Baleinagusui v Western Wreckers Ltd [2010] FJHC 430; HBC401.2005 (17 September 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 401 of 2005

BETWEEN:

PENI TOA BALEINAGUSUI
Plaintiff

AND:

WESTERN WRECKERS LTD
Defendant

Counsel: Plaintiff in person
Samad Law for the defendant

Date of Ruling: 17th September, 2010

RULING

[1] This is an application made by the defendant appellant seeking following orders:

1. That the judgment granted on the 19.09.2008 by Justice Jiten Singh be stayed;
   
2. That the defendant be granted leave to appeal the judgment and the order granted on the 18.09 2008 against the defendant out of time;
   
3. That the judgment and order granted on the 18.09.2008 be set aside;
   
4. That the cost of this application be in the cause.
   

[2] The defendant is a limited liability company. The plaintiff commenced proceedings against the defendant in High Court by Writ of Summons. The defendant filed their statement of defence on 02.09.2005.

[3] However, on the trial date, the defendant terminated instructions of his counsel, and the action proceeded by way of formal proof.

[4] The judgment against the defendant was delivered on 19.09.2008.

[5] On 08.05.2010, the defendant filed the motion for leave to appeal out of time and sought the relief abovementioned. In support of the defendant's application, an affidavit was filed by one Satendra Chand, an employee of the defendant-company.

[6] In that affidavit, the deponent claimed that the defendant has a valid, subsisting and arguable defence to the plaintiff's claim and the defendant would be prejudiced, if leave is not granted to the defendant to file grounds of appeal out of time.

[7] Opposing the defendant's application, the plaintiff filed an affidavit. The plaintiff stated that since the judgment was delivered on 19.09.08, the defendant-company had the knowledge of the judgment and therefore the defendant's application should be dismissed.

Relevant Legal Principles

[8] In an application of this nature, the onus of satisfying the court of the need for enlargement of time is on the applicant.

[9] In A.G & Another v. Paul Praveen Sharma, Fiji Court of Appeal, Civil App: No. ABU00041/93S 17 May 1995 five factors were identified for consideration in applications of this nature. These factors were reiterated by justice Gates (as he then was) in Loks Crain and Constructors Ltd V. Clutch Systems (Fiji) Ltd [2002]FJHC 306

[10] They were:

1. The reason for the failure to comply.
   
2. The length of delay.
   
3. Is there a question which justifies serious consideration?
   
4. If there has been substantial delay, have any of the grounds such merit that they will probably succeed?
   
5. The degree of prejudice to the respondent in enlarging time.
   

[11] It could be noted that the affidavit filed in support of the defendant's application does not disclose any valid reason for the failure to comply with the time limit within which the appeal shall be made. The withdrawal of the defendant's solicitor at the last moment would have prevented the defendant from contesting the plaintiff's action, but it would not have certainly prevented the defendant from filing the grounds of appeal in time, since the defendant had ample time to obtain the service of another solicitor.

[12] In this case, the judgment of the High Court was delivered on 19.09.2008. The defendant filed application for enlargement of time on 08.05.2010 nearly one year and eight months after the judgment of the High Court.

[13] Therefore the reasons advanced by the defendant to explain the delay in filing the appeal is far from being satisfactory and hence, cannot be accepted.

[14] Following authorities would throw light as to how the court should approach in deciding the issue of delay.

[15] In C M Stillevoldt B V v. E L Carrieres(1983) 1 WLR 207, the court allowed an extension where the applicant's solicitors were 2 weeks late in setting down the appeal whereas in R v. Rhodes (1910) 5 Cr App 35 a month was considered a substantial interval of time. In R.V.Marsh (1935) 25 Cr. App.R 49, two months were referred to as a considerable delay. In both cases the applications were refused.

[16] In Rawashdeh v. Lane (1988) EG 109 six weeks delay was referred to as lengthy.

[17] It is accepted now that where the delay is slight, it is generally unnecessary to go into merits, but when the delay is very much longer much more merit was required to overcome it. This principle is enunciated by Lord Donaldson MR in Norwich and Peterborough BS v Steed [1991] 2 All ER 880 at p 886 when he commented on the issue of delay by comparing Palata Investments vs Burt and Sinfield [1985] 2 All E.R 517 (when the delay was 3days) with Rawashdeh v. Lane [1988] EG 109 (where the delay was 6 weeks) as follows:

"In Palata's case the delay was as short as could be and was wholly excusable. The merits therefore played little part. In Rawashdeh's case the delay was very much longer-it was six weeks in fact- and was not wholly excusable. Much more merit was required to overcome it."

[18] In Revici v Prentice Hall Incorporated and Others (1969) 1 All E.R. 772 it was held that:

(i) the rules of the court must be observed and it mattered not that the plaintiff had offered to pay the costs and that no injustice would be done to the other side.

(ii) if there was non- compliance of the rules it must be explained; and prima facie if no excuse was offered no indulgence should be granted.

[19] In that case Lord Denning M.R dealt with the issue of delay and non-compliance with Rules as follows:

"Nowadays we regard time very differently from what they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the Rules as to time. So here, although the time is not so very long, it is quite long enough. There was ample time for considering whether there should be an appeal or not. (I should imagine it was considered.) Moreover (and this is important), not a single ground or excuse is put forward to explain the delay and why he did not appeal. The plaintiff had three and half month in which to lodge his notice of appeal to the judge and he did not do so. I am quite content with the way in which the judge has exercised his discretion. I would dismiss the appeal and refuse to extend the time anymore.

[20] In the instant case, the delay was 26 months, which is not excusable in the absence of any reasonable explanation by the defendant. Further, it appears that the withdrawal of the defendant's solicitor has been stressed as the sole excuse by the defendant to overcome the inordinate delay.

[21] The various complaints and excuses given by the defendant do not explain this unacceptable delay. Having regard to the above I hold that the defendant has not shown sufficient cause or merit to justify his application for leave to appeal out of time.

[22] Therefore, I decline to accept the reasons advanced by the defendant to justify the length of delay in filing the grounds of appeal.

[23] Therefore, I dismiss the defendant's application. Costs is summarily assessed in the sum of $1000.00.

Pradeep Hettiarachchi
JUDGE

At Suva
17th September, 2010