striking out of the public law action against the 2nd, 3rd and 4th defendants would not affect the alleged private law action which is based on a breach of condition of an agreement between the plaintiff and the defendant. To that extent the Master's Ruling cannot be found fault with and the refusal to grant leave is justified. Referring to the plaintiff's case, the Master states "that essentially what the plaintiff is purporting to do is challenge the decision of the Director of Town and Country Planning in approving the rezoning of the CT 35021. The nature of the relief sought certainly bears this out....The decision of the Director of Town and Country Planning to change the zoning would have been made in the exercise of a public authority and statutory function under the Town and Country Planning Act (Cap 139). Any application seeking to challenge or undermine that decision must be made under Order 53 of the High Court Rules and come by way of Judicial Review".
[47] The learned counsel strongly relied on the judgment in Digicel Fiji Ltd. V Pacific Connex Investments Ltd (supra). Digicel was an action instituted by way of originating summons and the issue was clearly in the public law domain. On the contrary, the present action was filed by way of writ of summons and the claims were within the realms of both private and public law. The Master had struck off the parties to the public law remedy in terms of the Digicel (supra) case and allowed the plaintiff to proceed against the defendant to claim damages which is clearly based on private law.
[48] Considering the plaintiff's amended statement of claim, the learned High Court Judge states that the claim against the defendant is not a public law remedy but a remedy under private law. That is the correct position and there is no misdirection of law.
[49] The appellant in this case is seeking to have the whole case struck off on the basis that the case against the defendant cannot be maintained. It appears that the appellant has heavily relied on the case of Digicel (supra). However, the Digicel case being one wholly within the realm of public law, the argument of the learned counsel for the appellant cannot be sustained. Once that argument fails, none of the other arguments show that the learned Judge was wrong in refusing leave. By disallowing leave, the learned Judge has allowed both parties to submit themselves to trial. The appellant does not show how he has thereby prejudiced and/or that any miscarriage of justice has been done. Hence the appellant is bound to fail and leave to appeal to this Court is refused and the appeal dismissed with costs fixed at $5000.00
Kotigalage JA
[50] I agree with the orders of Basnayake JA.
The Orders of the Court are:
2. Costs fixed at $5000.00 payable to the respondent by the appellant.
Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL
Hon. Justice E. Basnayake
JUSTICE OF APPEAL
Hon. Justice C. Kotigalage
JUSTICE OF APPEAL
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