Singh v Bai [2022] FJCA 18; ABU115.2018 (4 March 2022)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CIVIL APPEAL NO. ABU 115 of 2018
[High Court at Suva Case No. HBC 172 of 2015]

BETWEEN:

BALVEER SINGH
1^st Appellant

JAGINDRA SINGH AKA JAGINDAR SINGH
2^nd Appellant

AND:

RADHABAI AKA RADHA BAI
Respondent

Coram : Basnayake, JA

: Lecamwasam, JA

: Jameel, JA

Counsel : Mr. R. Singh with Mr. S. Fatiaki for the Appellants

: Mr. R.P. Singh for the Respondent

Date of Hearing: 08 February 2022
Date of Judgment : 4 March 2022

JUDGMENT

Basnayake, JA

[1] I agree with the reasoning and conclusions arrived at by Jameel JA.

Lecamwasam, JA

[2] I agree with the reasons given and the conclusions arrived at by Jameel JA.
Jameel, JA

Introduction

[3] This is an appeal from an Interlocutory Judgment of the High Court of Lautoka dated 20 August 2018, in respect of a preliminary objection taken by the Defendants- Appellants (“the Appellants”) for failure of the Plaintiff- Respondent (“the Respondent”) to comply with the provisions of Ord. 59, r. (17) (2) of the High Court Rules (‘HCR’). The learned High Court Judge reinstated the appeal on the basis of the discretionary power of court under Ord. 2, r. 2 of the HCR. The Appellant argues that there was in fact, no appeal in place because of non-compliance with r. (17) (2) of Ord. 59 of the High Court Rules, and therefore that was fatal to the maintainability of the appeal.

[4] Thus the essence of the matter for determination by this court is whether an appeal which is “deemed abandoned” under Ord. 59, r. (17) (2), can be reinstated by court in terms of the discretion of court in Ord. 2, r. (2) and Ord. 3 r. (4) of the HCR. In this case, the Respondent’s compliance with r. (17) (2) was two days late.

Factual background and chronological sequence of events

Case in the High Court

[5] The Respondent (the original plaintiff) filed Statement of Claim dated 6 October 2015, against the Appellants who are the trustees of the late Gurdial Singh, the mortgagee of the land in dispute. The Respondent pleaded that she is the widow of the late Abimanyu Lingam (“Abhimanyu”), who was the lessee of Crown Lease No.12891, of the land known as Naqara and Navo, located in Nadi District. Her husband the late Abimanyu mortgaged the land to the late Gurdial Singh. The mortgage was registered on 18 October 1996 under mortgage No. 404408, but it was varied on the same date, by increasing the rate of interest to 12% per annum. The mortgagor fell into arrears, and the Solicitors of the mortgagee wrote demanding the payment of the monies owed. Abhimanyu’s lawyers asked for a detailed account of the monies due, this was provided and Abhimanyu’s suggestions for a settlement were rejected by Gurdial Singh, and the late Gurdial Singh’s lawyers informed they would proceed to execute the mortgage. Eventually, the sale was effected during the life time of the late Abhimanyu.

Statement of Claim

[6] The basis of the Respondent’s Statement of Claim was that the application for foreclosure was in breach of sections 73, 74 and 75 of the Land Transfer Act, and section 79 of the Property Law Act, no final notice of intention of foreclosure was served on the deceased, the application for foreclosure was not advertised as required under section 74 of the Land Transfer Act, and that the sale by the surveyor was a sham as it did not take place on the land in Nadi, but instead took place in Suva. She therefore sought a declaration that the application for foreclosure in respect of this land was invalid, was of no legal consequence and that the foreclosure be cancelled from the memorial of the lease of land comprised in Crown Lease No. 12891, and orders of court that the Appellants produce and file an affidavit verifying accounts of all income and expenses received from the said land, and all income and expenses received from shares held under the name of the late Abhimanyu Lingam with the Commonwealth Bank of Australia, and that the Appellants pay the Respondent from the income collected from the said land.

