Angco v Attorney-General [2001] FJHC 155; Hbc00619d.1998s (7 December 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 619 OF 1998S

Between:

RAMON FERMIN ANGCO
Plaintiff

and

THE ATTORNEY-GENERAL
First Defendant

and

FIJI MEDICAL COUNCIL
Second Defendant

G.P. Shankar for the Plaintiff
Y. Singh for the Defendants

DECISION

On 31 August 1998 the Plaintiff submitted an application to the Fiji Medical Council (the Council) for registration under Part II of the medical register (see Section 12 of the Medical and Dental Practitioners Act (Cap 255) – the Act).

On 24 November 1998 the Plaintiff commenced these proceedings seeking inter alia an order that the Council “forthwith determine” the application for registration submitted on 31 August.

On 14 June 1999 this Court (Pathik J) ordered the Council “to finalise the processing of the Plaintiff’s application (for registration) within 7 days”.

On 22 July 1999 the Council advised the Plaintiff that at its meeting held on 24 June 1999 it had decided not to approve the Plaintiff’s registration (see Annexure D to the affidavit of Joeli M. Tawake filed on 8 September 1999).

On 23 November 1999 the present application for leave to appeal out of time against the Council’s decision was filed.

For reasons which are not entirely clear the application came on for mention and subsequent adjournment before a Judge of this Court on no less than 9 occasions and before the Deputy Registrar on 4 occasions before coming before me for argument on 30 November 2001.

Under Section 28 of the Act a person whose application for registration has been refused has 21 days following the notification of the refusal to appeal against the refusal to the High Court. The question is whether the High Court has power to extend that 21 day period and if so whether it should do so.

Mr. Shankar referred me to Orders 55 and 3 of the High Court Rules 1988. Order 55 rule 4 (2) provides that the originating motion by which an appeal is to be brought from a tribunal to the High Court must be served and entered within 28 days of the decision against which the appeal is brought. Mr. Shankar suggested that this period could be extended by the Court under the powers given by Order 3 rule 4.

In my view there are two difficulties in the way of this submission. The first is that O 55 r 2 (b) provides that the Order shall not apply to:

“any appeal under any enactment for which rules governing appeals have been made thereunder save to the extent that such rules do not provide for any matter dealt with by these rules”.

In the present case, as has been seen, the Act itself specifies that an appeal must be brought within 21 days. In this circumstance it is clear to me that O 55 r 4 (2) has no application to an appeal under the Act and that Order 3 r 4 does not give the Court power to extend the statutory appeal period.

It is worth noting that Section 52 of the Interpretation Act (Cap. 7) provides that:

“where no time is prescribed within which anything shall be done, such thing shall be done without unreasonable delay .....”

while section 53 provides that:

“where in any written law a time is prescribed for doing any act or taking any proceeding and power is given to a court or other authority to extend such time then ..... such power may be exercised by the court or other authority although the application for the same is not made until after the expiration of the time prescribed”.

Neither Section 52 nor Section 53 grants the Court any power to extend time when a time is prescribed by a law but that law gives no power to extend that time. It must be presumed that this omission was intended by the legislature.

The second difficulty facing the plaintiff is that no reasons whatever have been provided to explain why the appeal was not lodged within the 21 days provided by the Act. The affidavit filed by the Plaintiff on 19 October 1999 (which strangely sought leave to appeal, not to the High Court but to the Court of Appeal) does not even mention the fact that the appeal period had by then expired.

As is well known an application for leave to appeal out of time must be made promptly and must be supported by an affidavit explaining the delay (Weldon v. De Bathe (1887) 3 TLR 445). In my view this requirement is particularly acute when, as is here the case, the application is actually being heard about 28 months after the 21 day period expired.

It is notorious that the Plaintiff has been involved in multiple litigation for the last several years. It is possible that the need to comply with the requirements of the Act was simply overlooked. In the absence, however, of any power given to the Court to extend a time limit prescribed by statute I hold that the time limit cannot be extended. Even if the limit could be extended the Plaintiff has provided no grounds for its extension. For these reasons the application must fail and it is dismissed.

M.D. Scott
Judge

7 December 2001