Rosedale Ltd v Kelly [2005] FJHC 659; HBC0323.1997L (13 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0323 OF 1997L

BETWEEN:

ROSEDALE LIMITED
1st Plaintiff

AND:

MICHAEL HARVEY
2nd Plaintiff

AND:

MICHAEL KELLY and RAE MCGILL
Defendants

No Appearance for the 1st Plaintiff
Counsel for the 2nd Plaintiff/Respondent: Mr. P.D. Tucker with Mr. R. Gordon
Counsel for the Defendants/Applicants: Mr. V. Mishra

Date of Hearing: 27 April 2005
Date of Judgment: 13 May 2005

JUDGMENT

The defendants applied by Summons filed on the 5^th July 2004 for Leave to Appeal the Decision of this Court delivered on the 11^th June 2004 and also for an order extending the time for filing such appeal.

In the course of the hearing of the Summons, Counsel for the Defendants withdrew the application for an order seeking an extension of time to the filing of the appeal.

The Summons is supported by an affidavit of Michael Kelly sworn on the 2^nd July 2004. The Summons is opposed and the 2^nd plaintiff relies upon an affidavit of Michael James Harvey sworn on the 5^th October 2004.

Background

The 2^nd plaintiff/respondent was the managing director of Rosedale Limited which company operated a resort known as, Mokusigas, until it was placed into receivership in 2001. The applicant/defendants acted as managers of the resort in 1997. In 1997, the respondent and the 1^st plaintiff commenced proceedings against the applicants in respect of matters arising from their period as managers of the resort. The applicants counterclaim against the respondent and 1^st plaintiff.

The matter came on for hearing in 1999 before Lyons J. who in the course of the trial disqualified himself as a result of a conflict which arose between His Lordship and Counsel for the Respondent.

The matter was again set down for trial by Byrne J. and proceeded to trial in the absence of the respondent on the 29^th October 2002. The matter was set for hearing when it came before Byrne J. on the 17^th October 2002, on which date, Counsel for the Respondent sought leave to withdraw and such leave was granted. The respondent contends that he received no notice of the hearing and first became aware of a judgment having been obtained against him when he was contacted by journalists in Brisbane, Queensland, Australia on or about the 25^th July 2003. The respondent subsequently filed an application under Order 35 Rule 2 of the High Court Rules and sought leave under the inherent jurisdiction of the court to have the judgment set aside.

This application was dealt with by this court on the 24^th May 2004 and judgment delivered on the 11^th June 2004 when orders were made setting aside the judgment of Byrne J. It is from this judgment that the applicants seek leave to appeal.

The Statutory Provisions

Section 12 (2) (f) of the Court of Appeal Act provides:

“(2) No appeal shall lie –

...............

(f) Without the leave of the judge or of the Court of Appeal from an interlocutory order or interlocutory judgment made or given by a judge of the Supreme Court except in the following cases.”

Rule 16 of the Court of Appeal Rules prescribes the time limits for bringing an appeal:

“(16) Subject to the provisions of this rule, every notice of appeal shall be filed and served under paragraph (4) of rule 15 within the following period (calculated from the date on which the judgment or order of the Court below was signed, entered or otherwise perfected), that is to say –

(a) in the case of an appeal from an interlocutory order, 21 days;
(b) in any other case, 6 weeks.”

Rule 27 of the Court of Appeal Rules relates to the extension of time in which to appeal and is as follows:

“27 – Without prejudice to the power of the Court of Appeal, under the Supreme Court Rules as applied to the Court of Appeal, to enlarge the time prescribed by any provision of these Rules, the period for filing and serving notice of appeal under rule 16 may be extended by the Court below upon application made before the expiration of that period.”

Another relevant provision would appear to be Order 42 Rule 4 of the High Court Rules. This rule provides:

“4 (1) – A judgment or a order of the Court takes effect from the date of its date.

(2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other days.”

Is the Judgment Interlocutory?

Counsel for the Applicants submits that the judgment sought to be appealed against is not interlocutory and that leave therefore is not required. In support of this submission, the Court was referred to Haron bin Mohd Zaid v Central Securities (Holdings) Bhd [1982] 2 All E.R. 481. Counsel referred the court to the head note which sets forth the appropriate test for determining whether an order is final or interlocutory as being whether the judgment or order finally disposed of the rights of the parties. If it does, it is a final order and if it does not, it is an interlocutory order.

The order made consequent upon the judgment of the 11^th June 2004 and sought to be appealed against was an order setting aside an earlier judgment, the result of which is that the proceedings between the parties far from being at an end or being finally disposed of are to be retried. It is difficult to perceive of a situation that has less likelihood of satisfying the test then where a judgment is set aside. Clearly, the rights of the parties have not been finally disposed of. This submission is rejected.

Time Limit for Filing Appeal

As is detailed above, Rule 16 of the Court of Appeal Rules limits the time for filing an appeal from an interlocutory order to 21 days from the date on which the judgment or order of the court was signed, entered or otherwise perfected.

The judgment of this court was delivered on the 11^th June 2004 and was signed and sealed on that day. A copy of the signed and sealed judgment containing the orders of the court was handed to Counsel for the applicant and respondent on that day.

Order 42 Rule 4 of the High Court Rules, which is set out above, provides that the judgment or order of the court takes effect from the day of its date.

The English provisions appear to be in terms similar to Rule 16 of the Court of Appeal Rules and accordingly some assistance can be gained from the Supreme Court Practice. It is clear from the notes to Order 59 Rule 4 of the English Supreme Court Rules that time runs from the date upon which the order is sealed and not the date of delivery by the court of the judgment.