Statement of Defence

[7] On 16 November 2015, the Appellants filed Statement of Defence admitting the mortgage but denying the rest of the Statement of Claim, and pleaded that the defaulting mortgagor had been given several opportunities to repay, but had continued to default, the foreclosure had become necessary, all necessary steps for foreclosure had been properly taken, the foreclosure was registered, and that the foreclosure had been done fifteen years before this action was filed, the Respondent was guilty of laches, the claim was statute -barred, frivolous, vexatious, an abuse of the process of court, and did not disclose a cause of action.

[8] The Respondent denied the contents of the Statement of Defense, thereby denying that any monies had been due by the mortgagor. She continued to maintain that the mandatory steps preceding the foreclosure had not been properly taken, and that the foreclosure was therefore invalid.

[9] On 27 July 2017 the Appellants filed Summons and affidavit in support seeking leave to adduce fresh evidence of the copy of the foreclosure notice, the said Crown Lease and copies of the foreclosure advertisements in the newspapers.

Application for Striking Out of Statement of Claim

[10] By Writ of Summons filed on 22 January 2016, the Appellants made an application in terms of sections 9 and 10 of the Limitation Act (Cap. 35), and Ord.18, r. (18) (1) (a), (b) (d) of the High Court Rules, for the Striking out of the Respondent’s Statement of Claim.

Decision of the Master on the application for Striking Out

[11] In considering the application for striking-out, the Master in his Decision observed that the Respondent had not alleged fraud, but he was satisfied that the Respondent’s claim was statute-barred under sections 4 (1) and (2) of the Limitation Act, and by his order dated 20 January 2017, struck out the Respondent’s Writ of Summons and Statement of Claim, and awarded costs.

Appeal to the High Court against the Decision of the Master dated 20 January 2017

[12] On 26 January 2017 the Respondent filed Summons and affidavit under Ord. 59, r. 11 of the HCR in support of her application, for leave to appeal against the Master’s Decision, and for a stay of execution until leave is granted.

The Judgment of the High Court dated 21 May 2018; granting leave to appeal against the Master’s Decision

[13] In granting leave to appeal the Master’s decision the learned Judge was satisfied that the proposed grounds of appeal raised substantial legal issues which merited determination. He took the view that since the argument involved a substantial point of law which does not admit of a plain answer, it is best not to have it determined in a striking-out application. In this case, the parties were at variance on whether it was section 4 (2) or section 8(2) of the Limitation Act that applied to the maintainability of the claim. The learned Judge was satisfied that the issues raised by the Respondent (the original plaintiff) could be determined only upon evidence led at the trial. The Appellants had also sought leave to adduce fresh evidence. Having granted leave to appeal, it was clear to him that the Respondent had an arguable case in appeal.

[14] After hearing parties, the learned High Court Judge delivered judgment dated 21 May 2018, granted leave to appeal against the Master’s Decision, and made order that the Respondent file and serve a notice of appeal within 7 days of the date of the said judgment to seek directions and a date for the hearing.

[15] In compliance with the said orders, the Respondent filed Notice and grounds of appeal on 21 May 2018, the same day on which the High Court allowed the application for leave to appeal the Master’s Decision. This was served on the Appellants’ City Agent on 5 June 2018, and is not in dispute. The said Summons was returnable on 25 June 2018.

[16] However, Summons for directions as required by r. (17) (2) of Ord. 59, was filed on 13 June 2018, when it should have been filed on 11 June 2018.This is the delay that is the subject of this appeal.

Preliminary objection on maintainability of the appeal

[17] When the matter was called in court, the Appellants took up the preliminary objection from the Bar table, that the Summons for directions under r. (17) (2) of Ord. 59 had been filed two days out of time, and that therefore the appeal could not be maintained.

