Lautoka General Transport Company Ltd v Westbus (Fiji) Ltd [2002] FJHC 206; HBA0002r.2002s (8 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBA0002 OF 2002

IN THE MATTER of the Land Transport Act

AND IN THE MATTER of an appeal under Section 48 of the Land Transport Act from the decision of the LAND TRANSPORT APPEAL TRIBUNAL made on the 19th day of December 2001

Between:

LAUTOKA GENERAL TRANSPORT COMPANY LTD
Appellant

and

1. WESTBUS (FIJI) LIMITED
2. LAND TRANSPORT APPEALS TRIBUNAL
Respondents

Mr. R. Prakash for Appellant
Mr. J. Apted for 1st Respondent
Mr. M. Raza for 2nd Respondent

RULING

This is the appellant=s motion for the following Orders:

(a) That the decision of the Land Transport Appeals Tribunal in Appeal No. 8 of 2001 and dated the 19th day of December 2001 AND all further proceedings for the hearing of the said appeal by WESTBUS (FIJI) LIMITED before the Land Transport Appeals Tribunal BE STAYED until the determination of this appeal.

The appeal is set down for hearing on Monday 11 February 2002.

Notice of Appeal and Grounds of Appeal against the decision of the Tribunal made on 19 December 2001 whereby the Tribunal refused to dismiss an appeal under the Land Transport Act by Westbus (Fiji) Limited for want of jurisdiction and proceeded to set a date for the hearing of the substantive appeal.

At the hearing of the motion Mr. Apted raised two issues. One was that the Tribunal should not be joined as a party as Respondent and secondly, the appeal is out of time.

It was conceded by Mr. Prakash that Mr. Apted was right on the first point and Discontinuance will be filed. However, on the second point Mr. Raza argued the said point as Mr. Apted had no further interest in the matter.

Mr. Raza submitted that the motion should be dismissed as the appeal is out of time by 11 days. He also said that the Appellant=s >route= is different from the 1st Respondent Westbus (Fiji) Limited so the Appellant should not be affected by the decision.

Mr. Prakash says that he agrees that he is out of time by 11 days, and although the decision was faxed on 20 December 2001 to his office and the legal vacation finished on 14 January 2002 and the last day for filing Notice of Appeal was 17th January, his clients did not instruct him in time to enable the document to be filed before 1 February 2002. He says that Legal Vacation did affect the filing of documents in time although the decision here was given on 19 December 2001.

He further argued that although there is no time limit in the new Transport Act as to time within which appeals should be filed, and although the Tribunal said it should be filed by 22nd January 2001, a verbal Notice of Appeal was given on 23rd although still a day out of time. Mr. Prakash submits that Court exercise its discretion under order 2 of the High Court Rules which deals with the effect of non-compliance with the Rules and to treat the failure as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order.

I have given very careful consideration to the submissions made by counsel. No doubt the appellant is out of time by 11 days. However Or. 2 does give the Court a very wide discretion, inter alia, extend time. Therefore, looking at the whole of the circumstances of this case particularly: the Land Transport Act being a new >Act= with certain omissions, this appeal is second of its kind; a point of law of jurisdiction of Tribunal having been raised; other appeals pending before the new Act comes into operation and some interruptions during the legal vacation as to taking of instructions and filing of documents, in the interest of justice in the exercise of my judicial discretion I ought to accept the Notice of Appeal as filed.

In the short time at my disposal having to deliver a Ruling shortly today being Friday and hearing of appeal by Tribunal on Monday, it was not possible to refer to decided cases, but in my experience there are cases for and against allowing extension of time. However, in the exercise of my discretion in the light of the principles involved and looking at the facts of this case I will extend time.

Therefore I grant the Order for Stay as sought in (a) of the Motion with costs in the cause.

D. Pathik
Judge

At Suva
8 February 2002