Narayan v Public Employees Union [2010] FJHC 108; HBC161.2009L (8 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 161 of 2009L

BETWEEN:

ADISH NARAYAN
Plaintiff

AND:

PUBLIC EMPLOYEES UNION
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr C B Young on instructions of A. K. Lawyers for the Plaintiff
Mr H Rabuku for the Defendant

Solicitors: A. K. Lawyers for the Plaintiff
Gledvil Lawfirm for the Defendant

Date of Hearing: 24 March 2010
Date of Judgment: 8 April 2010

INTRODUCTION

[1] This is the Plaintiffs application for leave to appeal the Master’s Judgment delivered on 24 November 2009. That Judgment was for the Plaintiffs application for summary judgment for legal fees totalling $75,136.22 as at 5 September 2009. The Master allowed judgment by consent to be entered for the Plaintiff for $39,000 (the “Consent Order”) and the balance to be determined by trial. His reasons are now published in Narayan v Public Employees Union [2009] FJHC 257; HBC161.2009 (24 November 2009).

[2] Following the publication of the Master’s reasons, the Defendant filed on 25 November 2009 an application for stay of the Consent Order. That was heard by me on 4 February 2010 and I delivered Judgment on the next day. My reasons are now published in Narayan v Public Employees Union [2010] FJHC 29; HBC161.2009L (5 February 2010) in which I said:

[22] I think the current application is misconceived. I think Mr Rabuku has misunderstood the effect of the Master’s Ruling and the entering of the Consent Order. I am of the view that the only issue left open now is the verification by documentation of the balance due, that is to say, the amount claimed in the demand of 9 December 2008 of $68,064.93 less the amount consented to $39,000.

[23] The Union says that it has already paid $32,750. Mr Rabuku argued that that amount could be included in the $68,064.93 that is claimed in this Writ. It is equally possible that none of that money has been paid in satisfaction of any of the current outstanding bills being claimed. That is why I believe the Master made the comments in paragraph 53 of his Ruling.

[24] The Plaintiff is confident that all the bills claimed have not been paid. His affidavits go into sufficient detail for the Union to check and verify against its own records. Instead, the Union now says, essentially, that it needs time to find the documentation to verify all those payments. And that has only come about following the Master’s Ruling in my view.

[25] If the former President did not have the powers as the General Secretary alleges, then that is a matter between the Union and its former President.

[26] Subject to what I say below, the view that I have come to is this: Liability is now admitted and the Union cannot now go back on the amount of $96,607.47 due under the payment arrangement agreed on 15 September 2008, the balance of which is now $68,064.93 which is the principal amount claimed in this action. It cannot re-open a challenge based on whether the work was done or not or whether it is of such a professional standard justifying the fees charged. The only issue now left open is quantum and only in respect of the balance left after deduction of $39,000. That much is clear from the Consent Order. So it is simply a matter of verification by documentation.

[27] Further, even though the Consent Order and the Order following the Master’s Ruling were issued and sealed separately, they should be read as one. It was clearly open to the Master under O 14 r 3(1) to make the Consent Order whilst leaving open the balance. This is another reason why I think the Defendant’s application fails.

[28] The result is that the application for stay of execution of payment of the sum of $39,000 is refused. All other relief sought by the Defendant in its Motion of 25 November 2009 are also refused.

[3] My Judgment has not been appealed or stayed. Only the Master’s Judgment of 24 November 2009 is being appealed.

APPEALS FROM THE MASTER

[4] No appeal shall lie from an interlocutory order or judgment of the Master to single judge of the High Court without leave of a judge which may be granted or refused upon the papers filed: O. 59 r. 8(2) HCR[1]. The application for leave to appeal must be filed within 14 days of the delivery of the order or judgment: O. 59 r. 11 HCR. The time for appealing an interlocutory order or judgment is 7 days from the date of the granting of leave to appeal: O. 59 r. 9(b) HCR. Where the 7 days period has expired, it may be enlarged by an application to a single judge: O. 59 r. 10(1) HCR.