The judgment of the High Court dated 21 August 2018 on the preliminary objection

[18] The parties filed written submissions on the preliminary objection, and after having heard the parties, the learned High Court Judge on 20 August 2018, overruled the preliminary objection of the Appellants taken in respect of non-compliance with r. (1) (2) of Ord. 59, made order reinstating the appeal, and directed the Respondent to file Summons for directions to proceed to hearing of the appeal. Having set out the facts in his judgment, the learned High Court Judge was persuaded by the reasoning of the decision in Sellink v Sellink [2017] Fam CAFC 30 (1 March 2017), which considered the discretion of the court in deciding whether or not to reinstate an abandoned appeal. In considering the preliminary objections raised by the Appellants, the learned High Court Judge was satisfied that the delay of 2 days in filing the Summons for directions was not an intentional abandonment of the appeal, it was a mere oversight, the Respondent had every intention of prosecuting the appeal, (this was demonstrated by the fact that the Notice and Grounds of Appeal had been lodged immediately upon the High Court granting leave on 21 May 2018, to appeal against the Master’s Decision), that the Respondent had an arguable appeal, the delay of 2 days does not nullify the appeal, it was only an irregularity which could be cured by the use of the discretion reserved to the court in Ord. 2 r.(1).

The Appeal to the Court of Appeal against the Judgment of the High Court dated 21 May 2018

[19] Being aggrieved by the Judgment of the High Court dated 21May 2018, reinstating the appeal, the Appellants filed this appeal. The grounds of appeal are as follows:

“1 That the Learned Judge erred in law in re-instating the Respondent’s Appeal filed on 21^st May, 2018 which was deemed abandoned for non-compliance of the mandatory provision of the High Court Rules, when there was no such application for re-instatement before the Court.

2. That the Learned Judge erred in law in wrongly applying Order 2 Rule 1 of the High Court Rules to cure the Respondents’ application for non-compliance with the rules especially when the appeal has already been abandoned and there was no appeal on foot.
   
3. That the Learned Judge erred in law when he wrongly applied Order 3 Rule 4 of the High Court Rules when there was no appeal on foot.
   
4. That the Learned Judge erred in law and wrongly exercised his discretion to re-instate an appeal by the Respondent which has been deemed abandoned by reasons of non-compliance with the rules of the High Court when there was no such application before the Court by the Respondent nor there was any valid appeal on foot.”
   

[20] Grounds 1 and 4 of the grounds of appeal are in respect the Appellant’s argument that abandonment is automatic, in terms of Ord. 59, r. (17) (2). Grounds 2 and 3 cover the subject of discretion provided for in Ord. 2, r.(1) and, Ord. 3, r.(4). However, I note that neither the oral, nor written submissions of the Appellants addressed the provisions of Ord. 2 and Ord. 3, except to say that the court could not have invoked it in respect of a non-existent appeal. This court must and will address that point, as that is the main matter for consideration.

The Appellants’ submissions

[21] The essence of the Appellants preliminary objection was that the court could not have reinstated the appeal because, the appeal was deemed to have been abandoned due to non-compliance with Ord. 59, r. (17) (2) of the High Court Rules which provides as follows:

“(17) (1) The Appellant shall, upon serving notice of appeal, on the other parties to the appeal, file an affidavit of service within 7 days of such service.

(17) (2) The Appellant shall within 21 days of the filing of the notice of appeal file and serve summons returnable before a judge for directions and a date for the hearing of the appeal.

(3) If this rule is not complied with, the appeal is deemed to have been abandoned”.

[22] The thrust of the Appellants’ argument is that non-compliance with the provisions of r. (17) (2) of Ord.59, results in automatic abandonment of the appeal, there is no basis on which the court can exercise discretion to reinstate a non-existent appeal, the deeming provision brings an end to the whole process, and non -compliance with Ord. 59, r. (17) is fatal to the maintainability of the appeal. They argue that the Judge’s application of the law was incorrect because he failed to take cognizance of the mandatory provisions of the Rule, and he wrongly exercised his discretion in respect of a non-existent appeal.

