Lowing v Yamauchi [2011] FJHC 474; HBC05.2011 (26 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 5 of 2011L

BETWEEN:

PETER ALLAN LOWING & SIDARTH NANDAN trading as LOWING NANDAN & ASSOCIATES
Plaintiff

AND:

YUKO YAMAUCHI
1st Defendant

AND:

MARLIN SAFARIS (FIJI) LTD
2nd Defendant

JUDGMENT ON LEAVE TO APPEAL
THE MASTER’S DECISION

Judgment of: Inoke J.

Counsel Appearing: Mr P Lowing (Plaintiff)
Mr S Leweniqila (Defendants)

Solicitors: Lowing & Assocs (Plaintiff)
Leweniqila Barristers & Solicitors (Defendants)

Dates of Hearing: 15 August 2011

Date of Judgment: 26 August 2011

INTRODUCTION

[1] This is the plaintiff’s application for leave to appeal Master Tuilevuka’s refusal to grant summary judgment of the plaintiff’s claim for legal fees from their former client.

THE MASTER’S JUDGMENT

[2] The Master’s judgment was delivered on 10 June 2011. He made the following orders:

[23] Accordingly, I dismiss the application for summary judgment. The defendants are directed to the provisions of section 80(1) and (2) of the Legal Practitioners Decree 2009 and to make a formal request to the plaintiffs for particulars on the accounts rendered. This request must be made within 21 days from today i.e. by Friday 1 July 2011. A copy of the request is to be filed in court.

[24] The plaintiffs are to provide the particulars requested within 14 days thereafter (i.e. by Friday 22 July 2011).

[25] I now adjourn this case to Monday 1 August 2011 to check on compliance and for further directions on the manner in which the accounts shall be reviewed against the schedule of fees established by the Legal Practitioners Regulations established under Part 8 of the Legal Practitioners Decree. Costs reserved.

[3] The reasons he gave for making those orders were:

[18] Part 8 of the Legal Practitioners Decree 2009 envisages a written agreement only. Where there is no written agreement, the reasonableness of the fees must be determined on the basis of the schedule of fees.

[19] In this case, there is clearly no written agreement in place. It would be improper in my view to assume that what the plaintiffs are insisting on was agreed to orally by the defendants.

[20] Furthermore, in the absence of a written agreement, it is hard to accept that the sum of $39,395.58 that the defendants have paid were in part payment to the total sum that the plaintiffs claim is owing.

[21] In that sense, it is also hard to say whether it should be deducted from the amount that the plaintiffs are claiming.

CONCLUSION

[22] In my view, the best way to deal with this is to refuse the application for summary judgment and to direct that the reasonableness of the costs be determined in accordance with the schedule of fees established by the Legal Practitioners Regulations established under Part 8 of the Legal Practitioners Decree.

THE GROUNDS OF APPEAL

[4] There were four grounds of appeal:

• (1) The Honourable Master erred in law and in fact in refusing the application of the plaintiff/applicant made by Notice of Motion for summary judgment.
  
• (2) The Honourable Master erred in law and in fact in finding that the reasonableness of the costs be determined in accordance with the schedule of fees established by the Legal Practitioners Regulations made under Part 8 of the Legal Practitioners Decree 2009.
  
• (3) The Honourable Master erred in fact in finding the Defendant/Respondent had paid the sum of $39,395.58 and that he found it hard to accept that such payment was only part payment to the total sum that the plaintiffs claim is owing.
  
• (4) The Master erred in fact in finding that the had been informed the complaint against Mr Lowing had been answered when in fact the answer to the complaint was in evidence before the Court.
  

THE LAW

[5] The Master’s judgment is an interlocutory judgment. For such a judgment to be set aside on appeal requires the appellant to show “exceptional circumstances”: 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); Narayan v Public Employees Union [2010] FJHC 108; HBC161.2009L (8 April 2010). In the latter case I declined to follow the English practice that appeals from the Master is by way of re-hearing. The rule as stated by the Court of Appeal in Kelton Investments Ltd & Ors v CAAF [1995] FJCA 15 is:

... 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 [1991] FCA 655; 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."'

APPLICATION TO THIS CASE

[6] I do not think the Master had made any errors of law. In a sense, the Master had granted the summary application by ordering the case to proceed in a particular manner rather than ordering it proceed to trial. That was open to him. I do not think the plaintiffs will be prejudiced in proceeding in the way suggested by the Master and may in fact be more advantageous to them. The effect of his order was that this matter would proceed by way of taxation which is the appropriate procedure in my opinion. I therefore refuse leave to appeal and remit the matter back to the Master for him to proceed as he ordered.

COSTS

[7] I make no order as to costs.

ORDERS

[8] The orders are as follows:

• (a) The plaintiffs' application for leave to appeal is refused.
  
• (b) There is no order as to costs.
  
• (c) The matter is adjourned to the Master for mention on a date convenient to him.
  

Sosefo Inoke
Judge