Giesbrecht v Cross [2011] FJHC 443; HBC540.2007 (15 August 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 540 of 2007

BETWEEN:

DIANA GIESBRECHT
PLAINTIFF

AND:

ROWENA GRACE CROSS AND DOUGLAS BAMLETT
DEFENDANTS

Appearances: Mr. A. Rayawa for the plaintiff.
Mr. S. Fa for the defendants.
Date/Place of Judgment: Monday, 15th August, 2011.
Judgment of: The Hon. Madam Justice Anjala Wati.

JUDGMENT (No. 2)

LEAVE TO APPEAL and STAY – application by defendants for leave to appeal an interlocutory decision and stay of proceedings until determination of the appeal – no exceptional circumstances shown to justify granting of leave to appeal – application dismissed with orders for costs.

Legislations
The Court of Appeal Act, Cap. 12.
The High Court Rules, 1988.

Case Authorities
Darrel Leal v. Union Assurance (169) VR 401.
The Fiji Public Service Commission v. Manuvavalagi Dalituicama Korovulavula [unreported] FCA Civil Appeal No. 117 of 1989.

The Application

1. This is the defendants' application for leave to appeal against my interlocutory decision delivered on the 6th day of June, 2011 and for stay of all proceedings until the hearing and determination of the substantive appeal which the defendants propose to file upon grant of leave.
   
2. The application is opposed by the plaintiff.
   

High Court Ruling

3. I will set out the relevant excerpts of my ruling dated the 6th day of June, 2011 which succinctly explains the nature of the application made in the High Court and the Orders thereon:-
   

"1. On the 18th day of January, 2010, the plaintiff filed an application for an order to amend the statement of claim.

2. The defendants counsel did not object to an amendment but wanted the plaintiff to pay the costs of $5,700 which was ordered by Justice Hickie on 17th day of March, 2009. On the day his Lordship had also ordered that "in the absence of a formal application filed with the Court and a subsequent hearing, the Court declines making an Order that the plaintiff not be allowed to proceed with her claim until the costs of the Summons are paid".
   
3. The plaintiff wants it amendment to be granted and that the issue of payment of costs be deferred until the case is finalized. The plaintiff also submitted that the defendants are being investigated for criminal charges of various offences committed against the plaintiff. The plaintiff's counsel further submitted that the principal claim is about the defendants having taken the money from the plaintiff for investment by fraud and therefore payment of the cost at this stage is unjustified as the defendants have committed a wrong against the plaintiff and if the plaintiff succeeds in its claim, the defendants can hardly be considered as falling in the category of people who would honour the judgment by payment..
   
4. The defendants counsel indicated that the court cannot deal with the issue of deferment of costs as the issue is res judicata and the court is now functus on the matter. The counsel insists that costs be paid in full otherwise the claim be struck out and the plaintiff not be allowed to proceed with its claim.
   
5. I need to determine the matter at hand.
   
6. The defendants counsel was ordered by Hickie, J to make a formal application for the issue to be tired and the issue was whether or not the plaintiff be allowed to proceed with the claim until the costs of the summons are paid. The defendant has failed to comply with that order and is raising that issue now when the application for amendment is made. This is improper as the initial orders of the courts stands. I can thus refuse the defendants application to allow an amendment only upon payment of the costs previously ordered.
   
7. Further, the issue of deferring the payment of costs is neither res nor is the court functus as the presiding judge had left it open for the issue to be tried but only upon filing of the formal application.
   
8. The plaintiff's application for an amendment is not objected and in any event the amendment seeks to particularize the initial allegations and does not prejudice the defendants in any way. It in fact only tidies up the pleadings which is necessary for a swift trial.
   
9. I also take notice that the plaintiff's complaint is that the defendants have defrauded her of money. In the circumstances, I am of the judgment that the nature of claim demands that the payment of costs be left until the matter is determined because if the plaintiff succeeds in its claim than the defendants will not have to be paid the costs and if the defendants succeed then the issue of costs can be enforced against the plaintiff.
   
10. Further, there is evidence that the defendants are being investigated for criminal proceedings on the same transaction forming the subject of the civil claim. It would therefore greatly disadvantage the plaintiff if the cost is ordered to paid now as recovery may become an issue if the defendants are being prosecuted. Recovery may also become an issue because the defendants are alleged to have left the country and not available in Fiji.
    
11. The defendants have sat on the order for payment of costs for so long without enforcing the debt. They are raising the issue of payment when the plaintiff is trying to expedite its claim by processing the preliminaries to go to trial. It is highly improper that due process of the matter be hindered when the defendants have slept on the order for so long. If the defendants were interested and keen on recovering the costs, an enforcement proceeding would or should have followed up till now. "
    

The Grounds/Submissions in Support

4. The defendants counsel has raised the following grounds and submissions in support of the application:
   
   • (a) The order to defer payment of costs on the 6th day of June, 2011 is contrary to the order made by the Honourable Justice Hickie on the 17th day of March 2009.
     