[23] The Appellants argue that the learned High Court Judge erred in relying on Sellink (supra) as that case can be distinguished from this case; in that case, submits the learned Counsel for the Appellants, Rule 22.22 of the Family Law Rules 2004, provides for, and specifically gives a party a right to apply for extension of time. That Rule is as follows:

“22.21 Failure to file appeal books by due date

If the appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned.

Note: ; &# 60;Ay art appy apply fory for an extension of time to file the appeal books (see rule 1.14).”

[2

[24] Having made this comparison, the learned counsel fe Appts arthat unlike in S>Sellinellinkk (supra), there is no specific provision by which the consequences of the deeming provision in Ord. 59, r. (17), can be overcome, as there is no such curing provision. The Appellants argue that however, under r. (10) of Ord. 59, there is specific provision for seeking an extension of time to file an appeal, but this opportunity is not given in r. (17) (2) of Ord.59. However, that submission is untenable because this appeal is not concerned with a party invoking the jurisdiction of court under an existing rule; this case is about whether the inherent power and discretion specifically given to court in Ord.2, r.1 and Ord.3, r. (4) to cure an irregularity stemming from non-compliance with a rule couched mandatory language coupled with a deeming provision was correctly exercised.

[25] The learned Counsel for the Appellants also submits that the inherent jurisdiction of court could be exercised only when there is sufficient material to explain the failure to comply with the mandatory provisions of the High Court Rules and if the proposed application has merit. The effect of this submission as I understand it, cuts across his first submission that an appeal that is deemed abandoned under the deeming provision, is incapable of being resurrected under the inherent jurisdiction of court. It also ignores the fact that in the court below, the Appellants themselves have already made an application for adducing fresh evidence in the form of documents; in that light, to my mind the Appellants’ “no merit “argument in respect of the Statement of Claim itself lacks merit.

[26] To fortify this argument the Appellants compare Rule 17 of the Court of Appeal Rules, 1949, where there was express provision to file a fresh notice of appeal within a stipulated time from the date of default. However, in my view this is not an appropriate comparison, because the issue here is not a case of the notice of appeal having been filed out of time; in this case the issue is that after the notice of appeal was filed, and undoubtedly received by the Appellants, the Respondent (as the applicant in that application) failed to comply with a time requirement in the HCR. Rule 17 (1) of the Court of Appeal Rules provides a timeline for restoration of an appeal which is deemed abandoned, and the discretion of court is engaged only in situations in which the specified time limit is exceeded, in which case the leave of the Court of Appeal must be obtained to apply for restoration. On the other hand, the High Court Rules begin by providing for situations of non-compliance with the Rules and laying down the underlying theme that the inherent discretion of court is not to be lightly excluded. The framers of the Rules knew that on occasions of non-compliance with the Rules, it is vital to retain the discretion of court in the interest of justice.

[27] The Appellants’ argument is that; “Order 2 Rule 1 and Order 3 Rule 4 are general provisions and can be invoked only when there is no specific provision”, (vide paragraph 6.5 of the Appellants’ written submissions). That submission is correct. But it is the logical extension of that argument that the Appellants do not want to confront.

[28] Therefore, the Appellants submit that non-compliance with mandatory rules is fatal as the Rules are designed for speedy determination of the action. The totality of the Appellants’ submissions is based on the argument that the deeming provision in r. (17) (2) of Ord. 59, puts an end to the matter, and that once the appeal is deemed abandoned there is nothing else that can be done in respect of the subsequent steps that need to be taken. For the reasons set out above, I am unable to agree with the Appellants’ arguments and accordingly reject them.

[29] Whilst it is true that the provision is mandatory and abandonment is deemed to be automatic, the Appellant’s arguments do not adequately address the basic question which to my mind is; whether the discretion given to the court in Ord.2, r. (1) is excluded from the ambit of Ord. 59. Put differently, is Ord. 59 a stand-alone provision immune from Order 2? Are defaults in respect of time and form, curable in all instances except when a deeming provision renders an act final? I will consider these matters having set out the Respondents’ submissions.

