Satendra Prasad Construction Ltd v Metromix Concrete Company Ltd [2005] FJHC 524; HBF0018.2004L (9 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBF0018 OF 2004L

BETWEEN:

SATENDRA PRASAD CONSTRUCTION LIMITED
Applicant (Respondent)

AND:

METROMIX CONCRETE COMPANY LIMITED
Respondent (Petitioner)

Mr. C.B. Young with Mr. K. Kumar for the Applicant/Respondent
Mr. S. Maharaj for the Respondent/Petitioner

Date of Hearing: 9 September 2005
Date of Ruling: 9 September 2005

EX TEMPORE RULING

This matter comes before the court by way of Notice of Motion filed on behalf of Satendra Prasad and Sakuntla Prasad seeking leave to appeal the ruling of this court delivered on the 2^nd September 2005.

That ruling dealt with and dismissed an application made by the same parties to strike out a summons filed on behalf of Metromix Concrete Company Limited, seeking leave to serve interrogatories on Satendra Prasad and Sakuntla Prasad. At an earlier point in time, Matter No. HBF0018 of 2004L was commenced by the filing of a petition to wind up Satendra Prasad Construction Limited a limited liability company of which Satendra Prasad has sworn that he is managing director.

The applicants now seek leave pursuant to section 12 (2) (f) of the Court of Appeal Act, on the basis that leave was required as the application to strike out pursuant to Order 18 Rule 18 was an interlocutory application. There is no dispute with respect to this issue.

The principles applicable to the granting of leave with respect to interlocutory determinations has been considered on numerous occasions in the past by this Court and by the Fiji Court of Appeal. The then President of the Fiji Court of Appeal in Kelton Investments Limited v Civil Aviation Authority of Fiji [1995] FCA 15 - 18 July 1995, recited the .law on the granting of leave and reiterated the emphasis that leave is to be carefully granted and that appeals against interlocutory orders or decisions only rarely succeed.

The President in expressing his views relied upon the decision of the Supreme Court of Victoria, Australia (full court) in Niemann v Electronic Industries Ltd [1978] V.R. 81. The judgment of Murphy J. at page 441 was referred to by the President. At about point 10 on page 441 His Honour said:

“Likewise in Perry v Smith [1901] ArgusLawRp 51; [1901], 27 V.L.R. 66 and the Daryl 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:

“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 a very good reasons and hence leave to appeal is 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 & Others – Civil Appeal No. ABU0035 of 1996, in that decision the President said at page 15:

“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:

“Courts have repeatedly emphasized 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 that the Fiji Court of Appeal has made very clear the principles to apply when this court is considering an application for leave to appeal.

It is difficult to conceive that serious injustice can flow on the refusal of this court to grant an application to strike out a Summons, particularly, when that Summons only seeks leave to render interrogatories.

Taking account of the principles firmly expressed by the then President of the Court of Appeal and reiterated by other members of the Court of Appeal from time to time, I am not satisfied that the application in this instance, is such, as to make it amenable to appeal. I am not satisfied that this is a most exceptional circumstance. I find it difficult to conceive a situation where refusal to strike out a Summons of this type would justify the granting of leave to appeal and accordingly, the application is refused.

Applicants to pay Respondent’s costs assessed in the sum of Five Hundred Dollars ($500.00).

JOHN CONNORS
JUDGE

At Lautoka
9 September 2005