   • (b) This court had exceeded its jurisdiction in making an order for deferring payment of costs as the issue was res judicata.
     
   • (c) The High Court had wrongly construed or interpreted Justice Hickie's decision by stating that Justice Hickie had not ordered that the plaintiff should not be allowed to proceed with the claim until the costs of the summons are paid.
     
   • (d) The High Court had basically re-written Justice Hickie's decision. The wordings of Justice Hickie's decision were:-
     

"That in the absence of a formal application filed with the Court and a subsequent hearing, the court declines making an order that the plaintiff not be allowed to proceed with her claim until the costs of the summons are paid."

Justice Hickie's order illustrated a use of double negative of "declines "and" not".

The effect of the double negative makes it a reading that the plaintiff was not permitted to proceed with her claim until the costs of the summons of $5,700 was paid.

By holding otherwise there is a clear error and injustice caused to the defendants in their ability to collect the costs of $5,700 that had been ordered.

(e) The exceptional circumstances justify a grant of stay as there is a miscarriage of justice pursuant to a wrong interpretation made by the High Court.

Grounds/Submissions in Opposition

5. The plaintiffs counsel stated that the effect of the Order of 6th June, 2011 is that the Court had not ordered that costs be deferred. The Court had only ordered an amendment and left the issue of payment of costs to be dealt with only upon the filing of a formal application.
   
6. It was further argued that the deferment of the payment of cost is in operation because of the defendant's failure to file a formal application as ordered.
   
7. No prejudice would be caused to the defendants because justice is done by the order appealed against. The order is not changing substantive rights or finally putting an end to the action. No injustice can result from refusing leave to appeal.
   

The Law
(On Leave)

8. S. 12(2)(f) of the Court of Appeal Act, Cap. 12 requires that leave be obtained from a judge of the High Court or of the Court of Appeal if an appeal is filed against any interlocutory order or judgment of the High Court except in certain circumstances. This case does not fall under the exception, so the defendants have rightfully applied for leave of the High Court first.
   
9. It is settled law and practice that interlocutory orders and decisions are seldom amenable to appeal. Appeals against interlocutory orders and decisions will only rarely succeed. Leave is granted only in the most exceptional circumstances. It will not be granted if the court forms a clear opinion adverse to the success of the proposed appeal.
   
10. It is impossible or unwise to draw an exhaustive list of circumstances where leave to appeal should be granted. Leave, like I said, is granted in exceptional circumstances, for example, if a potent mistake by the judge is pointed out and where it is made clear that there is some substantial injustice which will flow as a result of the wrong order: Darrel Leal v. Union Assurance (169) VR 401 at 409. Leave may also be granted if the effect of the wrong order is to change substantive rights or finally puts an end to the action.
    
11. It is proper to take into consideration that prima facie the intended appeal is patently unmeritorious or clearly there are no arguable points requiring decision: The Fiji Public Service Commission v. Manuvavalagi Dalituicama Korovulavula [unreported] FCA Civil Appeal No. 117 of 1989.
    
12. No injustice can result from refusing an order for leave if the right of appeal could be exercised when a final order or judgment is given.
    
13. Potential prejudice that may be caused to both parties must also be considered.
    

(On Stay)

14. It will only be necessary for me to state the law on stay if I decide to grant the application for leave to appeal. It is thus prudent that I first determine the application for leave.
    

The Determination

15. The essential complaint by the defendants in the notice of appeal and the application for leave to appeal and stay is that I had changed the verdict of the Honourable Justice Hickie after a misreading of his judgment and that I exceeded my jurisdiction when I ventured to make the orders. It was thus submitted that the defendants are deprived of the monies that they would have rightfully received failing which they would have been exonerated from the civil plaint.
    
16. It is very crucial that Justice Hickie's decision on payment of cost is read in its entirely with other court records and not just the orders as it stands. His Lordship at pages 3 and 4 of his judgment stated as follows:-
    

"[9] counsel for the applicant Defendant's further short submissions in Reply were:-

(a) That the costs awarded should be those reasonably incurred;

(b) That they would be seeking an Order that the Plaintiff not be allowed to proceed with her claim until the costs of the Summons are paid as a commitment from the Plaintiff that she is in a position to proceed with her action.