[30] The Appellants rely on several authorities that uphold the principle that the HCR are to be followed, non-compliance is to be punished, the deterrent effect of automatic dismissal must be upheld, and the need to ensure that the legal profession understands the danger of non-compliance. All those principles are correct and undisputed. However, whilst those authorities dealt with non-compliance of several Rules, they did not deal with the interpretation of Ord. 2, r. (1), and Ord. 3, r. (4) of the HCR, which must be considered in this appeal.

[31] The Appellants rely on Venkattamma v Bryan Charles Ferrier –Watson, 41 FLR 258, in which the court held that the rules are to be obeyed, practitioners must be on notice that non-compliance may well be fatal, and in cases not having the special combination of factors that were present in that case, non-compliance is unlikely to be excused. They also relied on Ports Authority of Fiji v C& T Marketing Ltd. Civil Appeal No. ABU 0004 of 2001, (No.1) [2001] FJCA 42; [2001] 1 FLR 76, in which the appeal was deemed to have been abandoned by failure to lodge the appeal record. However, these cases did not consider the effect of Ord. 2, r. (1) of the HCR.

[32] The Appellants rely on Eddie McCaig v Abhi Manu, [2012] FJSC 18; CBV0002.2012 (27 August 2012) in which the then President of the Supreme Court, Gates CJ considered a 2-day delay in lodging the appeal, where no separate application for enlargement of time had been filed. In considering the application, His Lordship held that there must be some very good, exceptional reason for the delay, and an exceptional reason can be reflected in a combination of factors. The court said that motion and affidavit should have been filed at the outset exhibiting the proposed petition for special leave, and the petition, once late, could not properly be lodged. However, in this case, the notice of appeal had been lodged on time, and the jurisdiction of court had been properly and timeously invoked. Therefore, the reliance on that authority does not assist the Appellants.

[33] The Appellants rely on Hermans v Hermans [1961] NZLR 390, where the court said that:

“....once the notice is deemed to be abandoned there is nothing before the Court which can be 'amended or otherwise dealt with' under r 69. Rule 34 itself declares that the consequence of non-compliance is abandonment of the appeal and recognizes that the only remedy then available is the giving of a fresh notice (of Appeal) if the time for appealing has not expired.”

[34] However, that case was decided in 1960, before the amendment of the HCR in England. Further, this case dealt with the New Zealand Court of Appeal Rules 1955, and there was no Rule in those Rules which is the equivalent of Ord. 2, r. (1) and Ord. 3, r. (4) of the HCR, which are the subject matter of this appeal. Thus, the principle upheld in that case that abandonment of suit by a deeming provision is irreparable. Therefore, that authority does not help the Appellants. In any event, I also find that the submissions of the Appellants are internally inconsistent. Are the Appellants saying that in this case there had been a wrongful exercise of discretion, or are they saying that there was no discretion at all that could have been exercised? The Appellants are unclear and equivocal on the position they seem to want to take. If their argument is that it was a wrongful exercise of discretion on the merits, then this court will not readily interfere in the exercise of the trial judge’s discretion; if their argument is that there was no discretion that the court could have exercised, then that submission, for the reasons I set out, are unacceptable.

The Respondent’s submissions

[35] The Respondent admits that the Summons for directions was filed on 13 June 2018, when it should have been filed on 11 June 2018. When the case was called on 18 July 2018 for the Court to give directions, from the bar table, the Appellants’ Counsel raised a preliminary objection that the Summons had been filed out of time and was therefore non-compliant with Order 59 Rule, (17)(2) of the HCR, and made an application that the Summons be struck out.

[36] The Respondent submits that the HCR are different from a statute, the inherent jurisdiction of court is in addition to the Rules, and that the Rules cannot narrow down or diminish the inherent jurisdiction of court; although Ord. 59, r. (17) (2) is mandatory, it cannot be looked at in isolation. In other words, Ord. 2, r. (1), and Ord. 3, r. (4) cannot, by implication be excluded from the ambit of Order 59 of the HCR. I agree with this submission.

