Heffernan v Byrne [2008] FJHC 153; HBM0105.2007 (19 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBM 105 OF 2007

Between:

ANGENETTE MELANIA HEFFERNAN
Applicant

and

1. THE HONOURABLE JOHN EDWARD BYRNE
2. THE HONOURABLE ANTHONY HAROLD CUMBERLAND
THOMAS GATES
3. AIYAZ SAYED-KHAIYUM
Respondents

Mr. D. Naidu for the Applicant Mr. R. Prakash for the 1st Respondent
Mr. C.B. Young for the 2nd Respondent
Mr. A.K. Nayaran with Mr. S. Sharma for the 3rd Respondent

DECISION
(Leave to Appeal)

The nature of application

[1] By motion dated 6 November 2007 Angenette Melania Heffernan (the applicant), pursuant to section 12(2)(e) of the Court of Appeal Act and Court of Appeal Rules Cap.12 and Order 45 Rule 10 of the High Court Rules, applies for orders as follows:-

"1. That Leave be granted to the Applicant to appeal the decision of His Lordship to Fiji Court of Appeal.

2. That the execution of all proceedings pursuant to the judgment of His Lordship Mr. Justice D. Pathik made on the 24th day of October, 2007 in the action herein be stayed until the determination of the Appeal."

[2] The said s12(2)(e) provides:-

s12(2) No appeal shall lie –

(e) without the leave of the Court or judge making the order, for an order of High Court or any judge thereof made with the consent of the parties or as to costs only"

[3] The leave is sought only against the Court’s order for costs herein of 24 October 2007 made against the solicitor on record personally. The Order is as follows:-

"It is ordered that the applicant’s application for recusal of 12th October 2007 be dismissed for want of prosecution. It is further ordered that Dorsami Naidu Esquire, a solicitor for the applicant personally pay costs thrown away which I assess as follows:-

(a) Pay Mr. R. Prakash, solicitor for the 1st Respondent the sum of $2500.00 within 10 days.

(b) Pay Mr. C.B. Young, solicitor for the 2nd Respondent the sum of $3500.00 within 10 days.

(c) Pay Mr. A.K. Narayan, solicitor for the 3rd Respondent the sum of $3500.00 within 10 days.

It is further ordered that the substantive matter of Constitutional Redress be now proceeded with before me."

Brief background facts to the making of the order

[4] The first call of the action was on 5 October 2007 and orders were made for hearing on 24 October. The application was dismissed for want of prosecution with costs against the Solicitor on record personally.

[5] Although leave to Appeal application was filed on 7 November 2007, the Court did not resume till after the Legal Vacation in mid-January 2008, but the hearing date of 22 January 2008 was assigned. It was heard on that day when Mr. Naidu personally appeared and made his submissions.

[6] The application is supported by the affidavit of the applicant. The real applicant is Mr. Naidu and not Ms. Heffernan as the costs order is against the counsel personally. He is the one who is not satisfied with the order.

[7] Be that as it may, Ms. Heffernan’s affidavit in support has no relevance to the present application. However, Mr. Naidu’s written submission under the caption ‘History’ of the proceeding under which the said Order was made did not state the correct account of the proceedings.

[8] Before I proceeded to hear the present application for leave the true facts had to be stated by me. It is possible that as Mr. Naidu had not previously appeared personally at all his understanding of the facts became blurred.

Consideration of the application

[9] I have considered both the oral and written submissions of counsel from both sides.

[10] The matter has to be considered in the light of the corrected facts which very briefly are as follows:

(a) Ratu Joni Madraiwiwi who appeared on instructions was told to make a formal application which he did through Mr. Naidu (the Solicitor on record). The Respondents said they will oppose.

(b) Case was adjourned for hearing when Mr. Naidu was represented by a counsel Mr. Kofe. Two counsel from the West travelled to oppose the application.

(c) Mr. Kofe said he had nothing to put before the Court in support of his application. This was not taken too kindly by opposing Counsel and they applied for costs on an indemnity basis. Mr. Naidu’s counsel (Mr. Kofe) did not, although asked, object to costs.

(d) The Court dismissed the application with costs (vide order supra).

Principles on which leave is normally granted or refused

[11] Since this is an application for leave from an interlocutory order for which leave is necessary, I refer to the principles governing consideration of such an application. At the risk of being lengthy I reproduce the following extracts taken from Applicant Counsel’s submission in the case before Sir Moti Tikaram, the then President of Fiji Court of Appeal and which he thought was pertinent in Kelton Investments Limited and Tappoo Limited v 1. Civil Aviation Authority of Fiji, 2. Motibhai & Company Limited ([1995] FJCA 15, ABU 0034d.95s). ‘.....

1. 5.2 The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible (per Murphy J in Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431 at 441-2). The legislature has evinced a policy against bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave (Décor Corp v. Dart Industries 104 ALR 621 at 623 lines 29-31).
   
2. 5.3 Leave should not be granted as of course without consideration of the nature and circumstances of the particular case (per High Court in Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 224).
   
3. 5.4 There is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. The appellant contends the Order of 10 May 1995 determines substantive rights.
   
4. 5.5 Even "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" (per Murphy J in the Niemann case at page 441). The appellant contends the order of 10 May 1995 determines substantive rights.
   
5. 5.6 In Darrel Lea v. Union Assurance (169) VR 401 at 409 the Full Court of the Supreme Court of Victoria said:
   

"We think it is plain from the terms of the judgment to which we have already referred that the Full Court was stating that error of law in the order does not in itself constitute substantial injustice, but that it is the result flowing from the erroneous order that is the important matter in determining whether substantial injustice will result."’

