Pacific Green Industries (Fiji) Ltd v Sun Insurance Company Ltd [2006] FJHC 63; HBC070.2005 (11 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 70 OF 2005

NO. 156 OF 2006

BETWEEN

PACIFIC GREEN INDUSTRIES (FIJI) LIMITED
Plaintiff

AND

SUN INSURANCE COMPANY LIMITED
Defendant

Appearances: Samuel K. Ram for the plaintiff
Mishra Prakash & Associates for the defendant

Hearing: 9 August 2006
Decision: 11 August 2006

JUDGMENT
(Summons for Leave to Appeal)

[1] By summons dated 1 August 2006 the plaintiff seeks leave to appeal to the Fiji Court of Appeal against the interlocutory decision of this court made on 26 June 2006 and sealed on 25 July 2006. The application is made pursuant to section 12 of the Court of Appeal Act (the Act) and Rule (26) (3) of the Court of Appeal Rules. Section 12 (2) (f) of the Act 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.

[2] I am grateful for the comprehensive and helpful submissions filed by both parties.

Preliminary matter

[3] At the hearing of the summons, learned counsel for the plaintiff orally applied to amend the summons. Leave was sought to withdraw prayer 3 of the summons. The defendant does not object. Accordingly I have granted leave for prayer 3 to be withdrawn.

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

[4] In Kelton Investments Limited v Civil Aviation Authority of Fiji [1995] FJCA 15 – 18th July 1995, the then President of the Court of Appeal discussed the applicable principles. His Lordship reiterated the emphasis that leave is to be carefully granted and that appeals against interlocutory orders or decisions only rarely succeed.

[5] That decision was adopted by Justice Connors in John Beater Enterprises Pty Ltd –v- Export Freight Services (Fiji) Ltd Civil Action No. HBC 414 of 2003, and I quote:

"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 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 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."

[6] It is these principles that I apply to the present application. As held in the Kelton case when the final order or judgment is made or given and the applicant is aggrieved it will have the right of appeal in the Court of Appeal against such order or judgment. This includes my order on costs. Therefore in my opinion no injustice can result in refusing leave to appeal. I have also upheld the submission of Mr. Mishra that the intended appeal does not raise any point of law of any general importance, at least none which should be decided at this stage by the Court of Appeal.

Conclusion

[7] I am not satisfied that the plaintiff will suffer irreparable harm should leave not be granted. The application is refused. I therefore make the following orders:

1. Application for leave refused.

2. The plaintiff is to pay the defendants costs assessed in the sum of $500.00.

Gwen Phillips
JUDGE

At Lautoka
11 August 2006