[37] The Respondents relied on the following passage in Herbert Construction Company (Fiji) Ltd v Fiji National Provident Fund [2010] FJCA 3; Miscellaneous Case 020.2009 (3 February 2010):

“[12.] It is well settled law that once the rules are not followed it is the discretion of the court to grant leave to appeal out of time and that the onus rests upon the appellant to satisfy the court that in all circumstances the justice of the case requires that he be given an opportunity to appeal out of time against the judgment he wishes to appeal.”

[38] There is no doubt that the Rules are intended to provide certainty, clarity and ensure expeditious case management. However, procedural default alone should not preclude a claimant being denied the right to adjudicate his claim, if that default has not, or will not cause prejudice to the defendant which can be compensated by the payment of costs. At the heart of the discretion given to courts in Ord.2 and Ord.3 to extend time and thereby overlook a time default, is a balancing of parties’ rights, in the interest of justice.

[39] The Respondent submits that the Appellants have challenged an interlocutory judgement of the High Court Judge in the exercise of his discretionary jurisdiction and relied on the long-standing principle applicable that there is a strong presumption in favour of the correctness of the decision appealed from, and that an appellate court should affirm the decision unless it is satisfied that the decision is clearly wrong.

[40] In this case, the appeal had already been lodged on time, but it was the summons to obtain directions and was two days late. It was this that engaged the deeming provision, resulting in the fictional abandonment of the appeal. The power to grant an enlargement of time could be given by statute or contained in the Rules of court reflecting the inherent jurisdiction of court. Thus, it is correct that the HCR supplement the powers of court contained in statute and do not diminish such power.

Deeming Provisions

[41] Whilst this case is not concerned with a deeming provision in a statute, the principles adhered to by courts in interpreting such provisions can be a guide. A deeming provision is an artificial construct given to a situation by the rule maker, that a state of facts is, by a legal fiction to be regarded as something that it really is not. When a legal fiction is created, the court must ascertain the purpose for its creation. Thus, in a legal fiction the court is required to presume a set of facts which is not true.

[42] The requirement in r. (17) (2) of Ord. 59 which gives the appellant a 21-day window within which to file a summons returnable, to enable the judge to give directions, is predominantly to allow for administrative and logistical matters relating to case management, and to set a date for hearing. In construing a statutory provision creating a statutory fiction, the statutory fiction must be taken to its logical conclusion, but it cannot be extended beyond the language of the section by which it is created. This requires the entirety of the Act to be read in a manner that results in a harmonious working of the Act. Similarly, in this case, Ord. 59 cannot be construed in a manner that excludes the overarching principles laid down by the framers in the very creation of the Rules set out in the gateway provisions of the HCR. The underlying theme and overarching principle, to my mind is that the breach of even rules couched in mandatory language, are to be treated as curable irregularities, subject to the discretion of the court.

[43] The heading of O.59 r. (17) is “Procedure after filing appeal”. Thus, it cannot be argued as the Appellants did, that there is no appeal on foot. The next step is that after notice of appeal is filed, the appellant must file an affidavit of service. This is to ensure that the Respondent is made aware that his success in the court below has not finally determined the dispute. The Rules then give the parties a window within which to negotiate if so inclined, and for the Appellant to re-consider whether he definitely wants to prosecute the appeal. That is why, in my view, he is given that time, and the Rules then say that he has up to 21 days within which to file Summons to obtain directions from court. The legal fiction of deeming is engaged only when an appeal has been filed, and is in place. It is only when the appellant fails to file and serve a summons returnable before a judge for directions”, that “the appeal is deemed to have been abandoned. That is why the Appellant’s submissions that the appeal was not in foot, is unacceptable. It is not the deeming provision that renders the appeal non-existent. It is the subsequent failure of the appellant to take the specified steps that renders the appeal abandoned. What the deeming provision does, is to provide that the failure of the appellant to take the next necessary steps, is regarded as an indication that he is abandoning his appeal which is in place. It is only an existing appeal that can be deemed abandoned; there need not be a deeming provision if the appeal is not in existence. Ord. 59, r. (17) (3) provides that the conduct of the appellant, i.e., his failure to take those steps within the time specified in the Rules, is taken to mean the end of the matter; neither the Appellant nor the Respondent need do anything further to confirm the appellant’s intention to not prosecute the appeal.