2. Respondent's Submissions

[10] Counsel for the Respondent Plaintiff submitted, in summary, in Reply:

(a) That any sum awarded should be in the range of what the Respondent Plaintiff's previous solicitors had charged and the Plaintiff should not be prejudiced by a large costs order from prosecuting her claim;

(b) That a reasonable award of costs would be in the region of $1500 in arguing such an interlocutory matter....

3. Orders

[18] Taking into account the above, the court orders as follows:

1. That the Respondent Plaintiff is to pay the costs of the Summons summarily fixed on a party – party basis as reasonable in the amount of $5,700.
   
2. That in the absence of a formal application filed with the Court and a subsequent hearing, that the Court declines making an order that the plaintiff not be allowed to proceed with her claim until the costs of the Summons are paid".
   
17. It is plain and clear that the last order of Justice Hickie refers to the defendants' application that was made in court to disallow the plaintiff from proceeding with her claim until the costs of the summons are paid. It was that application which the Court said should be made formally and heard, without which the Court declined to make an order to stop the plaintiff from proceeding with the claim until such time the costs are paid.
    
18. One does not have to be an expert in linguistics to consider the effect of double negatives as stated by the defendants counsel to arrive at the meaning of the order of Justice Hickie. The order is plain and clear and is not ambiguous to import the rules of interpretation and language to assist in arriving at its meaning. I am surprised at the defendants attempt to misread the orders of Justice Hickie.
    
19. The aspect of proceeding with the claim was left open as I have said in my earlier judgment of 6th June, 2011. Justice Hickie, had initially declined the defendants oral application. He preferred a formal application which was never made. However I dealt with the aspect of deferment of costs when the defendants raised it as a bargaining chip to block the due process of the court being an application for an amendment of the claim. The order of Justice Hickie does not possibly preclude another judge from hearing an oral application and determining the issue of deferment of the costs. The court could not have isolated the issue of deferment of payment of costs and/or the issue that the plaintiff be disallowed to proceed with the claim until the costs was paid because that was the thrust of the opposition to an amendment.
    
20. The judgment on deferment of costs was justified with reasons. Those reasons are not subject to challenge neither is the courts power of dealing with the oral application for deferment. What was in challenge was the jurisdiction to hear the application and I am of the firm judgment that this court had jurisdiction to hear the aspect of deferring cost.
    
21. I am not convinced that my interpretation of the orders of Justice Hickie was plainly wrong and even if it was I cannot see any substantial injustice flowing from any alleged wrong orders. Yes, I agree that the defendants will temporarily be deprived of the said costs but that deprivation will only last as long as the trial verdict is delivered in the substantive judgment. If they win, they are by all means at liberty to get their costs at the end of the day. This deferment of costs has not determined their rights substantively or put at end to the action. In fact it will put at an end to the plaintiff's action if I hold as contended by the defendants. The plaintiffs will then never be able to have their claim for fraud tried against the defendants.
    
22. The prejudice as a result will be more to the plaintiff because she will be stopped from proceeding with the action. However, the defendants will never come across this sort of a prejudice. More so, the defendants can recover this cost at some time but the plaintiff will lose the money now, and there is no possibility of these monies being recovered as I have spelt out earlier.
    
23. Be that as it may, after the order for costs was made, the plaintiff had proceeded with its claim by filing various applications being application for extension of time to withdraw the caveat, summons for directions, and an affidavit verifying list of documents. In effect, the plaintiff has proceeded with her claim without paying the costs. What have the defendants done about this? They had never objected to the plaintiff filing the said processes to proceed with the claim nor have they moved the court against the said processes. When the plaintiff has now moved to seriously try its claim by moving forward with the processes, the defendants suddenly saw an opportunity and a dire need to have the costs paid. If the defendants were and are so concerned that they are prejudiced by not being paid, I wonder why they allowed the order to be in abeyance for so long? Their conduct indicates the lack of interest in getting paid and the vindictiveness to disallow the plaintiff to have her rights tried.
    
24. There is prima facie no merits in this appeal and the same is filed to stop the plaintiff from seriously and expeditiously litigating its rights. There are no exceptional circumstances based on which leave to appeal can be granted. There is no basis for stay of the proceedings. The claim was and is already in progress. It was in progress before my orders for amendment was granted.
    

Final Orders

25. The application for leave to appeal and stay is refused and dismissed.
    
26. The plaintiff is entitled to costs of this application which I summarily assess at $500.00.
    
27. The other interlocutory applications are to be listed before Master of the High Court on Friday the 19th day of August, 2011 for call over.
    
28. Orders accordingly.
    

Anjala Wati
Judge

15.08.2011

To:

1. Mr. A. Rayawa, counsel for the plaintiff.
2. Mr. S. Fa, counsel for the defendants.
3. File: HBC 540 of 2007.