Counsel for the Respondent, in fairness to the applicant, referred the court to a decision of the Fiji Court of Appeal (Sheppard JA) in Deoji & Sons Ltd v Singh [2003] FJCA 37 where at page 3, His Lordship adopted the date the order was entered “as being the point in time from which time was to run”. The order was sealed on the 22^nd June and the notice of appeal filed on the 5^th July in compliance with the provisions of Rule 16 of the Court of Appeal Rules.

Leave to Appeal – The Law

“I am dealing with an application for leave to appeal and not with the merits of an appeal. It would therefore, not be appropriate for me to delve into the merits of the case by looking into the correctness or otherwise of the order intended to be appealed against. However, if prima facie, the intended appeal is patently unmeritorious or there are clearly no arguable points requiring decision then it would be proper for me to take these matters into inconsideration before deciding whether to grant leave or not” – The Fiji Public Service Commission v Manuvavalagi Dalituicama Korovulavula – FCA Civil Appeal No. 117 of 1989 at p.5.

It is on this basis that the consideration the application must proceed.

The then President of the Fiji Court of Appeal, Sir Moti Tikaram, in Totis Incorporated spor (Fiji) Limited, Richard Evanson v John Leonard Clark and John Lockwood Sellers – Civil Appeal No. 35 of 1996 at page 15 said:

“It has long been settled law and practice that interlocutory orders and decisions will sell them be amenable to appeal. Courts have repeatedly emphasized that appeal 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.”

Thompson J.A. sitting as a single judge of appeal in K.R. Latchan Brothers Limited v Transport Control Board and Tui Davuilevu Buses Limited – Civil Appeal No. ABU0012 of 1994 said:

“The granting of leave to appeal against interlocutory orders is not appropriate except in very clear cases of incorrect application of the law. It is certainly not appropriate when the issue is where the discretion was exercised correctly unless it was exercised either for improper motives or as result of a particular misconception of the law. The learned judge has given full reasons for the order he has made. There is no suggestion of impropriety in the appellant’s affidavit. There is an allegation of misconception of the law, but if there was a misconception of the law, it is not a clear case of that. That matter can be made a ground of appeal of any appeal against the final judgment of the High Court, if the appellant is unsuccessful in the proceedings there.”

The Fiji Court of Appeal in Kelton Investments Limited v Civil Aviation Authority of Fiji (1995) FJCA 15 – 18 July 1995 relied upon a decision of the Supreme Court of Victoria, Australia (Full Court) in Niemann v Electronic Industries Ltd [1978] VicRp 44; (1978) V.R. 431 where Murphy J. said at page 441:

“Likewise in Perry v Smith [1901] ArgusLawRp 51; (1901), 27 VLR 66 & 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 and justice is done by the judgment or order itself. If the order was correct, then it follows that substantial and justice could not follow. If the order is seemed 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 that directly consequent on the order. Accordingly, if the effective of the order is to change substantive rights, or finally to put an end to the action, so as to effect those substantial injustice if the order was wrong, it may more easily be seen that leave to appeal should be given.”

The President of the Court of Appeal then went on in Kelton to say:

“If a final order or judgment is made or given and the applicants are agree 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 is not readily given.”

In Housing Authority v Bulu [2001] FJCA 3, Madame Justice Shameem when considering an application for leave to appeal said that the discretion to grant leave must be exercised sparingly and only after considering the potential prejudice to both parties.

Her Ladyship made this comment after referring to The National Insurance Company Ltd v Premier Apparels – Civil Appeal No. 14 of 1998 where Tikaram P. said at page 3:

“The need for leave to appeal arises because the order or decision which is sought to be appealed is an interlocutory one. It is now well established that it is only in exceptional circumstances or where a serious question needs to be determined by an Appellate Court, that leave is normally granted. Appellate Courts do not normally interfere with the lower court’s exercise of discretion especially with matters of practice and procedure.”

Her Ladyship also referred to what Thompson JA said in Minister for Information v Fiji Television Limited – Civil Appeal No. 24 of 1998:

“It is in the public interest that proceedings in the High Court should not be delayed by the granting of leave to appeal where, even though the appeal may possibly succeed. The proper interests of the would be appellant are unlikely to be seriously affected by the refusal of such leave.”

The Issues

Counsel for the Appellants submits that the reliance in the judgment of the 11^th June 2004 upon the failure to comply with the provisions of Order 67 of the High Court Rules, which resulted in the matter being set down for hearing without the respondent being aware, is a matter of significant legal importance requiring the consideration of the Court of Appeal. I reject this submission.

There has been nothing placed before the court to show that a substantial injustice will flow to the appellants if leave is not granted and the decision of this court stands.

Conclusion

In applying the authorities referred to above and not delving into the merits of the case by looking into the correctness or otherwise of every aspects of the order intended to be appealed against. I am of the opinion that it would be inconsistent with the authorities and in particular, it would be inconsistent with the expressed attitudes of the Fiji Court of Appeal for leave to be granted in the circumstances of this matter.

The applicants have the opportunity once a final order or judgment is made or given, if they then are aggrieved, to appeal to the Court of Appeal against such order or judgment. It must therefore followed that there can be no injustice from refusing leave to appeal at this time.

Orders of the Court

1. Summons filed on the 5^th July 2004 is dismissed.

2. The applicant/defendants are to pay the 2^nd plaintiff’s costs of the Summons assessed in the sum of Two Thousand Dollars ($2,000.00).
   

JOHN CONNORS

JUDGE

At Lautoka

13 May 2005