What is the purpose of Ord. 2, r. (1) of the High Court Rules?
[44] Ord. 2, rr. (1) (2) and (3) provide as follows:

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(2) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.”

[45] Ord. 2, r. (1) makes it clear that non-compliance with “these Rules” shall be treated as an irregularity, whether it be an act or omission, and shall not nullify the proceedings. Therefore, there is specific provision that non-compliance at any stage of the proceedings shall, as a mandatory matter, be treated as an irregularity. Further, Ord. 2 does not exclude those Rules which contain deeming provisions. Therefore, despite Ord. 59, r. (17) (2) providing that the appeal shall be deemed to be abandoned, the overriding provisions of Ord. 2 and order 3 get engaged when there has been failure to comply with the Rules, and can be resorted in the discretion of court.
[46] Whilst there is no doubt that the HCR and all Rules of court are created for the smooth functioning of the system of justice, and to ensure certainty, transparency and clarity, too rigid an adherence to the Rules can result in unexpected, unintended and irreversible consequences. That is why in the Rules themselves are self- regulating and provide an internal remedy reserving to the judge, the necessary element of discretion to be applied on a case-by-case basis.
[47] The impact of the consequences of technical default may be totally disproportionate to the default, and result in irreversible consequences. This appears to be the reason why the framers of the HCR themselves provided in Ord.2.that:
“ a failure to comply with the requirements of these rules whether in respect of time, place, manner form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings..” (Emphasis added).

[48] The narrow approach that started in Re Pritchard decd, [1963] 2 Ch.502 resulted in the subsequent amendment of the Rules. That case had been commenced by originating Summons in the district registry instead of the Central Office. The majority of the court held it was void ab initio and the proceedings were a nullity. Lord Denning dissented. He took the liberal approach and did not agree with an approach that resulted in the applicant, “being driven from the judgment seat without a hearing”, (at p.518).

[49] Shortly thereafter in Harkness v Bells Asbestos & Engineering Ltd. [1967]2 Q.B. 72, in welcoming the amendments to the Rules, Lord Denning said:
This new rule does away with the old distinction between nullities

and irregularities. Every omission or mistake in practice or procedure
is henceforward to be regarded as an irregularity which the court can

and should rectify so long as it can do so without injustice.”

[50] In Metroinvest Ansalt v Commercial Union, [ 1985] 1 W.L.R. 513, the court described the exercise of discretion in these words:
‘I would say that in most cases the way in which the court exercises

powers under Order 2, rule 1(2) is likely to depend upon whether

it appears that the opposite party has suffered prejudice as a direct

consequence of the particular irregularity, that is to say, the particular

failure to comply with the rules. But I would construe Order 2, rule

1(2) as being so framed as to give the court the widest possible power

in order to do justice...’.

[51] In The Golden Mariner [1915] LRSC 13; [1990] 2 LLR 215 at 223, the court said that the rule should be “given wide, though not unlimited effect.". The case concerned irregular service on companies outside England. Though there was no actual writ served, the majority of the court were prepared to hold that it was sufficient service as the defendant was already aware of the plaintiff’s intention to serve the documents.

Factors that influence the exercise of the court’s discretion

[52] Ord.2, r.2 empowers the court to permit the curing of non-compliance with the Rules, subject to costs or otherwise as it thinks just. This allows the court to consider the case as a whole, and on a case -by-case basis, exercise its discretion to ameliorate the harsh consequences of the Rules, ascertain whether real prejudice will be caused by permitting the lapse to be cured, although absence of prejudice per se is no basis to exercise discretion in favour of the defaulting party, if the lapse itself is so fundamental or serious, that it ought not to be excused. Thus, absence of prejudice is not always a conclusive factor that will tip the scales in favour of the defaulting party.