CONSIDERATION OF THE APPLICATION FOR LEAVE TO APPEAL

[5] The Master’s Judgment is an interlocutory judgment. It was delivered on 24 November 2009. The time for filing the application for leave to appeal has expired but no objection was taken by the Defendant. In any event, it is implicit from O. 59 r. 10(1) and O. 3 r. 4(1) that I can enlarge the time if it is just.

[6] Mr Young submitted that I should apply the provisions of O. 58 of the English Rules in deciding leave. He handed up a copy of those rules which had this annotation:

An appeal from the Master ... to the Judge in Chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the Judge treats the matter as though it came before him for the first time, save that the party appealing, even though the original application was not by him but against him, has the right as well as the obligation to open the appeal. The Judge “will of course give the weight it deserves to the previous decision of the Master but he is no way bound by it” (per Lord Atkin in Evans v Bartlam [1937] AC 473, p. 478). The Judge in Chambers is in no way fettered by the previous exercise of the Master’s discretion, and on appeal from the Judge in Chambers, the Court of Appeal will treat the substantial discretion as that of the Judge, and not of the Master (Evans v Bartlam (above); Cooper v Cooper [1936] W.N. 205; and Cremin v Barjack Properties Ltd (1985) 273 Est. Gaz. 299, C.A.)

[7] He submitted that in deciding leave, I should consider the strength of the Defendant’s case by following the English Courts and rehear the application for summary judgment instead of applying the normal rule that the appellant must show special circumstances to obtain leave: Kelton Investments Ltd & Ors v CAAF [1995] FJCA 15; Latchan Brothers Ltd v TCB & Ors [1994] Civil Appeal 12/94; Khan v Native Land Trust Board [2009] FJHC 272; HBC198.2006L (1 December 2009); RC Manubhai & Co Ltd v Herbert Construction Company (Fiji) Ltd [2009] FJHC 271; HBC075.2009L (4 December 2009).

[8] It is useful to reproduce the normal rule as stated by the Court of Appeal[2] in Kelton Investments Ltd & Ors v CAAF (above):

I am mindful that Courts have repeatedly emphasised that appeals against interlocutory orders and decisions will only rarely succeed. As far as the lower courts are concerned granting of leave to appeal against interlocutory orders would be seen to be encouraging appeals (see Hubball v Everitt and Sons (Limited) [1900] UKLawRpKQB 17; [1900] 16 TLR 168).

Even where leave is not required the policy of appellate courts has been to uphold interlocutory decisions and orders of the trial Judge - see for example Ashmore v Corp of Lloyd's [1992] 2 All ER 486 where a Judge's decision to order trial of a preliminary issue was restored by the House of Lords.

The following extracts taken from pages 3 and 4 of the written submissions made by the Applicants' Counsel are also pertinent:

'......

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 (Decor Corp v. Dart Industries 104 ALR 621 at 623 lines 29-31).

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 Exparte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 224).

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.

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.

5.6 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."'

[9] Mr Rabuku on the other hand submitted that because we do not have an equivalent rule to the English Rules, I should apply the normal principles that apply to appeals from a Judge of the High Court to the Court of Appeal.

[10] I am not convinced that I should depart from the normal practice adopted by this Court for appeals from a Judge to the Court of Appeal. Case management for this Court has become critical for the timely and efficient delivery of judgments. Further, this case does not involve matters of complicated law or fact which require re-consideration by a Judge. Even if I am wrong in my interpretation of the Master’s Order, that error can be corrected when the matter is remitted back to him.

[11] In the circumstances therefore I think leave should be refused.

COSTS

[12] The costs of this application will be costs in the cause.

ORDERS

[13] The Orders are therefore as follows:

a. Leave to appeal the Master’s Judgment of 24 November 2009is refused.

b. The matter is remitted back to the Master for mention on a date suitable to him.

c. The Costs of this application will be costs in the cause.

Sosefo Inoke
Judge

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^[1] High Court Rules 1988.
^[2] Sir Moti Tikaram, P.