John Beater Enterprises Pty Ltd v Export Freight Services (Fiji) Ltd [2004] FJHC 312; HBC0414.2003S (14 January 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0414 OF 2003

BETWEEN:

JOHN BEATER ENTERPRISES PTY LIMITED
PLAINTIFF

AND:

EXPORT FREIGHT SERVICES (FIJI) LIMITED
DEFENDANT

Counsel for Plaintiff: Mr. A. Seru
Counsel for Defendant: Mr. J. Savou

EX TEMPORE JUDGMENT

Notice of Motion dated the 2nd of December 2003 the defendant seeks leave to appeal to the Fiji Court of Appeal against the Interlocutory Ruling this Court made on the 14th of November 2003 and sealed on the 27th of November 2003. The application is made pursuant to section 12(2)(f) of the Court of Appeal Act. That section provides that no appeal shall lie without the 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. There is no dispute that leave is in fact necessary in this matter. Parties have each furnished written submissions and Rony Chan on behalf of the defendant has filed an affidavit sworn 26th November 2003 in support of notice of motion.

What are the principles applicable in the granting of leave in circumstances such as this?

Both parties have referred the court to the decision of the then President of the Fiji Court of Appeal in Kelton Investments Limited v Civil Aviation Authority of Fiji [1995] FJCA 15 – 18th July 1995. In that decision his Lordship recites the law on the granting of leave and reiterates the emphasis that leave is to be carefully granted and that appeals against interlocutory orders or decisions only rarely succeed.

The President relied upon a decision of the Supreme Court of Victoria, Australia (full court) of Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 Judgment of Murphy J page 441 was referred to by the President and is relevant to the present application. At about point 10 on page 441 his honour said and I quote:

“Likewise in Perry v Smith [1901] ArgusLawRp 51; (1901), 27 V.L.R. 66 and the Darrel Lea Case[1969] VicRp 50; , [1969] V.R. 401, the Full Court held that 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. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.

It appears to me that greater emphasis therefore must lie on the issue of substantial injustice directly consequent on the order. Accordingly, if the effect of the order is to change substantive rights, or finally to put an end to the action, so as to effect a substantial injustice if the order was wrong, it may more easily be seen that leave to appeal should be given.”

The President in Kelton Investments said at page 7 of that judgment and I quote:

“If a final order or judgment is made or given and the Applicants are aggrieved they would have a right of appeal to the Court of Appeal against such order or judgment. Therefore, no injustice can result from refusing leave to appeal.

The Courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal are not readily given.”

The President of the Fiji Court of Appeal again considered the issue in 1996 in Totis Incorporated, Spor (Fiji) Limited, Richard Evanson v John Leonard Clark, John Lockwood Sellers as executors and trustees of the Estate of Michael Philip Crew [Civil Appeal ABU0035 of 1996]. In that decision the President said at page 15 of the judgment:

“It has long been settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal.”

And at page 16 he said and I quote:

“Courts have repeatedly emphasised that appeals against interlocutory orders and decisions will only rarely succeed.

The Fiji Court of Appeal has consistently observed the above principle by granting leave only in the most exceptional circumstances.”

It seems to me the Fiji Court of Appeal has made patently clear the principles to apply when this court is considering an application for leave to appeal. Counsel for the applicant on the motion tells the Court that the substantial injustice that will be suffered by the defendant should leave not be granted is the delay in payment of the monies allegedly owing by the plaintiff. This being merely a delay is not, in my opinion, sufficient to satisfy the test that I am obliged to apply. As the President said in Kelton when the final order or judgment is made or given and the applicants are aggrieved they will have a right of appeal in the Court of Appeal against such order or judgment. Therefore in my opinion no injustice can result in refusing leave to appeal.

Relying on the affidavit of Mr. Chan, the written submissions of the parties and the oral submission given to me today I cannot be satisfied that the applicants suffer irreparable harm should leave not be granted and accordingly I propose to refuse the application. I therefore make the following orders:

1. Application for leave be refused.
   
2. The applicant to pay the respondent costs in the sum of $250.00.
   

[ John Connors ]
JUDGE

At Suva
14th January, 2004