[53] The Respondent correctly relied on Extreme Business Solution Fiji Ltd v Formscaff Fiji Ltd [2019] FJSC 9; CBV0009.2018 (26 April 2019) in which the Supreme Court considered the element of discretion in Ord .2 and Ord.3 of the High Court Rules. In that case the notice of appeal had been filed on time, but service was not effected. The court said:

“[55] But the judge then held that service of the notice of appeal on Formscaff on 21 March 2016 had been five days late and that, although the defect in the notice of appeal could by virtue of Order 2 rule (1) be treated as a mere irregularity, the delay in service of the notice of appeal in compliance with the time allocated by the court could not be cured by application of that rule and he further appeared to suggest that it failed also by reason of a failure to follow the requirements of Order 59 rule (10). So he dismissed the application to extend time for service of the notice of appeal.” [Emphasis added].

[54] In Extreme Business Solution (supra) the Petitioner was 3 days late in complying with a court order. The court said:

“[65] I accept that there was in this case a failure to comply with a court order as to time but it is to be noted that the discretion to extend time, conferred by order 3 rule 4, contemplates that such breaches are not of themselves necessarily fatal, although one might observe that the position would be different in the case of an “unless” order[6]. Nonetheless, what this all amounts to in this particular case is the refusal to extend time for service of a notice of appeal where service was a mere three days out of time, where the notice of appeal was filed in the time stipulated, where the judge had held that, prima facie, the prospective appeal had merit and where it is impossible to discern that Formscaff could have been in the least prejudiced by an extension. To refuse in these circumstances a three day extension of time seems to me to permit minor breach to trump merit and that must, I respectfully suggest, be inimical to the objective of the Rules.

[55] In setting the guiding principle, the Court said:

[66] The guiding principle is this:

“The object of the rule is to give the court a discretion to extend time with a view to avoidance of injustice to the parties. . ‘When an irreparable mischief would be done by acceding to a tardy application, it being a departure from the ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but in other cases the objection of lateness ought not to be listened to and any injury caused by delay may be compensated for by the payment of costs.”

The appellate court’s review of the trial judge’s discretion

[56] The criteria that guides an appellate court in setting aside an interlocutory judgement arising from the exercise of judicial discretion has been set out in several cases. The Respondent relied on Lakshman v Estate Management Services Ltd [2015] FJCA 26; ABU14.2012 (27 February 2015), in which the court said 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)], even if it shown that the interlocutory decision was wrong, it will not be overturned unless substantial injustice would result, and it should it be allowed to stand: (Nieman –v- Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431), Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621, Lovel v Lovel [1950] HCA 52. From the several authorities that have considered this point, the principles that emerge are 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. Thus, the appellate court will interfere only if the trial judge had acted on a wrong principle, or had given weight to extraneous or irrelevant matters, or failed to give weight or sufficient weight to relevant considerations or had made a mistake as to the facts.

[57] Having been guided by these principles, and for the reasons set out above, I am not satisfied that the learned High Court Judge erred in resorting to Ord. 2, r. (1), and Ord. 3, r. (4). Therefore, I conclude that it was open to the learned Judge to do as he did in resorting to Ord. 2. Rule (1) and Ord. 3, r.4, when he restored the appeal which had been deemed abandoned. The judgment of the High Court dated 21 August 2018 is therefore affirmed, and the appeal is accordingly dismissed.

Orders of the Court:

1. The Judgment of the High Court dated 20 August 2018 is affirmed.
2. The Appeal is dismissed.
3. The case is remitted to the High Court to take steps to continue with the trial.
4. There will be no costs.
   

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Hon. Mr. Justice E. Basnayake
JUSTICE OF APPEAL

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Hon. Mr. Justice S. Lecamwasam
JUSTICE OF APPEAL

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Hon. Justice F. Jameel
JUSTICE OF APPEAL