[12] It is important that when applications are made from interlocutory orders the pronouncements in decided cases are considered. In this regard I further state below what I said sitting as a single Judge of Appeal in Edmund March & Ors. v Puran Sundarjee & Ors. [Civ. App. ABU 0025 of 2000 at p.9):

"As stated by Sir Moti Tikaram, President Fiji Court of Appeal in Totis Incorporated, Spor (Fiji) Limited & Richard Evanson v John Leonard Clark & John Lockwood Sellers (Civ. App. No. 35 of 1996 p.15: ‘it has long been settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal. 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’."

Further in K R Latchan Brothers Limited v Transport Control Board, and Tui Davuilevu Buses Limited – Civil Appeal 12 of 1994 a full Court of Appeal (Tikaram J, Quillam J and Savage J) endorsed the decision of Thompson J, where sitting as a single judge of appeal, Thompson J said:

"In 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 whether discretion was exercised correctly unless it was exercised either for improper motives or as a result of a particular misconception of the law."

Also in Latchan at p5 it is stated in the judgment:

"We do not agree that the intended question of the Court of Appeal involves a point of law of any great significance. The control of proceedings is always a matter for the trial Judge. We adopt what was said by the House of Lords in Ashmore v Corp of Lloyd’s [1992] 2 All ER 486 –

‘Furthermore, the decision or ruling of the trial judge on an interlocutory matter or any other decision made by him in the course of the trial should be upheld by an appellate court unless his decision was plainly wrong since he was in a far better position to determine the most appropriate method of conducting the proceedings’."

[13] This is an unmeritorious application. Mr. Naidu has no chance of succeeding on appeal. This application is nothing short of being frivolous and an abuse of the process of the Court. The Court of Appeal has in the case of The Fiji Public Service Commission v Manunivavalagi Dalituicama Korovulavula (FCA Civil Appeal No. 11 of 1989 at p 5 stated, and it is pertinent to the issue before me, that:

"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 consideration before deciding whether to grant leave or not."

[14] On the first call of the substantive action, the application that was made verbally was contemptuous on the part of counsel who appeared on instructions. Having commenced the action and then failing to pursue it or abandoning it without a word on the day of the hearing, leaves much to be desired. This is not the way a legal practitioner should conduct himself/herself before the Court. I cannot see how counsel on record can escape an award of costs against him in these circumstances. He was well represented by counsel when the order for costs was made. It is pertinent to note Or 62 R 11(5) which fits this case. It provides:

(5) The Court shall not be obliged to give the legal representative a reasonable opportunity to appear and show cause where proceedings fail, cannot conveniently proceed or are adjourned without useful progress being made because the legal representative –

(a)

(b)

(c) otherwise fails to proceed.

[15]

(a) It was Mr. Naidu’s submission that under Order 62 Rule 11(4) of the High Court Rules the legal representatives should be given an opportunity to be heard and to show cause why the order should not be made. The legal representative he sent was present but he remained mute.

(b) I hold that under the said Rules the situation such as here, where the Counsel was represented by another counsel Mr. Kofe, there was no need to adjourn the matter and to call Mr. Naidu from Nadi on another day. If he was at all serious about the matter he should have been present himself and argue the case of recusal and not just send a counsel and instruct him not to say anything if that was his instruction.

(c) His argument under Or 62 r 11(4) is devoid of any merit. It is well within the Court’s power to make costs order either under the said Rules or otherwise.

[16] There are certain principles on which Courts grant leave. It has been held that the Court will only grant leave to appeal interlocutory decisions in the most exceptional circumstances.

I am not satisfied that the circumstances here are such that there has been an incorrect application of the law or where substantial injustice will result from the order.

"The test is not whether the Order is wrong but whether its operation would effect a substantial injustice." (Michael Kelly & Anor. v Michael Harvey, Civil Appeal No. ABU 0044 of 2005 at p.6 – Ward P).

Stay

[17]

(a) The Court normally does not deprive a successful litigant of the fruits of his litigation and locking up funds to which he is entitled pending an appeal.

(b) It is entirely in the discretion of the Court whether to grant a stay or not. In this case there are no special circumstances rendering it inexpedient to enforce the judgment.

(c) The applicant has not shown that serious injury will be suffered if stay is refused. There is no indication that he will be ruined if stay is refused.

(d) At the hearing the Respondents’ Counsel had all agreed not to execute the order until my Decision herein on Leave.

[18] Upon hearing all counsel I hold that the applicant cannot succeed on stay.

Conclusion

[18] In the outcome, for the above reasons, applying the principles applicable in considering an application of this nature, I have to refuse the application for leave to appeal and stay.

Orders

[19] It is ordered as follows:

(a) Leave to Appeal is refused
(b) Stay of the order is refused
(c) Costs is ordered against Mr. Naidu on this application to be paid to the Respondents to be taxed unless agreed.

D. Pathik
Judge

At Suva
19 February 2008

A Rider

As a Rider to this Decision, as the most senior member of the Bar in Fiji and of the Judiciary, I would like to make some observations which I consider it my duty to do so in view of recent actions and happenings which could lead to strained relationship between the Bench and the Bar.

Because legal practitioners are Officers of the Court under section 51 of the Legal Practitioners Act No. 19 of 1997 you have professional duties and responsibilities not only to your client(s) but also to the Court before which you appear as the legal practitioner. These include a duty to co-operate and a duty to maintain and uphold the dignity of the Court. The Courts are presided over by Judges appointed by the President of the Republic of the Fiji Islands. As an advice, please do not do anything which conflicts with your duty to Court.